dismissed EB-2 Case: Software Engineering

(b)(6)
DATE: 
JUN f 9 2015 
INRE: Petitioner: 
Beneficiary: 
FILE#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT #: 
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: 
INSTRUCTIONS: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be 
filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
~
r·_ ''f?).r o Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center 
(the director) and is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner describes itself as a software service firm. It seeks to permanently employ the beneficiary 
in the United States as a software engineer. The petitioner requests classification of the beneficiary as 
an advanced degree professional pursuant to section 203(b)(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(2). 
The director found that the job offered does not require a professional with at least a master's degree 
or a bachelor's degree plus five (5) years of experience, and the beneficiary did not meet the 
requirements for classification as an advanced degree professional. 
The petitioner's 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. 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). We consider all pertinent evidence in the record, including new evidence properly submitted 
upon appea1.1 · 
Classification as an Advanced Degree Professional 
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of 
the professions holding advanced degrees. See also 8 C.F.R. § 204.5(k)(1). The regulation at 8 C.F.R. 
§ 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is 
defined as: 
[A]ny United States academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. 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. 
A "profession" is defined 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." The occupations listed at section 101(a)(32) of 
the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
1 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are 
incorporated into the regulations by 8 C.F.R. § 103.2(a)(l). 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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional 
must be accompanied by: 
(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 States 
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. 
In addition, the job offer portion of the labor certification must require a professional holding an 
advanced degree. See 8 C.P.R.§ 204.5(k)(4)(i). 
The beneficiary's degree must also be from a college or university. The regulation at 8 C.F.R. 
§ 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the 
beneficiary 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(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 that a beneficiary is an advanced degree professional is any less than the evid~nce 
required to show that the beneficiary 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. See Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 
28, 31 (3rd Cir. 1995) per APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003) (the basic tehet 
of statutory construction, to give effect to all provisions, is equally applicable to regulatory 
construction). 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, 30706 (July 5, 
1991).2 
Thus, the plain meaning of the Act and the regulations is that the . beneficiary of an advanced degree 
professional petition must possess, at a minimum, a degree from a college or university that is a U.S. 
baccalaureate degree or a foreign equivalent degree. 
As required by statute, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by the U.S. Department of 
Labor (DOL).3 The priority date of the petition is April 17, 2013.4 Part H of the labor certification 
states that the offered position has the following minimum requirements: 
2 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"). 
3 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
4 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5( d). 
(b)(6)
Page4 
H.4. 
H.5. 
H.6. 
H.7. 
H.8. 
H.9. 
H.lO. 
H.14. 
NON-PRECEDENT DECISION 
Education: Bachelor ' s degree m Computer Science, Electronic/Electrical Engineering , 
Engineering Math or equiv. 
Training: None required. 
Experience in the job offered: 60 months. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: None accepted. 
Foreign educational equivalent: Accepted. 
Experience in an alternate occupation: None accepted. 
Specific skills or other requirements: Five years' experience in the job offered. Note 1: For 
evaluating experience in the offered position under item H (6), employer will consider only 
substantive past job duties, irrespective of the job titles designated by the past employers. 
Note 2: Employer will accept as equiv. education and/or training recognized as equiv. to a 
Bachelor's degree in the relevant country and found comparable to a U.S. Bachelor's degree 
evaluated according to EDGE by a college professor authorized to issue college level credits. 
Relocation Possible. Note 3: To clarify any potential doubts raised by defects in form 9089, 
employer hereby notes for the record that entries from H-4 through H-lOB should be read to 
mean that the employer requires: Bachelors in Computer Science, Electronic/ Electrical 
Engineering, Engineering, Math or equivalent with Five years' experience in the job offered. 
Part J of the labor certification states that the beneficiary possesses a bachelor's degree in electronic 
engineering from the _ . _ India, completed in 1997. The record 
contains a copy of the beneficiary's certification that he passed Sections A and B of the 
and · the . . 
corresponding transcripts covering 1995 through 1998. The record also contains results from the 
Technical Examinations Board, from 1990 through 1993 . 
The record contains a May 18, 2012 evaluation of the beneficiary's educational credentials prepared 
by Professor Department of Statistics and Computer Information Systems for 
_ 5 The evaluation states that the beneficiary's passage of the sections A and 
B of the Examinations in 
is equivalent to a U.S. Bachelor of Science degree in Electronic Engineering. 
The record also contains an evaluation of the beneficiary's educational credentials prepared by 
for the on December 3, 2013. The 
evaluation states that the beneficiary's 1998 passage of sections A and B of the examinations in 
5 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 (Commr. 1988). However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. !d. The submission of letters from experts supporting 
the petition is not presumptive evidence of eligibility. USCIS may evaluate the content of the letters as to whether they 
support the alien's eligibility. See id. at 795. USCIS may give less weight to an opinion that is not corroborated, in 
accord with other information or is in any way questionable. !d. at 795. See also Matter of Soffici, 22 I&N Dec. 158, 165 
(Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. CoiiDnr. 1972)); Matter of D-R- , 
25 I&N Dec. 445 (BIA 2011) (expert witness testimony may be given different weight depending on the extent of the 
expert's qualifications or the relevance, reliability, and probative value of the testimony). 
(b)(6)
NON-PRECEDENT DECISION 
PageS 
electronics and communication resulted in Associate Membership in and is a single-source 4-
year foreign equivalent degree to a Bachelor of Science in electronic engineering from an accredited 
university in the United States. 
The Electronic Database for Global Education (EDGE) was created by AACRAO. EDGE is "a web­
based resource for the evaluation of foreign educational credentials." See 
http://edge.aacrao.org/info.php. According to its website, AACRAO 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-AACRAO.aspx. Its mission 
"is to serve and advance higher education by providing leadership in academic and enrollment 
services." /d. We consider EDGE to be a reliable, peer-reviewed source of information about 
foreign credentials equivalencies. 6 EDGE confirms· that the beneficiary's passage of section A 
and B of the institute examinations resulted in associate membership in the which "represents 
attainment of a level of education comparable to a bachelor's degree in the United States." 
As is explained above, for classification as · an advanced degree professional, the beneficiary must 
possess a foreign degree from a college or university that is equivalent to a U.S. bachelor's degree. 
Although AACRAO and EDGE confirm that Associate Membership in is comparable to a U.S. 
bachelor's degree, it is not a degree from a college or university. The is not an institution of 
higher education that can confer a degree.7 See _ _ (accessed May 21, 
2015). Therefore, the beneficiary possesses the "equivalent" of a bachelor's degree rather than a 
"foreign equivalent degree" within the meaning of 8 C.F.R. § 204.5(k)(2). 
After reviewing all of the evidence in the record, it is concluded that the petitioner has not established 
that the beneficiary possessed at least a U.S. academic or professional degree (or a foreign equivalent 
degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed &y at 
least five years of progressive experience in the specialty. 
Therefore, the beneficiary does not qualify for classification as a member of the professions holding 
an advanced degree under section 203(b )(2) of the Act. The director's decision denying the petition 
is affirmed. 
6 In Confluence International, Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the court determined th\lt the 
AAO provided a rational explanation for its reliance on information provided by AACRAO to support its decision. In 
Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. August 30, 2010), the court found that USCIS had 
properly weighed the evaluations submitted and the information obtained from EDGE to conclude that the beneficiary's 
three-year foreign "baccalaureate" and foreign "Master's" degree were only comparable to a U.S. bachelor's degree. In 
Sunshine Rehab Services, Inc. v. USCIS, 2010 WL 3325442 (E.D.Mich. August 20, 2010), the court upheld a USCIS 
determination that the beneficiary'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 required a degree and did nGt 
allow for the combination of education and experience. 
7 See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 at 11 (D. Ore. Nov. 30, 2006) (finding USCIS was 
justified in concluding that membership was not a college or 
university "degree" for purposes of classification as a member of the professions holding an advanced degree). 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Proffered Position 
As discussed above, the plain meaning of the Act and the regulations is that the beneficiary of an 
advanced degree professional petition must possess, at a minimum, a degree from a college or 
university that is a U.S. baccalaureate degree or a foreign equivalent degree. The issue is that the 
proffered position's minimum requirements, as stated on the labor certification, do not meet the 
minimum qualifications required for classification as an advanced degree professional. 
The petitioner contends that the language "Note 2: Employer will accept as equiv. education and/or 
training recognized as equiv. to a Bachelor's degree in the relevant country and found comparable to 
a U.S. Bachelor's degree evaluated according to EDGE by a college professor authorized to issue 
college level credits," used in section H.14, does not mean that it would accept less than the 
baccalaureate degree and 60 months of experience required by for classification as an advanced 
degree professional. The petitioner contends that the language requires qualifications that are 
functionally equivalent to a bachelor's degree and 60 months of experience. 
We must look to the job offer portion of the labor certification to determine the required 
qualifications for the position and cannot ignore a term of the labor certification or impose additional 
requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra­
Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). We interpret the 
meaning of terms used to describe the requirements of a job in a labor certification by "examin[ing] 
the certified job 
offer exactly as it is completed by the prospective employer" and our interpret:hion 
of the job's requirements must involve "reading and applying the plain language of the [labor 
certification]" even if the employer may have intended different requirements than those stated on 
the form. Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emphasis 
added). 
In the instant case, we find J:hat the plain language of section H.14 is that the petitioner would accept 
less than an actual bachelor's degree or foreign equivalent degree. Specifically, the employer will 
accept education and/or training recognized as equivalent to a bachelor's degree in the relevant 
country and noted in EDGE by a college professor authorized to issue college level credits to be 
comparable to a U.S. bachelor's degree. As is discussed above, some education and/or training ' that 
may be recognized as equivalent to a bachelor's degree in one country and noted in EDGE as 
comparable to a U.S. bachelor's degree may not be considered a foreign equivalent degree within the 
meaning of 8 C.F.R. § 204.5(k)(3)(i)(B). Therefore the position does not qualify for classification as 
an advanced degree professional. 
Classification as a Professional 
On appeal, the petitioner states that it would accept classification of the beneficiary as a professional 
pursuant to Section 203(b)(3)(A)(ii) of the Act.8 A petitioner may not make material changesto a 
8 Section 203(b)(3)(A)(ii) of the Act grants preference classification to qualified immigrants who hold baccalaureate degrees 
and are members of the professions. See also 8 C.F.R. § 204.5(1)(2). 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988). Therefore, we will not consider whether the 
beneficiary meets the requirements for classification as a professional. 
Ability to Pay 
Beyond the decision of the director,9 we find that the petitioner has not established its ability to pay 
the proffered wage. The regulation at 8 C.P.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job 
offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 
8 C.P.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USCIS requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality 
of the circumstances affecting the petitioning business will be considered if the evidence warrants such 
consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg' I Comm'r 1967). 
The proffered wage as stated on the ETA Form 9089 is $111,072.00 per year. The evidence in the 
record of proceeding shows that the petitioner is structured as a C corporation. On the petition~ the 
petitioner claimed to have been established in and to currently employ 48 workers. 
The regulation at 8 C.P.R. § 204.5(g)(2) requires annual reports, federal tax returns, or audited 
financial statements as evidence of a petitioner's ability to pay the proffered wage. The record of 
proceeding does not contain the regulatory required evidence of the petitioner's ability to pay the 
proffered wage in 2013 and 2014.10 Pursuant to the regulation at 8 C.P.R. § 204.5(g)(2), the 
petitioner did not submit annual reports, federal tax returns, or audited financial statenwrrts 
establishing that it had the continuing ability to pay the proffered wage as of the August 12, 2014 
priority date. Without the regulatory required evidence, we are unable to accurately assess the 
petitioner's ability to pay the proffered wage. Therefore, the petitioner has not established its ability 
9 We may deny an application or petition that fails to comply with the technical requirements of the law 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), affd, 345 F.3d 683 (9
1
h Cir. 2003); see also Soltane v. DO.!, 
381 F.3d 143, 145 (3d Cir. 2004) (noting that we conduct appellate review on a de novo basis). ; 
10 We note that the record contains the petitioner's 2012 Internal Revenue Service (IRS) Form 1120, U.S. Corporation 
Income Tax Return. However, the petition must establish its ability to pay the proffered wage from 2013 onwards. We 
also note that the record contains the beneficiary's 2013 Form W-2, Wage and Tax Statement demonstrating that the 
petitioner paid the beneficiary less than the proffered wage. However, this evidence may not be substituted for evidence 
required by the regulation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence. 
According to USCIS records, the petitioner has filed at least six (6) Form 1-140 immigrant petitions on 
behalf of other beneficiaries since 2013, the year of the priority date. Accordingly, the petitioner must 
establish that it has had the continuing ability to pay the combined proffered wages to each beneficiary 
from the priority date of the instant petition. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 
(Acting Reg'l Comm'r 1977). The evidence in the record does not document the priority date, proffered 
wage or wages paid to each beneficiary, whether any of the other petitions have. been withdrawn, 
revoked, or denied, or whether any of the other beneficiaries have obtained lawful permanent residence. 
Thus, it is also concluded that the petitioner has not established its continuing ability to pay the 
proffered wage to the beneficiary and the proffered wages to the beneficiaries of its other petitions. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burde.n to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.