remanded EB-2 Case: Software Development

(b)(6)
DATEAUG 0 2 2013 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF REPRESENTED 
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.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Acting 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 
petitioner filed a motion to reopen the denial, which was also denied. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The director's October 22, 2012 decision will be 
withdrawn. The petition will be remanded. 
The petitioner describes itself as a software development and consulting firm. It seeks to 
permanently employ the beneficiary in the United States as a business systems analyst. On the Form 
I-140, Immigrant Petition for Alien Worker, the petitioner requested 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). 
As required by statute, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by the U.S. Department of 
Labor (DOL). 
The director's decision denying the petition concluded that the petition cannot be approved because 
the labor certification does not require a member of the professions holding an advanced degree. On 
appeal, the petitioner states that it would only hire an individual with an advanced degree or an 
acceptable equivalent for the proffered position. The petitioner states that the proffered position is 
extremely complex and that only those persons with the equivalent of a master's degree or 
bachelor's degree with five years of experience would be qualified for the position. 
The appeal is properly filed and makes a specific allegation of error in law or fact. The AAO 
conducts 
appellate review on a de novo basis.1 The AAO considers all pertinent evidence in the 
record, including new evidence properly submitted upon appeal? A petition that fails to comply 
with the technical requirements of the law may be denied by the AAO even if the director does not 
identify all of the grounds for denial in the initial decision.3 
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. 
1 See 5 U .S.C. 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. U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). 
The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltane v. 
DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
2 The submission of additional evidence on appeal is allowed by the instructions to Form I-290B, 
Notice of Appeal or Motion, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1). 
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). 
3 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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
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.F.R. § 204.5(k)(l). 
The regulation at 8 C.F.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.F.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.F.R. § 204.5(k)(4)(i) states, in part: 
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. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
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.8. 
H.8-A. 
H.8-B. 
H.8-C. 
H.9. 
H.10. 
H.14. 
Education: Bachelor's. 
Training: None required. 
Experience in the job offered: None required. 
Alternate combination of education and experience: Accepted. 
Other education accepted 
Acceptable level of education: Education combination equivalent to bachelor's degree. 
Number of years experience acceptable: 5 years. 
Foreign educational equivalent: Accepted. 
Experience in an alternate occupation: Accepted. 
Specific skills or other requirements: The requirements for the position will be a bachelor's 
degree in business, business administration, finance, computer science, engineering or 
related field, including three year bachelor degree combined with one year graduate 
diploma and five years of post-baccalaureate progressive experience as a business systems 
analyst, systems analyst, quality assurance analyst, software engineer or combination 
thereof. Relocation possible. Experience must include minimum two years working with 
MS SOL Server 2005 DB testing, Mainframe DB Testing, Oracle DB Testing, Win 2000, 
MS DOS, UNIX, C, Test Director/Quality Center, 
Selenium, QTP, VB Script. Will accept 
any suitable combination of education, training, and/or experience evaluated as equivalent 
to a U.S. bachelor's degree for bachelor requirement. 
The director held that the language provided in the provision in H.14 that experience or training 
"evaluated as equivalent to a U.S. bachelor's degree" would be accepted meant that the petition does 
not qualify for advanced degree professional classification. The petitioner reiterates on appeal that it 
would accept an applicant with less than a master's or bachelor's degree if the applicant held "an 
equivalent" to the educational degree. 8 C.P.R. § 204.5(k)(3)(i) specifically provides that a degree or 
foreign degree equivalent is required for the classification; equivalencies based on training or 
experience do not support the category. Part H.14 specifically discusses the part H.8 alternate 
education and experience required for the position as well as what the petitioner defined 
"equivalent" to mean. The last sentence of part H.14 appears to be language mandated by the DOL 
pursuant to Matter ofFrancis Kellogg, 94 INA 465 (BALCA 1998). 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 v. Smith, 696 F.2d 1008, 1015 
(D.C. Cir. 1983). The AAO does not interpret the language to mean that the employer would accept 
lesser qualifications than the stated primary and alternative requirements on the labor certification, 
and it would potentially make any labor certification with alternative requirements ineligible for 
classification as an advanced degree professional. See the following Board of Alien Labor 
Certification Appeals (BALCA) decisions: Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 
20, 2009) and Matter of Agma Systems LLC, 2009-PER-00132 (BALCA Aug. 6, 2009). As a result, 
the director's decision is withdrawn. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
The petition is not currently approvable, however, because of certain issues that arose beyond the 
director's decision. Specifically, the evidence in the record does not indicate whether the petitioner has 
the continuing ability to pay the proffered wage as of the priority date. See 8 C.F.R. § 204.5(g)(2). 
According to USCIS records, the petitioner has filed over 
300 Form I -129 and I -140 petitions on behalf 
of other beneficiaries including seven Form I-140 petitions filed in September 2011, the instant priority 
date, or thereafter. Accordingly, the petitioner must establish that it has had the continuing ability to 
pay the combined proffered wages to each beneficiary with a petition pending from the priority date of 
the instant petition onward. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l 
Comm'r 1977). The evidence in the record does not document the priority date, proffered wage or 
wages paid to each beneficiary, whether any of the other petitions have been withdrawn, revoked, or 
denied, or whether any of the other beneficiaries have obtained lawful permanent residence. 
In addition, it is noted that the director's decision finding that the labor certification does not require a 
member of the professions holding an advanced degree did not address whether or not the petitioner had 
the ability to pay the proffered wage from the priority date onwards. The AAO further notes that 
that 
the beneficiary's Bachelor of Commerce degree and post graduate diploma in Human Resources 
Development may not meet the requirements of the labor certification that the applicant possess a 
degree in business, business administration, finance, computer science, or engineering. 
As the petitioner has not had an opportunity to address the issue related to the sponsorship of 
multiple beneficiaries or whether the beneficiary's degree is in one of the subjects required by the 
terms of the labor certification, we will remand the petition back to the director to allow the 
petitioner to address these issues. 
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is 
remanded to the director for review and consideration of the additional issues that impact the 
petitioner's eligibility for the visa that were not initially identified by the director. 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 may review the entire record and enter a new decision. 
ORDER: The director's decision denying the petition is withdrawn. The petition is remanded 
to the director for further action in accordance with the foregoing and entry of a new 
decision.