dismissed EB-3 Case: Computer Science

rdenti3iying dab ddeted to 
preveut clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
YJ. 
t2 6:. 
PETITION: 
 Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. 3 1153(b)(3) 
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. 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a computer services company. It seeks to employ the beneficiary permanently in the United 
States as a software engineer. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification approved by the Department of Labor, accompanied the petition. The director denied the petition 
because he determined that the evidence submitted did not establish that the beneficiary possessed the 
requirements as certified on the ETA-750. 
On appeal, the petitioner's counsel contends that the beneficiary had the requisite "equivalent" of a bachelor's 
degree in computer science before he was hired for the job in question. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(ii), provides 
for the granting of preference classification to qualified immigrants who hold baccalaureate degrees and are 
members of the professions. 
The regulation at 8 C.F.R. 5 204.5(1)(3)(ii)(C) states the following: 
If the petition is for a professional, the petition must be accompanied by evidence that the 
alien holds a United States baccalaureate degree or a foreign equivalent degree and by 
evidence that the alien is a member of the professions. Evidence of a baccalaureate degree 
shall be in the form of an official college or university record showing the date the 
baccalaureate degree was awarded and the area of concentration of study. To show that the 
alien is a member of the professions, the petitioner must submit evidence that the minimum 
of a baccalaureate degree is required for entry into the occupation. 
To be eligible for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date. The filing date of the petition is the initial receipt in the Department of 
Labor's employment service system. 8 C.F.R. 5 204.5(d). See Matter of Wing's Tea House, 16 I & N Dec. 158 
(Act. Reg. Comrn. 1977). In this case, that date is June 14,2002. 
To determine whether a beneficiary is eligible for an employment based immigrant visa as set forth above, CIS must 
examine whether the alien's credentials meet the requirements set forth in the labor certification. The Application for 
Alien Employment Certification, Form ETA-750A, items 14 and 15, set forth the minimum education, training, and 
experience that an applicant must have for the position of software engineer. In the instant case, item 14 describes the 
requirements of the proffered position as follows: 
14. Education 
Grade School 
High School 
College 
College Degree Required 
 Bachelor's or equivalent 
Major Field of Study 
 CSEngineeringJMath or related 
The applicant must also have two (2) years of experience in the job offered or the related occupation of software 
development. Additionally, Item 15 states with the "Other Special Requirements" as follows: "Such experience 
must include Windows NT, HTML, ASP, SQL Server, and Visual Basic. Must be willing to be assigned to 
unanticipated client sites throughout the United States." 
The beneficiary set forth his credentials on Form ETA-750B. On Part 11, eliciting information of the names and 
addresses of schools, college and universities attended (including trade or vocational training facilities), he 
indicated that he attended the University of Bombay in India in the field of "Microbiology" from June 1986 
through May 1988, culminating in the receipt of a "Master of Science" degree, and from June 1983 to May 1986, 
culminating in the receipt of a "Bachelor of Science" degree. He also obtained training in Microsoft solution 
development at Microsoft Training Center from February 1999 to May 1999, in the Internet at Brainbench in 
December 1999 and in software at Advance Technology labs from March 1999 to May 2000. He provides no 
further information concerning his educational background on tlus form, which is signed by the beneficiary under 
a declaration under penalty of perjury that the information was true and correct. In corroboration of the Form 
ETA-750B, the petitioner provided copies of the beneficiary's "Master of Science" and "Bachelor of Science" 
degrees in Microbiology and transcripts from the University of Bombay. 
A credential evaluation drafted by George J. Petrello, a credential evaluator, was also initially submitted with the 
petition and stated the following in pertinent part: 
Diploma, with supporting documents, dated December 18, 1986 from the University of Bombay, 
India, indicating the completion of a Bachelor of Science in Microbiology Degree; and another 
diploma, with transcript, dated December 22, 1989 from the University of Bombay indicating 
the completion of a Master of Science in Microbiology Degree. In my judgment, these degrees 
are the equivalent to a Bachelor of Science and Master of Science in Microbiology from a 
regionally accredited college in the United States. 
In my opinion, the combination of the courses completed in the Bachelor of Science and Master 
of Science in Microbiology degree programs of study at the University of Bombay which served 
as foundation for work and further study in the computer field, the various computer 
competencies developed through on the job experience, the computer training courses completed 
and the designation as a Microsoft Certified Professional, as well as the documented work 
experience in the computer field, is the equivalent of a Bachelor of Computer Science Degree 
from a regionally accredited college in the United States. 
The director denied the petition on September 8, 2004, finding that the petition was filed under Section 
203(b)(3)(A)(ii) of the Act as a "professional," and the evaluator considered the beneficiary's experience and 
determined that the beneficiary holds the functional equivalent of a "Bachelor's Degree in Computer Science". 
The director stated "[e]ducation and experience cannot be combined to overcome the requirement for the relevant 
degree as certified by the Department of Labor. Therefore, the evidence submitted does not establish that the 
alien beneficiary possesses the requirements as certified on the ETA-750." 
On appeal, counsel asserts that the regulations specifically recognize education plus experience which is 
"equivalent" to a bachelor's degree and the beneficiary had the requisite "equivalent" of a bachelor's degree 
in computer science based on education and experience before he was hired for the job in question. 
CIS must look to the job offer portion of the labor certification to determine the required qualifications for the 
position. CIS may not ignore a term of the labor certification, nor may it impose additional requirements. See 
Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comrn. 1986). See also, Mandany v. 
Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart 
Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
The record indicates that the beneficiary holds a Bachelor of Science Degree in Microbiology and a Master of 
Science Degree in Microbiology from the University of Bombay in India. The credentials evaluation states 
that these degrees are the equivalent to a Bachelor of Science and Master of Science in Microbiology from a 
regionally accredited college in the United States. The record indicates that the beneficiary's bachelor's degree is 
a three-year undergraduate degree. It may be equivalent to the three years undergraduate study in an 
accredited U.S. college or university, however, the three year degree itself cannot be the equivalent to a U.S. 
bachelor's degree although combination of the three-year bachelor's degree and the master's degree is 
deemed the equivalent of US bachelor's degree. A U.S. bachelor degree is generally found to require four years 
of education. Matter of Shah, 17 I&N Dec. 244, 245 (Comm. 1977). However, while the ETA 750 specifically 
requires a U.S. Bachelor's degree or equivalent in Computer Science, Engineering, Mathematics or related filed, 
the equivalent of Bachelor's Degree or Master's Degree in Microbiology does not meet the requirement of the 
certified ETA-750. 
The evaluator also states that the beneficiary obtained a Bachelor of Science and Master of Science degrees in 
Microbiology from the University of Bombay, and has, as a result of progressively more responsible 
employment experiences, an educational background the equivalent of an individual with a Bachelor's degree 
in Computer Science from an accredited university in the United States. CIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. However, where an opinion is not in accord with 
other information or is in any way questionable, the Service is not required to accept or may give less weight 
to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Cornm. 1988); Matter of Sea, Inc., 19 I&N 
Dec. 817 (Cornm. 1988). 
The evaluation in the record used the rule to equate three years of experience for one year of education, but 
that equivalence applies to non-immigrant H1B petitions, not to immigrant petitions. See 8 CFR 9 
214.2(h)(4)(iii)(D)(5). Counsel's assertion on appeal that since the regulations recognize education plus 
experience which is "equivalent" to a bachelor's degree in the H-1B context, the rule should apply for 
immigrant petition is misplaced. In the instant petition the beneficiary was required to have a bachelor's 
degree or equivalent in computer science, engineering, mathematics or related field on the Form ETA 750. 
Counsel also argues that the employer's standard requirements are not limited to a degree only, but allow for 
equivalent experience. However, the petitioner has not indicated that a combination of education and 
experience can be accepted as meeting the minimum educational requirements stated on the labor 
certification, or that experience could be accepted in lieu of educational accolades. Thus, the combination of 
education and experience, and experience alone, may not be accepted in lieu of education. The beneficiary 
was required to have a bachelor's degree on the Form ETA 750. The petitioner's actual minimum 
requirements could have been clarified or changed before the Form ETA 750 was certified by the Department 
of Labor. Since that was not done, the director's decision to deny the petition must be affirmed. 
Counsel contends on appeal that the Department of Labor has long accepted broad alternative requirements 
and refers decisions made by the Board of Alien Labor Certification Appeals (BALCA) to support the 
assertion. However, counsel does not state how these rules applied to labor certification applications by 
BALCA are applicable to the instant petition before the Department of Homeland Security's AAO. While 8 
C.F.R. 5 103.3(c) provides that precedent decisions of CIS are binding on all its employees in the 
administration of the Act, BALCA decisions are not similarly binding. Precedent decisions must be 
designated and published in bound volumes or as interim decisions. 8 C.F.R. 5 103.9(a). 
Based on the evidence submitted, we concur with the director that the petitioner has not established that the 
beneficiary possesses a bachelor's degree as required by the terms of the labor certification. 
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 not met that burden. 
ORDER: The appeal is dismissed.