dismissed EB-2 Case: Network Analysis

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an 
Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of 
the Immigration and Nationality Act, 8 U.S.C. § 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. 5 103.5 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 
n, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner is a company which operates and controls bulk electrical power systems. It seeks to 
employ the beneficiary permanently in the United States as a senior network analyst pursuant to section 
203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 153(b)(2). As required by 
statute a Form ETA 750, Application for Alien Employment Certification, approved by the 
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 necessary for 
classification as a member of the professions holding an advanced degree. Specifically, the director 
determined that the beneficiary did not possess at least a U.S. baccalaureate or foreign equivalent 
degree. The director denied the petition accordingly. 
In pertinent 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 academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. $ 204.5(k)(2). The 
regulation further states: "A United States baccalaureate degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." Id. 
Section 203(b)(2) of the Act also includes aliens "who because of their exceptional ability in the 
sciences, arts or business, will substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States." The regulation at 8 C.F.R. $ 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered." 
The beneficiary possesses a foreign three-year degree of "College Engineer" (Hragskoleingenirar) 
from Srar-Trrandelag College. Thus, the issue is whether this degree is a foreign degree equivalent to 
a U.S. baccalaureate degree. 
As noted above, the Form ETA 750 in this matter is certified by the DOL. The DOL's role is limited to 
determining whether there are sufficient workers who are able, willing, qualified and available and 
whether the employment of the alien will adversely affect the wages and working conditions of workers 
in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. $ 656.1(a). 
It is significant that none of the above inquiries assigned to the DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. $ 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
Page 3 
The netitioner initiallv submitted two evaluations of the beneficiarv's educational aualifications. 
- --- r-..------. ..--......, ~ ~ - . ~~ - - 
One evaluation is from 
 The evaluation states that the 
beneficiary's three-year College Engineer degree is equivalent to three years of undergraduate study 
at a regionally accredited institution of higher education in the United States. The second evaluation 
- 
is from 
 and it states that the beneficiary's three-year College 
Engineer degree is equivalent to a United States bachelor's degree. 
On April 11, 2007, the director issued a Request for Evidence (RFE) requesting evidence that the 
beneficiary had obtained a bachelor's degree in computer engineering or a related field prior to the 
priority date. In response, the petitioner submitted an evaluation of the beneficiary's College 
Engineer degree from . The evaluation states that 
the beneficiary's College Engineer degree is equivalent to a four-year Bachelor of Science degree in 
computer engineering from an accredited U.S. college or university. 
The director denied the ~etition on Aunust 9. 2007. On atmeal. counsel has submitted a course-by- 
" a. , 
course evaluation prepared by 
 This evaluation 
concludes that the beneficiary "earned the equivalent of a 2.54 grade point average and 132 credit 
hours, surpassing the typical 128-credit hour requirement for the award of a U.S. bachelor's degree 
in Computer Engineering, or a related Engineering discipline." 
The evaluations of the beneficiary's credentials are inconsistent. As noted above, the evaluation 
from- concludes that the beneficiary's degree is equivalent to only three years of 
undergraduate study, whereas the evaluations fromstate that 
the beneficiary's degree is equivalent to a U.S. bachelor's degree. The submission of inconsistent 
evidence precludes approval unless those inconsistencies are overcome with objective credible 
evidence. More specifically, it is incumbent on the petitioner to resolve any inconsistencies in the 
record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, 
absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter 
of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). The petitioner has failed to submit any evidence to 
resolve these inconsistencies. 
Further, the WES evaluation fails to provide any explanation as to how it evaluated the beneficiary's 
degree, what materials were relied on, or what methodology was used in evaluating the beneficiary's 
degree. 
The course-by-course evaluation from - lists all of the courses taken by the 
beneficiary during his three-year program at  or-~rondela~ College, as well as the credits and "U.S. 
credit equivalent" for each course. The record also contains a copy of the beneficiary's transcript 
from Sor-Tr~ndelag College which lists the credits for each course completed by the beneficiary, 
and lists the total of 62 credits. In the course-by-course evaluation prepared by The Trustforte 
Corporation, the credit for each course taken by the beneficiary is increased by a factor of 1.65, 
increasing the total credits for the three-year program to 102.3. However, no explanation is provided 
as to why such an increase in the number of credits is appropriate. In addition, the Trustforte 
evaluation lists an additional 30 credits for "preliminary post-secondary studies," thus bringing the 
beneficiary's total credits to 132. However, there is no documentation in the record regarding any 
"preliminary post-secondary studies" completed by the beneficiary. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, the 
Service is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791 (Comm. 1988); Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 
1988). In this case, given the unresolved inconsistencies between the evaluations and the lack of 
support for the evaluations, this office finds that the evaluations in the record fail to establish that the 
beneficiary possesses the equivalent of a United States bachelor's degree. 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.C. 51 153(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. 5 1 153(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"d Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201 613 at *6786 (Oct. 26,1990). 
At the time of enactment of section 203(b)(2) of the Act in 1990, it had been almost thirteen years 
since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference immigrant visas. We must assume that Congress was aware of the agency's previous 
treatment of a "bachelor's degree" under the Act when the new classification was enacted and did 
not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575,580- 
81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it 
adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991) (an alien must have at least a bachelor's degree). 
Page 5 
In 1991, when the final rule for 8 C.F.R. 5 204.5 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. 10 1-649 (1 990), 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, an alien must have at least a bachelor's degree. 
56 Fed. Reg. 60897,60900 (Nov. 29,1991) (emphasis added). 
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under 
section 203(b)(2) of the Act as a member of the professions holding an advanced degree with 
anything less than a full baccalaureate degree. More specifically, a three-year bachelor's degree will 
not be considered to be the "foreign equivalent degree" to a United States baccalaureate degree. 
Matter of Shah, 17 I&N Dec. at 245. Where the analysis of the beneficiary's credentials relies on 
work experience alone or a combination of multiple lesser degrees, the result is the "equivalent" of a 
bachelor's degree rather than a "foreign equivalent degree."' 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. 
8 C.F.R. 5 204.5(k)(2). As explained in the preamble to the final rule, persons who claim to qualify 
for an immigrant visa by virtue of education or experience equating to a bachelor'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. 5 204.5(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." (Emphasis added.) For classification as a 
member of the professions, the regulation at 8 C.F.R. tj 204.5(1)(3)(ii)(C) requires the submission of 
"an official college or university record showing the date the baccalaureate degree was awarded and 
the area of concentration of study." We cannot conclude that the evidence required to demonstrate 
' Compare 8 C.F.R. 5 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa 
classification, the "equivalence to completion of a college degree" as including, in certain cases, a 
specific combination of education and experience). The regulations pertaining to the immigrant 
classification sought in this matter do not contain similar language. 
that an alien is an advanced degree professional is any less than the evidence required to show that 
the alien is a professional. To do so would undermine the congressionally mandated classification 
scheme by allowing a lesser evidentiary standard for the more restrictive visa classification. 
Moreover, the commentary accompanying the proposed advanced degree professional regulation 
specifically states that a "baccalaureate means a bachelor's degree received from a college or 
university, or an equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). 
Compare 8 C.F.R. fj 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, certiJicate 
or similar award from a college, university, school or other institution of learning relating to the 
area of exceptional ability")(Emphasis added.) 
Because the petitioner has failed to establish that the beneficiary has a "United States baccalaureate 
degree or a foreign equivalent degree" from a college or university, this office finds that the 
beneficiary does 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. 
The beneficiary does 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.