sustained EB-2 Case: Software Development

identi@ing data deleted to 
prevent clearly unwarranted 
invasion of personal pfiv~y 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
- - 
LIN 07 035 50249 
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. 5 1 153(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. 
Perry Rhew 
Chief, Administrativ 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be sustained; the petition will be approved. 
20j(bj(2) of the 1mm&;tion and Nationality Act (the Act), 8 U.S.C. 5 1 1 %(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, a Form ETA 750,' 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 did not require a master's degree. 
On appeal, counsel asserts that the director failed to recognize that the labor certification requires 
attainment of an advanced degree or the equivalent, and further requires that any equivalent must be 
a foreign equivalent degree or the required bachelor's degree followed by five years of experience. 
For the reasons discussed below, while the citation to the regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(D) 
on the labor certification application creates unnecessary ambiguity, we are persuaded that the job 
requires an advanced degree professional. 
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 beneficiary possesses a foreign bachelor's degree and a U.S. master's of science and a master's 
of business administration. The director did not contest that the beneficiary qualifies as an advanced 
degree alien or that the beneficiary meets the job requirements set forth on the labor certification. 
The only issue in contention is whether the job requires an advanced degree alien. 
As noted above, the ETA 750 in this matter is certified by DOL. Thus, at the outset, it is usefd to 
discuss DOL's role in this process. Section 212(a)(5)(A)(i) provides: 
In general.-Any alien who seeks to enter the United States for the purpose of performing 
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined 
and certified to the Secretary of State and the Attorney General that- 
' After March 28,2005, the correct form to apply for labor certification is the Form ETA 9089. 
(I) there are not sufficient workers who are able, willing, qualified (or 
equally qualified in the case of an alien described in clause (ii)) and available 
at the time of application for a visa and admission to the United States and at 
the place where the alien is to perform such skilled or unskilled labor, and 
(11) the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
DOL has issued regulations that expand on this authority. 20 C.F.R. 5 656. It is significant, however, 
that none of the above inquiries assigned to DOL involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. 
There is no doubt that the authority to make preference classification decisions rests 
with INS. The language of section 204 cannot be read otherwise. See Castaneda- 
Gonzalez v. INS, 564 F.2d 41 7,429 (D.C. Cir. 1977). In turn, DOL has the authority 
to make the two determinations listed in section 212(a)(14). Id. at 423. The 
necessary result of these two grants of authority is that section 212(a)(14) 
determinations are not subject to review by INS absent fraud or willful 
misrepresentation, but all matters relating to preference classification eligibility not 
expressly delegated to DOL remain within INS' authority. 
Given the language of the Act, the totality of the legislative history, and the agencies' 
own interpretations of their duties under the Act, we must conclude that Congress did 
not intend DOL to have primary authority to make any determinations other than the 
two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for 
the purpose of "matching" them with those of corresponding United States workers so 
that it will then be "in a position to meet the requirement of the law," namely the 
section 2 12(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
The regulation at 8 C.F.R. 5 204.5(k)(4) provides that the "job offer portion of the individual labor 
certification . . . must demonstrate that the job requires a professional holding an advanced degree or 
the equivalent or an alien of exceptional ability." 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* 
Experience: 3 years in job offered or in the related occupation of software 
development* * 
Block 15: * Will accept educational equivalency evaluation prepared by a 
qualified evaluation service or in accordance with 8 CFR 
5 214.2(h)(4)(iii)(D). 
** must include professional software development experience 
reflecting demonstrable ability in the skills set described above. 
The regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(D) provides: 
Equivalence to completion of a college degree. For purposes of paragraph 
(h)(4)(iii)(C)(4) of this section, equivalence to completion of a United States 
baccalaureate or higher degree shall mean achievement of a level of knowledge, 
competence, and practice in the specialty occupation that has been determined to be 
equal to that of an individual who has a baccalaureate or higher degree in the 
specialty and shall be determined by one or more of the following: 
(I) An evaluation from an official who has authority to grant college-level 
credit for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an 
individual's training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or 
special credit programs, such as the College Level Examination Program 
(CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service 
which specializes in evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required 
by the specialty occupation has been acquired through a combination of 
education, specialized training, and/or work experience in areas related to the 
specialty and that the alien has achieved recognition of expertise in the 
specialty occupation as a result of such training and experience. For purposes 
of determining equivalency to a baccalaureate degree in the specialty, three 
years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the alien lacks. For equivalence to an 
advanced (or Masters) degree, the alien must have a baccalaureate degree 
followed by at least five years of experience in the specialty. If required by a 
specialty, the alien must hold a Doctorate degree or its foreign equivalent. It 
must be clearly demonstrated that the alien's training and/or work experience 
included the theoretical and practical application of specialized knowledge 
required by the specialty occupation; that the alien's experience was gained 
while working with peers, supervisors, or subordinates who have a degree or 
its equivalent in the specialty occupation; and that the alien has recognition of 
expertise in the specialty evidenced by at least one type of documentation 
such as: 
(i) Recognition of expertise in the specialty occupation by at least 
two recognized authorities in the same specialty occupation; 
(ii) Membership in a recognized foreign or United States association 
or society in the specialty occupation; 
(iii) Published material by or about the alien in professional 
publications, trade journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a 
foreign country; or 
(v) Achievements which a recognized authority has determined to be 
significant contributions to the field of the specialty occupation. 
As can be seen from the language quoted above, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D) 
permits several alternatives to a U.S. master's degree or a foreign equivalent degree. In 1991, when 
the final rule for 8 C.F.R. 8 204.5 was published in the Federal Register, legacy Immigration and 
Naturalization Service (legacy INS) now 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 
12 1 of the Immigration Act of 1990, Pub. L. 10 1-649 (1 990), 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 (November 29,199l)(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 with anything less than a full baccalaureate degree. More specifically, a 
three-year bachelor's degree will not be considered to be the "foreign equivalent degree" to a United 
States baccalaureate degree. A United States baccalaureate degree is generally found to require four 
years of education. Matter of Shah, 17 I&N Dec. 244 (Reg. Comm. 1977). Where the analysis of 
the job requirements 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." In order 
to consider that the job requires experience and education equating to an advanced degree under 
section 203(b)(2) of the Act, the job must require a single degree that is the "foreign equivalent 
degree" to a United States baccalaureate degree. 
Thus, in order to determine that the job requires the experience and education equating to an 
advanced degree under section 203(b)(2) of the Act, the labor certification must require a single 
degree that is the "foreign equivalent degree" to a United States baccalaureate degree. 
Noting the language following the single asterisk, the director concluded that the labor certification 
allowed for less than a bachelor's degree plus five years of progressive experience in the specialty or 
a master's degree. While we understand the director's concern given the express language in 
8 C.F.R. 5 214.2(h)(4)(iii)(D) that allows for less than a bachelor's degree, subparagraph (5) of that 
provision also states: "For equivalence to an advanced (or Masters) degree, the alien must have a 
baccalaureate degree followed by at least five years of experience in the specialty." Significantly, 
the asterisks that reference the regulation 8 C.F.R. 5 214.2(h)(4)(iii)(D) follow both the bachelor's 
and Master's degree requirements. Thus, while the citation to this provision unnecessarily 
complicated the evaluation of the job requirements, we are persuaded by counsel's assertion on 
appeal that the reference to the regulation at 8 C.F.R. $ 214.2(h)(4)(iii)(D) "is relevant to the issue of 
whether the alien possesses the requisite advanced degree, and not to the threshold issue of the 
requirements for the position." 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. 5 1 36 1. The petitioner has met that burden. 
ORDER: The appeal is sustained. The petition is approved.