dismissed EB-2 Case: Software Engineering

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Date: JAN 1 5 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
Jr,s.; l,)ep~rtDJ..e:llt .or Ho~eJ.atid .. ~.-.tY 
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 
FILE: 
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 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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found ar 8 C.F.R. § 103.5. Do not file any motion 
4irectly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
~rna·· 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
~-IJS~.goy 
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DISCUSSION: The preference visa petition was denied by the Director, Texas 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 consulting company. It seeks to employ the 
beneficiary permanently in the United States as a software engineer. As required by statute, the 
petition is accompanied by an ETA Form 9089, Application for Permanent Employment 
Certification (labor 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 or as required by the advanced. degree professional 
classification. 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 September 21, 2010 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 bacc~aureate level. 8 C.P.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 
p:rogressive 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." /d. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record,· including new evidence 
properly submitted upon appeal.1 
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 ~d 
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.P.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.P.R. § 656, involve a determination as to whether or not the alien 
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.P.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). 
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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 Hawaiz, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 {91h 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'l. 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 ... ~o 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 Cominittee 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, 10151 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.P.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, 
the Service specifically noted that both the Act and the legislative· history indicate that an alien must 
have at least a bachelor's degree: 
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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, jn 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."2 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 th~t 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(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 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. 
§ 2045(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an official 
2 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. 
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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"). 
The key to determining the job qualifications_ is found on ETA Form 9089 Part H. This section of 
the application for alien labor certification, "Job Opportunity Information," describes the terms and 
conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. 
, Here, Part H shows that the position requires a master's degree, or foreign educational equivalent, in 
computer science, MIS, CIS, engineering, math, business, technology, or related field. The petitioner 
will also accept a bachelor's degree -and 60 months of experience in the job offered or in the alternate 
occupations of programmer analyst, team/project lead, programmer, software engineer, or related 
occupation. 
The record contains a copy ofthe -beneficiary's Bachelor of Science degree from 
and a Post Graduate Diploma in Computer Software from 
both in India. 
The record contains the following educational evaluations ofthe beneficiary's credentials: 
• An evaluation from International Credentials Evaluation and Translation Services. 
':,. The evaluation is dated April 2005. The evaluation is signed by 
i!~~ The evaluation describes the beneficiary's combined education as being the 
equivalent of a U.S. Bachelor of Science degree in computer science. The evaluator 
found the beneficiary's Bachelor of Science to be equivalent to three years of 
university study in the U.S .. 
• An evaluation from The evaluation is dated October 
14, 2010. The evaluation is signed by The evaluation also 
describes the beneficiary's combined education as being the equivalent of a U.S. 
Bachelor of Science degree in computer science. 
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 fmal 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. 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. Commr. 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). 
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According to its website, the American Association of Collegiate Registrars and Admissions 
Officers (AACRAO), which created the Electronic Database for Olobal Education (EDGE) is ''a 
nonprofit, voluntary, professional association of in ore 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.org/About-AACRAO.aspx (accessed July 
16, 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." /d. 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. 
Dale E. Gough, Director of International Education Services, "AACRAO EDGE Login," 
http://aacraoedge.aacrao.org/index.php (accessed July 16, 2012 and incorporated into the record of 
proceeding). In Tiseo 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, 20l0), 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. 
In the section related to the Indian educational system, EDGE provides that a three-year Bachelor of 
Science degree "represents attainment of a level of education comparable to two to three years of 
university study in the United States. Credit may be awarded on a course-by-course basis." The two 
evaluations 
in the record appear to be in accord with EDGE on this issue. 
EDGE further discusses postgraduate diplomas, for which the entrance requirement is completion of 
a two- or three-year baccalaureate degree. EDGE states that a postgraduate diploma following a 
two-year bachelor's degree represents attainment of a level of education comparable to one year of 
. university study in the United States. EDGE also states that a postgraduate diploma following a 
three-year bachelor's degree represents attainment of a level of education comparable to a bachelor's 
degree in the United States. However, the "Advice to Author Notes" section states: 
Postgraduate Diplomas should be issued by ·an accredited university or institution 
approved by the All-India Council for Technical Education (AICTE). Some students 
complete PGDs over two years on a part-time basis. When examining the 
Postgraduate Diploma, note the entrance requirement and be careful not to confuse 
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the PGD awarded after the Higher Secondary Certificate with the PGD awarded after 
the three-year bachelor's degree. · 
On July 26, 2012, the AAO sent a Request for Evidence (RFE) to the petitioner. The AAO referred 
to EDGE as an additional resource for determining the U.S. equivalency of the beneficiary's 
academic credentials from India. The petitioner was advised that, according to EDGE, a Bachelor of 
Science degree in India is awarded upon completion of two to three years of tertiary study beyond 
the Higher Secondary Certificate (equivalent to a U.S. high school degree) and is comparable to two 
to three years of university study in the United States. With regard to Post Graduate Diplomas in 
India, the petitioner was advised that, according to EDGE, a PGD program is comparable to one year 
of university study in the United States. The AAO also cited EDGE's "Credential Author Notes" 
which indicate that PGDs "should be issued by an accredited university or an institution approved by 
the All-India Council for Technical Education (AICTE)." To address the issues highlighted by the 
EDGE analysis, the AAO requested that the petitioner submit documentary evidence that the PGD 
program at was an AICTE-approved post-bachelor level 
program and that its entrance requirements are a three-year bachelor's degree. 
In response to the AAO's RFE, counsel submitted a letter from the Registrar of 
and an opinion letter from 
to show that the PGD program at was an 
AICTE-approved post-bachelor level program and that the entrance requirements are a three-year 
bachelor's degree. However, the evidence does not show that ~ 
was an AICTE-approved post-bachelor level program when the beneficiary received his 
PGD. Moreover, the evidence does not show that the entrance requirement was a three-year 
bachelor's degree when the beneficiary was admitted to the PGD program. Although the registrar 
indicated that the institution offered a PGD "to candidates who have completed 
3 years of full time 
Bachelor's degree in Science," the letter does not indicate that those without such credentials were 
not eligible for admission to the program. Also, while the author of the SRJ letter claims that the 
beneficiary's PGD program was "exclusivelyavailable to graduates of Bachelor's programs," the 
author failed to substantiate this claini with evidence. Therefore, the petitioner has failed to establish 
that the beneficiary possessed all the education specified on the labor certification as of the priority 
date. 8 C.P.R. § 103.2(b )(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. at 159; see also 
Matter of Katigbak, 141. & N. Dec. 45, 49 (Reg. Comm. 1971). The record is devoid of evidence 
that the one-year _ PGD was AICTE-accredited or 
required at least a three-year bachelor's degree for admission. Therefore, it cannot be concluded that 
the combination of the three-year bachelor's degree and the 
diploma is the equivalent to a U.S. bachelor:s degree. Therefore, the beneficiary does not 
meet the job requirements on the labor certification or the minimum requirements for the advanced 
degree professional category. 
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 metthat burden. 
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ORDER: The appeal, is dismissed.