dismissed EB-3 Case: Computer Science

MATTER OF Y-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals.Office 
DATE: NOV. 18, 2016 
MOTION TO RECONSIDER DECISION OF ADMINISTRATIVE APPEALS OFFICE 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an international technology consulting company, seeks to permanently employ the 
Beneficiary in the United States as a business development manager under the immigrant classification 
of professional. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. 
§ 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director, Texas Service Center, denied the petition. The Director found that the evidence of 
record did not establish that the Beneficiary has a U.S. baccalaureate degree or a foreign equivalent 
degree, as required for classification as a professional. 
The Petitioner filed an appeal, along with supporting documentation, which was forwarded to us. 
We rejected the appeal as late filed and returned it to the Director to determine whether it met the 
requirements of a motion to reopen or reconsider. The Director determined that the appeal did not 
meet the requirements of a motion to reopen or reconsider, and rejected the appeal. The matter is 
now before us on a motion to reconsider. We will deny the motion to reconsider. 
I. PROCEDURAL HISTORY 
The instant petition, Form 1-140, was filed on December 2, 2013. As required by statute, the petition 
was accompanied by an ETA Form 9089, Application for Permanent Employment Certification, 
which was filed with the Department of Labor (DOL) on March 6, 2013, and certified by the DOL 
(labor certification). In section H of the ETA Form 9089 the Petitioner set forth the following 
requirements for the proffered position of business development manager: 
4. 
4-A. 
4-B. 
5. 
6. 
6-A. 
7. 
Education: Minimum level required: 
If "Other" - specify the education required 
Major Field of Study: 
Is training required for the job opportunity? 
Is experience in the job offered required? 
How long? 
Is there an alternate field of study that is acceptable? 
Other 
Bachelor or equivalent of 
Bachelor's degree 
Computer Science 
No 
Yes 
24 months 
No 
(b)(6)
Matter of Y- T-, Inc. 
8. 
9. 
10. 
14. 
Is an alternate combination of education 
and experience acceptable? 
Is a foreign educational equivalent acceptable? 
Is experience in an alternate occupation acceptable? 
Specific skills or other requirements: 
No 
Yes 
No 
Certificate in Risk & Information 
Systems Control 
Certificate in Cyber Security 
As evidence of the Beneficiary's relevant education, skills, and experience the Petitioner submitted 
copies of the following pertinent documentation with the Form I -140 petition: 
• A statement of marks from the in India, dated June 11, 1998, indicating 
that the Beneficiary had completed 2 years of coursework in the field of law. 
• Two transcripts from in India, 
showing that the Beneficiary completed 26-week courses called "Software Technology & 
Systems Management Curriculum" on November 28, 1995, and "Network-Centered Computing 
Curriculum" on January 22, 1998. 
• Three certificates from in India, all dated in 1999, 
which state that the Beneficiary completed a 1-month course in banking (dates not indicated); a 
1-month course in Visual Basic 5 (October 28 to November 28, 1998); and a 2-month course in 
Oracle I Developer 2000 (November 28, 1998 to January 28, 1999). 
• Letters from four former employers stating that the Beneficiary had worked (I) for 
m India, as an "IT In-charge" 
from May 1, 1998 to October 31, 1999; (2) for (location unstated, but 
India, according to the labor certification) as a quality manager and network administrator from 
November 1, 1999 to April 30, 2001; (3) for in India, as a programmer analyst 
and system analyst from August 1, 2001 to August 31, 2002; and (4) for 
in New Jersey, as an EDI programmer analyst and IT auditor from November 11, 
2002 to October 14, 2005. 
• A certificate from confirming the Beneficiary's completion of a cyber security 
program on December 2, 201 0; and an email communication advising the Beneficiary that he 
was certified in risk and information systems control on October 20, 2011. 
• An "Evaluation of Education, Training and Experience" by Professor of 
Computer Information Systems at the 
dated September 26, 2002, stating that the Beneficiary's 2 years 
of academic studies at the from 1996 to 1998 was equivalent to 2 years of 
study toward a bachelor's degree from an accredited U.S. college or university; that his 
additional coursework at and between 1995 and 1999 raised the overall equivalency of 
his education in India to 3 years of study toward a bachelor of science degree from an accredited 
U.S. college or university; and that combining the Beneficiary's education with his 3 years and 
7 months of employment and training in the computer field between June 1997 and August 
2002 raised the overall equivalency of his education, training, and experience in India to the 
level ofa bachelor of science in computer science from an accredited college or university in the 
United States. 
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(b)(6)
Matter of Y- T-, Inc. 
In response to a request for evidence (RFE) the Petitioner submitted additional documentation and 
asserted that had been granted "deemed university status" by India's National Assessment and 
Accreditation Council (NAAC). The Petitioner made clear that it was not claiming the Beneficiary 
received a bachelor's degree from Rather, it claimed that the Beneficiary's coursework at 
(and the combined with his employment experience in the field of information 
technology is equivalent to a U.S. baccalaureate degree in computer science, citing the regulation at 
8 C.F.R. § 214.2(h)(4)(iii)(D)(5). 
On November 20, 2014, the Director denied the petition on the ground that the Beneficiary does not 
have a U.S. baccalaureate degree or a foreign equivalent degree. The Director found that the 
Beneficiary "has a three-year degree and unaccredited training certificates" which are not equivalent 
to a U.S. baccalaureate degree. The Director pointed out that 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), the 
regulation cited by the Petitioner as authority to find a combination of education and experience 
equivalent to a U.S. bachelor's degree, applies to nonimmigrant petitions for H-1 B status, not to 
immigrant petitions like the instant proceeding. In conclusion, the Director held that the Beneficiary 
is ineligible for classification as a professional. 
On December 24, 2014, The Petitioner filed an appeal on Form I-290B, which was transferred to our 
office on January 15,2015, and supplemented by additional documentation on January 21, 2015. 
On March 10, 2015, we rejected the appeal as untimely filed because it was not filed within the 33-
day time period prescribed in the regulations. See 8 C.F.R. §§ 103.3(a)(2)(i), 103.8(b), 103.2(a)(7)(i), 
and 103.3(a)(2)(v)(B)(l). We returned the untimely appeal to the Director to determine whether it met 
the requirements of a motion to reopen or a motion to reconsider, in accordance with the regulations at 
8 C.F.R. §§ 103.3(a)(2)(v)(B)(2) and 103.5(a)(l)(ii). 
On May 3, 2016, the Director issued a decision that rejected the appeal as untimely filed, and 
determined that the evidence submitted with the appeal did not meet the requirements of a motion to 
reopen or reconsider. The Director noted that the Petitioner had submitted evidence that 
is recognized by India's 
and was accredited at the time the Beneficiary completed his coursework. The Director pointed 
out, however, that the Beneficiary attended m not and that 
the Petitioner provided no evidence that is accredited or that it is a degree-granting institution. 
The matter is now before us on a motion to reconsider. 
1 
The Petitioner submits supporting documents, 
some of which were already in the record, and asserts that the Director's decision was contrary to 
applicable law and regulations, as well as the federal district court ruling in Grace Korean United 
Methodist Church v. Chertoff, 437 F.Supp. 2d 1174 (D.O. 2005). 
1 While the Petitioner indicated in Part 3 of the Form 1-2908, Notice of Appeal or Motion, that it was filing an appeal, 
an accompanying letter from the Petitioner's attorney clarified that the filing was a motion to reconsider. 
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Matter of Y-T-, Inc. 
II. LAW 
A. Requirements of a Motion to Reconsider 
The requirements for a motion to reconsider are set forth at 8 C.F.R. § 103.5(a)(3): 
A motion to reconsider must state the reasons for reconsideration and be supported by 
any pertinent precedent decisions to establish that the decision was based ori an 
incorrect application of law or Service policy. A motion to reconsider a decision on 
an application or petition must, when filed, also establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 
As further provided in 8 C.F.R. § 103.5(a)(4): 
A motion that does not meet applicable requirements shall be dismissed. 
B. The Roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the Immigrant 
Visa Process 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor certification from the DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 
1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) must approve an 
immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the foreign national 
must apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See 
section 245 ofthe Act, 8 U.S.C. § 1255. 
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), approved by the DOL, accompanies the instant petition. By approving the labor 
certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, 
and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified 
that the employment of a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of the Act. 
In these visa petition proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman. 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has authority to 
make preference classification decisions). 
The priority date of a petition is the date the DOL accepted the labor certification for processing. 
See 8 C.F.R. § 204.5(d). The priority date is used to calculate when the beneficiary of the visa 
petition is eligible to adjust his or her status to that of a lawful permanent resident. See 8 C.F.R. § 
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Matter of Y-T-, Inc. 
245.1 (g). A petitioner must establish the elements for the approval of the petition at the time the 
priority date is established and continuing until the beneficiary obtains lawful permanent residence. 
See 8 C.F.R. §§ 204.5(g)(2), 103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 
158, 159 (Acting Reg'l Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971). 
In the instant case, the priority date is March 6, 2013. Therefore, the Petitioner must establish that all 
eligibility requirements for the petition have been satisfied from March 6, 2013, and continuing through the 
present. 
C. Eligibility for the Classification of Professional and Qualifications for the Job Offered 
The Petitioner requests classification of the Beneficiary as a professional pursuant to section 
203(b)(3)(A)(ii) of the Act, which grants third preference classification to qualified immigrants who 
hold baccalaureate degrees and are members of the professions. See also 8 C.F.R. § 204.5(1)(2), which 
defines "professional" as follows: 
Professional means a qualified alien who holds at least a United States baccalaureate 
degree or a foreign equivalent degree and who is a member of the professions. 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states, in pertinent part: 
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. 
Section 101(a)(32) of the Act defines the term "profession" to include, but is not limited to, "architects, 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academies, or seminaries." If the offered position is not statutorily defined as a profession, "the 
petitioner must submit evidence showing that the minimum of a baccalaureate degree is required for 
entry into the occupation." 8 C.F.R. § 204.5(1)(3)(ii)(C). 
In addition, the job offer portion of the labor certification underlying a petition for a professional "must 
demonstrate that the job requires the minimum of a baccalaureate degree." 8 C.F.R. § 204.5(1)(3)(i) 
The beneficiary must also meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. See 8 C.F .R. § 103 .2(b )(I), (12). 
Therefore, a petition for a professional must establish that the occupation of the offered position is listed 
as a profession at section 101(a)(32) of the Act or requires a bachelor's degree as a minimum for entry; 
that the beneficiary possesses a U.S. bachelor's degree or a foreign equivalent degree from a college or 
university; that the job offer portion of the labor certification requires at least a bachelor's degree or a 
5 
Matter of Y-T-, Inc. 
foreign equivalent degree; and that the beneficiary meets all of the requirements of the labor 
certification. 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) uses a singular description of the degree required for 
classification as a professional. In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the 
Federal Register, the INS (now USCIS or the Service), 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 ofthe Committee of Conference, 
the Service specifically noted that both the Act and the legislative history indicate that a beneficiary 
must have at least a bachelor's degree: "[B]oth the Act and its legislative history make cleacthat, 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, 1991) (emphasis added). 
It is significant that both section 203(b)(3)(A)(ii) of the Act and the relevant regulations use the word 
"degree" in relation to professionals. A statute should be construed under the assumption that 
Congress intended it to have purpose and meaningful effect. Mountain States Tel. & Tel. v. Pueblo 
of Santa Ana, 472 U.S. 237, 249 (1985); Sutton v. United States, 819 F.2d. 1289, 1295 (5th Cir. 
1987). It can be presumed that Congress' requirement of a single "degree" for members of the 
professions is deliberate. 2 
The regulation also requires the submission of "an official college or university record showing the 
date the baccalaureate degree was awarded and the area of concentration of study." 8 C.F.R. 
§ 204.5(1)(3)(ii)(C) (emphasis added).3 For the professional category, therefore, it is clear that the 
degree must be from a college or university. 
Thus, the plain meaning of the Act and the regulations is that the beneficiary of a petition for a 
professional must possess a degree from a college or university that is at least a U.S. baccalaureate 
degree or a foreign equivalent degree. 
2 In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court held that, in 
professional and advanced degree professional cases, where the beneficiary is statutorily required to hold a baccalaureate 
degree, USCIS properly concluded that a single foreign degree or its equivalent is required. See also Maramjaya v. 
USC/S, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008) (for professional classification, USCIS regulations require the 
beneficiary to possess a single four-year U.S. bachelor's degree or foreign equivalent degree). 
3 In another context, Congress has broadly referenced the possession of "a degree, diploma, certificate, or similar award 
from a college, university, school, or other institution of learning." 8 C.F.R. § 204.5(k)(3)(ii)(A) (referring to one of the 
criteria for determining whether a foreign national is eligible for second preference classification as an alien of exceptional 
ability in the sciences, arts, or business). 
(b)(6)
Matter of Y- T-, Inc. 
III. ANALYSIS 
A. Eligibility for Classification as a Professional 
The Beneficiary does not have a degree of any kind from a college or university. In the denial the 
Director mistakenly referred to the Beneficiary's academic record at the as "a 
three-year degree." The statement of marks from the however, indicate that the 
Beneficiary only completed 2 years of coursework which did not culminate in a degree. 
As for where the Beneficiary completed two 26-week courses, the Petitioner has submitted a 
copy of a 2004 report by NAAC on higher education in northeastern India which refers to as a 
"university-level institution." The Petitioner also refers to the list of recognized universities in 
India as of 2013, originally submitte.d with the appeal and resubmitted with the instant motion , 
which includes an entry for ' Another 
previously submitted piece of evidence now resubmitted on motion is the copy of an online article 
about dated April 5, 1999, which states that the university was "planning to begin 
its first academic session in September 2009 with about 500 students." What these documents 
clearly show is that m where the Beneficiary studied in the 1990s, is a different 
institution from which did not begin operating until 2009. Moreover, 
is not a college or university. 
To determine what types of educational services it offers, we accessed website. At the 
bottom of each page on the website there is a synopsis "About which reads as follows: 
is a leading Skills and Talent Development Corporation that is building a 
manpower pool for global industry requirements. The company, which was set up in 
1981 to help the nascent IT industry overcome its human resource challenges, today 
ranks among the world's leading training companies owing to its vast, yet 
comprehensive array of talent development programs. With a footprint across 40 
nations, offers training and development solutions to Individuals, Enterprises 
and Institutions. 
(accessed August 24, 2016)·. The website does not indicate 
that requires incoming students to have a college degree. Nor is there any evidence that the 
Beneficiary's admission to was predicated upon the completion of a bachelor's degree program. 
Furthermore, does not issue academic degrees. 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) requires that the Beneficiary have a U.S. 
baccalaureate or foreign equivalent degree and evidence thereof in the form of an official college or 
university record to be eligible for classification as a professional. is not an academic 
institution that can confer a degree with an official college or university record. Accordingly , the 
transcripts from confirming that the Beneficiary completed two IT courses in the 1990s do not 
represent a foreign equivalent degree to a U.S. baccalaureate and do not make the Beneficiary 
eligible for classification as a professional under section 203(b )(3 )(A)(ii) of the Act. 
.., 
(b)(6)
Matter of Y-T-, Inc. 
The Petitioner cites Grace Korean United Methodist Church v. Cherto.ff, but does not explain how this 
federal district court decision supports its case. Grace Korean involved an employment-based 
immigrant petition seeking classification of the beneficiary as either a professional or as a skilled 
worker. The underlying labor certification specified that a "B.A. or equivalent" in theology was 
required to qualify for the job offered. The court found that the church intended the language "B.A. or 
equivalent" to include degree equivalency based on education and experience, which the beneficiary 
possessed. The court concluded that the beneficiary was eligible for classification as a skilled worker in 
accordance with the terms of the labor certification because the skilled worker classification, unlike the 
professional, does not require a U.S. bachelor's degree or a foreign equivalent degree. The instant 
proceeding is distinct from Grace Korean because the Petitioner is only seeking to classify the 
Beneficiary as a professional, not as a skilled worker. Therefore, a U.S. baccalaureate or foreign 
equivalent degree is required, as prescribed in the Act, 8 U.S.C. § 1153(b)(3)(A)(ii), and the 
regulations, 8 C.F.R. § 204.5(1)(2) and (l)(3)(ii)(C). The Beneficiary does not have such a degree. 
For all of the reasons discussed above, the Petitioner has not established that the Beneficiary has a 
U.S. baccalaureate degree or a foreign equivalent degree, as required under 8 C.F.R. 
§ 204.5(l)(3)(ii)(C) for him to be classified as a professional under section 203(b)(3)(A)(ii) of the Act. 
On this ground alone the petition cannot 
be approved. 
B. Educational Requirement of the Labor Certification 
We independently note that the minimum educational requirement for the job of business 
development manager , as expressed on the labor certification and associated documentation , does 
not support the instant petition to classify the Beneficiary as a professional. As previously 
discussed, classification as a professional under section 203(b )(3)(A)(ii) of the Act is limited to 
"[ q]ualified immigrants who hold baccalaureate degrees." In this case, the labor certification does 
not state that a bachelor's degree is the minimum level of education required. Rather, at section H.4 
of the ETA Form 9089 the box for "Other" rather than "Bachelor's" is selected, and section H.4-A 
specifies that the education required is a "Bachelor or equivalent of Bachelor's degree." As 
evidence of the Beneficiary's educational qualifications the instant petition was accompanied by the 
evaluation from Professor Robotham which asserted that the Beneficiary had the equivalent of aU .S. 
bachelor of science in computer science based on a combination of education and experience, 
including his 2 years of coursework at the additional coursework at and 
and several years of work experience and training in the computer tield.4 In its response to the 
Director's RFE the Petitioner cited the evaluation once again, as well as the regulation 
that allows for a combination of work experience and education to be considered equivalent to a U.S. 
4 The evaluation was originally submitted to USC IS in support of an earlier 1-140 petition filed on behalf 6f 
the Beneficiary by another U.S. employer in 2007 for the job of information systems auditor. That petition, which was 
approved, sought classification of the Beneficiary as a professional or as a skilled worker. It was supported by a labor 
certification which stated that the job required "a bachelor 's degree in computer science , or equivalent ," but also 
explained that the employer would accept "a combination of multiple degrees , diplomas and at least 3 years of IT work 
experience, to be equivalent to a 4-year bachelor ' s degree ." 
8 
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Matter of Y- T-, Inc. 
bachelor's degree in nonimmigrant petitions for H -1 B status, as evidence that the Beneficiary has the 
equivalent of a U.S. baccalaureate degree. Thus, it is clear from the labor certification and 
a_ssociated submissions from the Petitioner that a candidate may qualify for the job offered with less 
than a four-year bachelor's degree, which is the standard duration of a bachelor's degree in the 
United States. See Matter o.fShah, 17 I&N Dec. 244 (Reg'l Comm'r 1977). 
The regulation at 8 C.F.R. § 204.5(1)(3)(i) provides that "[t]he job offer portion of an individual 
labor certification ... must demonstrate that the job requires the minimum of a baccalaureate 
degree." Furthermore, the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states that "[i]fthe 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." (Emphasis added.) The regulations make 
clear, therefore, that classification as a professional under section 203(b )(2)(A)(ii) of the Act 
requires either a U.S. baccalaureate degree or a foreign equivalent degree. The petition itself, Form 
I-140, states the same in Part 2.l.e. There, the Petitioner checked the box stating that the petition 
was for "[a] professional (at a minimum, possessing a bachelor's degree or a foreign degree 
equivalent to a U.S. bachelor's degree)." Accordingly, the labor certification in this case does not 
support the preference classification sought in the I -140 petition since it allows an applicant to qualify 
for the job with less than a U.S. baccalaureate degree or a foreign equivalent degree. On this ground as 
well, the petition cannot be approved. 
IV. CONCLUSION 
The Petitioner's request to grant the Beneficiary third preference classification as a professional 
must be denied on the following grounds: 
• The Beneficiary is not eligible for classification as a professional under section 
203(b)(3)(A)(ii) of the Act because he does not have a U.S. bachelor's degree or a foreign 
equivalent degree. 
• The labor certification does not support the petition for professional classification because it 
does not require a U.S. baccalaureate degree or a foreign equivalent degree. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition 
cannot be approved. Therefore, in accordance with 8 C.F.R. § 103.5(a)(4) the instant motion will be 
dismissed. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. See section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 
128 (BIA 2013 ). The Petitioner has not met that burden. 
ORDER: The motion to reconsider is denied. 
Cite as Matter o.fY-T-, Inc., ID# 19958 (AAO Nov. 18, 2016) 
9