remanded EB-2 Case: Software

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
LIN 07 004 50505 
- - 
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. 9 1153(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 
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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; however, because the petition is not approvable, it is remanded 
for hrther action and consideration. 
The petitioner is a storage software business. It seeks to employ the beneficiary permanently in the 
United States as a director of research and development pursuant to section 203(b)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(2). As required by statute, an ETA 
Form 9089 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 required for classification pursuant to 
section 203(b)(2) of the Act. Specifically, the director determined that the beneficiary did not 
possess a foreign equivalent degree to a U.S. baccalaureate. 
On appeal, both initially and in response to an inquiry from this office, counsel has submitted 
additional evidence. We find that this evidence overcomes the director's concerns. The record, 
however, does not resolve whether the beneficiary has the necessary experience and whether the 
petitioner still exists or is the predecessor to a new company. 
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's degree from Israel. Thus, the issue is 
whether that degree is a foreign degree equivalent to a U.S. baccalaureate degree. For the reasons 
discussed below, we find that the petitioner has adequately demonstrated that admission to an Israeli 
baccalaureate degree program requires a year of study beyond high school. Thus, the degree in and of 
itself is a foreign equivalent degree to a U.S. four-year baccalaureate. 
Eligibility for the Classification Sought 
As noted above, the ETA Form 9089 in this matter is certified by DOL. DOL7s 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. tj 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. tj 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 
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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). 
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. Ashkenazy Property Management Corp., 8 17 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 Citizenship and 
Immigration Services (CIS) 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. Comm. 1977). This decision involved a petition filed under 
8 U.S.C. 5 1 153(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. $1 153(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, 101" 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 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 
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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. 8 204.5 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. 10 1-649 (1 990), 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."' 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. 8 204.5(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. 
For this classification, advanced degree professional, the regulation at 8 C.F.R. 8 204.5(k)(3)(i)(B) 
requires the submission of an "official academic record showing that the alien has a United States 
' Compare 8 C.F.R. 5 214.2(h)(4)(iii)(D)(S)(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. 
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baccalaureate degree or a foreign equivalent degree." 
 For classification as a member of the 
professions, the regulation at 8 C.F.R. 5 204.5(1)(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 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). C' 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, cert$cate or similar award from a 
college, university, school or other institution of learning relating to the area of exceptional ability"). 
The beneficiary received a Bachelor of Science in Math and Computer Science from Ben-Gurion 
University in 1 997. The petitioner initially submitted a transcript from Ben-Gurion University and 
an evaluation from World Education Services (WES) stating that the admission requirement for Ben- 
Gurion University was high school graduation and that the program was three years in length. 
Without further explanation, the WES evaluation then concludes that the beneficiary's degree is 
equivalent to a U.S. baccalaureate. The petitioner resubmitted the same information in response to 
the director's request for additional evidence. 
On appeal, the petitioner submits an evaluation from of the Trustforte 
Corporation. In his evaluation, states that Israeli students "typically complete 13 
years of study prior to entering university." continues: "Most Israeli universities 
recognize the thirteenth year, completed in high school programs, as satisfying the academic 
requirements of the first year of bachelor's programs. As a result, Israeli universities generally 
require only three years of bachelor's studies." 
On May 19, 2008, this office issued a request for additional evidence. In our request, we noted that 
CIS may evaluate the content of advisory opinions and even give less weight to opinions that are not 
corroborated. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988); 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. 1972)). We further noted that Mr. Silberzweig did not include copies 
of relevant pages of the sources he lists as references for his evaluation and that the record lacked the 
beneficiary's high school transcript. As such, we requested these documents. 
In response, the petitioner submitted pages from Ann Fletcher, Higher Education in Israel: A PIER 
World Education Series Special Report, the American Association of Collegiate Registrars and 
Admissions Officers (AACRAO) (1993). This publication includes placement recommendations, 
which state that an Israeli three-year baccalaureate degree "may be considered for graduate 
admission." More significantly, the publication also includes the following Israeli university 
admission requirements for overseas students: 
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A level of education equivalent to the Israeli matriculation certificate; or 
One year of studies at an accredited college or university; or 
One year of prepatory studies at a university in Israel. 
The materials continue: "In general, Israeli university admissions policies do not recognize a U.S. 
high school diploma as equivalent to the Israeli Teudat Bagrut [the one year of study culminating in 
an exam that Israeli students complete after high school and before entering univeresity]." 
Finally, the petitioner submitted the beneficiary's high school transcript, showing 12 years of pre- 
university education, and a certificate verifying his completion of the Teudat Bagrut. 
We are satisfied that the beneficiary's post-secondary education does not simply represent two lesser 
"degrees," the Teudat Bagrut and the Israeli baccalaureate. Rather, the petitioner has now 
established that Israeli universities issue baccalaureate degrees that by themselves are equivalent to 
U.S. baccalaureate degrees because they require for admission what U.S. universities might consider 
advanced placement or transfer credit in lieu of the first year of undergraduate study. Moreover, the 
petitioner has established this equivalency through an evaluation now supported by relevant 
published material representing apeer-reviewed report. 
The beneficiary's baccalaureate also serves to meet the educational requirements specified on the 
alien employment certification, which requires a Bachelor of Science in Computer Science or 
foreign educational equivalent. 
The alien employment certification also indicates that five years of experience are required. Thus, 
the job requires a member of the professions holding an advanced degree, as defined at 8 C.F.R. 
5 204.5(k)(2). The record, however, does not establish that the beneficiary has the necessary 
experience. Specifically, the director should consider whether all of the evidence submitted to 
document the beneficiary's experience complies with the requirements set forth at 8 C.F.R. 
0 204.5(g)(l). 
The beneficiary indicated on the ETA Form 9089, Part K, that he worked as a Director and Section 
Manager for Comverse from August 1,2001 through May 3 1,2004; as a Vice President of Research 
and Development for BrowseUp from September 1, 1999 through July 31, 2001 ; and as a Team 
Leader for Radware from August 1, 1997 through June 30, 1999. 
Initially, the petitioner established the beneficiary's employment with Radware, but only "from 1997 
-. 
to 1999." A; the letter does not verify the exact dates or even the months in which the beneficiary 
began and ceased employment, the petitioner has only established the beneficiary's employmeit 
during 1998. The petitioner also submitted letters from , CEO of Linglines, Ltd., 
verifying the beneficiary's employment with BrowseUp and from a manager at Cisco 
Systems, purporting to verify the beneficiary's employment with Comverse. 
On March 2, 2007, the director advised that the letters from 
 were not 
letters from former employers, as required under 8 C.F.R. 
 204.5(g)(2), and, thus, could not 
e beneficiary's experience. In response, the petitioner submitted a new letter from Mr. 
founder of BrowseUp, explaining that BrowseUp ceased operations in 2002 and 
confirming the beneficiary's 23 months of employment there from September 1, 1999 through July 
31, 2001. The petitioner also submitted evidence supporting the beneficiary's employment there 
downloaded from the Internet. Thus, the petitioner has now established that the beneficiary has at 
least three years of ex erience at Radware and BrowseUp. The petitioner also submitted a letter 
purportedly from 
 at Cornverse, but that letter is unsigned. Thus, the director must 
consider whether this new letter has any evidentiary value. 
Finally, as stated above, on May 19, 2008, this office issued a request for additional evidence. The 
copy addressed to the petitioner was returned as undeliverable. A review of the petitioner's website 
reveals that the petitioner was purchased by NetApp in January 2008. Thus, the director must 
determine whether the petitioner still exists and, if there is now a successor-in-interest, whether a 
new petition is required. 
Therefore, this matter will be remanded for further action in accordance with the above. As always 
in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 1361. 
ORDER: 
 The director's decision is withdrawn; however, the petition is currently unapprovable for 
the reasons 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 which, if adverse to the petitioner, is to be certified 
to the Administrative Appeals Office for review.