dismissed EB-2 Case: Unknown

U.S. Departnient of Homeland Security 
*r 
- ikaifyi* &&a deleted to 
20 Mass Ave , N w , ~m 3000 
Wash~ngton, DC 20529 
invdi.a d pi~d  rim 
 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. 3 1 153(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. 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, initially approved the employment-based 
visa petition. Subsequently, the director issued a notice of intent to revoke the approval of the petition 
(NOR). In a Notice of Revocation (NOR), the director ultimately revoked the approval of the 
Immigrant Petition for Alien Worker (Form 1-140). The director subsequently reaffirmed the 
revocation on motion. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The petition underlies an Application to Register Permanent Residence or Adjust Status (Form I- 
485) that has been certified to the AAO. The merits of the 1-140 are relevant to an adjudication of 
the adjustment application that is before the AAO on certification.' The appeal must be rejected as 
untimely filed. Nevertheless, this decision will also address the merits of the appeal as they bear on 
the adjustment application that is before us on certification. 
In a supplemental brief, counsel draws the AAO's attention to a recent opinion, Firstland Int '1, Inc. 
v. Ashcroft, 377 F.3d 127 (2d Cir. 2004), issued by the United States Court of Appeals for the 
Second Circuit on August 2, 2004. In that opinion, the court in Firstland interpreted the third and 
fourth sentence of section 205 of the Act, 8 U.S.C. $ 1155 (2003), to render the revocation of an 
approved immigrant petition ineffective where the beneficiary of the petition did not receive notice 
of the revocation before beginning his journey to the United States. Firstland Int '1, 377 F.3d at 130. 
Counsel asserts that the reasoning of this opinion must be applied to the present matter and 
accordingly, Citizenship and Immigration Services (CIS) may not revoke the approval because the 
beneficiary did not receive notice of the revocation before departing for the United States, since he 
was already in the United States when the director issued the rev~cation.~ 
On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act 
of 2004 (S. 2845). See Pub. L. No. 108-458, 1 18 Stat. 3638 5 5304(c) (2004). Specifically relating 
to this matter, section 5304(c) of Public Law 108-458 amends section 205 of the Act by striking 
"Attorney General" and inserting "Secretary of Homeland Security" and by striking the final two 
sentences. Section 205 of the Act now reads: 
The Secretary of Homeland Security may, at any time, for what he deems to be good 
and sufficient cause, revoke the approval of any petition approved by him under section 
1154 of this title. Such revocation shall be effective as of the date of approval of any 
such petition. 
1 
In the notice of certification, the director acknowledged the filing of the instant appeal and stated that the 
appeal and entire record of proceeding was included in the certification. 
Counsel's arguments illustrate the illogical effects of the Second Circuit's reasoning: In the present matter, 
the alien entered the United States as a nonimmigrant on December 19, 1997, three years prior to the filing of 
the Form 1-140 immigrant petition and more than five years prior to the revocation of the petition's approval. 
Accordingly, it was physically impossible for CIS to have notified the alien of the revocation before he 
departed for the United States. In effect, counsel's interpretation of Firstland would have created a situation 
where any alien would have an irrevocable immigrant visa petition if the alien simply waited to file the 
petition until after he or she arrived in the United States. 
Furthermore, section 5304(d) of Public Law 108-458 provides that the amendment made by section 
5304(c) took effect on the date of enactment and that the amended version of section 205 applies to 
revocations under section 205 of the Act made before, on, or after such date. Accordingly, the 
amended statute specifically applies to the present matter and counsel's Firstland Int '1 argument no 
longer has merit. 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Lmmigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 
1987)). 
By itself, the director's realization that a petition was incorrectly approved is good and sufficient 
cause for the revocation of the approval of an immigrant petition. Id. The approval of a visa petition 
vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary 
step in the visa application process. Id. at 589. The beneficiary is not, by mere approval of the 
petition, entitled to an immigrant visa. Id. 
The appeal was filed on September 11,2003,27 days after the decision was rendered. The regulation at 
8 C.F.R. fj 205.2(d) states that revocations of approvals must be appealed within 15 days after the 
service of the notice of revocation. If the decision was mailed, the appeal must be filed within 18 
days. See 8 C.F.R. § 103.5a(b). The decision affirming the revocation erroneously stated that the 
petitioner could file an appeal within 33 days. Nevertheless, the director's erroneous advice does not 
supersede the pertinent regulations. Therefore, the appeal must be rejected as untimely filed. 
According to 8 C.F.R. fj 103.5(a)(2), a motion to reopen must state the new facts to be provided and be 
supported by affidavits or other documentary evidence. According to 8 C.F.R. fj 103.5(a)(3), a motion 
to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or CIS policy. 
Moreover, a motion must meet the requirements of a motion when it is filed. No provision exists that 
would allow the petitioner to supplement a motion. The appeal, as originally filed, merely requested 
that the AAO consider the same assertions, evidence and case law supporting the petitioner's prior 
motion. Thus, the appeal, at the time it was filed, did not constitute a proper motion to reopen or 
reconsider the director's most recent decision. 
Page 4 
As stated above, however, the petition underlies an adjustment application that is before us on 
certification. In the decision on the adjustment application certified to the AAO, the director stated: 
"The appeal and entire record of proceeding for the 1-140 is also submitted to the AAO with this 
certification." Thus, while the appeal must be rejected as untimely filed, we will consider the merits 
of the appeal for the sake of argument. 
We note that the petitioner has invoked section 106(c)(l) of the American Competitiveness in the 
Twenty-First Century Act of 2000 (AC21), Pub. L. No. 106-313, 8 106(c), 114 Stat. 1251, 1254 
(Oct. 17, 2000), which amended section 204 of the Act by adding what is now section 2040) of the 
Act, 8 U.S.C. 
 11540). This provision relates to job flexibility for long delayed applicants for 
adjustment of status to permanent residence. Specifically, section 2040) of the Act provides: 
Job Flexibility For Long Delayed Applicants For Adjustment Of Status To Permanent 
Residence. - A petition under subsection (a)(l)(D) [since redesignated section 
204(a)(l)(F)] for an individual whose application for adjustment of status pursuant to 
section 245 has been filed and remained unadjudicated for 180 days or more shall 
remain valid with respect to a new job if the individual changes jobs or employers 
if the new job is in the same or a similar occupational classification as the job for 
which the petition was filed. 
Every federal circuit court of appeals that has discussed the portability provision of section 2046) of the 
Act has done so only in the context of deciding an immigration judge's jurisdiction to determine the 
continuing validity of an approved visa petition when adjudicating an alien's application for adjustment 
of status in removal proceedings. Sung v. Keisler, 2007 WL 3052778 (5"' Cir. Oct. 22,2007); Matovski 
v. Gonzales, 492 F.3d 722 (6th Cir. Jun. 15, 2007); Perez-Vargas v. Gonzales, 478 F.3d 191 (4"' Cir. 
2007). In Sung, the court quoted section 2040) of the Act and explained that the provision only 
addresses when "an approved immigration petition will remain valid for the purpose of an application 
of adjustment of status." Sung, 2007 WL 3052778 at * 1 (emphasis added). Accord Matovski, 492 F.3d 
at 735 (discussing portability as applied to an alien who had a "previously approved 1-140 Petition for 
Alien Worker"); Perez-Vargas, 478 F.3d at 193 (stating that "[slection 204Cj) . . . provides relief to the 
alien who changes jobs after his visa petition has been approved"). Thus, this decision on the petition 
will not address counsel's assertions relating section 2046) of the Act. We note, however, that the 
denial of the beneficiary's adjustment application was certified to this office and that our decision on 
that application, issued under separate cover, includes a detailed analysis of section 2040) of the Act. 
The petitioner is a software consulting firm. It seeks to employ the beneficiary permanently in the 
United States as a senior software engineer pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1153(b)(2). As required by statute, a Form ETA 750,' 
Application for Alien Employment Certification approved by the Department of Labor (DOL), 
accompanied the petition. The director initially approved the petition, but upon further review of the 
petition, the director determined that the beneficiary was not eligible for the classification sought and 
did not satisfy the minimum level of education stated on the alien employment certification. 
3 
After March 28, 2005, the correct form to apply for labor certification is the Form ETA 9089. 
Specifically, the director determined that the beneficiary did not possess a foreign equivalent degree 
to a U.S. baccalaureate. 
On motion, counsel submitted a brief, an evaluation of the beneficiary's credentials and 
correspondence with a CIS employee. The director reaffirmed his decision on motion. 
On appeal, counsel requests that the AAO consider the evidence submitted on motion. 
Subsequently, counsel submitted supplemental briefs relying on new case law and a new opinion 
from a CIS employee. Counsel asserts that this new material demonstrates that the beneficiary is 
eligible for a lesser classification. We note that the petitioner did file a petition in behalf of the 
beneficiary under a lesser classification, LIN-01-090-52633. The director has also revoked the 
approval of that petition. The petitioner, however, did not challenge that decision on motion or on 
appeal. The petitioner may not now challenge the determination on that petition in this proceeding. 
Nor will we consider whether the beneficiary might be eligible for a lesser classification as part of 
the adjudication of this petition. A petitioner may not make material changes to a petition that has 
already been filed in an effort to make an apparently deficient petition conform to CIS requirements. 
See Matter of Izummi, 22 I&N Dec. 169,175 (Commr. 1998). 
For the reasons discussed below, even if the appeal were timely, it would not succeed on its merits. 
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. 
The beneficiary possesses a foreign three-year Bachelor of Commerce degree from the University of 
Madras and a postgraduate diploma in advanced computer software from Computer Systems 
Corporation. The petitioner is also an associate member of the Institute of Chartered Accountants of 
India, a member of the Institute of Cost and Works Accountants of India and is a Certified Public 
Accountant in Illinois. Thus, the issues are whether any of this education or licensure constitutes a 
foreign degree equivalent to a U.S. baccalaureate degree. 
 We must also consider whether the 
beneficiary meets the job requirements of the proffered job as set forth on the labor certification. 
In one of his supplemental briefs, counsel relies on Grace Korean United Methodist Church v. 
Michael Chertofi 437 F. Supp. 2d 1174, 1779 (D. Ore. 2005), which held that CIS "does not have 
the authority or expertise to impose its strained definition of 'B.A. or equivalent"' when adjudicating 
a lesser classification than the one sought. In contrast to the broad precedential authority of the case 
law of a United States circuit court, the AAO is not bound to follow the published decision of a 
United States district court in matters arising within the same district. See Matter of K-S-, 20 I&N 
Dec. 715, 718 (BIA 1993). Although the reasoning underlying a district judge's decision will be 
Page 6 
given due consideration when it is properly before the AAO, the analysis does not have to be 
followed as a matter of law. Id. at 719. Specifically, we are not required to follow the decision of a 
United States district court in matters arising out of the same district, but are bound by the published 
decisions of the United States Circuit Courts of Appeals for matters arising out of the same circuit. 
See N. L. R. B. v. Ashkenazy Property Management Corp., 8 17 F.2d at 74 (administrative agencies are 
not free to refuse to follow circuit precedent in cases originating within the circuit). 
Regardless, Grace Korean involved the adjudication of a petition under a lesser classification than 
the one sought in this matter. Most significantly, the court in Grace Korean repeatedly emphasized 
that the classification sought in that matter included "skilled workers," who by statute do not need a 
degree. In the matter before us, the petitioner seeks to classify the beneficiary as an advanced degree 
professional, a classification that does require a degree. This distinction was acknowledged by the 
same district court, which concluded that CIS is entitled to deference in interpreting its own 
regulatory definition of advanced degree. Snapnarnes.com, Inc. v. Chert08 2006 WL 3491005, "10 
(D. Or. 2006). Thus, we do not find Grace Korean relevant to this matter. 
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 21 2(a)(S)(A)(i) of the Act; 20 C.F.R. 5 656.1 (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). 
In another brief, counsel relied on a letter from Mr. Efren Hernandez 111, Director of the Business 
and Trade Services Branch of CIS' 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 CIS 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 CIS officer as they merely 
indicate the writer's analysis of an issue. See Memorandum from Thomas Cook, Acting Associate 
Commissioner, Office of Programs, SigniJicance of Letters Drafted by the Office of Adjudications 
(December 7,20OO)(copy incorporated into the record of proceeding). 
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 the circuit where the action arose. See 
N.L.R.B. v. Ashkenazy 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), afd 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 CIS internal 
memoranda do not establish judicially enforceable rights. See Loa-Herrera v. Trominski, 23 1 F.3d 
984, 989 (5'" 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 (Regl. Commr. 1977). 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, 10ISt Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at *6786 (October 26, 1990). At the time of enactment 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 (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. fj 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 (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, 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 as a member of the professions holding an advanced degree with 
anything less than a full baccalaureate degree. 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. 
8 C.F.R. 5 204.5(k)(2). As explained in the preamble to the final rule, persons who claim to qualify 
for an immigrant visa by virtue of education or experience equating to a bachelor's degree may 
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. 56 Fed. Reg. at 60900. 
The petitioner submitted an evaluation of the beneficiary's credentials from the Trustforte 
Corporation. The evaluation concludes that the beneficiary's three-year degree from the University 
of Madras is "equivalent to the completion of three years of academic studies toward the attainment 
of a Bachelor of Business Administration Degree from an accredited institution of higher education 
in the United States." The evaluation then concludes that the beneficiary's coursework for 
admission to the Institutes of Accountants and Cost and Works Accountants are "analogous to the 
completion of concentrated coursework in accounting at the baccalaureate level." The evaluation 
continues that the beneficiary's licensure as a CPA in Illinois "is indicative of his attainment of the 
equivalent of a Bachelor of Science Degree in Accounting from an accredited US institution of 
higher education." Finally, the evaluation concludes that based on all of the above, the beneficiary 
"attained the equivalent of a Bachelor of Science Degree in Accounting from an accredited 
institution of higher education in the United States." A previous evaluation from Foreign Credential 
Evaluations, Inc., reaches a similar conclusion. 
In one of the submissions sutmlementing the atmeal. the ~etitioner included an October 14. 2005 
I I " .A J 
letter from 
 Executive Director of the Board of Examiners for Illinois CPAs. Ms. 
asserts that prior to 2001, candidates for the Illinois CPA exam "must have successfully 
completed at least 120 semester hours of acceptable credit." She concludes that in the beneficiary's 
case, "it was determined by our foreign credentials evaluator that he had the equivalent of a US 
Bachelor's Degree." She concedes, however, that the Board of Examiner's "determination applied 
strictly to establishing eligibility for the CPA exam as an Illinois candidate." 
CIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See 
Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, CIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
4 
 Compare 8 C.F.R. 9 2 14.2(h)(4)(iii)(D)(S)(defining for purposes of a nonirnmigrant 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. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; CIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795. CIS may even give less weight to an opinion that is not corroborated, in 
accord with other information or is in any way questionable. Id. at 795; see also Matter of SofJici, 22 
I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Regl. Commr. 1 972)). 
The regulation at 8 C.F.R. 5 204.5(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." The regulation at 8 C.F.R. 5 204.5(1)(3)(ii)(C) provides that evidence that an alien is a 
professional 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." While this regulation 
relates to a lesser classification, we cannot conclude that the evidence required to demonstrate that 
an alien is a member of the professions holding an advanced degree is any less than the evidence 
required to show that the alien is a professional. 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). Significantly, section 203(b)(2)(C) of the Act 
provides that in determining exceptional ability, "the possession of a degree, diploma, certificate or 
similar award from a college, university, school, or other institution of learning or a license to 
practice or certification for a particular profession or occupation shall not be itself be considered 
evidence of such exceptional ability." The use of the phrase "degree, diploma, certificate or similar 
award" reveals that Congress does not consider all of these credentials to fall under the definition of 
"degree." Moreover, section 203(b)(2)(C) of the Act clearly considers licensure a separate 
qualification from education. 
The petitioner relies on the beneficiary's membership in a professional association and his licensure 
as an accountant in addition to his three-year baccalaureate as equivalent to a U.S. baccalaureate. 
But the memberships and licensure are not degrees issued by a college or university. Thus, they 
cannot be considered as evidence that the beneficiary has a foreign equivalent degree to a U.S. 
baccalaureate, even in combination with a three-year baccalaureate. Four years of education is not 
presumptive evidence of education equivalent to a U.S. baccalaureate, especially when less than four 
years of that education was acquired at a college or university. 
While not binding on CIS, we note that a federal district court has upheld our interpretation that a 
membership in the Institute of Chartered Accountants of India cannot be considered a degree. 
Snapnames. corn, Inc., 2006 WL 349 1005 at * 10. 
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. 
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. 5 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. Iwine, 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 
2 12(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 certzfication in no way indicates that the alien offered the 
certified job opportunity is qualzfied (or not qualzfied) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.R.K. Iwine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: 
The Department of Labor ("DOL") must certify that insufficient domestic workers 
are available to perform the job and that the alien's performance of the job will not 
adversely affect the wages and working conditions of similarly employed domestic 
workers. Id. § 221(a)[(5)], 8 U.S.C. § 1182(a)[(5)]. 
 The INS then makes its own 
determination of the alien's entitlement to sixth preference status. 
 Id. 4 204(b), 
8 U.S.C. 5 1154(b). 
 See generally K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 
1008 9th Cir. 1983). 
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. 
As stated above, counsel relies on Grace Korean United Methodist Church, 437 F. Supp. 2d at 1179 
for the proposition that CIS "does not have the authority or expertise to impose its strained definition 
of 'B.A. or equivalent' on that term as set forth in the labor certification." As also stated above, the 
AAO is not bound to follow the published decision of a United States district court in matters arising 
within the same district. See Matter of K-S-, 20 I&N Dec. at 718. Even assuming that the phrase 
"B.A. or equivalent," is open to interpretation as decided in Grace Korean, the alien employment 
certification in this matter did not use that phrase. 
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 
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. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Block 14 contains asterisks for both education and experience, referring to the explanation in 
Block 15. Block 15 provides, in pertinent part: 
This application requires a Master's degree or equivalent. Specifically, the 
application requires a Bachelor's degree or foreign equivalent degree, plus five years 
progressive experience designing and developing mainframe software applications, or 
a Master's degree, or foreign equivalent degree, plus three years of experience 
designing and developing mainframe software applications. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, CIS 
may not ignore a term of the labor certification, nor may it impose additional requirements. See 
Madany, 696 F.2d at 1015. CIS must examine "the language of the labor certification job 
requirements" in order to determine what the job requires. Id. The only rational manner by which 
CIS 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). CIS'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. CIS 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. 
As stated above, even assuming that the phrase "B.A. or equivalent" is ambiguous and open to 
interpretation, the petitioner did not use that phrase. Rather, the petitioner used very specific 
language that tracks the language at 8 C.F.R. 5 204.5(k)(2). The use of such language suggests that 
our interpretation of 8 C.F.R. 5 204.5(k)(2), to which we are accorded deference, should also apply 
in interpreting the meaning on the alien employment certification. For the reasons discussed above, 
the beneficiary does not have a foreign equivalent degree to a U.S. baccalaureate. Even if we were 
to conclude that the language on the alien employment certification allows less than a baccalaureate 
from a college or university, we would then need to conclude that the job does not require a member 
of the professions holding an advanced degree as defined at 8 C.F.R. 3 204.5(k)(2). See 8 C.F.R. 
3 204.5(k)(4). 
The beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," 
and, thus, does not qualify for preference visa classification under section 203(b)(2) of the Act. In 
addition, the beneficiary does not meet the job requirements on the alien employment certification. 
For these reasons, considered both in sum and as separate grounds, the appeal could not succeed on 
its merits and the petition was approved in error and, thus, never valid. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. fj 1361. The petitioner has not met that burden. 
ORDER: The appeal is rejected as untimely with a separate finding that the appeal could not 
succeed on its merits.