dismissed EB-2 Case: Information Technology

identifying data deleted to 
prevent clearly unw~ted 
invasion of personal prtvacy 
'PUBLIC COpy 
DATE
MAy 31 201~FFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and· Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.c. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have addilional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
00"' 
Perry Rhew 
Chief, Administrative Appeals Office 
www.nscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center (Director), denied the employment-based 
immigrant visa petition. A motion to reopen and reconsider was granted by the Director, but the 
petition was again denied on the merits. The petition is now on appeal before the Administrative 
Appeals Office (AAO). The appeal will be dismissed. 
The petitioner is an information technology (IT) consulting company. It seeks to employ the 
beneficiary permanently in the United States as a software engineer pursuant to section 203(b )(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(2). As required by statute, an ETA 
Form 9089, Application for Permanent Employment Certification, approved by the United States 
Department of Labor (DOL), accompanied the petition. In both of his decisions the Director 
determined that the beneficiary did not satisfy the minimum level of education stated on the labor 
certification. Specifically, the director determined that the beneficiary did not possess a master's 
degree in information technology or a related field, or a foreign degree equivalent. 
On appeal, counsel asserts that the beneficiary's education in India - including a three-year 
bachelor's degree in statistics, a one-year post-graduate diploma in computer applications, and a 
two-year master of science degree in information technology - is equivalent to a master's degree in 
information technology or a related field in the United States. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error 
in law or fact. The procedural history of this case is documented in the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
In pertinent part, section 203(b )(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The 
regulation further states: "A United States baccalaureate degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." Id. 
The AAO conducts appellate review on a de novo basis. See Solfane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). 
The record documents that the beneficiary possesses a three-year bachelor of science degree in 
statistics from the University of Madras in India and a two-year master of science degree in 
information technology from Bharathidasan University, also in India. On appeal, for the first time in 
this proceeding, the beneficiary also claims to have a post-graduate diploma from Madras Christian 
College, in India, for a one-year course of study in computer applications that he completed after his 
bachelor's degree program and before his master's degree program. The issue on appeal is whether 
the beneficiary'S master of science degree in information technology from Bharathidasan University 
is equivalent to a U.S. master's degree in information technology or a related field. 
Page 3 
Eligibility for the Classification Sought 
As noted above, the ETA Form 9089 in this matter is certified by the DOL. The DOL's role is limited 
to determining whether there are sufficient workers who are able, willing, qualified and available, and 
whether the employment of the alien will adversely affect the wages and working conditions of workers 
in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. § 656.1(a). 
It is significant that none of the above inquiries assigned to the DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305,1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008,1012-1013 (D.C. Cir. 1983). 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.c. §1153(a)(3) as amended in 1976. At that time, this section provided: 
Visas shall next be made available ... to qualified immigrants who are members of 
the professions .... 
In 1990 section 203(b)(2)(A) was added to the Act, 8 U.S.c. §1153(b)(2)(A), which provides: 
Visas shall be made available ... to qualified immigrants who are members of the 
professions holding advanced degrees or their equivalent .... 
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244, is identical to 
the statutory language used subsequent to that decision except for the requirement that the immigrant 
hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the 
alien must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955, 101 st Cong., 2
nd 
Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at 6786 (Oct. 26, 1990). 
At the time of enactment of section 203(b)(2) of the Act in 1990, it had been almost thirteen years 
since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference immigrant visas. We must assume that Congress was aware of the agency's previous 
treatment of a "bachelor's degree" under the Act when the new classification was enacted and did 
not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580-
81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it 
adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991) (an alien must have at least a bachelor's degree). 
Page 4 
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the 
Immigration and Naturalization Service (INS), responded to criticism that the regulation required an 
alien to have a bachelor's degree as a minimum and that the regulation did not allow for the 
substitution of experience for education. After reviewing section 121 of the Immigration Act of 
1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of the Committee of Conference, 
the INS specifically noted that both the Act and the legislative history indicate that an alien must 
have at least a bachelor's degree: 
The Act states that, in order to qualify under the second classification, alien members 
of the professions must hold "advanced degrees or their equivalent." As the 
legislative history ... indicates, the equivalent of an advanced degree is "a bachelor's 
degree with at least five years progressive experience in the professions." Because 
neither the Act nor its legislative history indicates that bachelor's or advanced degrees 
must be United States degrees, the Service will recognize foreign equivalent degrees. 
But both the Act and its legislative history make clear that, in order to qualify as a 
professional under the third classification or to have experience equating to an 
advanced degree under the second, an alien must have at least a bachelor 's degree. 
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (emphasis added). 
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under 
section 203(b )(2) of the Act as a member of the professions holding an advanced degree with 
anything less than a full baccalaureate degree (Plus the requisite five years of progressive experience 
in the specialty). More specifically, a three-year bachelor's degree will not be considered to be the 
"foreign equivalent degree" to a United States baccalaureate degree. Matter of Shah, 17 I&N Dec. at 
245. Where the analysis of the beneficiary's credentials relies on a combination of multiple lesser 
degrees, the result is the "equivalent" of a bachelor's degree rather than a "foreign equivalent 
degree.,,1 In order to have experience and education equating to an advanced degree under section 
203(b)(2) of the Act, the beneficiary must have a single degree that is the "foreign equivalent 
degree" to a United States baccalaureate degree (plus the requisite five years of progressive 
experience in the specialty). 8 C.F.R. § 204.5(k)(2). 
For the classification of advanced degree professional the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
requires the submission of an "official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree" (plus evidence of five years of progressive 
experience in the specialty). For classification as a member of the professions, the regulation at 
8 C.F.R. § 204.S(l)(3)(ii)(C) requires the submission of "an official college or university record 
showing the date the baccalaureate degree was awarded and the area of concentration of study." We 
cannot conclude that the evidence required to demonstrate that an alien is an advanced degree 
I Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa 
classification, the "equivalence to completion of a college degree" as including, in certain cases, a 
specific combination of education and experience). The regulations pertaining to the immigrant 
classification sought in this matter do not contain similar language. 
Page 5 
professional is any less than the evidence required to show that the alien is a professional. To do so 
would undermine the congressionally mandated classification scheme by allowing a lesser 
evidentiary standard for the more restrictive visa classification. Moreover, the commentary 
accompanying the proposed advanced degree professional regulation specifically states that a 
"baccalaureate means a bachelor's degree received from a college or university, or an equivalent 
degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Cf 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an official 
academic record showing that the alien has a degree, diploma, certificate or similar award from a 
college, university, school or other institution of learning relating to the area of exceptional ability"). 
On appeal counsel submits an updated version of the "Evaluation of Academic Credentials" by 
Morningside Evaluations and Consulting (Morningside), dated April 13, 2009. The updated version, 
like the original dated January 23, 2009, concludes that the beneficiary'S education in India is 
equivalent of a master's degree in computer science from a U.S. university. Unlike the earlier 
version, however, the updated evaluation includes a 6 th year of study which is completely 
undocumented in the record. According to Morningside, the beneficiary earned a Post-Graduate 
Diploma in Computer Applications from Madras Christian College in a one-year course of study that 
post-dated his three-year bachelor's degree program at Madras University and pre-dated his two-year 
master's degree program at Bharathidasan University. While the individual courses are listed in the 
evaluation, there is no corroborating documentation from Madras Christian College. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The AAO also notes 
that the information about the beneficiary's computer studies at Madras Christian University was 
newly submitted on appeal. Despite ample opportunity to submit this information and supporting 
documentation earlier in this proceeding - such as with the original petition, in response to the 
request for evidence, or with the motion to reopen or reconsider - the petitioner failed to do so. Due 
to the untimeliness of this submission, and its lack of evidentiary support, the AAO will not consider 
the information about the applicant's alleged coursework at Madras Christian College in deciding 
this appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N 
Dec. 533 (BIA 1988). Thus, the beneficiary has five years of documented education at Indian 
universities. 
In his initial denial of this petition the Director cited information in the Electronic Database for 
Global Education (EDGE) indicating that a three-year bachelor of science degree from an Indian 
college or university, followed by a two year master of science degree from an Indian college or 
university, represents an educational attainment comparable to a bachelor's degree in the United 
States. 2 The Director concluded that the beneficiary'S education in India was equivalent to a U.S. 
bachelor's degree in computer science. 
2 EDGE was created by the American Association of Collegiate Registrars and Admissions Officers 
(AACRAO). AACRAO, according to its website, www.accrao.org.is "a nonprofit, voluntary, 
professional association of more than 10,000 higher education admissions and registration 
Page 6 
On appeal counsel reviews the Director's rejection of its original claim - based on Morningside's 
earlier evaluation - that the beneficiary'S three-year bachelor of science degree is the equivalent of 
three years of undergraduate study in the United States, that the first year of his master's degree 
program was the equivalent of a fourth year of undergraduate study in the United States (completing 
the equivalent to a U.S. bachelor's degree), and that the second year of his master's degree program 
was the equivalent of a one-year master's degree program in the United States. In his Decision on 
the Motion to Reopen and Reconsider, the Director acknowledged that several U.S. universities offer 
combined bachelor's and master's degree programs in computer science that can be completed in 
five years - comprised of a four-year bachelor's degree and a one-year master's degree. He 
discussed two such programs - at William and Mary University (W&M) and the University of 
California at San Diego (UCSD) - noting that admission into the accelerated master's program was 
selective, based on such factors as academic performance at the undergraduate level and completion 
of some graduate-level courses while an undergraduate, and that the one-year post-graduate program 
was a rigorous course of study. In comparison with those two programs, the director observed that 
the master's degree program at Bharathidasan University in India did not appear to have similarly 
rigorous entry requirements or as intensive and advanced a course of study. The beneficiary 
completed only three computer courses in his three-year bachelor's degree program, the director 
pointed out, and none of them appears to have been at the graduate level. 
Counsel postulates that the beneficiary might have qualified for the one-year master's degree 
program in computer science at W &M or UCSD, but fails to demonstrate that the beneficiary's 
academic record at Madras University - which his transcript shows was characterized by mediocre 
grades, an overall rating of "Second Class," and a light courseload in the computer field - would 
have qualified him for such a degree program. Counsel complains that the Director chose two of the 
most demanding one-year master's programs in the United States, without commenting on other 
one-year programs. Counsel does not identify any other one-year master's degree programs in 
computer science that he thinks should be considered in this proceeding. The latest Morningside 
professionals who represent approximately 2,500 institutions in more than 30 countries." Its mission 
"is to provide professional development, guidelines and voluntary standards to be used by higher 
education officials regarding the best practices in records management, admissions, enrollment 
management, administrative information technology and student services." Id. 
According to its registration page, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials" that is continually updated and revised by staff and members of AACRAO. 
Authors for EDGE are not merely expressing their personal opinions. Rather, authors for EDGE 
must work with a publication consultant and a Council Liaison with AACRAO's National Council 
on the Evaluation of Foreign Educational Credentials. "An Author's Guide to Creating AACRAO 
International Publications" 5-6 (First ed. 2005), available for download at www.aacrao.org/ 
publications/guide to creatingjnternational publications.pdf. If placement recommendations are 
included, the Council Liaison works with the author to give feedback and the publication is subject 
to final review by the entire Council. Id. at 11-12. 
Page 7 
evaluation (April 13, 2009) asserts that Devry University offers a one-year master's degree in 
computer science that does not require a distinguished academic record and is not particular! y 
intensive. Neither Morningside nor counsel offers any documentary evidence in support of this 
claim. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. See Matter of Soffici. 
Counsel contends that the beneficiary's one-year course of study at Madras Christian College that 
earned him a Post-Graduate Diploma in Computer Applications should be viewed, together with his 
three-year bachelor of science degree in statistics from the University of Madras, as supplying the 
"missing year" to his undergraduate education, thereby giving the beneficiary the U.S. equivalent of 
a four-year bachelor's degree prior to his two-year master of science program at Bharathidasan 
University. As previously discussed, however, the Post-Graduate Diploma in Computer 
Applications claimed by the beneficiary is undocumented in the record and will not be taken into 
consideration by the AAO in adjudicating this appeal. 
In accordance with the foregoing analysis, the AAO agrees with the Director that the beneficiary's 
education in India is equivalent to bachelor's degree in the United States, not a master's degree. 
Furthermore, the beneficiary did not have five years or more of progressive experience in the field of 
information technology, or computer science, at the time the DOL certified the labor certification 
application (February 23, 2007), since little more than two years had elapsed since the beneficiary 
earned his information technology degree in November 2004. Accordingly, the beneficiary has 
neither (1) a U.S. master's degree or foreign equivalent degree in information technology or a related 
field, nor (2) a U.S. bachelor's degree or foreign equivalent degree plus five or more years of 
progressive experience in the specialty, as required under 8 C.F.R. § 204.5(k)(2) to qualify for 
preference visa classification as an "advanced degree professional" under section 203(b )(2) of the 
Act. 
Qualifications for the Job Offered 
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (Ninth Circuit) stated: 
[I]t appears that the DOL is responsible only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domestic labor market. It does not appear that the DOL's role extends to 
determining if the alien is qualified for the job for which he seeks sixth preference 
status. That determination appears to be delegated to the INS under section 204(b), 
8 U.S.c. § 1154(b), as one of the determinations incident to the INS's decision 
whether the alien is entitled to sixth preference status. 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
from DOL that stated the following: 
Page 8 
The labor certification made by the Secretary of Labor ... pursuant to section 
212(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, 
willing, qualified, and available United States workers for the job offered to the alien, 
and whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in 
fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309. 
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of 
the application for alien labor certification, "Job Opportunity Information," describes the terms and 
conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, U.S. 
Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certification, nor 
may it impose additional requirements. See Madany, 696 F.2d at 1015. USCIS must examine "the 
language of the labor certification job requirements" in order to determine what the job requires. Id. 
The only rational manner by which USCIS can be expected to interpret the meaning of terms used to 
describe the requirements of a job in a labor certification is to examine the certified job offer exactly 
as it is completed by the prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. 
Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements, 
as stated on the labor certification must involve reading and applying the plain language of the alien 
employment certification application form. See id. at 834. USCIS cannot and should not reasonably 
be expected to look beyond the plain language of the labor certification that DOL has formally 
issued or otherwise attempt to divine the employer's intentions through some sort of reverse 
engineering of the labor certification. 
In this matter, Part H, lines 4 and 7, of the labor certification state that a master's degree in 
information technology, computer science, or a related field is the minimum level of education 
required for the position of software engineer. Line 8 states that no combination of education or 
experience is acceptable in the alternative. Line 9 states that a foreign educational equivalent is 
acceptable. 
As previously discussed, the beneficiary does not have a U.S. master's degree, or a foreign 
educational equivalent, in the field(s) indicated. The beneficiary also does not have five years of 
progressive experience after earning his U.S.-equivalent bachelor's degree at Bharathidasan 
University, as required to constitute a U.S.-equivalent master's degree under 8 C.F.R. § 204.5(k)(2). 
Thus, the beneficiary does not qualify for the proffered position. 
Conclusion 
The beneficiary does not have an advanced degree or a foreign equivalent degree, and therefore does 
not qualify for preference visa classification under section 203(b )(2) of the Act. In addition, the 
beneficiary does not meet the job requirements on the labor certification. For these reasons, 
considered both in sum and as separate grounds for denial, the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. See Section 291 of the Act, 
8 U.S.c. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.