dismissed EB-2 Case: Software Engineering

U.S. Department of Homeland Securit) 
IJ. S. Citizenshio and Immieration Services 
identifying data deleted to 
prevent clearly unwamntecl 
invasion of personal privac) 
PUBLIC copy 
" 
Office ofAdministrative Appeals MS 2090 
Washington. DC 20529-2090 
- 
U.S. Citizenship 
and Immigration 
Services 
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APR 1 6 2010 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 027 52502 
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. fj 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. 
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 
en, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
ew 
Chief, Administrative Appeals Office 
DISCUSSION: 
 The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner manages and administers tax preparation operations. 
 It seeks to employ the 
beneficiary permanently in the United States as a Lead Software Engineer (formerly Senior Systems 
Integrator) pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1153(b)(2). The petition is accompanied by a Form ETA 750, Application for Alien Employment 
Certification, which was certified by the Department of Labor. 
The director determined that the Form ETA 750 failed to demonstrate that the job requires a 
professional holding an advanced degree or the equivalent of an alien of exceptional ability and, 
therefore, the beneficiary cannot be found qualified for classification as a member of the professions 
holding an advanced degree or an alien of exceptional ability. 8 C.F.R. 5 204.5(k)(4). The director 
denied the petition accordingly. 
On appeal, counsel argues that the proffered position requires a minimum of a bachelor's degree and 
five years of experience. Counsel further argues that the Director exceeded his authority by 
determining that the Form ETA 750 did not require a professional holding an advanced degree. 
The record shows that the appeal is properly filed and timely. 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. 5 204.5(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. 
Section 203(b)(2) of the Act also includes aliens "who because of their exceptional ability in the 
sciences, arts or business, will substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States." The regulation at 8 C.F.R. 5 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered. " 
Here, the Form 1-140 was filed on November 6,2006. On Part 2.d. of the Form 1-140, the petitioner 
indicated that it was filing the petition for a member of the professions holding an advanced degree 
or an alien of exceptional ability. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. $ 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 1 147, 1 149 (9th Cir. 199 1). The AAO's 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. On appeal, counsel states that the director exceeded his authority 
and that it is the responsibility of the Department of Labor and the employer to interpret the 
requirements for the proffered position. Counsel further states that the petitioner requires at least a 
bachelor's degree and five years of experience for the proffered position. 
The regulation at 8 C.F.R. 5 204.5(k)(4) states in pertinent part that "[tlhe 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. " 
In this case, the job offer portion of the Form ETA 750 indicates that the position requires a 
bachelor's degree in "Computer Science, CIS, Engineering or a related field." With respect to the 
bachelor's degree requirement, box 15 of the Form ETA 750 indicates that the petitioner will also 
accept an "equivalent foreign degree or equivalent combination of education and experience." 
Therefore, one could qualify for the position without having earned a bachelor's degree or a foreign 
equivalent degree; one could qualify with a combination of education and experience. In order to 
qualify for classification as an advanced degree professional, the position must require a degree. 
Accordingly, the job offer portion of the Form ETA 750 does not require a professional holding an 
advanced degree or the equivalent of an alien of exceptional ability.' However, the petitioner 
requested classification as a member of the professions holding an advanced degree or an alien of 
exceptional ability. A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to United States Citizenship and Immigration Services requirements. See 
Matter qf lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). In this matter, the appropriate 
remedy would be to file another petition with the proper fee and required documentation. 
The evidence submitted does not establish that the Form ETA 750 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. 5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
' Contrary to counsel's assertions, it is the Department of Labor's responsibility to certify the terms 
of the labor certification, but it is the responsibility of U.S. Citizenship and Immigration Services 
(USCIS) to determine if the petition and the alien beneficiary are eligible for the classification 
sought. See, e.g., Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).