remanded EB-2 Case: Information Technology

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofjce ofldministrative Appeals, MS 2090 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 07 114 52362 Office: NEBRASKA SERVICE CENTER Date: 
MAR 1 0 2010 
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. 5 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 oflice. 
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 
seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
\ chief, Administrative Appeals Office 
LIN 07 114 52362 
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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 AAO will withdraw the director's decision and remand for further investigation and 
consideration. 
The petitioner provides information technology consulting services. It seeks to employ the 
beneficiary permanently in the United States as a senior sohare 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,' 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 a 
U.S. Master's Degree in Computer Science or a foreign equivalent degree. 
On appeal, the petitioner submits evidence that, prior to certification, the DOL inquired into 
whether or not the beneficiary met the job qualifications and, upon considering the petitioner's 
response, approved the alien employment certification. For the reasons discussed below, the 
statute confers the jurisdiction to determine whether the alien qualifies for the job certified upon 
U.S. Citizenship and Immigration Services (USCIS), not DOL, a point recognized by several 
federal court decisions. Nevertheless, given the specific evidence of DOL's inquiry into this 
issue and their ultimate certification of the Form ETA 750 without amendments, we find that 
there are stronger grounds of ineligibility not raised by the director. Therefore, we will remand 
the matter to the director to address these issues. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(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. 1991). 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). 
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 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. 
1 After March 28,2005, the correct form to apply for labor certification is the Form ETA 9089. 
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The regulation at 8 C.F.R. 5 204.5(k)(4) also provides the following: 
(i) General. Every petition under this classification must be accompanied by an 
individual labor certification fiom the Department of Labor, by an application for 
Schedule A designation (if applicable), or by documentation to establish that the 
alien qualifies for one of the shortage occupations in the Department of Labor's 
Labor Market Information Pilot Program. To apply for Schedule A designation or to 
establish that the alien's occupation is within the Labor Market Information 
Program, a fully executed uncertified Form ETA-750 in duplicate must accompany 
the petition. 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. 
(Bold emphasis added.) 
The priority date is the date the Form ETA 750 was accepted for processing by any office within 
the employment system of the DOL. See 8 C.F.R. 5 204.5(d). The priority date for the instant 
petition is April 19,2004. On the Form ETA 750B, signed by the beneficiary on March 26,2004, 
the beneficiary claims to have worked for the petitioner since June 2002. 
The beneficiary possesses a foreign three-year bachelor's degree in Statistics fiom the University 
of Madras and a two-year Master's degree in Statistics fiom the same institution. The issue 
raised by the director is whether this education can serve to meet the job requirements certified 
by DOL. 
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. 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. 5 656, involve a determination as to whether 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). 
Relying in part on Mandany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (Ninth Circuit) stated: 
LIN 07 1 14 52362 
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[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 tha 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 at 1006, 1008 (9' 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 frndings 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 
oflered the certified job opportzrnity 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 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. 5 212(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. $ 204(b), 8 U.S.C. $ 1 154(b). See generally K. R. K. Irvine, 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. 
A de novo review by USCIS means that even where DOL does inquire into this issue, its 
conclusions do not bind USCIS. 
The above decisions have been favorably referenced in more recent decisions. For example, 
after citing K. R. K. Irvine, Inc., 699 F.2d at 1008 and Madany v. Smith, 696 F.2d at 1012, the 
court in Snapnames.com, Inc. v. Michael Chert08 2006 WL 3491005 *5 (D. Ore. Nov. 30,2006) 
LIN 07 1 I4 52362 
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expressly and unambiguously rejected the argument that DOL certification precIudes USCIS 
from considering whether the beneficiary meets the educational requirements specified in the 
labor certification. Similarly, the Seventh Circuit recently acknowledged: 
The court in K.R.K. Iruine pointed out that the responsibiIity of the Immigration 
and Naturalization Service in regard to employer-based immigration was (and the 
responsibility of its successor, the Department of Homeland Security, is) limited 
to "determining if the alien is qualified for the job." K.R.K. Irvine, Inc. v. Landon, 
supra, 699 F.2d at 1008, and Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 
supra, 736 F.2d at 1309, says it's "whether the alien is in fact qualified to fill the 
certified job offer." Those are different inquiries from whether the qualifications 
set by the employer are proper, which is the responsibility of the Labor 
Department. 
Hoosier Care, Inc. v. Chert08 482 F.3d 987,990-91 (7th Cir. 2007). 
Given the above language, DOL cannot bind USCIS in a determination as to whether the alien 
qualifies for the certified position. Nevertheless, we recognize that DOL sets the job 
requirements and, given DOL's documented inquiry in this matter, we acknowledge that it could 
be argued that DOL interpreted the job requirements as permitting the beneficiary's statistics 
degree with computer coursework as a related field or that the beneficiary established an 
equivalency of a Master's degree in Computer Science derived from a combination of education 
and experience.* That said, DOL did not require any amendments to the Form ETA 750 and 
certified it as written. The requirements, reproduced below, are plain and unambiguous. Where 
the requirements are not ambiguous, USCIS need not inquire into the employer's intent. See 
Snapnames.com, Inc., 2006 WL 3491005 at "6. Had DOL felt the job requirements were 
However, this would be incorrect, as the evidentiary requirements for an advanced degree 
professional or an alien of exceptional ability are set forth in the regulation at 8 C.F.R. tj 204.5, 
which provides in pertinent part: 
(3) Initial evidence. The petition must be accompanied by documentation 
showing that the alien is a professional holding an advanced degree or an alien 
of exceptional ability in the sciences, the arts, or business. 
(i) To show that the alien is a professional holding an advanced degree, the 
petition must be accompanied by: 
(A) An official academic record showing that the alien has a 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 postbaccalaureate experience in the specialty. 
LIN 07 114 52362 
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actually less than those specified on the Form ETA 750, it could have required the petitioner to 
amend those requirements. 
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 Form ETA 750 be read as a whole. The 
instructions for item 14 of Form ETA 750A 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, Part A of the labor certification reflects the following requirements: 
Block 14: 
Education (number of years) 
Grade school 6 
High school 6 
College 6 
College Degree Required Master Degree 
Major Field of Study Computer Science 
Experience: 
Job Offered 5 (YS.) 
Related Occupation 0 
Block 15: 
Other Special Requirements (none stated) 
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. Id. 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. 
LIN 07 114 52362 
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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. 
The record includes the beneficiary's Master's degree in Statistics and the curriculum for that 
degree. The curriculum includes a single computer science course. The petitioner, on appeal, 
education alone is equivalent to a Master's degree in Statistics and that the beneficiary's 
subsequent years of experience are equivalent 6 a Master of Science degree in computer 
Information Systems. 
Also on appeal, the petitioner submits a December 14,2006 Notice of Findings from DOL. The 
notice provides: 
The ETA 750, Part A indicates that employer is requiring a Master's 
Degree in Computer Science and five (5) years of experience in the job 
offered. A review of the ETA 750, Part B, reveals that the alien does not 
possess a Master's Degree in Computer Science. 
The notice explains that the petitioner could rebut those findings by demonstrating that the 
beneficiary had the necessary education at the time of hire or deleting that requirement. In 
response, the petitioner noted that the beneficiary took a computer science course and other math 
classes and completed a diploma course in computer software. DOL ultimately certified the 
Form ETA 750 without deleting the Master's degree requirement. 
Whatever correspondence may have taken place between the petitioner and DOL, it remains that 
DOL ultimately certified a plainly worded Form ETA 750 with a job requirement for a Master's 
degree in Computer Science. The form does not suggest that an equivalency based on education 
and experience or a degree in a related field would be acceptable. As stated above, USCIS 
makes a de novo determination as to whether the alien is qualified for the job based on the job 
requirements certified by DOL. Tongatapu, 736 F.2d at 1309. Thus, the petitioner has not 
entirely overcome the director's basis for denial. 
Nevertheless, given the clear evidence of DOL's inquiry into the sole issue raised by the director, 
and DOL's apparent acceptance of the petitioner's explanation, we find that there are additional 
issues that form a stronger basis of ineligibility. 
LIN 07 114 52362 
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Specifically, the petitioner expressly required six years of college level education. DOL 
referenced only the Form ETA 750 in questioning the concentration of the beneficiary's degree. 
DOL did not inquire as to the number of years of college completed by the beneficiary. 
The evaluation submitted on appeal indicates that the beneficiary completed a three-year 
baccalaureate and a two-year  aster's degree program. Thus, the beneficiary only com 1-eted 
five years of post-secondary education. We acknowledge that evaluation from 
concluding that the beneficiary has the equivalent of a U.S. Master's degree in Statistics. 
pages from these references that support his conclusion. 
* 
lists four references in support of his conclusion but does not provide copies of the relevant 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters from experts supporting the petitioner is not 
presumptive evidence of eligibility; USCIS may evaluate that content of those letters as to 
whether they support the alien's eligibility. See id. at 795. USCIS 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 Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972)). 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l Comm'r. 1977). In considering whether the beneficiary's three- 
year degree plus a two-year Master's degree can be considered equivalent to a U.S. Master's degree, 
we have reviewed the Electronic Database for Global Education (EDGE) created by the American 
Association of Collegiate Registrars and Admissions Officer (AACRAO). ACCRAO, according to 
its website, www.accrao.org, is "a nonprofit, voluntary, professional association of more than 
10,000 higher education admissions and registration professionals who represent approximately 
2,500 institutions in more than 30 countries." Its mission "is to provide professional development, 
guidelines and voluntary standards to be used by higher education officials regarding the best 
practices in records management, admissions, enrollment management, administrative information 
technology and student services." According to the registration page for EDGE, 
http://accraoedge.accrao.org/register/~, EDGE is "a web-based resource for the evaluation 
of foreign educational credentials." Authors for EDGE must work with a publication consultant and 
a Council Liaison with AACRAO's National Council on the Evaluation of Foreign Educational 
Credentials. "An Author's Guide to Creating AACRAO International Publications" 5-6 (First ed. 
2005), available for download at www. Aacrao.org/publicatioy2s/guide to creating international 
publications.pdJ: If placement recommendations are included, the Council Liaison works with the 
LIN 07 1 14 52362 
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author to give feedback and the publication is subject to final review by the entire Council. Id at 11- 
12.~ 
In the section related to the Indian educational system, EDGE provides that a two-year Master's 
degree following a three-year bachelor's degree "represents the attainment of a level of education 
comparable to a bachelor's degree in the United States." This information is not consistent with the 
evaluation submitted. 
It is incumbent on the petitioner to resolve any inconsistencies in the record by independent 
objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent 
objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 
I&N Dec. 582,591-592 (BIA 1988). 
In addition and as noted above, we note that the beneficiary claimed on the Form ETA 750B to 
have worked for the petitioner since 2002. While the petitioner lists a Texas address, the address 
where the beneficiary would work is listed as the beneficiary's home address in California. 
According to the information submitted on appeal, DOL inquired as to where the beneficiary has 
been working and would work. In response, the petitioner asserted that the Texas office was 
merely rented for administrative work and that employees work at client locations or "from their 
home." DOL certified the Form ETA 750, amending the location to the petitioner's location in 
Texas. The petitioner listed the same information on Part 6 of the Form 1-140 petition. 
The beneficiary, however, remains in California. Significantly, while a review of the Texas 
website confirms that the petitioner's status is active," the California website lists the petitioner's 
status in California as "surrender." Thus the record is not clear that the job certified by DOL is 
still open and available to the beneficiary.' See Part A of ETA 750 for position certified. 
Further as set forth on the Form ETA 750A, the certified position requires that the beneficiary 
must possess five years of experience in the job offered as a senior software engineer obtained as 
of the priority date of April 19, 2004. No alternate occupational experience is acceptable. 
Employment verification letters contained in the record indicate that he has experience as a 
programmer, senior programmer, programmer analyst, team member andlor project leader, and 
senior analyst, but the record is not clear that he obtained five full-time years of employment 
experience as a senior software engineer as of the priority date. 
Finally, we note that on June 6, 2007, the petitioner filed a nonimmigrant visa petition on behalf 
of the beneficiary, receipt number EAC 07 176 53538. On December 26, 2007, the petitioner 
Accessed 1/22/10. 
http://ecpa.cpa.~tate.t~.~s/coa~se1~~1et/~pa.a~p.~oa.CoaSemch. Accessed 1/22/10. 
http://ke~ler.sos.ca.~ov/cbs.as~x. Accessed 112211 0. 
LIN 07 1 14 52362 
Page 10 
withdrew the petition. The director may wish to review that record of proceeding and consider 
whether the information in that record bears on whether the petitioner still intends to employ the 
beneficiary in any capacity. 
Based on the foregoing, this matter will be remanded to the director. The director must inquire 
into whether the beneficiary has the necessary six years of college education and the requisite 
level of education as well as whether the beneficiary obtained the requisite five years of 
employment experience as a senior software engineer as of the priority date. The director must 
also determine whether the petitioner is still offering the same position certified by DOL. In the 
event that the director concludes, after the above inquiries, that the petition is not approvable, the 
director shall issue a new denial notice, containing specific findings that will afford the petitioner 
the opportunity to present a meaningful appeal. The burden of proof remains solely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: The director's decision is withdrawn; however, the petition is currently unapprovable 
for the reasons discussed above. The petition is remanded to the director for issuance of a new 
decision, which, if adverse to the petitioner, is to be certified to the AAO for review.