sustained EB-2 Case: Information Technology

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal pnvacy 
PUBLIC COpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Securit) 
11. S. Citizenship and Immigration Sen iet:':. 
(Hfice o/Admil1islrufil't' ""pea!.I' MS 2090 
W<lshington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date NOV 1 62010 
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) orthe Immigration 
and Nationality Act 8 u.s.c. § IIS3(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 
@l5"""';';".Il' dtt;"ed ,<m' =< A", '""hoc ;",";ry m,," b, m."o ,",." "m". 
Perry Rhew 
Chief. Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director. Nebraska Service Center. denied the employment-based immigrant 
visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be sustained. 
The petitioner claims to be a provider of IT services and products. It seeks to permanently employ 
the beneficiary in the United States as a senior software engineer. The petitioner requests 
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).1 As required by 8 C.F.R. § 
204.5(k)(4). the petition is accompanied by an ETA Form 9089, Application for Permanent 
Employment Certification (labor certification), certified by the Department of Labor (DOL). 
As set forth in the director's July 6, 2007 denial, the primary issue in this case is whether the job 
offered requires a member of the professions. 
The record shows that the appeal is properly filed. timely. and makes a specific allegation of error in 
law or fact. 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. 
The AAO maintains plenary power to review each appeal on a de novo basis. See Janka v. u.s. 
Dept. olTran.lp .. 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. Dor v. INS, 891 F.2d 997,1002 n. 9 (2d Cir. 1989). The 
AAO considers all pertinent evidence in the record. including new evidence properly submitted upon 
appeal. 2 
On the petition, the petitioner claimed to have been established in 2004, to have a gross annual 
income of $ I 8. I million, and to employ 124 workers. The proffered wage stated on the labor 
certification is $80,000.00 per year. The priority date of the petition is January 3. 2007. which is the 
date the labor certification was accepted for processing by the DOL. See 8 C.F.R. § 204.5(d). 
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 3 In order to classify the beneficiary in this employment-based preference category. the 
IThere is no evidcncc in the record of proceeding that the beneficiary possesses exceptional ability in 
the sciences, arts or business. Accordingly, consideration of the petition will be limited to whether 
the beneficiary is eligible for classification as a member of the professions holding an advanced 
degree. 
2The submission of additional evidence on appeal is allowed by the instructions to Form I-290B. 
which are incorporated into the regulations by 8 C.F.R. § 1 03.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. 
See Maller o{Soriano. 19 I&N Dec. 764 (BIA 1988). 
J The regulation at 8 C.F.R. § 204.5(k)(2) defines an "advanced degree" as "any United States 
Page 3 
petitioner must establish that: the labor certification requires an advanced degree professional;' the 
beneficiary is an advanced degree professional;5 and the beneficiary meets the requirements of the 
job offered as set forth in the labor certification 6 The petitioner must also establish that it has the 
continuing ability to pay the proffered wage from the priority date until the beneficiary obtains lawful 
permanent residence. 8 C.F.R. § 204.S(g)(2). 
It is important to note that the DOL's role in the employment-based immigrant visa process is limited 
to determining whether there are sufficient U.S. workers who are able. willing. qualified and 
available and whether the employment of the alien will adversely affect the wages and working 
conditions of similarly employed U.S. workers. Section 2l2(a)(S)(A)(i) of the Act; 20 C.F.R. § 
656.1(a). It is significant that none of the responsibilities assigned to the DOL. nor the remaining 
regulations implementing these duties at 20 C.F.R. § 656. involve a deternlination as to whether or 
not the alien is qualified for a specific immigrant classification or the job offered. Instead. the 
authority to make this determination rests solely with U.S. Citizenship and Immigration Services 
(USCIS). See Madany v. Smith. 696 F.2d 1008. 1012-1013 (D.C. Cir. 1983); Tongatapu Woodcra/i 
Hawaii. Ltd. v. Feldman. 736 F. 2d 1305. 1309 (9th Cir. 1984); K.R.K. Irvine. Inc. v. Landon. 699 
F .2d 1006. 1008 (9th Cir. 1983). 
The minimum education. training. experience and skills required to perform the offered position are 
set forth at Part H of the labor certification. In the instant case. the labor certification states that the 
position has the following minimum requirements: 
H.4. Education: Master' degree in "Any discipline" 
H.5. Training: None 
H.6. Experience: None 
11.7. Alternate field of study: None 
H.8. Alternate combination of education and experIence: I3achelor's degree plus five years of 
expenence 
H.9. Foreign educational equivalent: Accepted 
H.lO. Experience in an alternate occupation: Five years of experience as a Senior Programmer 
Analyst 
academic or professional degree or a foreign equivalent degree above that of baccalaureate." The 
regulation further states that 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." Id. 
'8 C.F.R. § 204.5(k)(4). 
58 C.F.R. § 204.5(k)(3). 
68 C.F.R. § 103.2(b)(l). (\2). See Matter ol WinJ<'s Tea House. 16 I&N Dec. 158. 159 (Act. Reg. 
Comm. 1977); see also Matter o/Kaligbak. 14 I. & N. Dec. 45. 49 (Reg. Comm. 1971). 
Page 4 
H.14. Specific skills or other requirements: None 
On the ETA Form 9089. signed by the beneficiary. the beneficiary represented that the highest level 
of education that he achieved was a master's degree in science in 200 I from the University of 
Saskatchewan. Canada. 
The job offer portion of the labor certitication "must demonstrate that the job requires a professional 
holding an advanced degree or the equivalent." 8 C.F.R. § 204.S(k)(4). If the job itself does not require 
an advanced degree professional. the petition must be denied. The regulation at 8 C.F.R. § 204.S(k)(2). 
detines "professional" as: 
[Olne 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 minimwn requirement tor entry into the occupation. 
Section 101 (a)(32) of the Act states that the term "profession" "shall include but not be limited to 
architects. engineers. lawyers. physicians. surgeons. and teachers in elementary or secondary 
schools. colleges, academies. or seminaries." 
The offered position is not one of the occupations listed at Section 101(a)(32) of the Act. Therefore. 
the analysis of whether the otTered position requires a member of the professions is based on 
whether a United States baccalaureate degree or its toreign equivalent is the minimum requirement for 
entry into the occupation. 
The director acknowledged these definitions. but then relied on Matter of Shin, II I&N Dec. 686 
(Dist. Dir. 1966) and Maller of Po lanky, 12 I&N Dec. 66 (Reg'1. Comm'r. 1966). for the proposition 
that the degree must be related to the field. We note that in Maller o{Shin, II I&N Dec. at 688. the 
District Director did state that a degree in and of itself was insutlicient; rather. the "knowledge 
acquired must also be of [aJ nature that is a realistic prerequisite to entry into the particular field of 
endeavor." The following discussion. however, was limited to the level of education required. not 
the major field of study. Moreover. Maller of Po lanky. 12 I&N Dec. at 68. addressed an occupation 
that did not require a full baccalaureate. Further. these cases predate the regulation at 8 C.F.R. 
§ 204.S(k)(2). Therefore. the definition of "profession" in that regulation. which states only that a 
profession must require a baccalaureate lor entry into the occupation. takes precedence over the two 
cases cited in the director's decision. 
Although the definition of "profession" at 8 C.F.R. § 204.S(k)(2) does not state that the labor 
certification must require a field of study that relates to the occupation. the regulation does provide 
that a profession is an occupation lor which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation. Thus. some protessions may 
require more than a baccalaureate in an unspecitied tield for entry into that particular prolession. In 
such cases. USCIS isjustitied in considering whether the labor certilication that does not specify one or 
more tields of study can truly be considered to require a member of the professions, We note that being 
Page 5 
a member of the professions does not entitle the alien to classification as a professional if he does not 
seek to continue working in that profession. See Maller of Shah. 17 I&N Dec. 244, 246-47 (Reg·1. 
Comm·r. 1977). 
On the labor certification. the DOL categorized the olTered posItIon under SOC code 15-1031. 
Computer Software Engineers, Applications. The O'NET online database 7 states that the occupation 
of Computer Software Engineers, Applications falls within Job Zone Four,8 and that 85% of Computer 
Software Engineers, Applications hold a baccalaureate degree or higher 9 
The corresponding entry in the Occupational Outlook Handbook (OOH) for SOC code 15-1031 is 
Computer Sotlware Engineers. 11I The required education for this occupation is summarized as 
follows: I I 
Most employers prefer applicants who have at least a bachelor's degree and broad 
knowledge ot: and experience with, a variety of computer systems and technologies. 
The usual college major for applications sotlware engineers is computer science or 
sotlware engineering. 
(Emphasis added). In summary, O'NET and the OOH confirm that the offered position requires at 
least a bachelor's degree. In addition. the OOH states that the usual bachelor's degree for this 
occupation is computer science or software engineering. but is not required for entry into the 
profession. Therefore, it is concluded that the ofTered position does not require an individual to 
possess a degree in one or more specific fields of study.12 
Further, it is noted that the beneficiary possesses a degree in a relevant field as well as significant 
professional experience in the occupation. The beneficiary was awarded a bachelor of engineering 
70'NET. located at http://online.onetcenter.org. is described as "the nation's primary source of 
occupational information. providing comprehensive information on key attributes and characteristics 
of workers and occupations" (accessed September 26, 2009). 
8 According to O'NET, most of occupations in Job Zone Four require a four-year bachelor's degree. 
"Details Report for 15-1031.00 at 
September 26,2009). 
(accessed September 26, 2009). 
(accessed 
I liThe 0011. located at is a nationally recognized source of career inf()rmation 
published by the DOL's Bureau of Labor Statistics. 
(accessed September 26.2009). 
121t is noted that the director did not reference a source of information suggesting that a minimum of 
a baccalaureate in any field of study was not a normal requirement for the occupation. 
, .. 
Page 6 
from the Indian Institute of Technology and a master of science in software engineering from the 
University of Saskatchewan. Canada, The beneficiary's transcript indicates that the beneficiary 
completed graduate computer courses such as software engineering. computer network technologies 
& analysis. theory & application of databases. and systcms design. implementation & maintenance, 
The record contains an offer letter from the University of Saskatchewan to the beneficiary, 
contirming that he will teach a computer science course during the fall 1998 semester. The record 
also contains evidence that the beneficiary has worked for various employers as a computer 
professional since 1998, The beneficiary's education and experience arc consistent with the 
requirements of the occupation as stated in the OOH. 
In light of the above. the petitioner has established that the position certified by the DOL IS a 
profession. 
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.