sustained EB-2 Case: Sales Engineering

identifying data deleted to 
prevent cleany :.mwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
NOV .2 I 2011 
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. Ci tizenshi p 
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. § I 153(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 YO~0.. 25~ 
O'tr- fer-
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be sustained. 
The petitioner is an exporter of oilfield and mining equipment. It seeks to employ the beneficiary 
permanently in the United States as a sales engineer 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, 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 education for 
the position. 
On appeal, counsel submits a brief, an educational evaluation, information regarding the 
beneficiary's prior employment, and additional evidence. The AAO will sustain the appeal and find 
that the beneficiary possesses the requisite education for the position. 
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 five-year combined bachelor's degree and master's degree in 
electronics engineering with a specialization in radio communications, broadcasting, and television 
in 1978 at the Electrotechnical Institute of Communications in 1978 in the former Soviet Union. 
Thus, the issues are whether those credentials 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 
is qualified for a specific immigrant classification or even the job offered. Rather, U.S. Citizenship and 
Immigration Services (USCIS) determines whether the alien is qualified under the alien employment 
certification requirements. Matter of Wing's Tea House, 16 I&N Dec. 160 (Acting Reg'l Comm'r 
Page 3 
1977). 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, 101 st Cong., 
2nd Sess. 1990, 1990 U.S.C.C.A.N. 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 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) (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 (plus the requisite five years of progressive experience 
in the specialty). 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."l 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 U.S. baccalaureate degree (plus the requisite five years of 
progressive experience in the specialty). 8 C.F.R. § 204.5(k)(2). 
I Compare 8 c.F.R. § 214.2(h)(4)(iii)(D)(5) (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. 
-Page 4 
The petitioner submitted an evaluation from of Education International dated January 
12, 2001. concludes that the beneficiary completed the equivalent to a master's degree 
in electronics engineering in the United States. On October 14, 2008, clarified that the 
beneficiary's institute only awarded five-year combined bachelor's degrees and master's degrees 
rather than separate in 1978 under the former Soviet Union's educational system. On 
January 14,2009, wrote another letter addressed to USCIS, stating that the beneficiary's 
five-year combined bachelor's degree and master's degree program is the equivalent to a U.S. 
master's degree. _ notes that many U.S. universities such as Columbia University, Duke 
University, Carnegie Mellon University, the University of Michigan, the University of Washington, 
n.UlJ;;vl~ University, and the University of Connecticut offer this type of combined degree program. 
relies on the to support his 
assertions. 
The petitioner also submitted evaluations from the ••••••••••• 
•••••. dated December 18, 2008 and from of Seattle Pacific University dated 
December 17, 2008. concludes that the beneficiary possesses the equivalent to a 
bachelor's degree and a master's degree in electrical engineering with a specialization in 
communications in the United States. _ concludes that the beneficiary possesses the 
equivalent to a five-year integrated Bachelor of Science and Master of Science in electrical 
engineering with a specialization in communications in the United States. _states that he is 
member of the American Association of Collegiate Registrars and Admissions Officers 
Due to reliance on and the membership of_ in J , the AAO 
has consulted as a tool to help analyze the beneficiary's educational background. According 
to its website, 7 which created is "a nonprofit, voluntary, professional association 
of more than 11,000 higher education admissions and registration professionals who represent more 
than 2,600 institutions and agencies in the United States and in over 40 countries around the world." 
See (accessed November 14, 2011 and incorporated 
into the record of proceeding). Its mission "is to provide professional development, guidelines and 
voluntary standards to be used by higher education officials regarding the best practices in records 
management, admissions, enrollment management, administrative information technology and 
student services." Id. In Confluence Intern., Inc. v. Holder, 2009 WL 825793 I March 27, 
2009), a federal district court determined that the AAO provided a rational explanation for its reliance 
on information provided by to support its decision. 
According to the login page, is "a web-based resource for the evaluation of foreign 
educational credentials" that is continually updated and revised by staff and members of_ 
Director of ••••••••••••••••••••••••• 
............. (accessed November 14, 2011 and incorporated into the record of 
proceeding). In Tisco Group, Inc. v. Napolitano, 2010 WL 34643141J August 30, 2010), a 
federal district court found that USCIS had properly weighed the evaluations submitted and the 
information obtained from to conclude that the alien's three-year foreign "baccalaureate" and 
-Page 5 
foreign "Master's" degree were arable to a u.s. bachelor's degree. In 
__ ._., 2010 WL 3325442 August 20, 2010), a federal district court upheld a 
USCIS conclusion that the alien's three-year bachelor's degree was not a foreign equivalent degree 
to a U.S. bachelor's degree. Specifically, the court concluded that USCIS was entitled to prefer the 
information in _ and did not abuse its discretion in reaching its conclusion. The court also 
noted that the alien employment certification itself required a degree and did not allow for the 
combination of education and experience. 
In the section related to the Russian educational system, further provides that the five-year 
diplom spetsialista represents attainment of a level of education comparable to a master's degree in 
the United States. This information is consistent with the credentials evaluations that counsel has 
submitted. 
Counsel has submitted information regarding approximately 50 academic programs in the United 
States that offer combined bachelor's degree and master's degree programs. Counsel has also 
submitted information regarding master's degree programs in the United States requiring only a 
condensed period of study. 
Because the beneficiary has a U.S. advanced degree or foreign equivalent degree, 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 
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. 
K.R.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 
Page 6 
certified job opportunity is qualified (or not qualified) to perfonn the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.R.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. See also Matter of Wing's 
Tea House, 16 I&N Dec. at 160. 
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. USCIS 
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 master's degree in 
engineering is the minimum level of education required. Line 6 reflects that two years of experience 
in the proffered position are required. Line 8 reflects that no combination of education or experience 
is acceptable in the alternative. Line 9 reflects that a foreign educational equivalent is acceptable. 
The beneficiary earned a foreign five-year combined bachelor's degree and master's degree in 
electronics engineering with a specialization in radio communications, broadcasting, and television 
in 1978 at the Electrotechnical Institute of Communications in 1978 in the former Soviet Union. 
The petitioner has also demonstrated that the beneficiary possessed more than two years of 
qualifying experience for the position before the priority date. 
The beneficiary does have a U.S. master's degree or a foreign equivalent degree. 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. 
• I , • 
Page 7 
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.