dismissed EB-2 Case: Software Engineering

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
LIN 07 114 52920 
IN RE: 
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: 
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 or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska 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 development and services business. 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. $ 1153(b)(2). As required by statute, an ETA 
Form 9089 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 stated on the labor certification. 
Specifically, the director determined that the beneficiary did not possess a bachelor's degree in 
engineering. 
The record shows that the appeal is properly filed and 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. 
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. 6 204.5(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 maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka 
v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AA07s de novo authority 
has been long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal.' 
The beneficiary possesses three-year bachelor's degree in civil engineering at the Andhra Pradesh 
Hyderabad. At issue is whether the beneficiary's bachelor's degree in civil engineering may be 
deemed a foreign degree equivalent to a U.S. bachelor's degree in engineering because it is based on 
less than a four-year bachelor's degree. 
I The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(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). 
Page 3 
Eligibility for the Classification Sought 
As noted above, the ETA Form 9089 in this matter is certified by DOL. DOL7s 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 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 (9'" 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. $1 153(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. $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., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 20161 3 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 4 
In 1991, when the final rule for 8 C.F.R. tj 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."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 that is the "foreign equivalent degree" to a United States baccalaureate degree. 
8 C.F.R. fj 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. tj 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." For classification as a member of the 
professions, the regulation at 8 C.F.R. 3 204.5(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 
Compare 8 C.F.R. fj 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 
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). Cf 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, certrficate or similar award from a 
college, university, school or other institution of learning relating to the area of exceptional ability"). 
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. 
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. 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. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9"' 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 certzJication in no way indicates that the alien offered the 
certzjed job opportunity is quulzfied (or not qualzJied) to perform the duties of that 
job. 
(Emphasis added.) Id at 1009. The Ninth Circuit, citing K. R. 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. 
Page 6 
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. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, U.S. 
Citizenship and Immigration Services (USCIS) may not ignore a term of the 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 DOL has formally 
issued or otherwise attempt to divine the employer's intentions through some sort of reverse 
engineering of the labor certification. 
In Part H of the Form ETA 9089, you indicate that a bachelor's degree in engineering is required. 
You also indicate that five years of experience are required. You indicated that a master's degree in 
computer science or information systems and five years of experience would be acceptable in the 
alternative. Though the beneficiary possesses the requisite experience, the beneficiary does not 
possess the requisite education for the position. 
You also submitted two evaluations regarding the eauivalencv of the beneficiarv's educational 
-concluded that the beneficiary completed the equivalent of a bachelor of science degree 
in computer science. The second evaluation from - of the European-American 
University dated August 4, 2007 instead concluded that the beneficiary completed the equivalent of 
a bachelor of engineering with a major in civil engineering. Matter ofHo, 19 I&N Dec. 582, 591 - 
592 (BIA 1988) states: 
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. 
did not discuss how he reached his conclusions, and generally discussed 
credit hours within his analysis of the beneficiary's educational background. He did not go into 
detail as to how he made his determinations. 
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 (Comrnr. 1988). However, USCIS 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; USCIS may evaluate the content of those letters as to whether they support 
the alien's eligibility. See id. at 795. USCIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. Id. 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 (Regl. Commr. 1972)). The evaluations of record are not consistent 
and provide little support for their determination as to the number of credits. 
Given the inconsistencies discussed above and the remaining evidence of record, we have reviewed 
the Electronic Database for Global Education (EDGE) created by the American Association of 
Collegiate Registrars and Admissions Officers (AACRAO). AACRAO, according to its website, is 
"a nonprofit, voluntary, professional association of more than 10,000 higher education admissions 
and registration professionals who represent approximately 2,500 institutions in more than 30 
countries." See http://www.aacrao.org/abo~~t/ (accessed December 19,2009) (copy 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. 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 AAC~~O. of International Education Services, "AACRAO 
EDGE Login," http://aacraoedge.aacrao.or~/index.php (accessed December 19, 2009) (copy 
- - - - 
incorporated into the record of proceeding). 
Authors for EDGE are not merely expressing their personal opinions. Rather, authors for EDGE 
must work with a publication consultant and a Council Liaison with AACRAO's National Council 
on the Evaluation of Foreign Educational Credentials. "An Author's Guide to Creating AACRAO 
International Publications" 5-6 (First ed. 2005), available for download at 
www.aacrao.org/publications/guide to creating 
international pub1ications.pdf. If placement recommendations are included, the Council Liaison 
works with the author to give feedback and the publication is subject to final review by the entire 
Council. Id. at 1 1-12. 
In the section related to the Indian educational system, EDGE provides that a bachelor of 
engineering requires four years of study beyond completion of secondary school. According to 
EDGE, the completion of a bachelor of engineering would be comparable to a bachelor's degree in 
the United States. However, the beneficiary has not completed a four-year single source bachelor's 
degree in engineering. 
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 
Page 8 
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. 8 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.