sustained EB-2 Case: Computer Science

identifpnp data deleted to 
prevent ciearfy ~~lwa~mted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of fZomeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
 LIN 07 093 52637 
 Office: NEBRASKA SERVICE CENTER 
 Date: NOV 0 7 2008 
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. 
V 
3obert P. W~emann, Chief 
Administrative Appeals Office 
LIN 07 093 52637 
Page 2 
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 
decision of the director will be withdrawn, the appeal will be sustained, and the petition will be 
approved. 
The petitioner is a computer consulting firm. It seeks to employ the beneficiary permanently in the 
United States as a lead computer consultant pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(2). 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. 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 job offer did not require an advanced degree professional. 
On appeal, counsel submits a brief and a letter from the petitioner. For the reasons discussed below, 
we withdraw the director's adverse findings. 
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 regulation at 8 C.F.R. § 204.5(k)(4)(i) provides that the job offer portion of the individual alien 
employment certification "must demonstrate that the job requires a professional holding an advanced 
degree or the equivalent." 
The beneficiary possesses a foreign four-year bachelor's degree and more than five years of 
progressive experience. The beneficiary's occupation falls within the pertinent regulatory definition of 
a profession. Thus, the beneficiary qualifies as a member of the professions holding an advanced 
degree as defined at 8 C.F.R. 5 204.5(k)(2). The only issue in contention is whether the job offered 
requires a member of the professions holding an advanced degree. 
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. 
Citizenship and Immigration Services (CIS) must look to the job offer portion of the alien 
employment certification to determine the required qualifications for the position. CIS may not 
ignore a term of the labor certification, nor may it impose additional requirements. See Matter of 
Silver Dragon Chinese Restaurant, 19 I&N Dec. 401,406 (Comm. 1986). See also Madany v. Smith, 
696 F.2d 1008, 1012-101 3 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th 
LIN 07 093 52637 
Page 3 
Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 
1981). 
The exact language of Part H, lines 4 through 10-A and the petitioner's responses are relevant to our 
evaluation and are repeated below. 
Line 4: 
Line 6: 
Line 6-A 
Line 8: 
Line 8-A: 
Line 8-C: 
Line 9: 
Line 10: 
Line 10-A: 
Line 10-B: 
Education: Minimum Level Required: "Bachelor's." 
Is experience in the job offered required for the job? "Yes." 
If Yes, number of months experience required: "60." 
Is there an alternate combination of education and experience that is acceptable? 
"Yes." 
If Yes, specify the alternate level of education required: "Master's" 
If applicable, indicate the number of years experience acceptable in question 8: "1 ." 
Is a foreign educational equivalent acceptable? "Yes." 
Is experience in an alternate occupation acceptable? "Yes." 
If Yes, number of months experience in alternate occupation required: "60." 
Identify the job title of the acceptable alternate occupation: "Computer Software 
Development." 
Line 14: 
 "Will accept any suitable combination of education, training or experience. 
 Will 
accept degree equivalency based on combination of foreign sources." 
The director concluded the language in line 14 indicated that the job did not require a member of the 
professions holding an advanced degree because current regulations "do not allow for a combination 
of (foreign) degrees and work experience to qualify as equivalent to an advanced degree." On 
appeal, counsel asserts that the language set forth in line 14 was not intended to suggest that 
education and experience would be accepted in lieu of a baccalaureate, but rather to allow a 
combination of an associate's degree and a baccalaureate or a baccalaureate following 13 years of 
primary and secondary education. Counsel submits a letter from the petitioner confirming its intent 
as stated by counsel. 
First, the director erred in stating that no regulation allows a combination of education and 
experience to be considered "equivalent to an advanced degree." In fact, the regulation at 8 C.F.R. 
§ 204.5(k)(2) expressly states that a baccalaureate followed by five years of progressive experience 
is equivalent to an advanced degree. 
The regulations relating to the immigrant classification sought do not allow for a combination of 
education and experience to be considered equivalent to a U.S. baccalaureate. In 1991, when the 
final rule for 8 C.F.R. 9 204.5 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. 101 - 
649 (1990), and the Joint Explanatory Statement of the Committee of Conference, the Service 
Page 4 
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) (emphasis added). 
In light of the above, if the certified job requires anything less than a bachelor's degree, the job does 
not require an advanced degree professional. 8 C.F.R. § 204.5(k)(2). We must, however, read the 
entire Part H in context. As quoted above, on line 14 the petitioner indicated that any "suitable" 
combination of education and experience would be acceptable. On lines 4 and 6, the minimum 
education and experience required are a bachelor's degree and five years of experience. On Line 8, 
the petitioner indicated that a combination of a Master's degree plus one year of experience would 
also be acceptable. The petitioner asserts the language in line 14 allowing for a combination of 
"foreign sources" merely allowed for a foreign educational equivalent such as an 
associate's/bachelor's combination or a baccalaureate following 13 years of primary and secondary 
education. 
Accepting the petitioner's claimed intent, the last sentence in line 14 would appear to be unnecessary 
since a student who receives a baccalaureate after transferring from an associate's degree program 
still receives an actual baccalaureate and a foreign education equivalency would appear to include 
foreign baccalaureate programs that are truly equivalent to U.S. baccalaureate programs based on an 
evaluation of the number of years in the program and the number of years of primary and secondary 
education required to enter the program. Moreover, the petitioner already indicated that it would 
accept a foreign educational equivalency by responding affirmatively on line 9. Nevertheless, the 
petitioner listed the primary educational and experience requirements in lines 4 and 6 and the 
alternate requirements in lines 8-A through 8-C. While we do not discount the possibility that 
language in line 14 could undermine the job requirements set forth elsewhere in Part H, the language 
used in this matter, read in context with all of Part H, does not suggest that anything less than the 
requirements set forth in lines 4,6, and 8 would be acceptable. 
In light of the above, we are persuaded that the job requires an advanced degree professional. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 136 1. Here, the petitioner has met that burden. 
Page 5 
ORDER: 
 The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved.