sustained EB-2 Case: Software Development

U.S. Department of Ilomeland Security 
20 Mass. Ave., N.W., Rni. 3000 
Washington, DC 20529 
U. S. Citizenship 
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. 
\ 
%be* P. Wiernann, Chief 
Administrative Appeals Office 
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 appeal 
will be sustained; the petition will be approved. 
The petitioner is a software developer. It seeks to employ the beneficiary permanently in the United 
States as a computer analyst, which the Department of Labor (DOL) defined as a software 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, a Form ETA 750 Application for Alien Employment Certification approved 
by the Department of Labor (DOL), accompanied the petition. The director determined that the job 
offered did not require a member of the professions. 
On appeal, counsel asserts that the director should have only considered the job's primary 
requirements, and not the alternative requirements. While counsel is not persuasive, we withdraw 
the director's finding that the job did not require a member of the professions holding an advanced 
degree. 
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. § 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. 
Section 203(b) of the Act states in pertinent part that: 
(2) 
 Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -- 
(A) In general. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
The regulation at 8 C.F.R. 204.5(k)(4) provides the following: 
(i) General. 
 Every petition under this classification must be accompanied by an 
individual labor certification from the Department of Labor, by an application for 
Schedule A designation (if applicable), or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of Labor's Labor Market 
Information Pilot Program. To apply for Schedule A designation or to establish that the 
alien's occupation is within the Labor Market Information Program, a fully executed 
uncertified Form ETA-750 in duplicate must accompany the petition. The job offer 
portion of the individual labor certification, Schedule A application, or Pilot Program 
application must demonstrate that the job requires a professional holding an 
advanced degree or the equivalent or an alien of exceptional ability. 
(Bold emphasis added.) 
We note that the beneficiary in this matter has a Master's Degree in Executive Finance from Baruch 
College, City University of New York. Thus, he holds an advanced degree. At issue is whether the 
job requires a member of the professions and whether the beneficiary is a member of that profession. 
The key to determining the job qualifications is found on Form ETA-750 Part A. This section of the 
application for alien labor certification, "Offer of Employment," describes the terms and conditions 
of the job offered. It is important that the ETA-750 be read as a whole. The instructions for the 
Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job 
Duties. 
 Do not duplicate the time requirements. For example, time required in 
training should not also be listed in education or experience. Indicate whether months 
or years are required. Do not include restrictive requirements which are not actual 
business necessities for performance on the job and which would limit consideration 
of otherwise qualified U.S. workers. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: Master's Degree in Computer Science or Computer 
Engineering* 
Experience: 
 6 months in the job offered or as a programmer analyst or 
software consultant. 
Block 15 : 
 "Master's degree in any field plus one year vocational training 
as a Visual Software Developer also acceptable. 
On appeal, counsel asserts that the primary requirements for the position, a Master's degree in 
Computer Science or Engineering, meets the regulatory definition of a job that requires a member of the 
professions holding an advanced degree. Counsel is not persuasive. Clearly a job that required a 
baccalaureate or an associate's degree plus experience in the alternative would have to be considered a 
position that, ultimately, did not require a baccalaureate. Nevertheless, for the reasons discussed below, 
we are persuaded that the alternative job requirements in this matter are not disqualifying. 
As defined at Section 101(a)(32) of the act, 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 regulation at 8 C.F.R. 5 204.5(k)(2), in pertinent part, defines 
"profession" as follows: 
[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 minimum requirement for entry into the occupation. 
The director acknowledged these definitions, but then relied on Matter of Shin, 11 I&N Dec. 686 
(Dist. Dir. 1966) and Matter of Palanb, 12 I&N Dec. 66 (Regl. Commr. 1966), for the proposition 
that the degree must be related to the field. We note that in Matter of Shin, 11 I&N Dec. at 688, the 
District Director did state that a degree in and of itself was insufficient; rather, the "knowledge 
acquired must also be of [a] 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, Matter of Palanky, 12 I&N Dec. at 68, addressed an occupation 
that did not require a full baccalaureate. Most significantly, these cases predate the regulation at 
8 C.F.R. 5 204.5(k)(2). Therefore, we must defer to the definition in that regulation, which states 
only that a profession must require a baccalaureate for entry into the occupation. 
Our interpretation of the regulation is bolstered by the statutory definition of professionals, which 
includes teachers in elementary schools. According to the Department of Labor's Occupational 
Outlook Handbook, available on the Bureau of Labor Statistic's website at www.bls.gov, an 
elementary school teacher must have a bachelor's degree but not necessarily in a particular field. 
We emphasize, however, that in considering whether the job requires a member of the professions or 
whether the beneficiary is a member of that profession, we rely on our own definition of 
"profession" at 8 C.F.R. 5 204.5(k)(2). This definition is used by CIS in determining whether an 
alien is qualified for the classification sought in this matter, a determination that is solely under CIS 
jurisdiction. 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); K.R.K. Irvi~ze, Inc. v. Landorr, 
699 F.2d 1006, 1008 (9th Cir. 1983). In other words, DOL certification does not bind us in 
determinations of eligibility for a visa classification. Moreover, the regulation provides that a 
profession is an occupation for which a United States baccalaureate degree or its foreign equivalent is 
the minimum requirement for entv into the occupation. Thus, some professions may require more than 
a baccalaureate in an unspecified field for entry into that particular profession. In such cases, the 
director would be justified in considering, independent of whether the alien meets the job requirements 
certified by DOL and is a member of some other profession, whether the alien can truly be considered a 
member of the profession associated with the occupation certified by DOL. We note that being 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 Matter of Shah, 17 I&N Dec. 244, 246-47 (Regl. Commr. 
1977). 
The job certified by DOL in this matter requires a Master's degree and the director did not reference 
a source of information suggesting that a minimum of a baccalaureate was not a normal requirement 
for the occupation. The Occupational Outlook Handbook (OOH) published by DOL is a primary 
source of information as to the normal minimum requirements for an occupation. In this matter, the 
OOH 1 12 (2006-07 ed.) states: 
Most employers prefer to hire persons who have at least a bachelor's degree and 
broad knowledge of, and experience with, a variety of computer systems and 
technologies. The usual degree concentration for applications software engineers is 
computer science or software engineering; for systems software engineers, it is 
computer science or computer information systems. Graduate degrees are preferred 
for some of the more complex jobs. 
For systems software engineering jobs that require workers who have a college 
degree, a bachelor's degree in computer science or computer information systems is 
typical. For systems engineering jobs that place less emphasis on workers having a 
computer related degree, computer training programs leading to certification are 
offered by systems software vendors. 
This language reveals that while a bachelor's degree in computer science or computer information 
systems is "typical," a degree in that field is not required for entry into the profession. Ultimately, 
the typical requirement for the proffered position is "at least a bachelor's degree," although a 
specific field of study is not always necessary.' In light of the above, we are satisfied that the 
position certified by DOL is a profession. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 29 1 of the 
Act, 8 U.S.C. § 1361. The petitioner has sustained that burden. 
ORDER: 
 The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved. 
I 
 The O*NET data for software engineers, available at I~tt~://online.onetcenter.orR/linklsummary/l5-103 1.00, 
reveals that 85 percent of software engineers hold baccalaureate degrees.