dismissed EB-2 Case: Information Technology

ideIlilIYlllg data {WklOJ to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
u.s. nepartment of Homeland Security 
U.S. Citizenship ami Immigration ServiL"CS 
Administrative Appeals Office (A;\()) 
20 Massachuscl1s Ave., N.\\"., MS 2()9() 
Washington, DC 20.')2l)·209() 
u.s. Citizenship 
and Immigration 
Services 
DATE: 
JUl 3 0 2012 
OFFICE: NEI3RASKA SERVICE CENTER FILE: 
IN RE: Petitioner: 
l3eneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Memher of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ahility Pursuant to Section 203(h)(2) of the hnmigralion 
and Nationality Act, 8 U.s.C ~ 1153(h)(2) 
ON I3EHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case, All of the documenls 
relaled to Ihis mailer have been returned to Ihe officc Ihat miginally decided your casc. Please be advised Ihal 
any funher inquiry that you might have concerning your case must hc made to that office. 
If you helieve Ihe AAO inapproprialely applied Ihc law in reaching its decision, or you have additional 
information Ihat you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance wilh Ihe inslructions on Form 1-29013, Notice of Appeal or Motion, with a fcc of $[)30. The 
specific requiremenls for filing such a mol ion can he found at 8 CF.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware thai 8 CF.R. * 103.S(a)(l)(i) requires any motion to he filed wilhin 
30 days of the decision that the motion seeks to reconsider or reopen. 
'~~~;~_CIA 
Pcrry Rhew 111 
Chief, Administralive Appeals Office 
www.llscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petitIOn was denied by the Director, 
Nebraska Service Center (Director). The petitioner filed an appeal, which was initially rejected by 
the Chief, Administrative Appeals Office (AAO), as untimely filed. The AAO subsequently 
determined that the appeal had been time I y filed, and reopened the proceeding on its own motion. 
The appeal is now before the AAO for consideration on the merits. The appeal will be dismissed. 
The petitioner is an IT (information technology) management and technical services company. It 
seeks to permanently employ the beneficiary in the United States as a senior programmer analyst 
pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.c. 
~ IIS3(b )(2). This section of the Act provides for immigrant classification to members of the 
professions holding advanced degrees whose services are sought by employers in the United States. 
The regulation at 8 C.P.R. § 204.5(k)(2) defines ·'advanced degree" as follows: 
Advallced degree means any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate. 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. 
The Director denied the petition on the ground that the beneficiary did not have the reqUlSlte 
educational degree to qualify for the proffered position under the terms of the Form ETA 750 (labor 
certification) and to be eligible for classification as an advanced degree professional under the Act. 
The AAO conducts appellate review on a de novo basis. See SO/lane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2(04). The AAO considers all pertinent evidence in the record, including new evidence 
properl y submitted upon appeal. I 
Case history 
The petitioner filed its Form 1-140, Immigrant Petition for Alien Worker, on June 8, 2007. As 
required by statute, the petition was accompanied by a Form ETA 7S0, Application for Alien 
Employment Certification, which was filed at the Department of Labor (DOL) on May 20, 2003 (the 
priority date), and certified by the DOL on May 9,2007. 
The labor certification specifies (Boxes 14 and IS of the Form ETA 750) that the lnIllimUm 
education and experience required for the job is either (1) four years of college and a bachelor's 
degree "or equivalent" in computer science or a related field, plus five years of experience in the job 
offered or a related occupation, or (2) a master's degree in computer science or a related field, plus 
two years of experience in the job offered or a related occupation. 
I The submission of additional evidence on appeal is allowed by the instructions to the Form 1-290B, 
which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(I). The record in the instant case 
provides no reason to preclude consideration of any of the documents submitted on appeal. See 
Maller ofSorial1o, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
The Director denied the petition on January 16, 2008. While finding that the beneficiary had the 
requisite work experience (five the found that the beneficiary's three-year 
Bachelor of Science degree from was not equivalent to a U.S. 
bachelor's degree because it did not require four years Director found that the three 
evaluations of the beneficiary's Indian education submitted by the petitioner were substantively 
inadequate and failed to establish the claimed equivalency to a U.S. bachelor's degree. Since the 
beneficiary's Indian degree was not a "foreign equivalent degree" to a U.S. baccalaureate, the 
Director concluded that the beneficiary did not meet the educational requirement of the labor 
certification and was not eligible for classification as an advanced degree professional. 
The petitioner filed an appeal, accompanied by a brief from counsel and an additional evaluation of 
the beneficiary'S Indian education. After initially rejecting the appeal on the ground that it was not 
timely filed, the AAO determined that the appeal had actually been timely filed and reopened the 
proceeding sua sponte pursuant to its authority under 8 C.F.R. § 103.5(a)(5)(ii). 
On November 15, 2011, the AAO sent the petitioner a notice of intent to dismiss the appeal (NOID), 
with a copy to counsel. The AAO analyzed the evaluations previously submitted by the petitioner 
and reiterated its doubts about the reliability of their conclusions as to the U.S. equivalency of the 
beneficiary's educational credentials from India. The AAO referred to information in the Electronic 
Database for Global Education (EDGE), created by the American Association of Collegiate 
Registrars and Admissions Officers (AACRAO), which indicated that a bachelor of science degree 
in India was comparable to only two or three years of university study in the United States, not a full 
bachelor's degree. The petitioner was invited to submit any additional evidence it might have within 
45 days. The petitioner filed a timely response with an additional brief from counsel and supporting 
documentation. 
The issues on appeal are the following: 
• Does the beneficiary have the requIsIte educational degree to be eligible for 
classification as an advanced degree professional under section 203(b)(2) of the Act? 
• Does the beneficiary have the requisite educational degree to qualify for the job of 
senior programmer analyst under the terms of the labor certification? 
Is the Beneficiary Eligible for the Classification Sought? 
As previously discussed, the Form ETA 750 in this case 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. See Section 212(a)(5)(A)(i) of the Act, 
20 C.F.R. ~ 656.l(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 
Page 4 
unnoticed by federal circuit courts. See TOIlKatapli Woodcraft Hawaii. Ltd. Y. Feldman. 736 F. 2d 
1305,1309 (91h Cir. 1984); MadallY v. Smith, 696 F.2d lO08, 10l2-lOl3 (D.C. Cir. 1983). 
A United States baccalaureate degree is generally found to require four years of education. See 
Matter of Shah, 17 I&N Dec. 244 (Reg'!. Comm'r. 1977)2 This decision involved a petition filed 
under 8 U.S.C. §1l53(a)(3) of the Act, 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 Immigration Act of 1990 Act added section 203(b)(2)(A) to the Act, 8 U.s.c. §Jl53(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" Cong., 2"" Sess. 1990,1990 U.S.C.C.A.N. ti784, 1990 
WL 201ti13 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 (advanced degree professional) 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 
c1assilication was enacted and did not intend to alter the agency's interpretation of that term. Sec 
Lorillllrd Y. POllS, 434 U.S. 575, 580-~ 1 (1978) (Congress is presumed to be aware of administrative 
and judicial interpretations where it adopts a new law incorporating sections of a prior law). Scc 
also 56 Fed. Reg. ti0897, 00900 (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 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. lOl-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: 
2 In Malter of Shah the Regional Commissioner declined to consider a three-year Bachelor of Science 
degree from India as the equivalent of a United States baccalaureate degree because the degree did not 
require four years of study. !d. at 245. 
Page 5 
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 a! leas! a bachelor .. \. 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 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. See Matter oj Shah, 17 I&N 
Dec. at 245. Where the analysis of the beneiiciary"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."" 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 five years of 
progressive experience in the specialty). See 8 C.F.R. § 204.5(k)(2). 
The degree must also be from a college or university. The regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
requires the submission of an "ofticial 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. ~ 204.5(l)(3)(ii)(C) requires the submission of "an ofticial college or university record 
showing the date the baccalaureate degree was awarded and the area of concentration of study."· The 
AAO 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 congressionall y mandated classification scheme by allowing a lesser 
evidentiary standard for the more restrictive visa classification. See Silverman v. Eastrich Multiple 
Investor Fund, L.P., 51 F. 3d 28, 31 (3'd Cir. 1995) per APWU v. Potter, 343 F.3d 619, 626 (2"" 
Cir. Sep 15, 2(03) (the basic tenet of statutory construction, to give effect to all provisions, is 
equally applicable to regulatory construction). Moreover, the commentary accompanying the 
proposed advanced degree professional regulation specifically states that a "baccalaureate means a 
, Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa 
classiiication, 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 6 
bachelor's degree received from a college or university. or an equivalent degree:' (Emphasis 
added.) 56 Fed. Reg. 30703, 30306 (July 5,1991).4 
The documentation of record shows that the beneficiary earned the following post-secondary 
educational credentials in India: 
• A "Bachelor of Science in Computer Science" from the on 
March I, 1994, following completion of a three-year, six-semester degree program 
and a closing examination in November 1992. 
• ~ma in Applications Programming" from 
_on October 14, 1993, following completion of a program that ran from 
June 20, 1992 to September 30, 1992. 
• in Computer Application and Networking" from 
on February 12, 1994, after completion of a one-year, six-subject 
course of study. 
On appeal and in its response to the NOlO, counsel reiterates its contention that the benetlciary's 
Indian education (either the bachelor's degree standing alone, or the bachelor's degree in 
combination with his subsequent computer credentials) is equivalent to a U.S. bachelor's degree in 
computer science, thereby making the beneficiary eligible (in conjunction with his five years of 
progressive experience in the computer field) for classification as an advanced degree professional. 
The AAO does not agree with counsel's claim. 
In his first line of argument on appeal, counsel challenges the Director's reliance on Matter of Shah 
for the finding that a three-year bachelor's degree in India is not equivalent to a U.S. bachelor's 
degree. Counsel quotes the following language in that INS decision: 
"The United States Department of Heattll, and Welfare (HEW)' advises 
that a B.S. degree in chemistry is the equivalent of 
a B.S. degree in the United States ... ' 
Matter of Shah, 17 I&N Dec. at 245. Based on that language counsel asserts that Matter of Shah "in 
fact" holds that a three-year degree in chemistry from India is equivalent to a U.S. bachelor's degree 
in chemistry. Extrapolating conclusion counsel claims that the beneficiary's three-year 
Bachelor of Science degree from is also equivalent to a U.S. bachelor's degree. 
The AAO does not agree with counsel's interpretation. While the Regional Commissioner cited the 
4 Cf 1) 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 institllfion of learning relating to the area of 
exceptional ability''). 
, In 1979, a separate Department of Education was created from this dcpartment, and HEW was 
renamed as the Department of Health and Human Services (HHS). 
visory regarding the U.S. equivalency of a bachelor's degree in chemistry 
the Regional Commissioner did not endorse that view in Matter of Shah. 
Ke:glonal Co,mrnissioner stated as follows: 
[The alien's transcript] raises serious questions about the validity of the [alien's] 
degree in that this transcript was issued at the end (~ien's] second year of study 
at _ yet, the [alien 1 completed his studies at_ 1 year later in April 1971. 
Thus, he could only have completed a 3-year course of study, which is not equivalent 
to a United States baccalaureate degree, usually requiring 4 years of study. 
Id. Thus, while the length of the alien's degree program at may not have been the 
central issue decided in Matter of Shah, it is clear that the Regional Commissioner did not view a 
three-year degree from an Indian university as equivalent to a bachelor's degree in the United States, 
because U.S. baccalaureate degrees are usually four-year programs. The AAO agrees with the 
Director's interpretation of Matter of Shah, which confirms that a bachelor's degree in India 
comprising three years of study is not equivalent to a bachelor's degree in the United States. 
As previously mentioned, the AAO has consulted the database (EDGE) created by AACRAO as a 
resource for determining the U.S. equivalency of foreign degrees. According to its website, 
AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education 
admissions and registration professionals who represent more than 2,600 institutions and agencies in 
the United States and in over 40 countries," http://www.aacrao,org/About-AACRAO.aspx. Its 
mission "is to serve and advance higher education by providing leadership in academic and 
enrollment scrvices." Id, EDGE is "a web-based resource for the evaluation of foreign educational 
credentials." http://edge,aacrao,org/info,php. Authors for EDGE are not merely expressing their 
personal opinions. Rather, they must work with a publication consultant and a Council Liaison with 
AACRAO's National Council on the Evaluation of Foreign Educational Credentials." 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. U.s. Citizenship and Immigration 
Services (USCIS) considers EDGE to be a reliable, peer-reviewed source of information about 
foreign credentials equivalencies 7 
" See An Allthor's Guide to Creating AACRAO International Puhlications available at 
http://www .aacrao.org/publications/ guide _to _ crcati ng_ international yublications.pdf. 
7 In Confluence Intern" Inc. v. Holder, 2009 WL 825793 (D,Minn. March 27, 2009), the court 
determined that the AAO provided a rational explanation for its reliance on information provided by 
AACRAO to support its decision, In Tisco Group, Inc. v. Napolitano, 2010 WL 3464314 
(E.D.Mich, August 30, 2010), the court found that USCIS had properly weighed the evaluations 
submitted and the infonmation obtained hom EDGE to conclude that the alien's three-year foreign 
"baccalaureate" and foreign "Master's" degree werc only comparable to a U.S. bachelor's degree. 
In Sunshine Rehah Services, Ille. 2010 WL 3325442 (E.D.Mich. August 20, 2010), the court upheld 
a USCIS determination 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 ahuse its discretion in reaching its conclusion. The 
Pag~ S 
EDGE states that a Bachelor of Science degree in India is awarded upon complctilln of two to three 
years of tertiary study beyond the Higher Secondary Certificate (compar,rhlc to a U.S. high school 
diploma). with the great majority being awarded after three years of tertiary study. The Indian 
degree program is comparable to study at a U.S. college or university for the same number of years. 
According to EDGE. therefore, the beneficiary's three-year baehelor's degree Irom _ 
_ is morc likely than not comparable to three years of study at a U.S. college or university, 
not a U.S. bachelor's degrec as claimed by the petitioner. 
Counscl challenges the AAC),s utilization of AACRAO's EDGE as a resource. characterizing it as an 
inappropriate preferential endorsement of its education evaluation service over other credential 
evaluation services. The AAO does not agree. In reviewing this petition. the AAO has not relied on 
an e\aluatiol1 by AACRAO of the beneticiary's specific educational credentials. Rather. it has 
utili/.cd information from AACRACrs database - EDGE - that has been vetted by a panel of experts 
and has general applicability to all bachelor of science degrees in India. The evaluations submitted 
by the petitioner, on the other hand, are essentially the individual opinions of their respective authors 
as to the U.S. equivalency of thc beneficiary's Indian education. The AAO considers EDGE to be a 
more reliable resource in this instance. 
The petitioner has submitted multiple evaluations of the beneficiary's educational credentials. They 
arc from: 
• of in New York City . 
. I <J<JlJ: 
• in London, 
England, dated September 13,2007; 
• in Dominica, undated. and 
• 
The evaluations from that the beneficiary's Bachelor 
of Science in Computer ivalent to a U.S. bachelor of 
science in computer science. Thc evaluations of , on the other hand, rate the 
beneficiary's three-year Bachelor of Science from India as comparable to three years of study (not a 
full bachelor's degree) from a U.S. college or university. But the evaluations also conclude that the 
beneficiary has the equivalent of a U.S. bachelor's degree based on the totality of his studies. For 
the U.S. equivalency is based on the beneficiary'S three years of study at _ 
plus the one-year Diploma in For _. the 
U.S. equivalency is based on the beneficiary'S three years of study at plus the 
court also noted that the labor certification itself required a degree and did not allow for the 
combination of education and experience. 
Page <) 
on~~u;.!2j£t~~.Ja in 
&_)from 
(as well as a Certificate in 
None of these evaluations is persuasive. 
According to the EAU's website, www.thedegree.orglapel.html 
"university" awards degrees based in part on experience. 
lists the courses in the beneficiary's Bachelor of Science program at _ 
and concludes that the three-year program comprised 174 "contaet hours using the 
Carnegie Lnil.·· _ does not explain how he determined the individual course credit numbers. 
however, most of which are h but two of which are 12. The beneficiary's transcript does not provide 
any information as to classroom hours or credits. Absent any cxplanation as to the basis of the 
credits Mr._ assigned to the beneficiary's individual courses, there is no basis to find that the 
substance of the beneficiary's degree program exceeded threc academic years and was equivalent to 
four years of study in the United States. Thus,_superficial course content analysis does not 
demonstratc that the beneficiary's Indian degree is equivalent to a U.S. bachelor's degree. 
Mr. _ claims that the beneficiary'S three-year Indian degree was equivalent 174 "semester 
credit hours" from a U.S. institution of higher education - equivalent to a U.S. baccalaureate degree 
_. but makes no attempt to assign credits for individual courses or explain how he calculated the total 
figure. . credibility is seriously diminished by his distortion of an article by 
and Mr. "touts the article's conclusion that because the United States is willing 
to consider three-year degrees hom Israel and the European Union, "lndian bachelor degree-holders 
should be provided the same opportunity to pursue graduate education in the U.S." While this is the 
conclusion of the article, the specific means by which Indian bachelor degree holders might pursue 
graduate education in the United States provided in the discussion portion of the article in no way 
suggests that Indian three-year degrees are, in general, comparable to a U.S. baccalaureate. 
Specifically, the articie accepting a first class honors three-year~ 
from a ___ 
program or a three-year degree a post graduate diploma 
the 
nee t the beneficiary in this matter received a secondary a _ or 
_ program. Moreover, his Bachelor of Science degree states that he was not placed in the first 
class, but rather in the second class after Part I and the third class after Part II of his final 
and_ both claim to have a canonical dillioma 
Doctorate of Divinity. from 
any other online evidence of its existence. 
excerpt on 
the same as the one 
and appears to have a different location. 
or 
The petitioner'S counsel has submitted a Wikipedia 
but has not demonstrated that this institution is 
evaluations, which bears a different name 
Page j() 
examination. Finally, the record does not show that any of the beneficiary's educational credentials 
following his three-year bachcJor's~ constituted a post-graduate diploma from an institution 
accredited or recognized by the _ or the _ Thus, Mr. _ reliance on the 
article is disingenuous. 
_ reliance on Snapnames.com, fne. v. Michael ClzerlOjj; 2006 WL 3491005 (D. are. Nov. 30. 
2(06) is equally misplaced. In that case, the alien not only had a credential beyond a three-year 
degree, the judge determined that even with that extra credential, the alien was only eligible as a 
skilled worker pursuant to section 203(b )(3) of the Act, and nol as either a professional under section 
203(b )(3) or an advanced degree professional under section 203(b )(2) of the Act. fd. 
Mr._ discusses Carnegie Units and Indian degrees at length. The Carnegie Unit was adopted 
by the Carnegie Foundation for the Advancement of Teaching in the early Il)OOs as a measure of the 
amount of classroom time that a high school student studied a subject." For example, 120 hours of 
classroom time was determined to be equal to one "unit" of high school credit, and 14 "units" were 
deemed to constitute the minimum amount of classroom time equivalent to four years of high 
schoo\. "' This unit system was adopted at a time when high schools lacked uniformity in the courses 
they taught and the numher of hours students spent in class. The Carnegie Unit docs not apply to 
higher education" Ultimately. the record contains no evidence that the Carnegie Unit is a useful 
way to evaluate Indian degrees. 
The record fails to provide peer-reviewed material confirming that assigning credits by lecture hour 
is applicable to the Indian tertiary education system. For example, if the ratio of classroom and 
outside study in the Indian system is different than the U.S. system, which presumes two hours of 
individual study timc for each classroom hour, the U.S. credit m to Indian classroom 
hours would be meaningless. "Assigning 
Undergraduate TranslCr Credit: It's Arithmetical Exercise" at 12. available at 
Ilttl':.banti.0"L,.aacrao,Llrg'am()7jfinishcd/F0345p 1\1 Donahue.PelL accessed July IS, 2012 and 
incorporated into the record of proceedings, provides that the Indian system is not based on credits, 
but is exam-based. Jd. at 11. Thus, transfer credits from India are derived from the number of 
exams. Jd. at 12. Spccifically. this publication states that. in India. six exams at year's end 
multiplied by five equals 30 hours. fd. 
_also relies on an articlc he coauthored wit~ The record contains no evidence 
that this article was published in it peer-reviewed publication or anywhere other than the Internet. 
The article includes British colleges that accept three-year degrees for admission to graduate school 
but colleedes that "a number of other universities" would not accept three-ye<tr degrees for admission 
" The Carnegie Foundation for the Advancement of Teaching was founded in 1'105 as an 
independent policy and research center whose motivation is "improving tcaching and learning." See 
http://www .carnegie foundation.orglabout-us!about-carnegie (accessed July IS, 2(12). 
III http://www.carnegicfoundation.orglfaqs (accessed July 15, 2(12). 
" See http://www.suny.edu!facultysenate!TheCarnegieUnit.pdf (accessed July 15,2(12). 
Page II 
to graduate school. Similarly, the article lists some U.S. universities that accept three-year degrees 
for admission to graduate school but acknowledges that others do not. In fact. lhe article concedes: 
None of the members of 
_ who were approached were willing to grant equivalency to a bachelor's 
degree from a regionally accredited institution in the United States, although we 
heard anecdotally that one, W.E.S. had been interested in doing so. 
In this process. wc encountered a number of the objections to equivalency that have 
already been discussed. 
commented 
thus: 
"Contrary to your statement, a degree horn a three-year "Bologna Process" bachelor's 
degree program in Europe will NOT be accepted as a degree by the majority of 
universities in the United States. Similarly, the majority do not accept a bachelor's 
degree from a three-year program in India or any other country except England. 
England is a unique situation because of the specialized nature of Form VI." 
* * 
raise similar objections to 
"The Indian educational system. along with that of Canada and some other countries. 
generally adopted the UK-pattern 3-ycar degree. But the UK retained the important 
preliminary A level examinations. These examinations arc used for advanced 
standing credit in the UK; we follow their lead, and use those examinations to 
constitute the an [sic] additional year of undergraduate study. The combination of 
these two entities is equivalent to a 4-year LJS Baehelor's degree. 
The Indian educational system dropped that advanced standing year. You enter a 3-
year Indian degree program directly from Year 12 of your education. In the US, there 
are no degree programs entered from a stage lower than Year 12, and there are no 3-
year degree programs. Without the additional advanced standing year, there's no 
equivalency. II 
Furthermore, these materials do not examine whether those few U.S. institutions that may accept a 
three-year degree for graduate admission do so on the condition that the holder of a three-year 
degree complete extra credits. 
Finally, Mr. _ relies on a d."o,.rn. 
Organization (UNESCO) entitled 
that was adopted by 
defines recognition as follows: 
the United Nations Educational. Scientific. and Cultural 
Page 12 
'Recognition" of a foreign qualitication in higher education means its acceptance by 
the competent authorities of thc State concerned (whether they be govcrnmental or 
nongovernmental) as entitling its holder to be considered under the same conditions 
as those holding a comparable qualification awardcd in that State and dccmed 
comparable. for the purposes of access to or further pursuit of higher education 
studies, participation in research, the practice of a profession, if this docs not require 
the passing of examinations or further special preparation, or all the foregoing, 
according to the scope of the recognition. 
The UNESCO recommendation relates to admission to graduate school and training programs and 
eligibility to practice in a profession. Nowhere does it suggest that a three-year degree must be 
deemed equivalent to a four-year degree for purposes of qualifying for inclusion in a class of 
individuals defined by statute and regulation as eligible for immigration benefits. More 
signilicantly. the recommendation docs not detine "comparable qualilication.'· At the heart of this 
matter is whether the beneticiary's degree is. in fact. the I()reign equivalent of a L.S. baccalaureate. 
The UNESCO recommendation does not address this issue. 
e 
http://unesdoc.unesco.orgiimages/OO 13/00 1388/ 138853E.pdf and 
proceedings). states as follows: 
into the record of 
Most of the universities and the institutions recognized by the UGC or by other 
authorized public agencies in India, are members of the Association of 
Commonwealth Universities. Besides, India is party to a few UNESCO conventions 
and there also exist a few bilateral agreements, protocols and conventions between 
India and a few countries on the recognition of degrees and diplomas awarded by the 
Indian universities. But many foreign universities adopt their own approach in finding 
out the equivalence of Indian degrees and diplomas and their 
Indian universities do in the case of foreign degrees and diplomas. The 
plays an important role in this. There arl! no agreements that 
, hind India and other government."J/llniver.\'ilie.\' to recogJlize, ell ma.""."ie, all 
flU' degrces./c/ip/Oftlll\, of all the lllliversitie.\' eillll!r Oil (l nllltWz/ hll.\i.'l or on a 
f/wl!iimerai h""s. 
Of late, many foreign universtltes and institutions are entering into the higher 
education arena in the country. Methods of recognition of such institutions and the 
rses offered them are under serious consideration of the ment of India. 
Id. at 1-12. (Emphasis added.) 
_and 
mechanisms 
In support of evaluations, claim 
to a U.S. bachelor's degree, the petitioner submitted the 
-Page 13 
On page 11 of this document, it is acknowledged that 55 percent of 
all institutions in the United States do not accept three-year degrees from outside of Europe. The 
survey docs not reflect how many of the institutions that do accept three-year degrees from outside 
of Europe do so provisionally. If the three-year Indian baccalaureate were truly a foreign equivalent 
degree to a U.S. baccalaureate. it can be expected that the vast majority of U.S. institutions would 
accept these degrees for graduate admission without condition. 
The AAO has also reviewed AACRAO's Project for International Education Research (PIER) 
publications: the P.l.E.R World Education Series India: A Special Report on the Higher Education 
Svstelll and (;uide til the Academic Placement of Students in Educationallnstitlllions in the United 
States (I (N7). The 19!.J7 publication incorporates the first degree and education degree placements 
set forth in the 19R(i publication. The P.l.E.R World Education Series India: A Special Report on 
Ihe Higher Education Svstem and Guide to the Academic Placement or Slllcients in Educational 
Instilutions in the Uniled States at 43. As with EDGE, these publications represent conclusions 
velled by a team of experts rather than the opinion of an individual. 
One of the PIER publications indicates that a year-for-year analysis is an accurate way to evaluate 
Indian post-secondary education. A P.I./:·.R. Workshop Report on Soulh Asia at ISO explicitly states 
that .. transfer credits should hc considered on a year-by-year basis starting with post-Grade 12 year." 
The chart that follows states that 12 years of primary and secondary education followed by a three­
year baccalaureate "may be considered for undergraduate admission with possihle advanced 
standing up to three years (0-90 semester credits) to be determined through 
analysis." This information seriously undermines the evaluations submitted by and 
_iii .• hoth 'If which attempt to assign credits hours for the henetieiary's three-year baccalaureate 
that arc close to or beyond the 120 credits typically required for a U.S. baccalaureate. 
Evaluations of a person's foreign education by credentials evaluation organizations arc utilized by 
USCIS as advisory opinions only. Where an opinion is not in accord with other information or is in 
any way questionable, USClS need not accept it or may give it less weight. See Matter of Caroll 
Illtl'matiollal, 19I&N Dec. 791 (Comm. 19R8); see also Matter of Sea, Inc, 19 I&N Dec. RI7 
(Comm. I reasons discussed above, the AAO determines that the evaluations 
from have little probative value as evidence that the 
)cJ(om;e U~16"CC from India is equivalent to a U.S. bachelor's 
degree. 
Nor arc the evaluations from Trustforte and ICETS any more persuasive. While the AAO agrees 
with the first part of these two evaluations - that the beneficiary's three-year computer science 
degree in India is comparable to three years of study at a U.S. college or university - the AAO does 
not agree with the second part of the respective evaluations - i.e., that the credentials subsequently 
earned in the computer training programs 0 elevate the beneficiary's Indian 
education to the equivalent of a U.S. bachelor's degree in computer science. As previously 
discussed. the beneficiary must have a single foreign degree that is equivalent to a U.s. bachelor's 
degree to meet the definition of "advanced degree" in 8 C.F.R. § 204.5(k)(2), and to be eligible for 
classification as an advanced degree professional under section 203(b)(2) of the Act. The 
combination of a three-year university degree in India and a one-year diploma (or a diploma ami a 
Page 14 
certificate) from a technical traInIng company in India, like docs not 
constitute a single foreign degree and is not equivalent to a U.S. bachelor's degree. 
Counsel asserts that the Nebraska Service Center (NSC) confirmed in a liaison meeting with the 
Association of Immigration Lawyers of America (AILA) in April 2000 that it would accept three­
year Indian baccalaureates as equivalent to U.S baccalaureate degrees if there was documentation 
showing that the coursework of the Indian program equated to a four-year U.S. degree. Contrary to 
counsel's implication, USCIS is not bound by the alleged "confirmation" in the NSC/AILA liaison 
meeting. 
USCIS internal memoranda do not establish judicially enforceable rights. See I,o(/-Herrera \'. 
Trolllimki, 231 F.3d 'IX4, 9tl'l (5th Cir. 2(00) (An agency's internal guidelincs "neither confer upon 
iplaintiffsi substantive rights nor provide procedures upon which [theyJ may rely.") See (/Iso 
.1\1 ..•...•.•...• ' Congressional Research Service (CRS) Memorandum, to the 
House Subcommittee on Immigration, Border Security, and Claims regarding "Questions on Internal 
Policy Memoranda issued by the Immigration and Naturalization Service," dated February 3, 2006. 
The memorandum addresses, "the specific questions you raised regarding the legal effect of internal 
policy memoranda issued by the formcr Immigration and Naturalization Service (INS) on current 
Department of Homeland Security (DHS) practices." The memo states that. "policy memoranda 
fall under the general category of nonlegislative rules and are, by definition, legally nonbinding 
because they are designed to 'inform rather than control."· CRS at p.3 citing to American TrllckinK 
Ass'lI 1'. ICC. A59 F.2d 452, 462 (5th Cif. 1981). See also Pacific Gas & Electric Cu. v. Federal 
1'001'('r ('omlll ·n. 506 F.2d 33 (D.C. Cir. 1974). "'A general statement of policy ... docs not establish 
a binding norm. It is not finally determinative of the issues or rights to which it is addressed. The 
agency cannot apply or rely upon a general statement of policy as law because a general statement of 
policy announces what the agency seeks to establish as policy." The memo notes that "policy 
memoranda come in a variety of forms, including guidelines, manuals, memoranda. bulletins, 
opinion letters. and press releases. 
In its consideration of the instant appeal, the AAO is bound by the Act. agency regulations, 
precedent decisions of the agency, and published decisions from the circuit court or appeals from 
whatever circuit that the action arose. See N.L.R.B. v. Ashkenazy Prop"'ly Mallag{'nl<'1l1 Curl' .. tll7 
F.2d 74, 75 (9th Cir. 19t17) (administrative agencies are not free to refuse to follow precedent in cases 
originating within the circuit); RL Inv. Ltd. Partllers v. INS, 8A F. Supp. 2d 1014, 1022 (D. Haw. 
2(00), atf'd 273 F.3d tl74 (9th Cif. 20(1) (unpublished agency decisions and agency legal 
memoranda are not binding under the APA, even when they are published in private publications or 
widely circulated). The AAO is not bound, therefore, by any oral or written "understandings" 
resulting from a liaison meeting between the NSC and AILA in 200A. 
l3ased on the foregoing analysis, the AAO determines that the petitioner has failed to establish that 
the beneficiary has a foreign equivalent degree to a U.S. bachelor's degree in computer science. 
Thus, the beneficiary is not eligible for classification as an advanced degree professional under 
section 203(b)(2) of the Act. 
Accordingly, the petition cannot be approved. 
Page 15 
2. Is the Benefidarr Qualified for the .lob Qfl'ered'! 
To be eligible for approval as an advanced degree professional, thc beneficiary must have all the 
education, training, and experience specilied on the labor certitication as of the petition's priority date. 
See Maller olWing's Teo HOllse, Ifll&N 158 (Act Reg, Comm. 1977). 
Relying in part on MadwlV, fl9fl F.2d at 1008, the U.s, Court of Appeals for the Ninth Circuit 
(Ninth Circuit) stated: 
[lIt 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 lahor market It does not appear that the DOL's role extends to 
determining if the alien is qualified for the job for whieh he seeks sixth preference 
[visa category] status. That determination appears to be delegated to the INS uncler 
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, Ine. I'. randon, fl'J'J F.2d 100fl, 1008 ('Jlh CiT. 1983). The court relied on an amicus brief 
from DOL that stated the following: 
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 lahor certification in no way indicates that Ihe alien ojfered the 
certified joh opportunity is qualijied (ur not qualified) to perjimn lire duties ur that 
joi>. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.RK Irvine, Il1c .• 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 lill the eerliliedjob offer." Ton!;atapu, 7311 F. 2d at 1309. 
The key to determining the job qualifications is found in Part A, box 14 the Form ETA 750. This 
section of the labor certification application describes the minimum education, training, and 
experience required for the job offered. It is important that the application be read as a whole. 
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not 
ignore a term of the labor certification, nor may it impose additional requiremcnts. See Mad£lll.\' v. 
Smitir. 696 F.2d at 1015. USCIS must examine "the language of the labor certitieation job 
requirements" in urder to detelmine 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 exactlr as it is completed by the 
prosrective employer. See Rosedale Unden Park Company v. Smith, 5'J5 F. Supp. ti29. 833 (D.D.C. 
I'JS4) (emrhasis 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 applicatioll form. Id. at 834. USCIS cannot and should not reasonably be expected to 
Page In 
look beyond the plain language of the labor certification that the DOL has tc)rmally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
In this case, the labor certification specifies (Boxes 14 and 15 of the Form ETA 7S0) that the 
minimum education and experience required for the job is either (I) four years of college and a 
bachelor's degree "or equivalent" in computer science or a related fidd, plus five years of experience 
in the job offered or a related occupation, or (2) a master's degree in computer science or a related 
field, plus two years of experience in the job offered or a related occupation. 
The beneficiary docs not have a U.S. bachelor's degree or an equivalent foreign degree. Nor docs he 
have a U.S. master's degree or an equivalent foreign degree. Thus, the beneficiary does not satisfy 
the minimum educational requirement of the labor certification to qualify for the proffered position. 
For this reason as well, the petition cannot be approved. 
Conclusion 
The petition is deniable on two grounds: 
I. The beneficiary does not have the requisite educational degree - at minimum, a U.s. 
bachelor's degree or a "forcign equivalent degree" - to be eligible for classification as 
an advanced degree professional under section 203(b)(2) of the Act. 
2. The beneficiary does not qualify for the proffered position under the terms of the 
labor certification because he does not have the requisite educational degree at 
minimum, a U.S. bachelor's degree or a foreign equivalent degree in computer 
science (or a related field) as specified on the Form ETA 750. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition 
may not be approved. Accordingly, the appeal will be dismissed. 
The burden of proof in these proceedings rests solely with the petitioner. See section 291 of the Act, 
S U.S.c. ~ 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. The petition is denied.