dismissed EB-2 Case: Storage Engineering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
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 Immigration 
Services 
DATE: MAR 3 0 2012 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
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. § lI53(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 $630. Please be aware that 8 C.F.R. § 1 03.5(a)(l )(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
ilt ( fty 
ffrr~ Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 1 It seeks to employ the beneficiary permanently in the 
United States as a senior storage 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, a Form ETA 750,2 
Application for Alien Employment Certification 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 education stated on the labor certification. Specifically, the 
director determined that the beneficiary did not possess an advanced degree, or a bachelor's degree 
with five years of progressive experience. 
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. 
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 
1 is a different entity from the employer that filed the petition, the 
labor certification, and the appeal in the instant matter. A labor certification is only valid for the 
particular job opportunity stated on the application form. See 20 C.F.R. 656.30(c). If •••• 
••••••••• is a different entity than the petitioner/labor certification employer and 
appellant, then it must establish it is a successor-in-interest to that entity. See Matter of Dial Auto 
Repair Shop, Inc. 19 I&N Dec. 481 (Comm'r 1986). 
A valid successor relationship may be established for immigration purposes if it satisfies three 
conditions. First, the successor must fully describe and document the transaction transferring ownership 
of all, or a relevant part of, the predecessor. Second, the successor must demonstrate that the job 
opportunity is the same as originally offered on the labor certification. Third, the successor must prove 
by a preponderance of the evidence that it is eligible for the immigrant visa in all respects. 
The evidence in the record does establish all three conditions described above. Accordingly,_ 
has established that it is a successor-in-interest to the petitioner/labor certification 
employer and appellant. 
2 After March 28, 2005, the correct form to apply for labor certification is the Form ETA 9089. 
-Page 3 
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. 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.3 
The beneficiary possesses a foreign three-year bachelor's degree and a diploma from a post 
secondary polytechnic program in electronics and communication engineering, and twelve years of 
experience. Thus, the issues are whether that degree is a foreign degree equivalent to a U.S. 
baccalaureate degree, and whether the beneficiary meets the job requirements of the proffered job as 
set forth on the labor certification. 
Eligibility for the Classification Sought 
As noted above, the ETA 750 in this matter is certified by DOL. DOL's role is limited to determining 
whether there are sufficient workers who are able, willing, qualified and available and whether the 
employment of the alien will adversely affect the wages and working conditions of workers in the 
United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 c.F.R. § 656.1(a). 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 c.F.R. § 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305,1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
On appeal, counsel relies on a letter from and 
Trade Services Branch of U.S. Citizenship and Immigration Services' (USCIS) Office of 
Adjudications. The letter discusses whether a "foreign equivalent degree" must be in the form of a 
single degree or whether the beneficiary may satisfy the requirement with multiple degrees. The 
Office of Adjudications letter is not binding on the AAO. Letters written by the Office of 
Adjudications do not constitute official USCIS policy and will not be considered as such in the 
adjudication of petitions or applications. Although the letter may be useful as an aid in interpreting 
the law, such letters are not binding on any USCIS officer as they indicate the writer's 
analysis of an issue. See Memorandum from 
of Programs, Significance of Letters Drafted by the Office of Adjudications 
incorporated into the record of proceeding). 
3 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(l). The record in 
the instant case provides no reason to preclude consideration of any of the documents newly 
submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
-Page 4 
Rather, the AAO is bound by the Act, agency regulations, precedent decisions of the agency and 
published decisions from the circuit court of appeals from whatever circuit that the action arose. See 
N.L.R.B. v. Askkenazy Property Management Corp. 817 F. 2d 74, 75 (9th Cir. 1987) (administrative 
agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. 
Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd 273 F.3d 874 (9th Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding under the APA, even 
when they are published in private publications or widely circulated). Even USCIS internal 
memoranda do not establish judicially enforceable rights. See Loa-Herrera v. Trominski, 231 F.3d 
984,989 (5th Cir. 2000) (an agency's internal guidelines "neither confer upon [plaintiffs] substantive 
rights nor provide procedures upon which [they] may rely.") 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'1. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.C. §1153(a)(3) as amended in 1976. At that time, this section provided: 
Visas shall next be made available ... to qualified immigrants who are members of 
the professions .... 
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. §1153(b)(2)(A), which provides: 
Visas shall be made available ... to qualified immigrants who are members of the 
professions holding advanced degrees or their equivalent .... 
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244 is identical to 
the statutory language used subsequent to that decision but for the requirement that the immigrant 
hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the 
alien must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955, 10i st Cong., 2nd Sess. 1990,1990 U.S.C.C.A.N. 6784,1990 
WL 201613 at *6786 (Oct. 26,1990). 
At the time of enactment of section 203(b)(2) of the Act in 1990, it had been almost thirteen years 
since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference immigrant visas. We must assume that Congress was aware of the agency's previous 
treatment of a "bachelor's degree" under the Act when the new classification was enacted and did 
not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580-
81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it 
adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991) (an alien must have at least a bachelor's degree). 
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 
Page 5 
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 (1990), 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 legislative 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 (Nov. 29, 1991) (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 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 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.,,4 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.F.R. § 204.5(k)(2). 
For this classification, advanced degree professional, the regulation at 8 C.F.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.F.R. § 204.5(l)(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." We 
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 
4 Compare 8 C.F.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. 
Page 6 
evidentiary standard for the more restrictive visa classification. Moreover, the commentary 
accompanying the proposed advanced degree professional regulation specifically states that a 
"baccalaureate means a bachelor's degree received from a college or university, or an equivalent 
degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an official 
academic record showing that the alien has a degree, diploma, certificate or similar award from a 
college, university, school or other institution of learning relating to the area of exceptional ability"). 
Because the beneficiary has neither (1) a U.S. master's degree or foreign equivalent degree in 
Computer Science or Computer Information Systems, nor (2) a U.S. baccalaureate degree or foreign 
equivalent degree in Computer Science or Computer Information Systems he does not qualify for 
preference visa classification as an advanced degree professional under section 203(b )(2) of the Act. 
Qualifications for the Job Offered 
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (Ninth Circuit) stated: 
[I]t appears that the DOL is responsible. only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domestic labor market. It does not appear that the DOL's role extends to 
determining if the alien is qualified for the job for which he seeks sixth preference 
status. That determination appears to be delegated to the INS under section 204(b), 
8 U.S.C. § 1154(b), as one of the determinations incident to the INS's decision 
whether the alien is entitled to sixth preference status. 
K.R.K. Irvine. Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
from DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
212(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, 
willing, qualified, and available United States workers for the job offered to the alien, 
and whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in 
fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309. 
The key to determining the job qualifications is found on Form ETA-750 Part A. This section of the 
application for alien labor certification, "Offer of Employment," describes the terms and conditions 
Page 7 
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: 
Minimum Education, Training, and Experience Required to Perform 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, 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Madany, 696 F.2d at 1015. 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. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: 
Experience: 
Block 15: 
bachelor's or equivalent * 
5 years** in the job offered or 5 years** in the related 
occupation of Storage Engineering, Network Engineering, or 
related field 
* A foreign degree, adjudged by an authorized credential 
evaluator as equivalent to a Bachelor's degree in the U.S 
**In lieu of a Bachelor's degree or equivalent* in Computer 
Science or Computer Information Systems plus 5 years of 
progressive, post-baccalaureate experience in the positions 
noted, a Master's degree will be accepted as a substitute. 
The record indicates that the beneficiary does not hold a U.S. bachelor's degree or a foreign 
equivalent degree. 
Page 8 
The beneficiary holds a three-year bachelor's degree in Information Systems from th~ 
Pilani, India. The credential evaluations state that this degree is 
eqUl to years undergraduate study at an accredited U.S. college or university. A 
bachelor's degree is generally found to require four years of education. Matter of Shah, 17 I&N Dec. 
244, 245 (Comm'r 1977). Therefore, the beneficiary's degree from the Birla Institute cannot be 
considered a foreign equivalent degree. 
I 
The beneficiary also holds a diploma from Murugappa Polytechnic, India. However, the record does 
not demonstrate the diploma from Murugappa Polytechnic is a single academic degree that is a 
foreign equivalent degree to a U.S. bachelor's degree. As stated above, the regulation sets forth the 
requirement that a beneficiary must produce one degree that is determined to be the foreign equivalent 
of a U.S. baccalaureate degree. The combination of a degree deemed less than the equivalent to a U.S. 
baccalaureate degree and a diploma or certificate does not meet that requirement. 
We note that the record contains three separate credential evaluations, The first, written by_ 
opines that the beneficiary's "post-secondary Diploma 
combined with his bachelor of science degree from The 
made his credentials equivalent to a bachelor of science 
a dual major in Computer Information Systems and Electronic Engineering. The 
evaluation claims that the post-secondary program gave the petitioner "advance standing" 
UU.'_l1""l~H' S program. 
The next evaluation, from New York, opined that the beneficiary 
had the equivalent of a "four-year Bachelor of Science Degree in Computer Information Systems 
from and accredited US col .. based on the s source of the four-year bachelor's 
program completed at The The Appel evaluation also 
references the beneficiary's three-year "post-secondary program," and that this program 
gave him one year of "advance standing" allowing him to complete the four year bachelor's program 
in three years. 
The third evaluation was provided by and 
In referencing the beneficiary's post-secondary diploma from Murugappa Polytechnic, 
the Morningside evaluation states that after the beneficiary "completed his coursework in general 
studies and his area of concentration, Electronics and Communications Engineering" he was eligible 
to "receive a degree from the University." This evaluation also combines the beneficiary's 
polytechnic studies with his bachelor's degree to conclude that he has the equivalent of a Bachelor of 
Science degree in Computer Science from an accredited institution of higher learning in the United 
States. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, 
USCIS is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791 (Comm. 1988). 
Page 9 
In analyzing the beneficiary's credentials, and whether they are a bachelor's or a foreign equivalent 
we have reviewed the created by the 
According to 
its website, is "a nonprofit, voluntary, professional association of more 
than 11,000 higher education admissions and registration professionals who represent more than 
institutions and ies in the United States and in over 40 countries around the world." 
(accessed January 25, 2012). Its mission "is to serve 
and advance higher education by providing leadership in academic and enrollment services." Id. 
According to the registration for EDGE, EDGE is "a web-based resource for the evaluation of 
foreign educational credentials." (accessed January 25, 2012). 
EDGE provides a great deal of information about the educational system in India. It discusses 
diplomas in engineering, for which the entrance requirement is completion of secondary education. 
EDGE provides that a diploma in engineering is comparable to up to one year of university study in 
the United States. EDGE does not suggest that, if combined with a three-year degree, the diploma in 
engineering may be deemed a foreign equivalent degree to a U.S. baccalaureate. 
EDGE also discusses Bachelor of Science programs in India. It notes that they are three-year long 
programs, and graduates from such programs may have the equivalent of two to three years of 
university study in the United States. 
We note that the petitioner, in response to the director's Request For Evidence (RFE), stated the 
following: 
"We note that the 1-140 requests EB2 Advanced Degree Professional classification for 
[the beneficiary]. We understand under the Service Centers' current policy, EB2 
classifications may not be available when the underlying degree is a three year foreign 
bachelor's degree. If this remains the Service Centers' policy, we respectfully request 
EB3 Professional/Skilled Worker classification for [the beneficiary]." 
If the petitioner had initially requested consideration under the professional or skilled worker 
category, the inquiry would tum on the terms of the application for labor certification. 
Neither the law nor the regulations require the director to consider lesser classifications if the 
petitioner does not establish the beneficiary's eligibility for the classification requested. We cannot 
conclude that the director committed reversible error by adjudicating the petition under the 
classification requested by the petitioner. There are no provisions permitting the petitioner to amend 
the petition on appeal in order to establish eligibility under a lesser classification. 
The application for labor certification requires the beneficiary to have a bachelor's degree or foreign 
equivalent degree. The visa classification sought, EB2, likewise requires this same educational 
requirement. The beneficiary does not have a "United States baccalaureate degree or a foreign 
Page 10 
equivalent degree," and, thus, does not qualify for preference visa classification under section 
203(b )(2) of the Act. For this reason the petition may not be approved. 
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.