dismissed EB-2 Case: Software Development

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLICCOPV 
Date: MAR I 6 2012 Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (i\AO) 
20 Massachusetts Ave., N.W., MS 2090 
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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, 
and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a software development and services company. It seeks to employ the beneficiary 
permanently in the United States as a software developer. As required by statute, the petition is 
accompanied by an ETA Form 9089, Application for Permanent Employment Certification, 
approved by the United States Department of Labor (DOL). Upon reviewing the petition, the 
director determined that the beneficiary did not satisfy the minimum level of education stated on the 
labor certification. The director denied the petition accordingly. 
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. 
As set forth in the director's January 26, 2009 denial, the single issue in this case is whether the 
beneficiary possessed the minimum level of education stated on the labor certification. 
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.s.c. § 
1153(b )(2), 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. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeaL! 
Eligibility for the Classification Sought 
As noted above, the ETA Form 9089 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). 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(1). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. 
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
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). 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 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 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 st 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 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). 
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, 
Page 4 
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 (Plus the requisite five years of progressive experience 
in the specialty). More specifically, a three-year bachelor's degree will not be considered to be the 
"foreign equivalent degree" to a United States baccalaureate degree. 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."z In order to have experience and education equating to an 
advanced degree under section 203(b )(2) of the Act, the beneficiary must have a single degree that is 
the "foreign equivalent degree" to a United States baccalaureate degree (plus the requisite five years 
of progressive experience in the specialty). 8 C.F.R. § 204.5(k)(2). 
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" (plus evidence of five years of progressive 
experience in the specialty). For classification as a member of the professions, the regulation at 8 
C.F.R. § 204.5(I)(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 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 
Z 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 certain cases, a 
specific combination of education and experience). The regulations pertaining to the immigrant 
classification sought in this matter do not contain similar language. 
Page 5 
degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare 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 award from a 
college, university, school or other institution of learning relating to the area of exceptional ability"). 
According to its website, AACRAO, which created EDGE is "a nonprofit, voluntary, professional 
association of more than 11,000 higher education admissions and registration professionals who 
represent approximately 2,600 institutions and agencies in the United States and in over 40 
countries." See http://www.aacrao.orgiAbout-AACRAO.aspx (accessed February 1, 2012 and 
incorporated into the record of proceeding). 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." Id. In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D. 
Minn. March 27, 2009), a federal district court determined that the AAO provided a rational explanation 
for its reliance on information provided by AACRAO to support its decision. 
According to the login page, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials" that is continually updated and revised by staff and members of AACRAO . 
••••••••••••••••••••••.•• "AACRAO EDGE Login," 
http://aacraoedge.aacrao.orglindex.php (accessed February 1, 2012 and incorporated into the record 
of proceeding). In Tisco Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. August 30, 
2010), a federal district court found that USCIS had properly weighed the evaluations submitted and 
the information obtained from EDGE to conclude that the alien's three-year foreign "baccalaureate" 
and foreign "Master's" degree were comparable to a U.S. bachelor's degree. In Sunshine Rehab 
Services, Inc., 2010 WL 3325442 (E.D.Mich. August 20, 2010), a federal district court upheld a 
USCIS conclusion that the alien's three-year bachelor's degree was not a foreign equivalent degree 
to a U.S. bachelor's degree. Specifically, the court concluded that USCIS was entitled to prefer the 
information in EDGE and did not abuse its discretion in reaching its conclusion. The court also 
noted that the labor certification itself required a degree and did not allow for the combination of 
education and experience. The reasoning in these decisions is persuasive. 
The required education, training, experience, and special requirements for the offered position are set 
forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a master's 
degree, or foreign educational equivalent, in computer science, information systems, or any 
engineering or related degree. The petitioner will also accept a bachelor's degree and five years of 
work experience. 
The beneficiary set forth his credentials on the labor certification and signed his name, under a 
declaration that the contents of the form are true and correct under the penalty of perjury. On the section 
of the labor certification eliciting information of the beneficiary'S education, he states that he attended 
Osmania University and received both a bachelor's degree and a master of science degree. The master 
of science degree was awarded in April 2004. On the section of the labor certification eliciting 
information of the beneficiary's work experience, he represented that he has worked as a software 
developer for the petitioner from May 2007 to July 2007. He worked as a programmer analyst for S4 
Page 6 
Consultants from November 2006 to April 2007. He additionally worked as a senior programmer for 
2004. 
from April 2002 to November 2006. The beneficiary was apparently working full-time 
at the same time he was pursuing his master of science degree, which was awarded in 
USC IS 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, 
USCIS is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791, 795 (Comm'r 1988); Matter of Sea, Inc., 19 I&N Dec. 817, 820 
(Comm'r 1988). 
The record contains additional evaluations of the beneficiary's credentials which similarly conclude 
that the beneficiary's education is equivalent to a U.S. master's degree in Computer Information 
Systems. The record contains additional evaluations of the beneficiary'S credentials which similarly 
conclude that the beneficiary'S education is equivalent to a U.S. master's degree in Computer 
Information Systems. 
However, in the section related to the Indian educational system, EDGE provides that Master of 
Science "represents attainment of a level of education comparable to a bachelor's degree in the 
United States." 
Therefore, since the beneficiary does not possess a master's degree, but rather a foreign equivalent to 
a U.S. bachelor's degree, in order to qualify as a member of the professions holding an advanced 
degree, the beneficiary must possess the foreign equivalent of a U.S. bachelor's degree followed by 
five years of progressive experience in the specialty. 8 C.F.R. § 204.5(k)(2). This alternative is also 
permitted by the ETA Form 9089, part H, item 8. In addition, the beneficiary must have possessed 
the bachelor's degree and five years of experience by the July 30, 2007 priority date. 8 C.F.R. § 
103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I. & N. Dec. 158, 159 (Act. Reg. Cornrn. 
1977); see also }.1atter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comm. 1971). 
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: 
[I]t 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), 
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. 
-Page 7 
KR.K Irvine, Inc. 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)] of the ... [Act] ... is binding as to the findings of whether there are able, 
willing, qualified, and available United States workers for the job offered to the alien, 
and whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) Id 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." Tongatapu, 736 F. 2d at 1309. 
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not 
ignore a term ofthe labor certification, nor may it impose additional requirements. See Madany, 696 
F.2d at 1015. USCIS 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 USCIS can be 
expected to interpret the meaning of terms used to describe the requirements of a job in a labor 
certification is to examine the certified job offer 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). USCIS's interpretation of the job's requirements, as stated on the labor 
certification must involve reading and applying the plain language of the alien employment 
certification application form. See id. at 834. USCIS cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that the DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
letters from the fo~ 
The letters from_ 
are insufficient to support claimed work experience because 
a sufficient description of the job duties for the beneficiary. Moreover, 
and, _are not listed on ETA Form 9089 despite the 
jobs the alien has held during the past three years as well 
as "any other experience that qualifies the alien for the job opportunity for which the employer is 
seeking certification." See Matter of Leung, 16 I&N Dec. 12 (Reg. Comm. 1976). Regardless, as the 
beneficiary did not have five years of experience following the award of his Indian master's degree 
(April 2004) before the priority date (July 2007), the beneficiary does not meet the alternative 
requirement of the labor certification and does not qualify as an advanced degree professional. 8 
C.F.R § 204.5(k)(2). 
, .. ' .. 
Page 8 
The beneficiary has a "United States baccalaureate degree or a foreign equivalent degree," but does 
not have the required five years of experience in the job offered or the specialty, and thus, does not 
qualify for preference visa classification under section 203(b )(2) of the Act. The beneficiary also 
does not meet the job requirements on the labor certification. 
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.