dismissed EB-2 Case: Software Engineering

identllylng &a dew Co 
prevent &arty uawamnw 
invasion d pcrsoM1 privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
6 5- 
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. 
A&> 
1 ~'~obert P. ~iemain, Chief 
1 Administrative Appeals Office 
1 
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 a software consulting company. It seeks to employ the beneficiary permanently in the 
United States as a software engineer pursuant to section 203(b)(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. tj 11 53(b)(2). 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. As required by statute, a Form ETA 750,' 
Application for Alien Employment Certification approved by the ~ecartment 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 a bachelor's degree. 
On appeal, counsel asserts that the bgnseficiary's three-year degree in combination with his 
postgraduate diplomas are equivalent to ,a U.S. baccalaureate degree. For the reasons discussed 
below, we uphold the director's decision. 
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. 5 204.5(k)(2). The 
regulation further states: "A United States baccalaureate degr& 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 beneficiary possesses a foreign three-year bachelor's degree in commerce from Bundelkhand 
University, a diploma from the National Institute of Information Technology (NIIT) and a certificate 
from Oracle. Thus, the issues are whether one of these degrees is a foreign degree equivalent to a 
U.S. baccalaureate degree. We must also consider whether the beneficiary meets the job requirements 
of the proffered job as set forth on the labor certification. 
The first evaluation submitted, from the Foundation for International Services, Inc. considered the 
petitioner's three-year degree, his NIIT diploma and his work experience and concluded that the 
petitioner's three-year degree amounted to "three years of university-level credit in business from an 
accredited college or university in the United States." The evaluation then considered the 
petitioner's work experience in cpbination with his three-year degree, concluding that the 
petitioner had the equivalent of an individual with a baccalaureate in computer science. In response 
to the director's notice of intent to deny, the petitioner submitted a new evaluation, this one from 
Morningside Evaluations and Consulting. The new evaluation considers the petitioner's three-year 
bachelor's degree in commerce and his professional diploma from NIIT and concludes that, in 
I 
 After March 28, 2005, the correct form to apply for labor certification is the Form ETA 9089 
combination, these credentials are the equivalent of a U.S. Bachelor of Science degree in Computer 
Information Systems. The director noted that the petitioner's transcripts from Bundelkhand 
University reflected only business courses and that the evaluations were inconsistent. The director 
then concluded that the petitioner had not established that the beneficiary had the equivalent of a 
U.S. Bachelor of Science degree in engineering, computer science or a related field. 
On appeal, counsel notes that the initial evaluation mischaracterizes the diploma from NIIT as a 
certificate confirming technical training in the United States. Counsel further asserts that the second 
evaluation correctly concluded that the petitioner's education alone was equivalent to a U.S. 
Bachelor of Science degree. Counsel relies on a July 23, 2003 letter from Mr. Efren Hernandez 111, 
Director of the Business and Trade Services Branch of Citizenship and Immigration Services' (CIS) 
Office of Adjudications in support of the proposition that multiple degrees and diplomas may be 
considered in combination. Finally, counsel asserts that the beneficiary has a Master of Business 
Administration (MBA) from Nagarjuna University that the beneficiary did not initially claim as it 
was a degree in an unrelated field. The petitioner submits the MBA and transcript reflecting courses 
during academic periods ending in March 1999 and March 2000, suggesting that the beneficiary 
began studying for the MBA prior to March, 1999. 
The Form ETA-750B, signed by the beneficiary, requests the "Names and Addresses of Schools, 
Colleges and Universities Attended." It does not limit the education to that relating to the job 
offered. Thus, counsel's explanation that the beneficiary did not list his MBA because it was not 
relevant has little credibility. We note that the beneficiary's baccalaureate is in commerce, also not 
relevant to the job offered, yet the beneficiary listed that degree. Finally, the petitioner provides no 
evidence establishing that it was physically possible for him to study for his MBA at the University 
of Nagarjuna while completing his NIIT diploma in Chennai, received May 1999, and &orking as an 
Oracle Database Administrator from August 1998 through November 2000 also in Chennai. For 
example, the petitioner has not demonstrated that Nagarjuna University is sufficiently near ~hennai.~ 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence of the 
beneficiary's academic credentials and has been given an opportunity to respond to that deficiency, 
the AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N 
Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner 
had wanted the submitted evidence to be considered, it should have submitted the documents in 
response to the director's request for evidence. Id. Under the circumstances, the AAO need not and 
does not consider the sufficiency of the new academic credential submitted on appeal. 
In addition, 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). As stated above, the petitioner has not 
explained the inconsistencies between the beneficiary's prior education and experience and his 
2 
 According to the university's website, www.nagarjunauniversity.ac.in/location.asp, the university is located 
between the cities of Vijayawada and Guntur with two postgraduate centers in Nuzvid and Ongole. 
Page 4 
MBA. 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 
591. 
Finally, regarding the evaluations, CIS 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, CIS 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; CIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796. CIS may even give less weight to an 
opinion that is not corroborated, in accord with other information dr is in any way questionable. Id. 
at 795; See also Matter of SofJici, 22 I&N Dec. 158, 165 (Comm.. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. .1972)). 
Authority to Evaluate Whether the Alien is Eligible for the Classification Sought 
As noted above, the ETA 750 in this matter is certified by DOL. Thus, at the outset, it is usefil to 
discuss DOL's role in this process. Section 212(a)(5)(A)(i) of the Act provides: 
In general.-Any alien who seeks to enter the UnitedStates for the purpose of performing 
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined 
and certified to the Secretary of State and the Attorney General that- 
(I) there are not sufficient workers who are able, willing, qualified (or 
equally qualified in the case of an alien described in clause (ii)) and available 
at the time of application for a visa and admission to the United States and at 
the place where the alien is to perform such skilled or unskilled labor, and 
(11) the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
According to 20 C.F.R. 9 656.1(a), the purpose and scope of the regulations regarding labor 
certification are as follows: 
Under § 212(a)(5)(A) of the Immigration and Nationality Act (INA) (8 U.S.C. 
11 82(a)(5)(A)) certain aliens may not obtain a visa for entrance into the United States in 
order to engage in permanent employment unless the Secretary of Labor has first 
certified to the Secretary of State and to the Attorney General that: 
(1) There are not sufficient United States workers, who are able, willing, 
qualified and available at the time of application for a visa and admission 
into the United States and at the place where the alien is to perform the work, 
and 
(2) The employment of the alien will not adversely affect the wages and 
working conditions of United States workers similarly employed. 
It is significant that none of the above inquiries -assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. 5 656, 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. 
There is no doubt that the authority to make preference classification decisions rests 
with INS. 
 The language of section 204 cannot be read otherwise. 
 See Castaneda- 
GonzaIez v. INS, 564 F.2d 417,429 (D.C. Cir. 1977). Ip turn, DOL has the authority 
to make the two determinations listed. in section 2 12(a)(14). 
 Id. at 423. 
 The 
necessary result of these two grants of authority is that section 212(a)(14) 
determinations are not subject to review by INS absent fraud or willful 
misrepresentation, but all matters relating to preference classification eligibility not 
expressly delegated to DOL remain within INS' authority. 
Given the language of the Act, the totality of the legislative history, and the agencies' 
own interpretations of their duties under the Act, we must conclude that Congress did 
not intend DOL to have primary authority to make any determinations other than the 
two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for 
the purpose of "matching" them with those of corresponding United States workers so 
that it will then be "in a position to meet the requirement of the law," namely the 
section 2 12(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
The Office of Adjudications letter submitted on appeal is not binding on the AAO. Letters written 
by the Office of Adjudications do not constitute official CIS policy and will not be considered as 
such in the adjudication of petitions or applications. Although the letter may be useful as an aid in 
interpreting the law, such letters are not binding on, any CIS officer as they merely indicate the 
writer's analysis of an issue. See Memorandum from Thomas Cook, Acting Associate 
Commissioner, Office of Programs, Signzficance ofletters Drafted by the Office of AAjudications 
(December 7,20OO)(copy incorporated into the record of proceeding). 
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. 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: 
/ 
Page 6 
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 (November 29,199l)(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 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. A United States baccalaureate degree is generally found to require four 
years of education. Matter of Shah, 17 I&N Dec. 244 (Reg. Comm. 1977). ,Where the analysis of 
the beneficiary's credentials relies on work experience alone or B combination of multiple lesser 
degrees, the result is the "equivalent" of a bachelor'sbdegree 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. 
Thus, in order to have experience and- education equating to an advanced degree under section 
203(b)(2) of the Act, the beneficiary musj have a single degree that is the "foreign equivalent 
degree" to a United States baccalaureate degree. As noted in the federal register, persons who claim 
to qualify for an immigrant visa by virtue of-education or experience equating to bachelor's degree 
will 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. 
Because the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent 
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. 
Authority to Evaluate Whether the Alien is Qualified for the Job Offered 
Relying in part on Madany, 696 F.2d at 1008, the Ninth circuit stated: 
[I]t appears that the DOL is responsible only hr 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. 5 1154(b), as one of the determinations incident to the INS'S decision 
whether the alien is entitled to sixth preference status. 
K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
fiom DOL that stated the following: 
The labor certification made by the Secretary of Lalxo~: ... pursuant to section 
2 12(a)(14) of the ... [Act] ... is binding as to the findings. of whether there are able, 
willing, qualified, and available United States workers fo? 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 certzfication in no way indicates that the alien offered the 
certzfied job opportunity is qualzfied (or not qualzfied) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.R.K. Iwine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: 
The Department of Labor ("DOL") must certify that insufficient domestic workers 
are available to perform the job and that the alien's performance of the job will not 
adversely affect the wages and working conditions of similarly employed domestic 
workers. Id. 5 212(a)(14), 8 U.S.C. 5 1182fa)(14). 
 The INS then makes its own 
determination of the alien's entitlement to sixth preference status. Id. 5 204(b), 
8 U.S.C. 5 1 154(b). See generally K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 
1008 9th Cir. 1983). 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldnian, 736 F. 2d 1305, 1309 (9th Cir. 1984). 
The key to determining the job qualifications is found on Form ETA-750 Part A. This section of the 
application for alien labor certification, "Offer of Employment," describes the terms and conditions 
of the job offered. It is important that the ETA-750 be read as a whole. The instructions for the 
Form ETA 750A, item 14, provide: 
. 
Minimum Education, Training, and Experience Required to Perform the Job 
Duties. 
 Do not duplicate the time requirements. For example, time required in 
training should not also be list~d in education or experience. Indicate whether months 
or years are required. Do not include restrictive requirements which are not actual 
business necessities for performance on the job and which would limit consideration 
of otherwise qualified U.S. workers. 
Page 8 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: Bachelor's Degree 
Experience: 
 Five years in the job offered or related occupation. 
Block 15 : "NONE", 
Moreover, to determine whether a beneficiary is eligible-for a prqference immigrant visa, CIS must 
ascertain whether the alien is, in fact, qualified for the certified job. CIS will not accept a degree 
equivalency or an unrelated degree when a labor certification plainly and expressly requires a 
candidate with a specific degree. In evaluating the beneficiary's qualifications, CIS must look to the 
job offer portion of the labor certification to determine the required qualifications for the position. 
CIS 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 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). 
Finally, where the job requirements in a labor certific?tion are not otherwise unambiguously 
prescribed, e.g., by professional regulation, CIS must examine "the language of the labor 
certification job requirements" in order to determine what the beneficiary must demonstrate to be 
found qualified for the position. Madany, 696 F.2d at 1015. The only rational manner by which CIS 
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." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984)(emphasis added). CIS'S interpretation of the job's requirements, as stated on the labor 
certification must involve "reading and applying the plain ianguage of the [labor certification 
application form]." Id. at 834 (emphasis added). CIS cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued. 
The labor certificate requires a bachelor's degree in engineering, computer science or a related 
degree. The labor certificate does not indicate that an equivalent degree or combination of education 
would be acceptable. The beneficiary's three-year degree is not even in a related field. Rather, his 
only engineering or computer science credentials are his diploma from NIIT and his work 
experience. Thus, the beneficiary does not meet the educational requirements specified on the labor 
certification. 
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. In 
addition, the beneficiary does not meet the job requirements on the labor certification. For these 
reasons, considered both in sum and as separate grounds for denial, the petition may not be 
approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. fj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.