dismissed EB-2 Case: Software Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042. 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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Office: TEXAS SERVICE CENTER Date: 2 8 2°05 
PETITION: Immim-ant 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. 4 1153(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. 
M-'+ 6rt 
$ Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
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 wireless research and development 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. 5 1153(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, the petition was 
accompanied by certification from the Department of Labor. 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 the equivalent of an 
advanced degree as he did not hold a "United States baccalaureate degree or a foreign equivalent degree." 
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. $j 204.5(k)(2). Regarding the "equivalent" of an advanced degree, the 
regulations state: "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 record contains the Form ETA 750B signed by the beneficiary, under penalty of perjury. According to 
this form, the beneficiary received a Bachelor of Science Degree from Gauhati University after three years of 
study in 1979 and received a second Bachelor of Science Degree from the University of Calcutta after three 
years of study in 1982. The petitioner submitted the beneficiary's transcripts for both degrees. The 1979 
transcript from Gauhati University indicates that it reflects the beneficiary's marks from a "B. Sc. (Two Year 
Degree) Examination." The transcripts from the University of Calcutta contain the following headings: "B. 
Tech. Part I Examination" relating to 1980 (examination held in July 198 l), "B. Tech. Part I1 Examination" 
for 1981 (examination held in June 1982) and B. Tech. Part I11 Examination for 1982. The original petition 
was accompanied by two credentials evaluations from Cultural House, Inc, one dated 1997 and the other 
dated 1998. The 1997 evaluation recognizes the Gauhati University as a two-year degree, equivalent to an 
Associate's degree in the United States, while the 1998 evaluation characterizes it as a three-year degree. The 
1997 evaluation finds the beneficiary's degree from the University of Calcutta equivalent to a Bachelor of 
Science Degree from an accredited college or university in the United States. In the final paragraph, however, 
the evaluation acknowledges that the beneficiary only has five years total of university coursework, implying 
that the beneficiary could only have spent thee years at the University of Calcutta since he spent two years at 
Gauhati University. The 1998 evaluation concludes that the "program of study" at the University of Calcutta 
is "equivalent to the Degree, Bachelor of Science in Electronics Technology." The evaluation concludes, 
however, as follows: 
It is the judgment of the undersigned that [the beneficiary] has, as a result of his formal 
education and practical experience (3 years of experience = 1 year of university course work) 
the equivalent of the degree, Bachelor of Science, from a regionally accredited college or 
university in the United States. This evaluation is based on formal education and practical 
experience. 
The director concluded that although the beneficiary had the required five years of experience applicable 
toward an advanced degree equivalency, he does not have the required baccalaureate degree or its foreign 
equivalent degree. 
On appeal, counsel asserts that the beneficiary possesses a foreign degree equivalent to a United States 
baccalaureate degree. In support of the appeal, the petitioner submits a new evaluation of the beneficiary's 
foreign degree. Counsel also asserts that the director erred in failing to issue a request for additional evidence 
(WE) prior to issuing a notice of denial. The petitioner submits a February 16, 2005 memorandum by 
In the memorandum submitted by the petitioner, asserts that the director may deny an application 
or petition where there is clear evidence of ineligibility. The record contained the beneficiary's degrees and 
transcripts reflecting that the beneficiary's degrees only required two or three years of coursework each. As 
the lack of a bachelor's degree or a foreign equivalent degree precludes eligibility, the director did not err in 
failing to issue an WE. Regardless, even if the director had erred, the most expedient remedy would be to 
consider any evidence that might have been submitted in response to such a request on appeal. We will 
consider the new evaluation submitted below. 
The new evaluation, from Morningside Evaluations and Consulting, states: 
Graduation from high school and competitive entrance examination scores are requirements 
for admission and enrollment at the University of Calcutta, an accredited institution of higher 
learning in India. After enrolling and completing four years of academic coursework and 
examinations at the University, [the beneficiary] was awarded a Bachelor of Technology 
degree in 1982. 
(Emphasis in original.) The evaluation then concludes that the degree from the University of Calcutta is 
equivalent to a bachelor's degree from an accredited institution of higher education in the United States. 
The AAO may, in its discretion, use as advisory opinion statements submitted as expert testimony. However, 
where an opinion is not in accord with other information or is in any way questionable, the AAO is not 
required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 
(Comm. 1988); Matter of Sea, Inc., 19 I&N Dec. 8 17 (Comm. 1988). In this matter, the evaluations are 
inconsistent with the record. The beneficiary only claims to have attended the University of Calcutta for three 
years and the petitioner has only submitted three years of transcripts for that university, with the 1980 
transcript reflecting "Part I" of the three part examinations. Thus, the assertion in the Morningside evaluation 
that the beneficiary attended Calcutta University for four years is inconsistent with the beneficiary's 
transcripts. 
Moreover, 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). According to India's Department 
of Education, the nation's educational degree structure provides for both three-year and four-year bachelor's 
degree programs. After 12 years of primary and upper primary school, a bachelor's degree in the arts, 
commerce, or the sciences may be earned after three years of higher education. A bachelor's degree in a 
professional field of study, such as agriculture, dentistry, engineering, pharmacy, technology, and veterinary 
science, generally requires four years of education. See generally Government of India, Department of 
Education, Higher Education in India, Academic Qualijication Framework - Degree Structure, (as viewed on 
Page 4 
November 25, 2005), available at http://www.education.nic.in/htmlweb/higedu.htm (printed copy 
incorporated into the record of proceeding). If supported by a proper credentials evaluation, a four-year 
baccalaureate degree from India could reasonably be deemed to be the "foreign equivalent degree" to a 
United States baccalaureate degree. However, in Matter of Shah, the Regional Commissioner declined to 
consider a three-year Bachelor of Science degree from India as the equivalent of a United States baccalaureate 
degree because the degree did not require four years of study. Matter of Shah 17 I&N Dec. at 245. 
None of the evaluations suggest that the University of Calcutta credited the beneficiary with any coursework 
from Gauhati University. The University of Calcutta transcripts make no mention of transferred credits and, 
as stated above, list the beneficiary's examination for 1980 as "Part I." Thus, based on the reasoning in 
Matter of Shah, we reject any suggestion that the beneficiary's three-year Bachelor of Science degree from 
the University of Calcutta is a "foreign equivalent degree" to a United States baccalaureate degree for 
purposes of this preference visa petition. 
In 1991, when the final rule for 8 C.F.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 (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 legslative 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. Although the preamble to the 
publication of the final rule specifically dismissed the option of equating "experience alone" to the required 
bachelor's degree, the same reasoning applies to accepting an equivalence in the form of multiple lesser 
degrees, professional training, incomplete education without the award of a formal degree, or any other level 
of education deemed to be less than the "foreign equivalent degree" to a United States baccalaureate degree. 
Whether the equivalency of a bachelor's degree is based on work experience alone or on a combination of 
multiple lesser degrees, the analysis results in the "equivalent" of a bachelor's degree 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. 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. In addition, a combination of degrees which, when taken together, equals the same amount of 
coursework required for a U.S. baccalaureate degree does not meet the regulatory requirement of a foreign 
equivalent degree. 
Based on the submitted evidence, the petitioner has not established that the beneficiary possesses a United 
States Master's degree or a foreign equivalent degree. And as previously explained, the petitioner has not 
established that the beneficiary possesses the minimum alternate qualifications, a Bachelor of Science degree 
with five years of experience, as the beneficiary's three-year Bachelor of Science degree is not a "United 
States baccalaureate degree or a foreign equivalent degree." 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. 
For the above stated reasons, the petition may not be approved. 
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. 8 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.