sustained EB-2 Case: Computer Engineering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PlmLICCOPY 
DATE: SEP 15 2011 OFFICE: TEXAS 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 
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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you(fl r [5; 
~- - -v-- 7-
FCr 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.go,· 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on February 18, 2010. The petitioner submitted a motion to reconsider on March 19,2010, 
which the director dismissed on March 31, 2010. The petitioner appealed the decision to the 
Administrative Appeals Office (AAO) on May 3, 2010. The appeal will be sustained. The petition 
will be approved. 
The petitioner is an integrated software and processing solutions business. It seeks to employ the 
beneficiary permanently in the United States as a senior technical consultant pursuant to section 
203(b)(2) of the Immigration and Nationality Act (the Act), 8 US.c. § 1153(b)(2). As required by 
statute, an ETA Form 9089, Application for Permanent Employment Certification, which the U.S. 
Department of Labor (DOL) approved, accompanied the petition. Upon reviewing the petition, the 
director determined that the beneficiary did not meet the specified job requirements or qualify for the 
classification sought. Specifically, the director determined that the beneficiary did not possess the 
requisite experience. 
On appeal, counsel submits a letter and information regarding the beneficiary'S employment 
experience. Counsel asserts that the beneficiary possessed the requisite experience for the position 
as of the priority date. The AAO will reverse the director's decision, finding that the beneficiary did 
obtain over five years of progressive post-baccalaureate experience in the specialty before the 
priority date. 
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 U.S. 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 
U.S. doctorate or a foreign equivalent degree." [d. 
The beneficiary earned a foreign four-year Bachelor of Engineering degree from the Computer 
Branch of the University of Pune in India in 1996. Thus, the issues are whether this credential and 
the beneficiary's subsequent experience qualify the beneficiary for the classification sought and meet 
the specified job requirements. 
Eligibility for the Classification Sought 
As noted above, DOL certified the ETA Form 9089 in this matter. DOL determines 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. § 656.1(a). 
It is significant that none of the above inquiries Congress 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 
Page 3 
is qualified for a specific immigrant classification or even the job offered. Federal courts have 
recognized this division of authority. 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 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, 101st Cong., 
2nd Sess. 1990, 1990 U.S.C.C.AN. 6784, 1990 WL 201613 at *6786 (Oct. 26, 1990). 
In 1991, when the final rule for 8 C.F.R. § 204.5 appeared in the Federal Register, the Immigration 
and Naturalization Service (the Service) (now U.S. Citizenship and Immigration Services (USCIS)), 
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, 1991). 
The petitioner submitted an evaluation 
••• t:. dated December 24, 2008. 
to a bachelor's degree in computer engineering in the United States. 
a member of the American Association of Collegiate Registrars and Admissions Officers 
(AACRAO). Consistent with the evaluation submitted, the AAO finds that the beneficiary'S four­
year Bachelor of Engineering degree is comparable to a U.S. baccalaureate. 
As the beneficiary has a foreign equivalent degree to a U.S. baccalaureate, the AAO will review the 
record to determine whether the petitioner has documented that the beneficiary completed the 
necessary five years of post-baccalaureate progressive experience in the specialty before the priority 
date of January 2, 2009. 
Page 4 
tioner submitted letters documenting that the beneficiary worked as an associate consultant 
March 1997 to November 2006 and as a programmer 
July 2007 to January 2008. 
The director found the evidence the petitioner submitted regarding the beneficiary's experience 
working for to be sufficient. However, the director found the 
letters documenting the beneficiary's experience working for to 
be insufficient because the beneficiary's former employing business had not written them. Rather, 
the beneficiary's project manager at that business had written a notarized letter documenting the 
beneficiary's experience there. A former co-worker also submitted a notarized letter similarly 
documenting the beneficiary's experience there. 
The director also found that the letter that the petitioner submitted regarding the beneficiary's work 
for -. was insufficient as the beneficiary had not listed _ as an emp~ 
I m t ertification. The AAO notes that the benefic~ working for _ - II • 
at the time and doing consulting work for _ as part of his job duties. Thus, 
the beneficiary should not have also listed Verizon as a separate employer on the alien employment 
certification. 
On appeal, counsel asserts that the beneficiary completed the requisite experience for the position as 
of the priority date. 
The petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated 
on its labor certification application, as the DOL certified and as submitted with the instant petition. 
Matter of Wing's Tea House, 16 I&N Dec. 158 (Acting Reg'l Comm'r 1977). The AAO finds that the 
notarized letter from the beneficiary's supervisor with Tata Consultancy Services Limited to be 
sufficient evidence of his employment experience there for approximately nine and a half years. The 
AAO also finds the letter from Prudent Technologies & Consulting to be sufficient. Thus, the 
beneficiary did possess the requisite post-baccalaureate progressive work experience as of the 
priority date. 
Because the beneficiary has a U.S. baccalaureate degree or foreign equivalent degree and five years 
of progressive experience in the specialty, he qualifies for preference visa classification as an 
advanced degree professional under section 203(b )(2) of the Act. 
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 
Page 5 
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. 
KR.K Irvine, 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 
212(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 certification in no way indicates that the alien offered the 
cert~fied job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing KR.K Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "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. 
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of 
the application for alien employment certification, "Job Opportunity Information," describes the 
terms and conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, 
USCIS may not ignore a term of the alien employment 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 an alien employment 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). USCIS's interpretation of the job's 
requirements, as stated on the alien employment certification must involve reading and applying the 
plain language of the alien employment certification application form. See id. at 834. USC IS 
cannot and should not reasonably be expected to look beyond the plain language of the alien 
employment certification that DOL has formally issued or otherwise attempt to divine the 
employer's intentions through some sort of reverse engineering of the alien employment 
certification. 
In this matter, Part H, line 4, of the alien employment certification reflects that a bachelor's degree in 
computer science or a related field is the minimum level of education required. Line 6 reflects that 
no experience in the proffered position is required. Line 10 reflects that five years of experience as 
an associate consultant, programmer analyst, software engineer, etc. are required instead. Line 8 
Page 6 
reflects that a combination of education and experience is not acceptable in the alternative. Line 9 
reflects that a foreign educational equivalent is acceptable. 
The beneficiary earned a foreign four-year Bachelor of Engineering degree from the Computer 
Branch of the University of in 1996, which is equivalent to a bachelor's degree in the 
United States. The beneficiary also completed more than five years of post-baccalaureate 
progressive experience in the acceptable occupations before the priority date. 
The beneficiary does not have a U.S. master's degree or a foreign equivalent degree. However, the 
beneficiary does have a U.S. baccalaureate degree or a foreign equivalent degree followed by five 
years of progressive experience in the specialty. Thus, the beneficiary does qualify for preference 
visa classification under section 203(b )(2) of the Act. In addition, the beneficiary does meet the job 
requirements on the alien employment certification. For these reasons, the petition may be 
approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.s.c. § 1361. The petitioner has met that burden. 
ORDER: The appeal is sustained. The petition is approved.