dismissed EB-2 Case: Information Technology Consulting

identifying data deleted to 
vent clearly unw~nted 
~asion ofpersona\ pnvac) 
PUBLlCCOPY 
IN RE: Petitioner: 
Beneficiary: 
L.S. Department of Homeland Security 
l:.S. Citi/enship and Immigration Services 
O/Tic(' o(Adrninisrr(lfiv(-' Appm!.l. MS 2090 
\\.'a~hil1gl(lll. DC 20S29-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: DEC 20 2010 
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. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to S C.F.R. ~ Im.s for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form 1-290B, Notice of Appeal or Motion, with a fee of $630. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. * 103.S(a)( I )(i). 
~r Perry Rhew 
Chief, Administrative Appeals Office 
'www.uscis.go" 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is an information technology consulting business. It seeks to employ the beneficiary 
permanently in the United States as a manager/analytical strategist pursuant to section 203(b)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.c. § I I 53(b)(2). As required by statute, an ETA 
Form 9089 Application for Alien Employment Certification approved by thc Department of Labor 
(DOL), accompanied the petition. Upon reviewing the petition, the director determined that the 
beneficiary did not satisfy the minimum level of education stated on the labor certification. 
Specifically, the director determined that the beneficiary did not possess either a master's degree in 
management accounting, or any other related field or a bachelor's degree in management, 
accounting, or any other related field and five years of experience. 
On appeal. counsel asserts that the beneficiary possesses the equivalent of a U.S. bachelor's degree. 
Counsel states that the beneficiary graduated with a three-year bachelor of commerce degree from 
Bombay University in 1989 and passed the two required exams for the Institute of Chartered 
Accountants in India (lCAI) by 1993. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error 
in law or fact. The procedural history 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. 
In pcrtinent part, section 203(b)(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States acadcmic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). Thc 
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 thc 
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 degrec." 1£1. 
The AAO conducts appellate review on a de novo basis. See So/tane v. DO.!, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidcnce 
properly submitted upon appeal. 1 
The beneficiary possesses a foreign three-year bachelor of commerce degree. Thus. thc is,ue is 
whether that degree is a foreign degree equivalent to a U.S. baccalaureate degree or, if not, whethcr 
1 The submission of additional evidence on appeal is allowed by the instructions to the U.S. 
Citizenship and Immigration Services (USCIS) Form 1-290B, which are incorporated into the 
regulations by the regulation at 8 C.F.R. § 103.2(a)(1). The record in the instant case provides 110 
reason to preclude consideration of any of the documents newly submitted on appeal. See Marrer of" 
Soriallo, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
it is appropriate to consider the beneficiary's years of experience in addition to that degree. We must 
also consider whether the beneficiary meets the job requirements of the proffered job as set forth on the 
labor certification. 
Eligibility for the Classification Sought 
As noted above, the ETA Form 9089 in this matter is certified by DOL. DOL's role is limited to 
determining whether there arc sufficient workers who arc 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 DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraji Hawaii. Ltd. v. Feldma/l. 736 F. 2d 
1305,1309 (91h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
Rather, the AAO is bound by the Act, agency regulations, precedent decisions of the agency and 
published decisions from the circuit court of appeals from whatever circuit that the action arose. See 
N.L.R.B. v. Ashkcl1azy Properly Mal1agement Corp., 817 F.2d 74, 75 (9'h Cir. 1987) (administrative 
agencies arc not free to refuse to follow precedent in cases originating within the circuit); RL l/lv. 
Ltd. Partners v. INS. 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), atr'd 273 F.3d 874 (9'h Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding under the AP A, even 
when they are published in private publications or widely circulated). *IF MEMOS CITED ONLY 
- AILA HATES THE FOLLOWING LANGUAGE* Even USCIS internal memoranda do not 
establish judicially enforceable rights. See Loa-Herrera v. Trominski, 231 F.3d 984. 989 (S'h Cir. 
2000) (an agency's internal guidelines "neither confer upon I plaintiffs I substanti ve rights nor 
provide procedures upon which ItheYlmay rely.") 
A United States baccalaureate degree is generally found to require four years of education. Mat/er 
of'Shuh, 17 I&N Dec. 244 (Reg'!. 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 requiremcnt that the immigrant 
hold an advanccd degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Page 4 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "I inl considering equivalency in category 2 advanced degrees, it is anticipated that the 
alicn must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955,101" 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 altcr the agency's interpretation of that term. See Lori/lard v. POllS, 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 
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, all alien must have at Icast (/ huchelor'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. 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" or a 
Page 5 
bachelor's degree rather than a "foreign equivalent degree.,,2 In order to have experience and 
education equating to an advanced degree under section 203(h)(2) of the Act, the heneficiary must 
have a single degree that is the "foreign equivalent degree" to a United States haccalaureate degree. 
S C.F.R. § 204.5(k)(2). As explained in the preamhle to the final rule, persons who claim to qualify 
for an immigrant visa hy virtue of education or experience equating to a hachelor's degree may 
qualify for a visa pursuant to section 203(b)(3)(A)(i) of the Act as a skilled worker with more than 
two years of training and experience. 56 Fed. Reg. at 60900. 
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 or a foreign equivalent degree." 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 uni versity 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 collefie or university, or an 
equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). q: 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 oward frolll a 
college, university, school or other institution of'/earning relating to the area of exceptional ahility"). 
Because the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent 
degree," the heneficiary docs not qualify for preference visa classification under section 203(b )(2) of 
the Act as he does not have the minimum level of education required for the equivalent of an 
advanced degree. 
Qualifications for the Job Offered 
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (Ninth Circuit) stated: 
lIlt appears that the DOL is responsible only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domestic labor market. It does not appear that the DOL's role extends to 
determining if the alien is qualified for the job for which he seeks sixth preference 
status. That determination appears to be delegated to the INS under section 204(b), 
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 ceI1ain 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 
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. 
KR.K Irvine, Ine. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 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)1 of the ... IAct] ... is binding as to the findings of whether there are able. 
willing, qualified, and available United States workers for the job offered to the alien, 
and whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates tizat the alien ofTered the 
certified job opportunity is qualified (or not qualified) to perf(JrYn the duties of" that 
job. 
(Emphasis added.) Jd. at 1009. The Ninth Circuit, citing KR.K. Irvine. Inc., 699 F.2d at 1006, revisited 
this issue, stating: 'The INS, therefore, may make a de novo determination of whether the alien is in 
fact qualified to fill the certified job offer." Tongatapll, 736 F. 2d at 1309. 
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of 
the application for alien labor certification, "Job Opportunity Information," describes the terms and 
conditions of the job offered. rt is important that the ETA Form 9089 be read as a whole. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant Visa, 
uscrs may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Madany, 696 F.2d at 1015. uscrs must examine "the language of the labor certification job 
requirements" in order to determine what the job requires. Id. The only rational manner by which 
uscrs can be expected to interpret the meaning of terms used to describe the requirements of a job 
in a labor certification is to examine the certified job offer exactly as it is completed by the 
prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829. 833 (D.D.C. 
1984) (emphasis added). uscrs's interpretation of the job's requirements, as stated on the labor 
certification must involve reading and applying the plain language of the alien employment 
certification application form. See id. at 834. uscrs cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
In this matter. Part H, line 4, of the labor certification retleets that a master's degree in management 
accounting, or any other related field is the minimum level of education required. Line 6 reflects 
that three years of experience in the proffered position are also required. Line 8 states that a 
combination of education or experience is acceptable in the alternative. The beneficiary may 
possess a bachelor's degree and five years of experience in the proffered position instead of a 
master's degree. Line 9 reflects that a foreign educational equivalent is acceptable. 
Page 7 
In support of the beneficiary's educational qualifications, the record contains COplCS of two 
credentials evaluations. The first evaluation is dated February 12, 2007 from ••••••••• 
from The evaluation describes the beneficiary's bachelor 
of commerce degree and certificate from the Institute of Cost and Works Accountants in India and 
concludes that they are equivalent to a bachelor of business administration degree in accounting in 
the United States. The AAO notes that~ased his evaluation on the beneficiary's 
education only, not his work experience. ~aluation is dated October 10, 2008 and is 
also from from The evaluation 
instead describes the beneficiary's passing of the final requirements for the [CAl after completing 
his bachelor of commerce degree as being fully equivalent to a U.S. bachelor's degree. The AAO 
notes that this evaluator has provided two different opinions as to the equivalency of the 
beneficiary's education. 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. 1988). 
www.aacrao.org, nonprofit, volurltm'y 
more than 10,000 higher education admissions and registration professionals who represent 
approximately 2,500 institutions in more than 30 countries." Its mission "is to provide professional 
development, guidelines and voluntary standards to be used by higher education officials regarding 
the best practices in records management, admissions, enrollment management, administrative 
information technology and student services." According to the registration page fOI_ 
. s "a web-based resource for the evaluation 
are not merely expressing their personal 
Opll1l0ns. Rather, the must work with a publication consultant and a Council Liaison with 
on the Evaluation of Foreign Educational Credentials. "An Author's 
Guide to Creating AACRAO International Publications" 5-6 (First ed. 2005), available for download 
at www. Aacrc/o.org/puhlicatiolJ.\/guide to creating international pllhlicatiol1s.pdt: [1' placement 
recommendations are included, the Council Liaison works with the author to give feedback and the 
publication is subject to final rcview by the entire Council. Id. at 11-12. 
_states that a bachelor of commerce represents attainment of a level of education comparable 
university study in the United States. However,_confirms that 
upon passing the ICAI final examination represents attainment of a level 
a bachelor's degree in the United States. The record contains 
documentary evidence showing the beneficiary in the instant case passed the ICAI final exam and 
, In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the District 
Court in Minnesota determined that the AAO provided a rational explanation for its reliance on 
information provided by the American Association of Collegiate Registrar and Admissions Officers 
to support its decision. 
was awarded a certificate of membership as an associate of the ICAI, which represents that the 
beneficiary attained an equivalent to a US bachelor's degree in accounting. Notwithstanding, the 
professional regulation contains a degree requirement in the form of an official collcge or university 
record. ICAI is not an academic institution that can confer an actual degree with an official college 
or university record. Thus, a certificate of membership to the ICAI cannot be found to equate to a 
single source degree equivalent to a U.S. bachelor's degree for purposes of meeting section 203 
(b )(2) of the Act. 
The beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," 
and, thus, does not qualify for preference visa classification under section 203(b)(2) of the Act. 
To be eligible for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date. See Matter of Wing '.I' Tea House, 16 I&N Dec. 158 (Act. 
Reg. Comm. 1977). An application or petition that fails to compl y with the technical requirements of 
the law may be denied by the AAO even if the Service Center does not identify all of the grounds for 
denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 
1043 (E.D. Cal. 2001), atf'd, 345 F.3d 683 (9th Cir. 2003); see also So/Wile \'. DOl, 381 F.3d 143, 
145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de IlOVO basis). A petitioner 
must establish the elements for the approval of the petition at the time of filing. A petition may not 
be approved if the beneficiary was not qualified at the priority date, but expects to become eligible at 
a subsequent time. Matter of Kalighak, 14 I&N Dec. 45, 49 (Comm. 1971). 
To determine whether a beneficiary is eligible for an cmployment based immigrant visa, USC IS 
must cxamine whether the alien's credentials meet the requirements set forth in the labor 
certification. USCIS must look to the job offer portion of the. labor certification to determine the 
required qualifications for the position. USCIS may not ignore a term of the labor certification. nor 
may it impose additional requirements. See Matter of' Silver Dragon Chillese Restaurant, 19 I&N 
Dec. 40 1,406 (Comm. 1986). See also, Mandanv v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. 
Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
The AAO finds that the beneficiary does not meet the job reqnirements on the labor certification as 
the petitioner has not provided letters evidencing the beneficiary's full eight years of experience in 
thc proffered position. 
The AAO also finds that the petitioner has failed to demonstrate its ability to pay the beneficiary the 
proffered wage from the priority date onwards. 
The petition will be dcnied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 29101' the Act. R USc. § 1361. Here. 
that burden has not been met. 
Page 9 
ORDER: The appeal is dismissed.