dismissed EB-2 Case: Information Technology

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administr~tive Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship . 
and Immigration 
Services 
DATE:DEC 0 5 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigrant Petition· for Alien Worker as a Member of the Professions Holding an Advl_lnced 
Degree ot an Alien of Exceptional Abi_lity Pursuant to Section 203(b)(2)(A) of the 
Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non~ptecedeht qecision. The AAO does not arHtounce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you- seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be fjled on a Notice of Appeal· or Motion (Fotm I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, tiling location, and other requirements. 
Seealso 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
~ Thank you, 
J~r 
f<'~'-
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.u~is.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center (director), denied the immigrant visa 
petition. The matter is now before the Administrative 
Appeals Office (AAO) on appeaL The appeal 
will be dismissed. 
The petitioner provides software consulting services. It seeks to perma.nently employ the beneficiary 
in the United States as a database administrator. 1 The petitioner requests classification of the: 
beneficiary as an advanced degree professional under section 203(b)(2)(A) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2)(A). 
At issue is 'whether the beneficiary possesses an advanced degree as required by the terms of the 
labor. certification and the requested immigrant preference classification. 
I. PROCEDURAL HISTORY 
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), approved by the U;S. Department of Labor (DOL), accompanies the petition. 2 
The petition's priority date is February 19, 2012.3 
Part H of the ETA Form 9089 states the following minimum requirements for the offered position of 
database administrator: 
H.4. Education: Bachelor's degree in science, computer science, or a related field. 
H.5. Training: None required. 
H.6. Experience in the job offered: None required. 
H.7. Alternate field of study: Science, computer science, or a related field. 
H.8. Alternate 
combination of education and experience: None accepted. 
I-i.9. Foreign educational equivalent: Accepted. 
H.10. Experience in, a,p alternate occupation: 60 months in "information technology." 
H.14. Specific skills or other requirements: None. 
1 
The Form I-140, Petition for Alien Worker, identifies the offered position as "database 
ad!Dinistrator.'' But the accompanying ETA Form 9089, Application for Permanent Employment 
Certification (labor certification), and the petitioner's letter in support of the petition refer to the 
offered position as ''computer programmer." The U.S. Department of Labor (DOL), which certified 
the labor application, classified the offered position as database administrator despite the position 
title of computer programmer on the ETA Form 9089. Notwithstanding the two different job titles, 
the proffered wage and job duties of the offered position remain consistent in the record. The job 
tides therefore appear to refer to the same offered position. Consistent with the. petitioner's 
· representation on the Form I--140, the AAO will refer to the offered position as database 
administrator. 
2 See section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204:5(a)(2). 
3 The petition's priority date is the date the DOL accepted the labor certification for processing. 8 
C.F.R. § 204.5(d). 
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Part J of the labot certification states tbat the bl,'!neficiary possesses a bachelor's degree in science from 
India, completed in 1995. The r¢cord contains a copy of the beneficiary's 
Bachelor of Scie-n~ degree and memoranda of marks, showing that the beneficiary studied 3 years at 
Nagarjuna University. 
IIi addition, th~ record contains three evaluations of the beneficiary's foreign ~ducat1onal credentials. 
An Apri110, 2006 evaluation by Dr. for 
concludes that the benefiCiary's three-year l3Cichelor of Science degree fro _m. India ;is 
eqJliv(ll¢.nt to Ci U.S. Bachelor of Science degree. The evaluation also states that the combination of 
his . degtee and employment ex;peritmce is the equivalent of a U.S. bachelor's degree in GOmputer 
information systems.4 
A September 21, 201.2 evalt.Ia,tion by for 
September' l8, 2012 evaluation by for _ 
. that the beneficiary 's three-year degree from India, standing alone, 
Bacbelor Of Sciel)ce degree with no specified major field of study. 
and a 
both cQoclyde 
is · the equivalent of a U.S . 
Part K of the labor certification states that tbe peneficiary possessed about :150 months, or 12 Y2 years, 
of fulJ·tim_e employment experiente in information technology before joining the petitioner on February 
tl, 2010. The record contains ~xperience letters from all eight _ of the beneficiary's claim~q former 
. empioyers. Part J .21 of the ETA Form .,9089 states that the beneficiary did not gain any of his 
qualifying experience with the petitioner in a job "substantially comparable" to the offered position. 
The director's decision denying the petition concludes that the petitioner failed to demonstrate th<J,t 
the beneficiary met the minimum educational requirements of the offered position stated on the labor 
cerli_fic(ltion by the petition's priority -date. Speeifically, the director found that the-petitioner failed to 
establish that the beneficia,ry obt~neda U.'S. bachelor's de~eeot a foreign equivalent degree. 
On appeal1 the petitioner states that it demonstrated that the beneficiary e<J,rned more credit hours in 
obtaining histhree~year bachelor's degree in India than Standard, four"'yea.r b(}ccal_aureate programs in 
the U.S. req~ire: It also ass~rts that the labor certification allows workers With less than 4-ye'!.r 
bachelqf's degrees to qualify for the offered position. 
4 In response to the director's Request for Evidence (RFE) of July 31, 2012: tpe.'petitioner; through 
coqnsel, purported to "withdraw'' the April 10, 2006 evaluation . .The reg\llation at 8 C.KR. § 
10_3.2(b)(l) st ~ttesc "Any evidence submitted in connection with a benefit request is _incorporated into 
and considered part of the request." A petitioner may withdraw a benetit request pursuant to the 
re~lation at 8 C.P.R.§ 103.2(b)(6). But U.S. Citizenship and Immigration Services (l)SCIS or the 
Service) regulations do not provide for the withdrawal of evidence. See also Matter ofLmJ,teano, 19 
I&N Dec. I, l(BIA 1983) (altl)ough ap~titioner's previo~s .petition was withdrawn, the Service may 
consider evidence accompanying the previous petition when adjudicating the petitioner's new 
peliti_on). The AAO wl11 therefore consider the AprillO, 2006 evaluation as part of the record. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
If the AAO cannot grant the appeal, the petitioner asks U.S. Citizenship a11d Immigration Services 
(US CIS or the Service) to consider a new petition to, classify the beneficiary as a skilled wor~er 
pursuant to section 203(b)(3)(A)(i) of the Act, which allows for the grant of preference classification to 
qualified immigrants capable of performing skilled labor requiring at le<:tst two years of training or 
experience. 
The petitioner's appeal is properly filed and alleges specific errors in law or fact. The AAO conducts 
appellate review on a de novo basis.5 The AAO considers all pertinent evidence in the record, 
including new evidence properly submitted on appeal. 6 
IL LAW AND ANALYSIS 
The R9les of tbe DOL and USCIS in the Immigrant Visa Process 
As noted above, the DOL certified the labor Certification in this matter. Section 212(a)(5)(A)(i) of the 
Act bars immigrant workers frorn admission to the United States unless the DOL certifies that: 
(I) there are not sufficient workers who are able, willing, qualified . 
. . lind 
available a( the time of application for a visa and admission to the United States 
and at the place where the alien is to perform such skilled or unskilled labor, and 
(II) the employment of such alien will not adversely affect the wages and 
work.ing condit_lons of workers in the United States similarly employed . 
Sections 212(a)(5)(A)(i)(I),(II) . . 
None of these statutory provisions or the regulations irnplem~nting them at 20 C.F.R. § 656, et seq., 
authorize the DOL to determine whether offered positions and proposed beneficiaries qualify for 
specific immigrant classifications. 
Tbtl~, federal courts have long held that, while the DOL determines whether qualified U.S. workers 
are available and whether tbe employment of foreign workers will hurt the wages and working 
conditions of similarly employed U.S. workers, USCIS detertnines whether beneficiari~s q\l;;llify for 
5 St!e 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has ali the 
powers which it would have in making the initial decision except as it may limit the issues on notice 
or by rule."); see' also janka v, US. Dep 't ofTransp ., Nat'! Transp. Safety Bd., 925 F.2d 1147, 1149 
(9th Cir..1991). Federal cot~rts have long recognized the AAO's de novo authority. See, e.g., Soltane 
v. Dep 't of Justice, 381 F.3d 143, 145 (3d Cir. 2004). , . 
6 The instructions to FQrrn I-290B,. Notice of Appeal or Motion, which are incorporated into the 
regulations by 8 C.F.R. § 103.2(a)(1), allow the submission of additional evidence on appeaL The 
record in ·the instant case provides no reason to preclude consideration of any of the documents 
newly 
S\lbmitted on appeaL See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988). 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
tbe offered posttlops, a,nd whether the offered posttlons and the beneficiaries qualify for the 
requested immigrant classifications. See Tongatapu Woodcnift Haw,, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 (9th Cir. 1984) (the Service "may make a de novo determination of whether the alien is 
in fact qualified to fill the certified job offer;'); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 
1983) ("There is no doubt that the &uthority to m(l,ke preference classification decisions rests with 
[the Service]."). 
Eligibility for the Cla_ssifi~ation Sought 
Section 203(b )(2)(A) of the Act provides immigrant , classification to qualifying members of the 
professious holding CJ.<lvanced degrees. See also 8 C.F.R. § 204.5(k)(1). -
The term ''advanced degree'' means: 
[A]ny United States academic or professional degree or a. foreign equivalent degree 
above that of baccalaureate. A United Stati;:S baccalaureate degree or a foreig11 
equivalent degree followed by at least five years of progressive experience in the 
specialty shCJ.U be considered the equiva.Ient of a master;s degree. 
8 C.F.R.. § 204.5(k)(2). 
A "profession" means "one of the occupations listed in section 10l(a)(32) of the Act, [8 U.S.C. § 
1101(a)(32)] as well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation." 8 C.F.R. § 204.5(k)(2). 
Section 10l(a)(32) of the Act lists the following professional occu,pations: ''architects, engineers, 
lawyers, .physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academies, or 
seminaries.;' 
The folloWing materials must 
accompany a petition for an advanced degree professional: 
(A) An official -academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United Sta.tes 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least fiVe 
years of progressive post-baccalaureate experience in the specialty. 
8 C.F.R. § 204.5(k)(3)(i). In addition, the job offer portion of the labor certification must require the 
services of a professional holding an advanced degree. 8 C.ER. § 204;5(k)(4)(i). 
Thus, a petition for an advanced degree profession'!l must establish that the beneficiary is a member of 
the professions holding an advanced degree, and that the minimum job requirements of the offered 
(b)(6)
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position require the services of a professional holding an advanced degree. 
Legislative history shows that Congress intended the advanced degree equivalency of a bachelor's 
degree followed by 5 years of progressive experience to include a u.s. bachelor's degree or a single, 
foreign equivalent degree. In passing t~e Immigration Act of 1990, Pub. L. 101-649 (1990), the Joint 
Explanatory Statement of Congress' Conimittee of Conference explained that an advanced degree 
equivalency mean~ "tha~ the' alien must have a bachelor's degree with at least five years progressive 
experience in the prof~ssions." H.R. Conf. Rpt 10l~955 (Oct. 26; 1990) (reprinted in 1990 
U.S.C.C.A.N. 6784, 6786) (emphasis added). 
Responding to criticism that the then-proposed reg1.1lation at8 C.P.R. § 204.5 bars the substitution of 
~xperience for education to meet the advanced degree equivalency; the Service noted that both the 
1990 Act and 
its legislative history indicate that an alien must possess at least a bachelor's degree. 
The [1990) 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.' Bec~u_se 
neither the Act nor its legislative history indicates that bachelor's or advanced degrees 
must be Unjted 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 h{JlJe at least a bachelor's degree. 
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (emphasis 
added). 
In petitions f<;>r professionals and advanced degree professionals, where the Act requires a beneficiary to 
hold at least a baccalaureate degree, USCIS properly co·ncludes that a beneficiary must possess a U.S. 
bachelor's degree or a single·; foreign equivalent degree. SnapNames.coin, Inc. v. Chettoff, No. 06~65, 
2006 WL 3491005 * *10-11 (D. Or. Nov. 30, 2006). Where an advanced degree equivaiency relies on 
work experience or a combi_nation of lesser degrees, the result is the ''equivalent'' of a U.S. 
bachelor's degree, rather than a "foreign equivalent degree" as the reg11lation at 8 C.F.R. § 
· 204.5(k)(2) requires. 7 Thus, an advanced degree equivalency requires a beneficiary · to possess a 
sin~e degree. that is the ''foreign equivalent degree" of a U.S. baccalaureate degree. 
Also, an advanced degree equivalency requires a degree from a college or t,miversity. 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 bas a United States baccalaureate degree or a foreign equivalent degree." For classification 
as a member of the professions, the regulation at 8 C.P.R. § 204.5(1)(3)(ii)(C) requires t.be 
7 Cf 8 C.~.R. § 214.2(h)(4)(iii)(D)(5) (defining "equivalence to completion of a college degree" for 
H-lB nonimmigrant visa purposes as including a combination of education and specialized training 
and/or experience). Immigrant visa regulations -do not allow a similar equivalency. 
(b)(6)
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submi_ssion of "a11 official college or university record showing the date the baccalaureate degree 
was awarded and the area of concentration of study." The AAO cannot conclude that classification 
of an advanced degree professional requires less .proof than the less preferable chtssification of a 
professional wjtbO'IJ.t undermining Congress' immigration preference scheme. See APWU v: Pottet, 
,343 F. 3d 619, 626 (2d Cit,· 2003Y (citing Silyerman ·v. J;;astric;;h Multiple lnv. F~nd, L.P., 51 F. 3d 28, 
31 (3rd Cir. 1995)) (a basic tenet of statutory construction, giving effectto all provisions, is equ(llly 
applicable to regulatory construction). Moreover, in proposing the advanced degtee professional 
regulations at 8 CF.R. § 204.5(k), tbe Service sta,ted that a"baccalaureate means a bachelor's degree 
received from a college or university, or an equivalent degree." 56 Fed. Reg. 30703, 30706 (July 5, 
1991) (emphasis added).8 
In addition, a three-year bachelor's degree is generally not consi,dered th~ "foreig11 eq\livalent'' of a 
U.S. baccalaureate degree. See Matter ofShah, 17 I&N Dec. 244, 245 (Reg'l Comm':r 1977) (a three­
ye(lr Be1chelor of Science degree from India did not equate to a U.S. 'baccalaureate degree because the 
foreign degree did not require four years of study); see also Maramjaya v. USCIS, No. 06-2158, 2008 
WL 9398947 *6 (DJ).C. Mar. 26, 2008) (for professional classification, USCIS regulations require ,a 
beneficiary to possess a U.S. bachelor's degree or a single, four-year foreign equivalent degree); 
Sunshine Rehab Setvs,, Inc, v. USCIS, No. 09-13605, 2010WL 3325442 **8-9 (E.D. Mich. A~g. 20, 
2010) (a beneficiary's three-year bachelor's degree was not the foreign equivalent of a u.s. bacbelor's 
degree). 
In the instant case, the petitioner asserts that the beneficiary's three-year Bachelor of Science degree 
from Nagarjuna University in India is equivalent to a U.S. Bachelor of Science degtee, as found by 
the three evaluation.s of his foreign educational credenti<_~.ls in the record. · 
The evaluations by Dr. and Mr. all conclude that the beneficiary, in 
obtai11ing his three-year 8acbelor of Science degree in India, completed the equivalenLof more than 
120 university credit houts, which is the standard requirement to obtain a, bachelor's degree in the 
U.S. However, the evaluations do not adequately explain hOW they determined the value of the 
beneficiary's university coursework in India in U.S. credit hours. Mr. evaluation does not 
i.ndicate wh(lt courses the beneficiary undertook, and their individual contact hours or credit hours. 
His evaluation simply st.ates that the beneficia,ry obtained the equivalent of 189 O.S. credit hours 
without even referencing the total number of contact hours he calculated. Further, Ms. 
evaluation explicitly states that it relies on "Ptof. Expert Opinion Letter" in her 
determination, thereby raising the question of whether her evaluation is a separate, independent 
evl:lluation. Despite 11 purported expert evaluation ofthe beneficiary's academic credentials, neither 
Ms. or Mt. indicate what equivalent major field of study applies 'to the beneficiary's 
8 Cf 8 C.F.R. § 204.5(k)(3)(ii)(A) (requiring the su.bmission of "an official a,c(ld_emic record showing 
that the alien has a degree, diploma, certificate or similar award from a college, university, school or 
otber h1stitutio11 of le(!,roing" to obtain classification as an alien of exceptional ability). 
(b)(6)
NON-PRECEDENT DECiSION 
Pages 
degree, J-Iqwever, Pr. was only able to determine <1 field of study by relying on the 
beneficiary's thtee-ye~r degree jn combination with his employment exp_etience. 9 
The <;opies ofthe beneficiary's degree and tnemorapda of marks from do rtot 
indicate how many bottrs of class he attended or the amount of credits he earned. The record 
contains a September 13, 2012 affidavit from the beneficiary, stating that he attended 2,840 hours of 
classes or conta~t hours to obtain his Bachelor of Science degree: But the re.cord. contains no 
evidence from __ confirming the beneficiary's statement or the conclusions in the· 
evaluations. The beneficiary's affidavit is self::.serving and does not provide independent, objective 
evidence of his class hours at the university. See Matter of Ho, 19 I&N Dec. ~82, 591-592 (BIA 
1988) (a petilioner must resolve any inconsistencies 'in the record ' by independent, objective 
evidenee). Going on record without supporting documentary evidence is insufficient to meet the . 
burden of proof in these proceedings, Matter of Soffici, 22 I&N bee. 158, 165 (Comm't 1998) 
(citing Matter ofTreasure Craft ofCal., 14 I&N De~. 190, 193 (Reg'l Comm'r 1972)). · 
The evaluations of Ms. and Mr.. state that they used the "Carnegie Unit," which they · 
assert measures post-secondary academic credit in the Unjted States, to determine the equivalency Of 
the beneficia_ry's university coursework iri India in U._S. 'credit .hours. Btlt the record contains no 
evidence that the Carnegie Unit is a usef\Il or reliable way to evaiuateJndian university degrees, The 
Carnegie Unit was adopted to measure classroom time in U.S. high schools in the early 1900s, when 
bigh school curricula a_nd hours lacked uniformity. See www ,C(lrnegiefoundation.orwfaqs (accessed 
Nov. 27, 2013). Ibe Camegie Unit does not appear to apply to hi~er ¢d_uc;ation. See 
http://WWW.Suny.edu/fac:oltysenate/The~arriegieUnit.pdf(accessed Nov. 27,2013). 
Tbe recQrd <tlso lacks peer-reviewed materials eonfirming that university I.ectttre hours in India are a _ 
reliable basis of comparison to U.S. university credit hours. U.S. credit hours presume two hottts of 
study time. for each classroom hour. See Robert A WaJls:.i:ps, The University of texas at Austin, 
"Assigning Undergraduate transfer Credit: It's Only an AtithtneticaJ E}!;~tcise," a,t 12; available-at 
http:/ /ha,ndou_ts"a<tcrao.org!a,m07 /finished/F0345p _ M -Oonahuse.pdf (accessed Nov. 27, 20l3). The 
record lacks evidence that the Indian system has a·similar ratio of study time ~o dassro:om bouts. Tbe 
9 USCIS m<ty ex:¢rc,ise its discretion to treat expert statements as advisory opinions. See Motter of 
Caron int'l, Inc., 19 I&N Dec. 791, 795 (Commir 1988). But USCIS is ultimately responsible fot tbe 
·- . . . .· ·. ! . . .. -· 
final determination of an alien's eligibility for the benefit sol,lgh(. /d. The submission of expert letters 
in support of a petition is not presumptive evidence of eligibility. USCJS maY ev(lluate the ·letters' 
contents to determine wbether they support the alien's claimed eligibility. /d. at 795. USCIS m_ay 
afford less weight to a· statement -that is uncorroborated, inconsistent with other information, bt . . '\ ., . . . . . 
questionable iJ;1 a_ny way. !d. at 795; see also Matter ofSoffici, 22 I&N Pee-. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of Col.; l4 l&,N Dec. 190, 193 (Reg'l Comrn't 1972)); Motter of])~ 
R-, 25 I&N Dec. 445, 464 n. 13 (BIA 2011) (expert witness testimony maY be given different wei,gh~ 
depending on the extent of the expert's qualifications or the relevance, reliability, and probative V<tlue 
of the testimony). · 
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Watkins' article states that, unlike in the U.S., transfer credits in India are based on the number of 
examinations_ completed. /d. 
As ipdic.ated p~evioqsly, a U,S. baccalal:}reate degree generally requires four ears of univerSity 
education. Shah, 17 I&N Dec. at 245. The evaluations of Ms. a_nd Mr. assert that the 
beneficiary; s three-year Bachelor of Science degree from India should be considered the equiva.lent 
of a U.S. Bachelor of Science degree because many U.S. universities offer accelerated baccalaureate 
progtaifis that students complete in less than four years. But there is no evidence in the record that . 
the three-year baccalaureate program that the beneficiary completed is comparable to aP a,ccelerated 
u.s .. baccalaureate program. 
The evaluations of Ms. and Mr. also assert that a United Nations Educational, 
Scientific and Cultural Organization (UNESCO) recommendation requites the U.S. govetnment to 
accept academic credentials tha.t 111erit graduate school admission in other nations for graduate 
admission.in the U.S. The United States, however, has never ratified a UNESCO convention that 
requires it to recognize the higher education qualifications of another country. Althou.gh t.he 
UNESCO GeneraJ Conference adopted a Recommendation on the Recognition Of Studies and 
Qualifications in Higher Education in 1993, the United States was not thei.l a UNESCO member. In 
any event, the recommendation does not legally require UNESCO members to recognize the 
aca.demic quali:(ications of other members. See http://www.unesco.org (accessed Nov. 27, 2013). 
The AAO reviewed the Eiectronic Database for Global Education'· (EDGE), Which was created by 
tbe American· A.ssociation of Collegiate Registrars and Admissions Officers (AACRAO). The 
AACRAO's website states that it 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 around the world." See 
http://www.aacrao.org/About-At\CRAO.a.spx. Its mission "is to serve and advance higher education 
by providing leadership in academic and enrollment services," /d. EDGE is "a web-based resource 
for the evaluation of foreign educational credentials." See http://edge.aacrao.org/info.php. USCIS 
considers EDGE to be a reliable, peer-review~d source of information about foreign educational 
equivalencies, 10 . 
According to EDGE, the beneficiary's three~ year Bachelor of Science 'ilegree is comparable to three 
years of university study in the United States. 
10See Tiseo Group, /t:ic. v. Napolitano, No. 09-10072; 2010 WL 3464314 *4 (E.D. Mich. Aug. 30, 
2010) (USCIS properly weighed the petitioner's educational evaluations and information from 
EDGE to conclucie that the beneficiary's foreign degrees were comparable to only a U.S. bachelor's 
degree); Sunshine Rehab Servs., Inc. v. USCIS, No. 09-13605, 2010 WL 3325442 **~-9 (E.D. Mich. 
Aug. 20, 2010) (USCIS was entitled to prefer the information in EDGE and did not abuse its 
discretion in reaching its conclusion); Confluence Int 'i, Inc. v. Holder, No. 08-2665, 2009 WL 
82.5'793 *4 (D. Minn. Mar. 27, 2009) .(the AAO provided a rational explanation fot its reliance on 
AACRAO inforrn~tion to Sl:lpport its decision). 
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Page 10 
Therefore, based on the conclusions of EDGE, the evidence on appeal does not establish that the 
beneficiary possesses the foreign equivalent of a U.S. bachelor's degree. , 
On October 10, 2013, the AAO issued a Notice of Intent to Dismiss (NOiD) the petitioner 's appeal. 
The AAO notified the petitioner that the record did not establish the beneficiary ' s possession of an 
advanced degree and afforded the petitioner an opportunity to submit additional evidence. Counsel 
for the petitioner responded to the NOlO with a three-page responsive brief, but did noLsubmit any 
new, probative evidence or documentation. 
After carefully reviewing alfof the evidence in the record, the AAO concludes that the petitioner has 
failed to establish that the beneficiary possesses at least a U.S. academic or professional degree (or a 
foreign equiv~ent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent 
degree) followed by at least five years of progressive experience in the specialty. Therefore, the 
beneficiary does not qualify for classification as an advanced degree professional under section 
203(b )(2)(A) of ~he Act. · 
The Minimum Requlrelllents of the Offered Position 
A petitioner must (llso est.ablish that the beneficiary satisfied all of the education, training, 
experience and any other requirements of the offered ,position by the petition's priority date. 8 C.F.R. 
§§ 103.2(&)(1), (12); see also Matter of Wing's Ted House, 16 I&N Dec. 158; 159 (Acting Reg' I 
Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45; 49 (Reg' I Comm'r 1971). 
; 
In examining the job offer portion of a labor certification to determine ' the. mmtmum job 
requirements of the offered position, USCIS may not ignore a term, not may it impose additional 
requirements. See Madany~ 696 F.2d at 1015; l(.R . .{( Irvine, Inc., 699 F.2d at 1009; Stewart Infra­
Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1,3 (1st Cir. 1981). 
Where the job requirements are not otherwise unambiguously prescribed, e.g., by.regulation, USCIS 
must examine "the language of the labor certification job requirements" to determine the 
qualifications that the beneficiary must possess. Madatty, 696 F.2d at 1015. The only rational way to 
interpret job requirements of a labor certification is to "examine the certified job offer exactly as it is 
completed bY~ tile prospective employer." Rosedale & Linden Park Co. v. Smith, 595 F. Supp. 829, 
833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements requires 
"reading and applying the plain language of the [labor certification]." !d. at 834 (emphasis added). 
Although an employer may prepare a labor certifiCation with the beneficiary in mind, USCIS has an 
independent role i.n determining whether the beneficiary meets the labor certification requirements. See 
SnapNarnes.com, 2006 WL3491005 at *7. 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
In the instant case, the director interpreted the labor certification as requiring a U.S, bachelor's qeg~ee or 
a foreign equivalent degree in science, COIIlputer science, or a related field, plus 60 mon:ths of 
experience in an information technology occu:pation.
11 
In response to the AAO's NOlO, counsel argues that the labor certification does not expressly require 
a four-year bachelor's degree. But P~ H.4 of the ETA Form 9089 states that the offered position 
requires a bachelot'.s degree. Part H.4 clearly refers to a U.S, degree because the labor certification 
states in Part H.9 that a foreign educational equivalent is also acceptable. Therefore, based on the 
plain langu_age of tbe labor certification, the AAO finds that the minimum educational requirements 
for the offered position are a U.S. bachelor's degree or a foreign equivalent degree. As discussed 
previously, U.S. bachelor's degrees generally requite four years of university Stl!Qy. 
Counsel also requests that USCIS consider a new petition by the petitioner, requesting Classification of 
the beneficiary as a skilled worker under section 203(b)(3)(A)(i) of the Act ·The record shows that the 
petjtioner filed a new skilled worker petition for the beneficiary accompanied by the same labor 
certification after the director denied the instant petition. The record shows that OSCIS denied the new 
petition on March 27, 2013. As in the instant case, the director concluded that tbe petitioner failed to 
establish the beneficiary's educational qualifications for the offered position as required by the labor 
certificate~ That matter is not properly before the AAO and counsel's· request cannot be considered. 
For the reasons explained above, the petitioner has failed to establish that the beneficiary possesses a 
U.S. bachelor's degree or a single, foreign equivalent degree. Therefore, the petitioner has failed to 
establish that the beneficiary possessed the minimum requirements of tbe offered position stated on the 
labor certification by the petition's priority date. Accordingly, the petition must also be denied for this 
reason. 
The Beneficiary's Qualifying Experience 
Beyond the decision of the director, the petitioner has also not established that the beneficiary 
possessed the qualifying experience for the offered position by the petition's priority date. 
11 The labor certification's acce·ptance of employment experience in an alternate o·ccupation without 
requiting any experience in the job offered is unus1,1aL The Board of Alien Labor Certification 
Appeals has questioned similar requirements. See Matter of Microsoft Corp., 2011-PER-00200, 
2012 WL 1074397 *3 (BALCA Mar. 27, 2012) (characterizing a labor certification's requirements 
of no experience in the job offered but 6 months of experience in an alternate occl}pation as 
"conflicting"). flowever, the DOL appears to allow requirements for experience in an alt.ernate 
occupation without requiring experience in the job offered. See ''OFLC [Office of Foreign Labor 
Certification] Frequently Asked Questions and Answers/' Advertisement Content 9, U.S. Dep't of 
Labor, Emp't & Training Admin., available at http://W;ww.foreignlaborcert.doh!ta.gov/ 
faqsanswers.cfm#&dcont9 (accessed Nov. 27, 2013) (an employer's advertisement is not requited to 
inClude a statement that it will accept any suitable combination of education, training, and/or 
experience where it indicates that the. offered position requires experience in an alternate occupation 
and not in the job offered). 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
< ( 
· A petitioner must establish that the beneficiary possessed all the education, training, and experience 
specified on the labor certification as of the priori~y date. 8 C.F.R. §§ 103.2(b)(l), (12); see also 
Wing's Tea llo~s£:, 16 I&N Dec. · at 159; Katigbak, 14 I&N Dec. at 49. IIJ. e.v~luating the 
beneficiary' .s qualifications for the offered position, USCIS must examine the job offer portion of the 
labor certification to determine the minimum job requirements. {)SCIS may not ignore a term of the 
labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 101.5; 
K.R.K. Irvine, 699 F.2d ~t 1009; Stewart Infra-Red Commissary, 661 F.2d at 3. 
In the instant case, the labor certification states that the offered position of d~tabase administrator 
requires 60 mout.ns of employment experience in an information technology occupation. On the labor 
certification, the beneficiary claims about 150 months of full-time experienee in information 
technology, as follows: 
• About 24 moiJ.tbs as a computer programmer analyst with the petitioner in the United States from 
· February 11, 2010 u:rttil the petition's priority d~;tte of february 19, 20 12; 
• About 28 months as a computer programmer ana.lyst with in the United 
States froiil OCtober 15, 2007 until February 10, 2010; 
• About 8 months as a computer programmer analyst with in the United States 
from February 1, 2007 to October 12, 2007; 
• About 41 months as a computer technical lead with in the United Kingdom 
from May 12, 2003 to October 11, 2006; 
• About 2 months as a computer programming manager with in India from 
March 8, 2003 to May 1, 2003; 
• About 17 montlls as a computer project lead with in Singapore ftom May 2, 
2001 to September 30, 2002; 
' About 12 months as a eorrtputer project lead with in Singapore from 
March 17, 2000 to March 25, 2001; · 
• About 7 months as a computer project lead with from August 3, 1999 to 
.March 15, 2000; and 
• About 35 months as a senior softWare programmer with 
from August 5, 1996 to July 2, 1999. 
in India 
The petitioner must support the beneficiary's claimed qualifying experience with letters from 
employers including the name, address, and title oftbe writers, and a description of the beneficiary's 
experience. 8 C.F.R. § 204.5(g)(1 ). 
The record contains copies of letters from all eight of the beneficiary's claimed former employers. 
However, none of the letters state whether the beneficiary was employed on a full- or part-time 
basis. If tbe bene(l~iary worked on a parHime basis for all or most of his former employers, he may 
not mee.t the offered position's experience requirement of 60 months of full-time employment 
e~perience. 
Also, the documents from do not 
(b)(6)
NON-PRECEDENT DECISION 
Page i3 
establish the beneficiary's dates of employment with the companies. The copies of the July 31; 2006 
offer letter and ~igp.ed employment agreement from indicate that the company 
offered the beneficiary a position as a col)lputer programmer analyst and that he agreed to work for 
the company. But the documents do not establish for how long the beneficiary worked for 
or even that the company employed him at all. 
Similarly, the May 10, 2003 letter from ipdicates that the beneficiary 
ended employment with the company on May 10, 2003. However, the letter does not s~ate tpe 
beneficiary's start date of employment or his position with the company. The letter also does not 
contain an address or describe the beneficiary's experience purstHlnt to the regulation at 8 C.F.R. 
§ 204.5(g)(l ). 
The_ letter from also does qot describe the beneficiary's experience 
pursuant to the regulation at 8 C.F.R. § 204.5(g)(1). 
For the foregoing reasons, tb.e petitioner has· failed to establish that the beneficiary possessed 60 
months of experience in an information technology occtJpation as required by the labor certification 
by the petition's priority date. · 
( 
The Petitioner's Ability to Pay the Proffered Wa.ge 
Also beyond the decision of the director, the petitioner has failed to establish its contim!ing abiliJy to 
pay the beneficiary's proffered wage. 
A petitioner must demonstrate. its continuing ability to pay the proffered wage from the petition's 
priority d_ate, continuing uv.til the beneficiary obtains lawful permanent residence. 8 C.F.R. § 
204.5(g)(2). Evidence of ab-ility to pay "shall be in the form of copies of annual reports, federal tax 
returns, or audited financial statements." /d. 
The record before the director closed on October 19, 2012, with his receipt of the petitioner's 
response to his request for evidence. As of that date, the petitioner's 2011 federal income tax return 
was the most recent return available. 
The AAO's NOID requested evidence of the petitioner's ability to pay the beneficiary's proffered 
Wage of$95;576 per year from the petition's priority date of February 19,2012 onward. However, 
the petitioner's response to the NOID did not include any evidence of its ability to pay the proffered 
wage or indicate that the evidence was unavailable. 
The petitioner's unexplained faifure to provide complete annual reports, federal t_ax returns, or 
audited financial statements for each year beginning with the year of the priority date constitutes 
grounds to dismiss this appeaL The failure to · submit requested evidence that precludes a material 
line of inquiry is ground to dismiss. 8 C.F.R. § 103.2(b)(14). 
(b)(6)
NON~PRECEDENT DECISION 
Page 14 
Al_so, USCIS records ~bpw that, since 1999, the petitioner has filed at least 40 I-140 petitions for other 
beneficiaries. Accordingly~ the petitioner must eslablish its contin11i11g ability to pay the combined 
proffered wages of the instant beneficiary and the beneficiaries of its other petitions that were pending 
from the priority date ofthe instant petition onward. See Matter of Great Wall, 16 I&N Dec. 142, 144-
145 (Acting Reg'l Comm'r 1977). 
The record does . not document the priority dates, proffered wages, or wages. paid to the petitioner's 
other beneficiaries. The record also does not establish whether any of the other petitions were 
withdrawn, revoked, or denied, or whether any of the other beneficjaries obtained lawful permanent 
residence. Thus, the petitioner has not established its continuing ability to pay the combined proffered 
wages of the beneficiary and the beneficiaries of its other petitions . . 
Accordingly, the petitioner has also failed to establish its continuing ability to pay the beneficiary's 
proffered wage .from the petition's priority date on;ward. 
The AAO's NOID notified the petitioner of the AAO intention to dismiss this appeal on the additio·nal 
grounds of the petitipner's failure to establish the beneficiary;.s qualifying experience for the offered 
position and its continuing ability to pay the proffered wage. The NOI.P also requested additional 
evidence·regarding these issues. 
In response to the NOID, counsel states: "Due to the fact that the experience and petition~r's ability to 
pay have not been raised at this time. The issue is not in question." 
Counsel appears to argue that the AAO lacks authority to dismiss the petitioner's appeal on grounds that 
the director did not invoke. The AAO, however, may deny art application or petition that fails to 
comply with the technical requirements of the law, even if the director did not identify all or'the 
grounds for denial in the initial decision. See Spen(:er En,ts., lnc. v. Uniteci States, 229 F. Supp. 2d 
1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane, 381 F.3d 143, 145 
(3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). 
Moreover, the AAO notified the petitioner of the additional defects in its petition and afforded it an 
opportunity to rebut the proposed findings. Therefore, the AAO wi_ll dismiss the · appeal _ on the 
additional grounds that the petitioner failed to establish its continuing ability to pay the proffered 
wage and the beneficiary's qualifying experience for the offered position. 
III. CONCLUSION 
' I.n summary, the petitjpi)er bas failed to establish t_hat the beneficiary possessed an advanced degree 
as requited by the terms of the labor certification and the requested preference classification . 
Therefore; the. beneficiary does not qualify for classification as a member of the professions holding 
. an advanced degree under section 203(b )(2)(A) of the_ Act. The dire:ctor's decision denying the 
petition is affirmed. 
(b)(6)
NON-PRECEDENT DECISION 
the AAO also finds that the petitioner has failed to establish the beneficiary's qualifying experience 
for the offered position by the p~tition's priority date and its continuing ability to pay the 
beneficiary's proffered 'Nage from the priority date onward. Accordingly, the petition must also be 
denied for these reasons. 
The appeal will be dismi.ssed for the e1bove stated reasons, with each considered an independent and 
alternate basis for the decision. In visa petition proceedings, the petitioner must establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 
I&N Dec. 127; 128 (BIA 2013). Here, theit burden has not been met. 
ORDER: The appeal is dismissed.