remanded EB-2 Case: Computer Science

(b)(6)
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: OCT 3 1 2013 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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
4A _,,/ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The matter will be 
remanded to the director. 
The petitioner describes itself as an IT services business. It seeks to permanently employ the 
beneficiary in the United States as a systems software developer. The petitioner requests 
classification of the beneficiary as an advanced degree professional pursuant to section 203(b )(2) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2). The director's decision 
denying the petition was based on the conclusion that the petition could not be approved because the 
labor certification does not require a member of the professions holding an advanced degree. 
Section 203(b )(2) of the Act provides immigrant classification to members of the professions 
holding advanced degrees or aliens of exceptional ability, whose services are sought by an employer 
in the United States. See also 8 C.P.R. § 204.5(k)(l). 
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An 
"advanced degree" is defined as: 
[A]ny United States academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. 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 
A "profession" is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of 
the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
The regulation at 8 C.P.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional 
must be accompanied by: 
(A)An official academic record showing that the alien has an United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
In addition, the regulation at 8 C.P.R. § 204.5(k)( 4)(i) states, in part: 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
The job offer portion of the 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 or an alien of exceptional ability. 
In summary, a petition for an advanced degree professional must establish that the beneficiary is a 
member of the professions holding an advanced degree, and that the offered position requires, at a 
minimum, a professional holding an advanced degree. Specifically, for the offered position, the 
petitioner must establish that the labor certification requires no less than a U.S. academic or 
professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate 
(or a foreign equivalent degree) followed by at least five years of progressive experience in the 
specialty. 
In the instant case, Part H of the labor certification submitted with the petition states that the offered 
position has the following minimum requirements: 
H.4. 
H.5. 
H.6. 
H.7. 
H.8. 
H.8A 
H.8B 
H.8C 
H.9. 
H.lO. 
H.ll 
H.14. 
Education: Master's degree in Computer Science, Information Systems. 
Training: None required. 
Experience in the job offered: None required. 
Alternate field of study: "or related field." 
Alternate combination of education and experience: Accepted. 
Level of education: "Other." 
If Other, indicate alternate level of education: "Education evaluated to a Master's." 
Number of years experience acceptable in question 8: 0. 
Foreign educational equivalent: Accepted. 
Experience in an alternate occupation: None accepted. 
Job Duties: "Research, design, develop, and test software operating 
systems. Analyze 
software requirements, modify existing software to resolve errors, create and upgrade 
user interfaces, enhance software performance and analyze system capabilities, 
configure and integrate hardware and software, generate reports, track and fix defects, 
provide technical support to end users." 
Specific skills or other requirements: Must have demonstrated knowledge of Linux, 
Siebel, PL/SQL, XML, Oracle. Frequent travel to unanticipated client sites across 
USA is required. 
In his decision, the director concluded that the labor certification did not support the petition because 
it "would allow for the combination of education, experience, and/or training to be 'equivalent' to a 
master's degree." However, the director's conclusion is not supported by the labor certification. 
Counsel stresses on appeal that the labor certification specifies at Line H.8B that evaluation would 
relate solely to "education" and at Line H.8C that work experience would not be considered in place 
of the required academic degree. 
Since the alternate degree specified on the labor certification relates to a solely academic equivalent 
to a Master's degree (and not to a combination of work experience and a lesser degree) we find that 
the labor certification supports a petition for professionals holding advanced degrees. Accordingly, 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
the director's decision will be withdrawn. 
However, beyond the decision of the director, the petitioner has not established that the beneficiary 
is qualified for the offered position.1 The petitioner must establish that the beneficiary possessed all 
the education, training, and experience specified on the labor certification as of the priority date. 
8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'! 
Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In 
evaluating the beneficiary's qualifications, United States Citizenship and Immigration Services 
(USCIS) must look to the job offer portion of the labor certification to determine the required 
qualifications for the position. USCIS may not ignore a term of the labor certification, nor may it 
impose additional requirements. See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. 
Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1
5
t Cir. 1981). 
In the instant case, the labor certification states that the offered position requires a master's degree 
(or equivalent) in Computer Science, Information Systems, or a related field. On the labor 
certification, the beneficiary claims to qualify for the offered position based on a Master of 
Computer Applications degree from completed in 2001. 
The record contains copies of the beneficiary's diploma and transcripts from 
The record also contains an evaluation of the beneficiary's academic credentials which 
was performed by PhD., for 
in April 2006. While Dr. concludes that the beneficiary's Master of Computer 
Application degree was equivalent to a Master of Science degree in Computer Science, he did not 
explain his rationale for equating these two distinct fields of study. 
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is 
remanded to the director for consideration of the issue stated above. The director may request any 
additional evidence considered pertinent. Similarly, the petitioner may provide additional evidence 
within a reasonable period of time to be determined by the director. Upon receipt of all the 
evidence, the director will review the entire record arid enter a new decision. 
ORDER: The director's decision is withdrawn; however, the petition is currently unapprovable 
for the reason discussed above, and therefore the AAO may not approve the petition at this 
time. Because the petition is not approvable, the petition is remanded to the director for issuance of 
a new, detailed decision. 
1 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis).