dismissed EB-3 Case: Computer Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
PUBLIC COPY 
U.S. Citizenship 
and Immigration 
Services 
PETITION: 
 Petition for Alien Worker as a Slulled Worker or Professional Pursuant to Section 203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. 8 1 153(b)(3) 
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. 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a software design, development and consultation company. 
 It seeks to employ the 
beneficiary permanently in the United States as an applications programmer. As required by statute, a Form 
ETA 750, Application for Alien Employment Certification approved by the Department of Labor, 
accompanied the petition. The director determined that the petitioner had not established that the beneficiary 
had a bachelor's degree or the equivalent with the major field of study being in Engineering, Computer 
Science or a related field, as required on the Form ETA 750. The director accordingly denied the petition. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(i), provides 
for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing slulled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who, at the time of petitioning for classification under this paragraph, are professionals. 
A labor certification is an integral part of this petition, but the issuance of a Form ETA 750 does not mandate the 
approval of the relating petition. To be eligble for approval, a beneficiary must have all the education, training, 
and experience specified on the labor certification as of the petition's priority date. 8 C.F.R. fj 103.2(b)(l), (12). 
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter of Katigbak, 14 
I. & N. Dec. 45, 49 (Reg. Comm. 1971). The priority date is the date the Form ETA 750 was accepted for 
processing by any office within the employment system of the Department of Labor. See 8 C.F.R. fj 204.5(d). 
The priority date in the instant petition is October 3 1,2001. 
On the Form ETA 750B, signed by the beneficiary on October 23, 2001, the beneficiary claimed to have 
worked for the petitioner beginning in February 2000 and continuing through the date of the ETA 750B. The 
ETA 750 was certified by the Department of Labor on May 9,2003. 
The 1-140 petition was submitted on October 22, 2003. On the petition, the petitioner claimed to have been 
established in 1995, to currently have an "Est. 100" employees, and to have a gross annual income of "Est. 
$6.5 Million." (1-140 petition, Part 5). The item on the petition for net annual income was left blank. With 
the petition, the petitioner submitted no supporting evidence. 
In a request for evidence (WE) dated March 3,2004, the director requested evidence relevant to the beneficiary's 
education and evidence relevant to the petitioner's ability to pay the proffered wage. 
In response to the RFE, the petitioner submitted evidence relevant to the issues mentioned in the RFE. The 
petitioner's submissions in response to the RFE were received by the director on May 24,2004 
In a decision dated August 12, 2004, the director determined that the petitioner had not established that the 
beneficiary had a bachelor's degree or the equivalent with the major field of study being in Engineering, 
Computer Science or a related field, as required on the Form ETA 750. The director therefore denied the 
petition. 
On appeal, counsel submits no brief and submits additional evidence. 
 Counsel states on appeal that the 
beneficiary possess the equivalent of a Bachelor's degree in a conforming and relevant field of study. Counsel 
also states that the beneficiary possesses, separately and independently "the equivalency of an academic degree 
Page 3 
equal to a Bachelor's Degree in terms of the years of experience in sophisticated information systems 
employment realized as of the date prior to the filing of the labor certification." (I-290B, block 3). 
On the I-290B, signed by counsel on September 9, 2004, counsel checked the block indicating that he would be 
sending a brief andlor evidence to the AAO within 30 days. No fiu-ther submissions were received from the 
petitioner until May 3, 2005, when the petitioner submitted a letter dated April 27, 2005 from counsel with an 
attached copy of a credential evaluation of the beneficiary dated April 24, 2005 by International Credential 
Evaluators, Inc. (I.C.E., Inc.) 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are 
incorporated into the regulations by the regulation at 8 C.F.R. $ 103.2(a)(l). Counsel does not explain the 
reason for the delay beyond 30 days in submitting the credential evaluation by I.C.E., Inc. However the fact 
that the evaluation is dated April 24, 2005 indicates that the evaluation by I.C.E., Inc., was completed after 
the 30-day period stated by the petitioner in the I-290B notice of appeal. The record in the instant case 
provides no reason to preclude consideration of the document newly submitted on appeal. See Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988). The AAO will accept the late filing on the AAO's own motion. 
The regulation at 8 C.F.R. 9 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) from 
current or former employer(s) or trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
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, blocks 14 and 15, sets forth the minimum 
education, training and experience that an applicant must have for the position of applications programmer. On 
the ETA 750A submitted with the instant petition, blocks 14 and 15 describe the requirements of the offered 
position as follows: 
14. Education (number of years) 
Grade School 
High School 
College Y 
College Degree Required 
 Bachelor's degree or equiv. 
Major Field of Study 
 Engineering, Computer Science or related 
Training - yrs N/A 
Experience 
Job Offered Yrs 
Related Occupation Yrs 
Related Occupation (specify) 
 See Item 15 Above 
["Above" refemng to the location of item 15 
on the ETA 750, Part A] 
Page 4 
1 5. Other Special Requirements 
 One year experience in developing client server 
database applications using PowerBuilder & VC++; 
six months experience in GUPTAICentura SQL 
Windows. Experience may be concurrent. 
(ETA 750, Part A, blocks 14 and 15). 
The beneficiary states his qualifications on Form ETA 750, Part B. On the ETA 750B submitted with the instant 
petition, in block 11, for information on the names and addresses of schools, colleges and universities attended 
(including trade or vocational training facilities), the beneficiary states the following: 
Schools, Colleges Degrees or Certificates 
and Universities, etc. Field of Study From To Received 
Government Arts College Chemistry, Math 1211980 1211983 Bachelor of 
Ooty, Tamil Nadu, India & Physics Science Degree 
Dept of Comp. Science Systems Analysis 1998 1999 Diploma 
& Engineering, & Data Processing 
Annamalainagar, Tamil Nadu, 
India 
I.T. Point Software Training RDBMS 0311996 0511996 Diploma 
Ooty, Tamil Nadu, India 
 (Oracle 7.1) 
I.T. Point Software Training PowerBuilder 0611996 0811996 Diploma 
Ooty, Tamil Nadu, India 
(ETA 750, Part B, block 11). 
The record contains a copy of an evaluation of the beneficiary's education and experience dated October 23,2001 
by Josef Silny & Associates, Inc. (J.S.A., Inc.) which finds that the beneficiary's education and experience are 
equivalent to a Bachelor's degree with a major in Computer Information Systems from an accredited university in 
the United States. The copy of that report submitted for the record is incomplete, consisting of a cover letter from 
the professor who wrote the evaluation report plus the first page of that report. Copies of certificates, transcripts 
and letters evidencing the beneficiary's prior education and experience are attached to the report. 
Since the copy of the report by J.S.A., Inc., in the record is incomplete, it is not possible to determine exactly the 
basis for the evaluator's conclusions, but the information in the partial copy is sufficient to show that the evaluator 
relied on a combination of the beneficiary's education and experience in finding that the beneficiary has the 
equivalent of a United States Bachelor's degree with a major in Computer Information Systems. 
The report by J.S.A., Inc., finds that the beneficiary received a Bachelor of Science degree from the University of 
Madras in India in 1983, a finding which is supported by copies of transcripts attached to the report. The record 
contains no documents indicating any studies by the beneficiary at Government Arts College, Ooty, Tamil Nadu, 
India, as asserted by the beneficiary on the ETA 750B. That evidentiary inconsistency will be discussed below. 
Page 5 
The record also contains a copy of an evaluation of the beneficiary's education dated May 3, 2004 by World 
Education Services, Inc. (W.E.S., Inc.) which finds that the beneficiary's education is equivalent to a high school 
diploma and four years of undergraduate study in chemistry and systems analysis at a regionally accredited 
institution in the United States. The report by W.E.W., Inc. finds that the beneficiary's Bachelor of Science 
degree from the University of Madras with a major in Chemistry is equivalent to three years of undergraduate 
study in the United States. The report further finds that the beneficiary's Diploma in Systems Analysis and Data 
Processing from Annamalai University is equivalent to one year of undergraduate study in the United States. 
Finally, as noted above, the record contains a copy of an evaluation of the beneficiary's education dated April 25, 
2005 by International Credential Evaluators, Inc., (I.C.E. Inc.), which was submitted for the first time on appeal. 
That report finds that the beneficiary's education is equivalent to a Bachelor of Science degree with course work 
in Computer Programming from an accredited university in the United States. The report finds that the 
beneficiary's studies for his Bachelor of Science degree at Madras University are equivalent to three years of 
post-secondary education in Chemistry from an accredited university in the United States. The report also finds 
that the beneficiary's studies in computer courses taken at Annamalai University are equivalent to one year of 
post-secondary education in Computer Programming from an accredited university in the United States. 
Each of the evaluation reports bases its findings partially on evidence that the beneficiary received a Bachelor 
of Science degree from the University of Madras in India in 1983. Copies of transcripts purporting to document 
the beneficiary's studies at the University of Madras are in the record. The record also contains a "Provisional 
Certificate - B.Sc." issued to the beneficiary in June 1984 which states that the beneficiary "has qualified for the 
Degree of Bachelor of Science, he having passed the B.Sc. Degree Examination held in December 1983 . . ." 
(Provisional Certificate, June [illegible date], 1984). The title of that document as a "Provisional Certificate" 
indicates that Wher requirements existed for the granting of the degree. The record contains no document 
indicating that a degree was granted to the beneficiary. Stamps and address references on the documents in the 
record from the University of Madras give the university's location as "Chepauk, Madras." 
Although the documents in the record indicate studies by the beneficiary at the University of Madras, the 
beneficiary states on the ETA 750, Part B, that he received a Bachelor of Science degree in 1983 from 
Govemment Arts College, Ooty, Tamil Nadu, India. No other documents in the record refer to the Govemment 
Arts College, in Ooty, Tamil Nadu. 
The Internet Web site of the University of Madras shows that that university has its main campus in Chepauk, 
in the city of Chennai. The Web site contains no reference to any college known as the Government Arts 
College. See University of Madras, Home, http://www.unom.ac.in/index.php; select Schools (accessed February 
23, 2006). Nor does the Web site contain any reference to a campus in the city of Ooty. Id.; select Campuses 
(accessed February 23,2006). 
The Board of Immigration Appeals, in Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988), has stated, "It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice." The record contains no explanation for the inconsistencies in 
the evidence noted above. 
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, CIS is not required to 
accept that evidence, or may give less weight to it. Matter of Caron International, 19 I&N Dec. 791 (Comm. 
1988); Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 1988). 
Even assuming that the beneficiary obtained a Bachelor of Science degree from the University of Madras, the 
evaluation reports in the record fail to establish that the beneficiary's education satisfies the requirements of 
the ETA 740, Part A. 
The evaluation method employed by J.S.A., Inc., in considering the beneficiary's work experience as part of the 
basis for finding an equivalence to a United States bachelor's degree is similar to a method allowed under the 
regulations governing H-1B nonimmigrant visas petitions. See 8 C.F.R. 214.2(h)(4)(iii)(D)(5). However, the 
nonimmigrant regulations governing H-1B visa petitions are not applicable to the instant immigrant petition. 
The only regulation specifying the equivalent of a bachelor's degree in the context of immigrant petitions is one 
which pertains to professionals. The regulation at 8 C.F.R. fj 204.5(1)(2) states in pertinent part 
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. 
Skilled worker means an alien who is capable, at the time of petitioning for this 
classification, of performing skilled labor (requiring at least two years training or experience), 
not of a temporary or seasonal nature, for which qualified workers are not available in the 
United States. Relevant post-secondary education may be considered as training for the 
purposes of this provision. 
Concerning the evidence needed to support classification in the above preference categories, the regulation at 
8 C.F.R. 9 204.5(1)(3)(ii) states in pertinent part: 
(A) General. Any requirements of training or experience for skilled workers, professionals or 
other workers must be supported by letters from trainers or employers giving the name, 
address, and title of the trainer or employer, and a description of the training received or the 
experience of the alien. 
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied 
by evidence that the alien meets the educational, training or experience, and any other 
requirements of the individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information Pilot Program 
occupation designation. The minimum requirements for this classification are. at least two 
years of training or experience. 
(C) Professionals. 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 
showing that the minimum of a baccalaureate degree is required for entry into the occupation. 
In the definition of "professional," the regulation at 8 C.F.R. fj 204.5(1)(2) uses a singular description of foreign 
equivalent degree. Thus, the plain meaning of the regulatory language sets forth the requirement that a 
beneficiary must have one degree that is determined to be the foreign equivalent of a U.S. baccalaureate degree in 
Page 7 
order to be qualified as a professional for third preference visa category purposes. Since the ETA 750 does not 
require two or more years of experience, the petitioner cannot qualify as a "slulled worker" petition. 
A bachelor degree is generally found to require four years of education. Matter of Shah, 17 I&N Dec. 244,245 
(Cornrn. 1977). In the instant petition, the ETA 750 does not require a specific number of years of college 
education, nor any specific number of years of other education or training. A diploma is not the same as a 
"degree." CJ: 8 C.F.R. 5 204.5(1)(2) 
The evaluation reports by W.E.S., Inc., and by I.C.E. Inc., do not rely on the beneficiary's experience to support 
their findings, but base their findings of U.S. educational equivalency solely on the beneficiary's education. The 
report by W.E.S., Inc., finds that the beneficiary has the equivalent of four years of undergraduate study in the 
United States. But the report by W.E.S., Inc., makes no finding that the beneficiary's studies are equivalent to a 
United States Bachelor's degree, whch is a requirement of the ETA 750A. 
The evaluation report by I.C.E., Inc., does find that the beneficiary has the equivalent of a United States 
Bachelor's degree. However, that report relies on the combination of the beneficiary's studies for his Bachelor of 
Science degree from the University of Madras, which was a three-year program, plus the beneficiary's later 
studies in computer courses at Annamalai University. The report by I.C.E., Inc., does not find that the beneficiary 
holds a single foreign degree which is equivalent to a United States Bachelor's degree. 
None of the evaluation reports on the beneficiary's education in the record makes findings which satisfy the 
regulatory definition for a professional in 8 C.F.R. 9 204.5(1)(2) or which satisfy the evidentiary requirements in 
8 C.F.R. § 204.5(1)(3)(ii)(C) to establish that the beneficiary is a professional. 
As noted above the record contains no explanation for the evidentiary inconsistencies concerning which college 
in India the beneficiary attended for his studies toward a Bachelor of Science degree. Nor do the educational 
documents in the record show that such a degree was granted to the beneficiary, since the record contains only a 
"Provisional Certificate" from the University of Madras pertaining to such a degree. Moreover, even assuming 
that the beneficiary holds a Bachelor of Science degree fi-om the University of Madras, none of the evaluation 
reports in the record makes a finding that the beneficiary holds a foreign degree which is equivalent to a U.S. 
bachelor's degree. Regardless of whether the petition sought classification of the beneficiary as a slulled worker 
or as a professional, the beneficiary had to meet all of the requirements stated by the petitioner in block #14 of the 
labor certification as of the day it was filed with the Department of Labor. 
In his decision, the director found that the evaluation reports then in the record, which were those by J.S.A., Inc., 
and W.E.S., Inc., failed to establish that the beneficiary had formal education which was equivalent to a 
Bachelor's degree obtained at an accredited institution of higher education in the United States in one of the fields 
specified on the labor certification. The director said that, while the beneficiary did have the equivalent of four 
years of college, he does not have a degree, represented by four years of college in one of the fields specified. 
The director's analysis of the evidence then in the record was correct, and the director's decision to deny the 
petition was correct, based on that evidence. For the reasons discussed above, the assertions of counsel on appeal 
and the evidence submitted on appeal fail to overcome the decision of the director. 
The petitioner has not established that the beneficiary has a Bachelor's degree in Engineering, Computer Science 
or a related field on October 3 1,200 1, or a foreign equivalent degree. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.