dismissed EB-2 Case: Software Engineering

identifjin" c1"+'1 deleted to 
prevent c!ec. -"warranted 
invasion of personal privacy 
1'lffiUCCOPY 
Date: Office: TEXAS SERVICE CENTER 
JAN 0 6 20R 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (I\AO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 2052fJ-2090 
u.s. Citizenship 
and Immigration 
Services 
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: 
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 he 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please he aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must he filed 
within 3D days of the decision that the motion seeks to reconsider or reopen. 
l~"" 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant 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 global multidisciplinary business services company. It seeks to employ the 
beneficiary permanently in the United States as a Senior Software Engineer. As required by statute, 
the petition is accompanied by a Form ETA 750, Application for Alien Employment Certification, 
approved by the United States Department of Labor (DOL). The director determined that the Form 
ETA 750 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. The director denied the petition accordingly. 
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. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. 
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C § 
1153(b )(2), 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 CF.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." Id. 
The regulation at 8 CF.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." 
In the instant case, the labor certification states that the position has the following minimum 
requirements: 
Block 14: 
Education: 
Experience: 
Bachelor's degree (or equiv). 
2 years in the job offered or in the related occupation of 
software development; consultant. 
Page 3 
Block 15: Simultaneous or consecutive with two years demonstrated 
experience with: (I) internet programming and web 
development (2) .f2EE technology (Java). 
U.S. Citizenship and Immigration Services (USCIS) must examine "the language of the labor 
certification job requirements" in order to determine what the job requires. Madany v. Smith, 696 
F.2d 1008, 1015 (D.C. Cir. 1983). 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 ofTer 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. 
The instant Form 1-140 was filed on August 17,2007. 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. A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter o('Jzummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1988). 
Since the minimum requirements, as stated on the Form ETA 750, do not require the beneficiary to 
have a master's degree or a bachelor'S degree and 5 years of experience the petitioner has not 
established that the Form ETA 750 requires a professional holding an advanced degree; 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. § I 36 I. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.