dismissed EB-2 Case: Information Technology

identifying data deleted to 
prevent clearly unwarranted 
invMioo of personal privac} 
PUBLIC COpy 
Date: APR 27 ZOlZ Office: TEXAS SERVICE CENTER 
INRE: 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 
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 additional 
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. 
~U, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an information technology consulting company. It seeks to employ the beneficiary 
permanently in the United States as a Project Manager. As required by statute, the petition is 
accompanied by an ETA Form 9089, Application for Permanent Employment Certification, 
approved by the United States Department of Labor (DOL). Upon reviewing the petition, the 
director determined that the beneficiary did not satisfy the minimum level of education stated on the 
labor certification. The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in 
law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's April 8, 2009 denial, the single issue in this case is whether the 
beneficiary possessed the minimum level of education stated on the labor certification. 
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 
1153(b )(2), 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." [d. 
The AAO conducts appellate review on a de novo basis. See Solfane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. 1 
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 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(1). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. 
See Matter oj'Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
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 .... 
The Act added section 203(b)(2)(A) of 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 but 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., 2nd 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). 
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the 
Immigration and Naturalization Service (the Service), 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 Service 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 
Page 4 
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 work experience alone or a 
combination of multiple lesser degrees, the result is the "equivalent" of a bachelor's degree rather 
than a "foreign equivalent degree."z 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 this classification, 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 OJ 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. § 204.5(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 
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). Compare 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"). 
Z 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 
The required education, training, experience, and special requirements for the offered position are set 
forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a master's 
degree, or foreign educational equivalent, in bio-tech, biological sciences, or related and 24 months 
of experience in the job offered or the alternate occupation of business analyst. Part H-8 asks the 
employer if there is an alternate combination of education and experience that is acceptable. The 
petitioner answered this question "no." Therefore, the minimum education required by the labor 
certification is a master's degree or foreign educational equivalent. 
The beneficiary set forth his credentials on the labor certification and signed his name, under a 
declaration that the contents of the form are true and correct under the penalty of perjury. On the section 
of the labor certification eliciting information of the beneficiary's education, he states that he attended 
the University of Pune, India and received both a bachelor of science and master of science in botany. 
The record also contains an evaluation of the beneficiary's credentials prepared b 
for IndoUS Technology & Education Services, Inc. on December 3, 2008. The evaluation concludes 
that the beneficiary's education is equivalent to a U.S. master's degree in Biological Science 
(Genetics & Cytogenetics). The petitioner submitted two additional credentials evaluations on appeal 
which come to similar conclusions. 
The AAO has reviewed the Electronic Database for Global Education (EDGE) created by the 
American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to 
its website, www.aacrao.org, AACRAO is "a nonprofit, voluntary, professional association of more 
than 11,000 higher education admissions and registration professionals who represent approximately 
2,600 institutions and agencies in the United States and in over 40 countries." See 
http://www.aacrao.orgiAbout-AACRAO.aspx (accessed April 25, 2012 and incorporated into the 
record of proceeding). 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. In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D. Minn. March 27, 
2009), a federal district court determined that the AAO provided a rational explanation for its reliance 
on information provided by AACRAO to support its decision. 
According to the login 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. 
Director of International Education Services, "AACRAO EDGE Login," 
http://aacraoedge.aacrao.orgiindex.php (accessed March 21,2012 and incorporated into the record of 
proceeding). In Tisco Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. August 30,2010), a 
federal district court found that USCIS had properly weighed the evaluations submitted and the 
information obtained from EDGE to conclude that the alien's three-year foreign "baccalaureate" and 
foreign "Master's" degree were comparable to a U.S. bachelor's degree. In Sunshine Rehab 
Services, Inc., 2010 WL 3325442 (E.D.Mich. August 20, 2010), a federal district court upheld a 
USCIS conclusion that the alien's three-year bachelor's degree was not a foreign equivalent degree 
to a U.S. bachelor's degree. Specifically, the court concluded that USCIS was entitled to prefer the 
information in EDGE and did not abuse its discretion in reaching its conclusion. The court also 
Page 6 
noted that the labor certification itself required a degree and did not allow for the combination of 
education and experience. The reasoning in these decisions is persuasive. 
In the section related to the Indian educational system, EDGE provides that a three-year Bachelor of 
Science degree "represents attainment of a level of education comparable to two to three years of 
university study in the United States. Credit may be awarded on a course-by-course basis." 
Moreover, EDGE further states that the Master of Science "represents attainment of a level of 
education comparable to a bachelor's degree in the United States." 
On January 17, 2012, the AAO sent a Request for Evidence (RFE) to the petitioner. The AAO 
referred to the EDGE, created by AACRAO, as an additional resource for determining the U.S. 
equivalency of the beneficiary's academic credentials from India. The petitioner was advised that, 
according to EDGE, a Bachelor of Science degree in India is awarded upon completion of two to 
three years of tertiary study beyond the Higher Secondary Certificate (equivalent to a U.S. high 
school degree) and is comparable to two to three years of university study in the United States. The 
petitioner was also advised that a master of science degree from India represents attainment of a 
level of education comparable to a bachelor's degree in the United States. 
The petitioner has not established that the beneficiary possesses a foreign degree that is equivalent to 
a U.S. master's degree. The peer-reviewed reports by EDGE indicates that the beneficiary's degree 
is comparable to a U.S. bachelor's degree, not to a U.S. master's degree. Although the evaluation 
reports explain in detail the content of the beneficiary's two-year master's degree program, these 
reports fail to establish that the beneficiary's master's program following a three-year bachelor's 
degree program truly equals the depth of a U.S. master's program following a four-year U.S. 
bachelor's degree. USCIS uses an evaluation by a credentials evaluation organization of a person's 
foreign education as an advisory opinion only. Where an evaluation is not in accord with previous 
equivalencies or is in any way questionable, it may be discounted or given less weight. Matter of 
Sea, Inc., 19 I&N Dec. 817 (Comm'r 1988). USCIS may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. However, where an opinion is not in accord with other 
information or is in any way questionable, USCIS is not required to accept or may give less weight 
to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
Counsel contends on appeal that the director violated 8 C.F.R. § 103.2(b)(8) by failing to request 
further evidence before denying the petition. The cited regulation, however, permits the director to 
deny a petition if required evidence is missing, or does not demonstrate eligibility, without first 
sending an RFE. The director is not required to issue a request for further information in every 
potentially deniable case. If the director determines that the initial evidence supports a decision of 
denial, the cited regulation does not require solicitation of further documentation. The director did 
not deny the petition based on insufficient evidence of eligibility. 
Regardless, the petitioner has in fact supplemented the record on appeal, and the AAO has 
considered that evidence. 
· ~ 
Page 7 
Based on the juried opinion of EDGE, the AAO has concluded that the beneficiary's education is 
comparable to a bachelor's degree in the United States. However, since the ETA Form 9089 
required a master's degree as the minimum level of education, the petitioner has failed to establish 
that the beneficiary possessed all the education, training, and experience specified on the labor 
certification as of the priority date. 8 C.F.R. § l03.2(b)(1), (12). See Matter of Wing's Tea House, 16 
I&N Dec. at 159; see also Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comm. 1971). 
Therefore, the beneficiary does not meet the job requirements on the labor certification. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.