dismissed EB-2 Case: Software Engineering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac'1 
fOBUCCOP\ 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
f)2 ( , J 
Office: NEBRASKA SERVICE CENTER Date: SEP 2 2 2010 
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 I 53(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 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 $585. Please be aware that 8 C.F.R. § J03.5(a)(J)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 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. § I 1 53(b)(2). As required by statute, a Form 
ETA 750 Application for Alien Employment Certification (Form ETA 750) 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 experience stated on the labor 
certification. Specifically, the director determined that the petitioner failed to demonstrate that the 
beneficiary possessed five years of progressive experience in the specialty and two years of 
experience in the job offered or related occupation as required by the certified Form ETA 750 prior 
to the priority date. 
The record shows that the appeal is properly and timely filed, 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. § 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." [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. I 
The key to determining the job qualifications is found on Form ETA-750 Part A. This section of the 
application for alien labor certification 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: 
I The submission of additional evidence on appeal is allowed by the instructions to the Form 1-290B, 
which are incorporated into the regulations by the regulation 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 o/Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
Minimum Education, Training, and Experience Required to Peiform the Job 
Duties. Do not duplicate the time requirements. For example, time required in 
training should not also be listed 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. 
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. uscrs 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). users'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. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A ofthe labor certification reflects the following requirements: 
Block 14: 
Education: completion of grade school, high school and college; Master's 
degree or Equivalent* in computer science, computer 
information systems (CIS), management of information systems 
(MIS), computer engineering, or mathematics 
Experience: two years of experience in the job offered or related occupation 
of software developer or any experience providing skills in 
described duties 
Block 15: * Will accept a Bachelor's Degree in Computer Science, CIS, 
Computer Engineering, mathematics, plus five (5) years of 
progressing experience in lieu of a Master's Degree and two (2) 
years of experience 
The record contains the beneficiary's bachelor of engineering in computer engineering awarded by 
the University 0 and transcripts for his study at that university. There is 
no evidence showing that the beneficiary obtained a master's degree. Therefore, the beneficiary met 
Page 4 
the minimum level of education required for the equivalent of an advanced degree, namely a 
bachelor's degree, for preference visa classification under section 203(b)(2) of the Act prior to the 
priority date. 
However, to qualify for the second preference classification in this case, the beneficiary must 
establish that he possessed at least five years of progressive experience in the specialty after his 
bachelor's degree but prior to the priority date as the regulation requires and two years of experience 
in the job offered or related occupation as the underlying labor certification specially required. The 
director determined that the evidence in the record did not establish that the beneficiary possessed 
the required experience. On appeal, the petitioner submits additional evidence and asserts that the 
beneficiary possessed all required experience. 
The regulation at 8 C.F.R. § 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifYing experience or training shall be in the form of letter(s) 
from current or former employer(s) or trainer(s) and shall include the name, address, and 
title of the writer, and a specific description of the duties performed by the alien or of the 
training received. If such evidence is unavailable, other documentation relating to the 
alien's experience or training will be considered. 
The record contains three documents regarding the beneficiary's requisite experience. The first 
document is a letter dated 31, 2004 and signed by Senior Executive - HR of 
that the beneficiary was working with that company as 
a software engineer from September II, 2002 to January 31, 2004. On appeal counsel assets that 
this letter verifies the beneficiary's one year four months and 20 days of qualifYing experience for 
the proffered position. However, the AAO finds that this letter does not confirm the beneficiary's 
full-time employment, and does not include a specific description of the duties performed by the 
beneficiary. Without confirmation of the full-time employment and such a specific description, the 
AAO cannot determine whether the entire one year and four months of experience can be fully 
considered as qualifying experience for the beneficiary's qualifications and whether the 
beneficiary's experience with this company qualifies him to perform the duties described for the 
proffered position of prograrmner in Block 13 of the F orm ETA 750 Part A. Therefore, the 
January 31, 2004 letter from does not meet the requirements set forth at 8 C.F.R. § 
204.5(g)(l). Further, the record information with the contents of this letter. The 
record contains the beneficiary'S paystubs from the petitioner for the end of 2006 and beginning of2007 
and W-2 forms for 2004 through 2006. These paystubs indicate that the beneficiary was hired by the 
petitioner from January 1, 2003 and the beneficiary's W-2 forms for 2004 through 2006 show that the 
beneficiary worker for the petitioner in 2004,2005 and 2006. Matter of Ho, 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." The record 
does not contain any independent objective evidence to resolve the inconsistency in this case. Thus, 
the AAO cannot accept and consider this letter as evidence of the beneficiary'S qualifications. 
Page 5 
The second document is a letter dated April 16, 2008 and signed by ~ manager of the 
petitioner. The representative of the petitioner certifies in the letter that the beneficiary worked for it 
from July 2000 to August 2002 as a full time position of Software Engineer. The letter includes a 
specific description of the duties the beneficiary performed. However, this letter does not confirm 
the location where the beneficiary was employed and his full-time employment. It is further noted 
that this letter is submitted for the first time on appeal despite specifically requested in the request 
for evidence (RFE) issued by the director on December 10, 2007. The purpose of the RFE is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established, as of 
the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F .R. 
§ 103.2(b)(14). As in the present matter, where a petitioner has been put on notice ofa deficiency in 
the evidence 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 a/Soriano, 19 I&N Dec. 764 (BIA 
1988); Matter 0/ 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 evidence submitted on appeal. 
For the beneficiary's alleged employment with counsel submitted an affidavit of 
the of the beneficiary's payslip from the company, a letter from the beneficiary's 
co-worker and an appointment letter for the co-worker. The affidavit of the 
beneficiary is notarized on January 8, 2008. In his affidavit, the beneficiary certifies that he was 
employed with as a Software Engineer from August 1998 to June 2000 and also 
provides a description of the duties he performed. However, without reasonable explanation why the 
evidence required by the regulation at 8 C.F.R. § 204.5(g)(1) is unavailable and independent objective 
evidence in support with the explanation, a statement from the beneficiary himself cannot be considered 
as primary evidence to establish his qualifYing experience. The copy of the beneficiary's payslip proves 
that the beneficiary worked and was paid in June 2000 only, however, it does not establish that the 
beneficiary worked for the company in the job offered or related occupation specifically required on the 
Form ETA 750. While the appointment letter dated November 17, 1997 shows thatillli ••• 
offered the beneficiary's co-worker a software engineer position starting August 1, 1998 or earlier, the 
record does not contain any other evidence showing that the co-worker accepted the job offered by the 
company eight months ago. Further, the co-worker's appointment letter cannot establish the 
beneficiary's employment with that company. The undated letter from as the 
beneficiary's co-worker does not explain why his verification letter was provided instead of a letter 
from the beneficiary's former employer as required by the regulation at 8 C.F.R. § 204.5(g)(1), and it 
does not include a specific description of the duties the beneficiary performed at that company. In 
addition, the co-worker's letter provides inconsistent information with the beneficiary's affidavit. 
While the beneficiary claimed in his affidavit that he started working August 
1998, the co-worker's letter states that the beneficiary was working for the company from July 1998. 
For the reasons above, the AAO finds that documents submitted in the record concerning the 
beneficiary's alleged employment with do not meet the requirements set forth at 8 
, 
Page 6 
C.F.R. § 204.5(g)(l), and thus, the AAO cannot be accepted them as evidence of the beneficiary's 
qualifications. 
To qualify for the second preference classification in this case, the beneficiary must establish that he 
possessed at least five years of progressive experience in the specialty after his bachelor's degree but 
prior to the priority date as the regulation requires in lieu of the master's degree required on the 
Form ETA 750. In addition, the underlying labor certification specifically requires two additional 
years of experience in the job offered or related occupation. As discussed above, the petitioner 
failed to submit regulatory-prescribed evidence to establish that the beneficiary possessed five years 
of progressive experience in the specialty and two additional years of experience in the job offered 
or related occupation prior to the priority date. Therefore, the beneficiary does not meet the job 
requirements on the labor certification. For the reason mentioned above, the petition may not be 
approved. 
Counsel's assertions on appeal cannot overcome the grounds of denial in the director's March 22, 
2008 decision. In visa petition proceedings, the burden of proving eligibility for the benefit sought 
remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.