dismissed EB-2 Case: Software Engineering

(b)(6)
DATE: MAY 2 2 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
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 ImmigratioJJ. 
Services 
OFFICE: NEBRASKA SERVICE CENTER FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree 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 at 8 C.F.R. § 103.5. Do not file any motion 
directly 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. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
(b)(6)
Page 2 
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 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 (labor certification), approved by the 
Department of Labor (DOL), accompanied the petition. 
The director determined that the ETA Form 9089 failed to demonstrate that the job requires a 
professional holding an advanced degree and, therefore, the beneficiary cannot be found qualified 
for classification as a member of the professions holding an advanced degree. 8 C.P.R. § 
204.5(k)(4). The director denied the petition accordingly. 
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. 
On appeal, counsel asserts that the position offered on the labor certification "requires a member of · 
the professions holding an advanced degree because H. Job Opportunity Information of ETA Form 
9089 clearly demonstrated that the offered position needs Bachelor or foreign equivalent Bachelor 
degree in Computer Science, CIS and Engineering Discipline and sixty (60) months experience in 
Computer Professional, Sr./Web Developer and Software Consultant." Counsel further states that 
any alternative requirements on the labor certification "do not allow for a lesser requirement for 
employment-based second preference 
(EB-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. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate 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 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 issue in this case is whether the position offered as stated on the labor certification qualifies for 
classification under section 203(b )(2) of the Act. 
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. 
(b)(6)
Page 3 
Here, the Form I-140 was filed on April 30, 2008. On Part 2.d. of the Form I-140, Immigrant 
Petition for Alien Worker, the petitioner indicated that it was filing the petition for a member of the 
professions holding an advanced degree. 
The regulation at 8 C.P.R. § 204.5(k)(4) states in pertinent part that "[t]he job offer portion of an 
individual labor certification, Schedule A application, or Pilot Program application must demonstrate 
that the job requires a professional holding an advanced degree or the equivalent of an alien of 
exceptional ability." 
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). 
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 post 
baccalaureate 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."1 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 
(plus the requisite five years of progressive experience in 
the specialty). 8 C.P.R. § 204.5(k)(2). 
The degree must also be from a college or university. Specifically, the regulation at 8 C.P.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.P.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." The AAO 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. 
Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted; inAPWU 
v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003) (the basic tenet of statutory construction, to give 
effect to all provisions, is equally applicable to regulatory construction). 
1 Compare 8 C.P.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. 
(b)(6)
Page4 
In this matter, Part H, Line 4, of the labor certification reflects that a bachelor's degree is the 
minimum level of education required, and Line 6 requires 60 months of experience in the position 
offered. Line 8 reflects that there is an alternate combination of education or experience that is 
acceptable. Line 8-B states that the alternate level of education required is a "Bachelor's degree or 
its equivalent" and that a "combination of degrees is allowed.*" Line 9 reflects that a foreign 
educational equivalent is acceptable. Line 14 states the following: 
Any suitable combination of education, training and experience is acceptable. 
* Combination of degrees is allowed. Will accept Bachelor's Degree or its 
equivalent, including but not limited to 4 years of post secondary education, not 
necessarily earned at a single institution and not necessarily resulting in a single 4 
year Bachelor's Degree. 
The director noted in his decision that the labor certification states that the petitioner "will accept [a] 
bachelor's degree or its equivalent, including but not limited to 4 years of post secondary education, 
not necessarily resulting in a single 4 year Bachelor's degree." The director also noted and the labor 
certification allows for a combination of lesser degrees. Accordingly, the director concluded that the 
instant position · does not qualify for the classification sought because the job opportunity 
requirements on the labor certification do not meet the definition for a professional holding an 
advanced degree as defined in 8 C.F.R. §§ 204.5(k)(2), (4). 
On appeal, counsel asserts that even if Part H, Lines 8-B and 14, of the labor certification indicate 
alternate levels of education, these alternate requirements do not allow for a lesser requirement for 
employment-based second preference positions. When determining whether a beneficiary is eligible 
for a preference immigrant visa, USCIS may not ignore a term of the labor certification, nor may it 
impose additional requirements. See Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). 
USCIS must examine "the language of the labor certification job requirements" in order to determine 
what the job requires. /d. 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. Accordingly, the plain language 
of the labor certification indicates that something other than a bachelor's degree is allowed for the 
position offered, which is less than the requirements of 8 C.F.R. § 204.5(k)(2). Specifically, the 
terms of the labor certification indicate the actual minimum requirements for the position include 
post-secondary education "not necessarily resulting in a single 4 year Bachelor's degree," and that a 
"combination of degrees is allowed." Therefore, the instant position as certified by DOL does not 
qualify for classification as a member of the professions holding an advanced degree under section 
203(b )(2) of the Act. 
(b)(6)
PageS 
The evidence submitted does not establish that the ETA Form 9089 requires a professional holding 
an advanced degree or the equivalent of an alien of exceptional ability, and the appeal must be 
dismissed. 
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 met that burden. 
ORDER: The appeal is dismissed.