sustained EB-2 Case: Software Engineering

(b)(6)
DATE: MAY 0 8 2013 OFFICE: NEBRASKA SERVICE CENTER 
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. Citizenship 
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. § 1153(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 you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
(b)(6)
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Page 2 
DISCUSSION: The Director, Nebraska Service Center (director), denied the employment-based 
immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be sustained and the petition will be approved. 
The petitioner seeks to permanently employ the beneficiary in the United States as a lead software 
engineer. It 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 
The petition is accompanied by an ETA Form 9089, Application for Permanent Employment 
Certification (labor certification), certified 
by the U.S. Department of Labor (DOL). The priority 
date of the petition is July 14, 2011.Z 
At issue in this case is whether the beneficiary possesses the minimum experience required by the 
terms of the labor certification and the requested preference classification. 
The record shows that the appeal is properly filed 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 conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal.3 
The director's decision denying the petition concludes that the petitioner failed to e~tablish that the 
beneficiary possessed five years of post-baccalaureate experience as required by the terms of the 
labor certification 4 and the requested classification. 5 
1 Section 203(b )(2) of the Act provides immigrant classification to members of the professions 
holding advanced degrees or aliens of exceptional ability, whose services are sought by an employer 
in the United States. There is no evidence 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. 
2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. 
§ 204.5(d). 
3 The submission of additional evidence on appeal is allowed by the instructions to Form I-290B, 
Notice of Appeal or Motion, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1). 
The record in the instant case provides no reason to preclude consideration of any of the documents 
newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
4 The labor certification states that the offered position requires five years of experience in a related 
IT position. The petitioner must demonstrate that, on the priority date, the beneficiary had the 
qualifications stated on its labor certification. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Comm. 1977). 
(b)(6)
Page 3 
On appeal, the petitioner submitted additional evidence that established by a preponderance of the 
evidence that the beneficiary possessed sufficient experience to meet the requirements of the labor 
certification and the requested classification. Thus, the director's decision will be withdrawn. 
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. The petition is approved. 
5 An "advanced degree" is defined as a U.S. academic or professional degree above the 
baccalaureate level, and a bachelor's degree followed by five years of progressive experience in the 
specialty is considered the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2). Since the 
beneficiary only possesses a bachelor's degree, the petitioner must establish that the beneficiary 
possesses five years of progressive post -baccalaureate experience in the specialty.