dismissed EB-2 Case: Marketing

U.S. Department of ltlomeland Security 
. identifying data deleted to 
 U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
prevent d?~.ply unwa~anted 
 ~ash~n~ton, DC 20529-2090 
i?vrsim of l;c,;sona! privac) 
 U.S. Citizenship 
and Immigration 
pu*alG: COPY 
FILE: 
SRC 07 155 51733 
Office: TEXAS SERVICE CENTER 
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. 5 1 153(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 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. 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. $ 103.5(a)(l)(i). 
John F. Grissom 1: ' 
Acting Chief, Administrative Appeals Office 
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 claims to provide computer consulting and software development services. It seeks to 
employ the beneficiary permanently in the United States as a marketing research analyst. The 
petitioner requests classification of the beneficiary as a member of the professions holding an 
advanced degree pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1153(b)(2). As required by 8 C.F.R. 5 204.5(k)(4), the petition is accompanied by a Form 
ETA 750, Application for Alien Employment Certification (labor certification), certified by the 
Department of Labor (DOL). 
As set forth in the director's July 30, 2007 denial, the primary issue in this case is whether the 
beneficiary possesses the minimum educational requirements of the offered position as set forth in 
the labor certification. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in 
law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b); see 
also Janka v. U.S. Dept. of Transp., 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo 
authority has been long recognized by the federal courts. See e.g. Dor v. INS, 891 F.2d at 1002 n. 9. 
The AAO considers all pertinent evidence in the record, including new evidence properly submitted 
upon appeal. ' 
The evidence in the record of proceeding includes the following: 
Transcript and postgraduate diploma in marketing management from Indira Gandhi National 
Open University, India. 
Statement of marks and bachelor of science diploma from the University of Delhi, India. 
Transcript and master of science diploma in environmental biology from Maharshi Daynand 
University, India. 
Software technology & systems mana ement curriculum transcript from NIIT, India. 
Academic equivalency evaluation by of International Credentials Evaluation 
Services, dated February 24,2000. 
Academic equivalency evaluation byl 
January 23,2007. 
Employment experience letter by 
of   he Trustforte Corporation, dated 
of SVAM International, Inc., dated June 
9, 2004, stating that the beneficiary was employed as an Account Manager - Market 
- -- 
'~he submission of additional evidence on appeal is allowed by the instructions to Form I-290B, 
which are incorporated into the regulations by 8 C.F.R. 5 103.2(a)(l). 
Research Analyst from December 2002 to June 2004. 
Employment experience letter by of Interactive Communications & Systems 
(USA) Inc., dated January 3, 2003, stating that the beneficiary was employed as an Account 
Manager - Market Research Analyst from August 2000 to December 2002. 
Employment experience letter by of North Shore Technologies Pvt. Ltd., 
dated July 30, 2000, stating that the beneficiary was employed as an Account Manager - 
Recruitment & Sales from November 1999 to July 2000. 
Employment experience letter by of Labindia Instruments Pvt. Ltd., dated 
June 5, 2007, stating that the beneficiary was employed as a Sales Engineer and Product 
Manager from March 3, 1994 to October 5, 1999. 
Forms 1120S, U.S. Income Tax Return for an S Corporation, for 2005 and 2006. 
2005 Form W-2, Wage and Tax Statement, issued by the petitioner to the beneficiary. 
2006 Form W-2, Wage and Tax Statement, issued to the beneficiary by an employer other 
than the petitioner. 
On the petition, the petitioner claimed to have been established in 1997, to have a gross annual 
income of $19 million, and to employ 18 1 workers. 
The priority date of instant petition is February 22, 2005, the date the labor certification was filed 
with the DOL. See 8 C.F.R. 8 204.5(d). The proffered wage stated on the labor certification is 
$58,000.00 per year. The labor certification states that the offered position of marketing research 
analyst requires a master's degree in marketing, business, management, business administration, 
marketing management "or its foreign educational equivalent," and two years of experience in the 
job offered or in "other occupations in the marketing industry." 
Section 203(b)(2) of the Act, 8 U.S.C. fj 1153(b)(2) provides immigrant classification to members of 
the professions holding advanced degrees. In order to obtain classification in this employment-based 
preference category, the labor certification must require a member of the professions holding an 
advanced degree,2 and the petitioner must demonstrate that the beneficiary is a member of the 
professions holding an advanced degree3 who meets the requirements of the job offered as set forth 
in the labor ~ertification.~ 
"Advanced degree" is defined as either a "United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate." 8 C.F.R. tj 204.5(k)(2). The regulation at 8 C.F.R. 
tj 204.5(k)(2) further states that 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 
28 C.F.R. f~ 204.5(k)(4). 
38 C.F.R. 8 204.5(k)(3). 
4 
8 C.F.R. 4 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. at 159; see also Matter 
ofKatigbak, 14 I. & N. Dec. 45,49 (Reg. Comm. 1971). 
Page 4 
equivalent of a master's degree." 
The same regulation defines "profession" as "one of the occupations listed in section 101(a)(32) of the 
Act, 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." Id. Section 101(a)(32) of the Act states 
that the term "profession" includes, but is not limited to, "architects, engineers, lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
The director's denial states that the petitioner failed to establish that the beneficiary possessed the 
foreign educational equivalent of a master's degree in one of the acceptable fields of study set forth 
on the labor certification. Accordingly, on appeal, the petitioner must establish that, as of the priority 
date, the beneficiary had the qualifications stated on the labor certification. 8 C.F.R. 5 103.2(b)(l), 
(12). See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornm. 1977); see also Matter of 
Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comm. 1971). In evaluating the beneficiary's qualifications, 
U.S. Citizenship and Immigration Services (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 
Chinese Restaurant, 19 I&N Dec. 401,406 (Comm. 1986); see also Madany, 696 F.2d at 1015. 
It is important to note that the DOL's role in the employment-based immigrant visa process is limited 
to determining whether there are sufficient U.S. workers who are able, willing, qualified and 
available and whether the employment of the alien will adversely affect the wages and working 
conditions of similarly employed U.S. workers. See section 212(a)(5)(A)(i) of the Act; 20 C.F.R. 5 
656.1(a). It is significant that none of the responsibilities assigned to DOL, nor the remaining 
regulations implementing these duties at 20 C.F.R. 5 656, involve a determination as to whether or 
not the alien is qualified for a specific immigrant classification or the job offered. Instead, the 
authority to make this determination rests solely with USCIS. See Madany v. Smith, 696 F.2d 1008, 
1012-1013 (D.C. Cir. 1983); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 
(9th Cir. 1984); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). 
Part A of the labor certification describes the minimum education, training, experience and skills 
required to perform the duties of the job offered. In the instant case, the labor certification states that 
the marketing research analyst position has the following requirements: 
EDUCATION 
Grade School: 8 years 
High School: 4 years 
College: 5 years 
College Degree Required: "Master" 
Major Field of Study: "Marketing, Business, Management, Business Administration, Marketing 
Management or its foreign educational equivalent" 
TRAINING: None 
EXPERIENCE: Two (2) years in the job offered or in "other occupations in the marketing industry" 
OTHER SPECIAL REQUIREMENTS: "Travel andlor relocation required" 
The evidence in the record includes the beneficiary's transcript and postgraduate diploma in 
marketing management from Indira Gandhi National Open University, India; statement of marks and 
bachelor of science diploma from the University of Delhi, India; transcript and master of science 
diploma in environmental biology from Maharshi Daynand University, India; and software 
technology & systems management curriculum transcript from NIIT, India. 
The record also includes an academic equivalency evaluation by of International 
Credentials Evaluation Services (ICES evaluation), dated February 24, 2000. The ICES evaluation 
states that the beneficiary's bachelor of science degree from the University of Delhi is the equivalent 
"to the completion of three years of academic study towards a Baccalaureate Degree from an 
accredited institution of tertiary education in the United States." In addition, the ICES evaluation 
states that, "considered together with his prior studies at The University of Delhi," the beneficiary's 
postgraduate diploma in marketing management from Indira Gandhi National Open University is 
equivalent "to the completion of a Bachelor of Science Degree in Marketing from an accredited 
institution of tertiary education in the United States." 
In addition, the record includes an academic equivalency evaluation b of The 
Trustforte Corporation (Trustforte evaluation), dated January 23, 2007, stating that the beneficiary's 
master of science degree in environmental biology is equivalent to a master of science degree "from 
an accredited college or university from the United States." 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility. USCIS may evaluate the content of those letters as to whether they support 
the alien's eligibility. Id. 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). 
Even if the AAO accepts the conclusions of the submitted evaluations; the petitioner has not 
5~r. Silberzweig claims to be a member of American Association of Collegiate Registrars and 
Admissions Officers (AACRAO) and to have used an AACRAO publication to evaluate the 
beneficiary's credentials. The AAO has consulted AACRAO's Electronic Database for Global 
Education (EDGE). According to its registration Page at 
http://aacraoedge.aacrao.org/register/index/php, EDGE is "a web-based resource for the evaluation 
of foreign educational credentials." Authors for EDGE are not merely expressing their personal 
opinions. Rather, authors for EDGE must work with a publication consultant and a Council Liaison, 
and their opinions are subject to final review and approval by AACRAO's National Council on the 
Evaluation of Foreign Educational Credentials. According to EDGE, a master of science degree 
from India is "comparable to a bachelor's degree in the United States." 
http://aacraoedge.aacrao.org/credentialsAdvice.php?countryId=99&credentialID=140 (accessed 
demonstrated that the beneficiary possessed the educational requirements of the job offered as set 
forth in the labor certification. The petitioner has not submitted any diploma, transcript or 
credentials evaluation stating that the beneficiary has a master's degree in marketing, business, 
management, business administration, marketing management or its foreign educational equivalent. 
The ICES evaluation states that the beneficiary has the multiple degrees which, taken together, are 
equivalent to a U.S. bachelor's degree in marketing. The Trustforte evaluation states that the 
beneficiary has the equivalent of a master of science degree, but it does not specify a field of study. 
There is nothing in the record of proceeding that establishes that the beneficiary possesses a master's 
degree in one of the required fields of study set forth in the labor certification. 
Therefore, the petitioner has not established that the beneficiary met the educational requirements set 
forth in the labor certification as of the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
August 20, 2009). However, even if EDGE confirmed the conclusion of the Trustforte evaluation, 
the appeal would still be dismissed for the reasons set forth below. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591- 
92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Id. at 59 1.