dismissed EB-3 Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re : 23232155 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 16, 2022 
The Petitioner, a software, services, and internet technologies company, seeks to employ the 
Beneficiary as a "software development engineer in test II." It requests classification of the 
Beneficiary as a professional under the third preference immigrant classification. 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 residence. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary is qualified for the offered position because he does not meet the 
experience requirements stated on the labor certification. The Director granted the Petitioner's 
subsequent motion to reopen and issued a new decision affirming the denial of the petition . The matter 
is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). 1 See section 212(a)(5)(A)(i) 
of the Act, 8 U.S .C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that 
there are insufficient U.S. workers who are able, willing, qualified, and available for the offered 
position and that employing a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S . Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
December 8, 2011. See 8 C.F.R. § 204 .S(d). 
the foreign national applies for an immigrant visa abroad or, if eligible, adjustment of status in the 
United States. See section 245 of the Act, 8 U.S.C. § 1255. 
Section 203(b )(3)(A)(ii) of the Act grants 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). 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states, in pertinent part that a petition for a professional 
must be accompanied by evidence that the beneficiary holds a United States baccalaureate degree or 
foreign equivalent degree and by evidence that the beneficiary is a member of the professions. 
Evidence of a baccalaureate degree must 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. Id. 
A beneficiary must also have all the education, training, and experience specified on the labor 
certification as of the petition's priority date. See 8 C.F.R. § 103.2(b)(l), (12); Matter of Wing's Tea 
House, 16 I&N 158 (Act. Reg'l Comm'r 1977). 
II. ANALYSIS 
The sole issue before us on appeal is whether the Petitioner established that the Beneficiary met all 
education and experience requirements specified on the labor certification when it was filed in 
December 2011. 
A. Education and Experience Requirements 
The labor certification indicates that the offered position requires a U.S. master's degree, or foreign 
equivalent degree, in computer science, engineering, mathematics, information systems, physics or 
related field and 36 months of experience in the offered job or "any computer related job title." The 
Petitioner indicated that a candidate could alternatively qualify for the offered position with a U.S. 
bachelor's degree, or foreign equivalent degree, in one of the listed fields, and five years of progressive 
post-baccalaureate experience. 
The record indicates that the Beneficiary attended University in India, where he 
completed a three-year bachelor of science degree in electronics and a two-year master of science 
degree in computer science. The record establishes that the Beneficiary's master's degree is equivalent 
to a U.S. bachelor's degree in a field of study identified as acceptable on the labor certification. The 
Petitioner documented that the Beneficiary gained five years of progressive experience with three 
different employers between February 17, 2003 and March 28, 2008. 2 
In denying the petition, the Director determined that the record did not demonstrate the Beneficiary 
has the five years of progressive post-baccalaureate experience required by the terms of the labor 
certification. Citing Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017), the 
2 The labor ceitification indicates that Beneficiary started working for the Petitioner in the offered position of "software 
development engineering in Test TT" on March 31, 2008. Because the labor certification indicates that the Beneficiary's 
experience with the petitioning employer was gained in the offered position, the Director did not consider his most recent 
employment in analyzing whether he possesses the required post-baccalaureate experience. See 20 C.F.R. § 
656. l 7(i)(3)(i). (5)(ii). 
2 
Director determined that the Beneficiary received his foreign equivalent degree when his university 
issued him a provisional degree certificate on May 9, 2003, and that only experience gained after that 
date could count towards his post-baccalaureate experience. The Director calculated his experience 
from May 9, 2003, and concluded that he had only four years, ten months, and nine days of qualifying 
experience as of the priority date. 
B. The Beneficiary's Degree and Post-Baccalaureate Experience 
The specific issue we must address is when the Beneficiary received his master's degree from 
I I University. 
On appeal, the Petitioner asserts that the Director applied an overly restrictive interpretation of Matter 
of O-A- and objects to the Director's statement that "there is no provision allowing for a date earlier 
than the date of the provisional certificate for purposes of calculating post-baccalaureate experience." 
It further contends that Matter of O-A- requires a case-specific analysis of all relevant evidence to 
determine when a particular individual completed all the substantive requirements for their degree, 
and that the Director failed to conduct the required analysis here. The Petitioner maintains that, 
applying this standard, "it is more likely than not that the Beneficiary earned his Indian degree in 
November 2002, rendering all of his 2003 to 2008 experience 'post-baccalaureate."' 
For the reasons discussed below, the Petitioner has not established that the Beneficiary received his 
master's degree on a date prior to the issuance of his provisional certificate. 
The statute and regulations governing this classification refer to a "degree," not a diploma. The "initial 
evidence" requirement for professionals under 8 C.F.R. § 204.5(1)(3)(ii)(C) states that "[e]vidence 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." We have previously 
determined that an "official academic record" is not limited to a formal diploma. 3 
Accordingly, we must conduct a case-specific analysis to determine when the Beneficiary completed 
all substantive requirements to earn the degree and when the university approved the degree as 
demonstrated by an official academic record. When determining whether a document is an official 
academic record that substantiates a claimed degree, we may consider whether the document was 
issued by a university in the normal course of its business; whether the document was issued 
contemporaneous with events; and whether the document indicates that all degree requirements, not 
just the required coursework, have been completed. 4 
The record contains the following evidence related to the Beneficiary's master's degree from 
I !University: 
• Diploma issued on October 19, 2004, stating the Beneficiary was admitted to the Degree of 
Master of Science after "having been certified by duly appointed Examiners to be qualified to 
3 See Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017). 
4 Id. at 4. 
3 
receive the same and having been placed in the First Class with Distinction in Computer 
Science at the examination held in November 2022." 
• Provisional Certificate issued on May 9, 2003, stating that the Beneficiary passed the M.Sc. 
degree examination in First Class with Distinction in Computer Science in November 2002. 
• Memoranda of marks indicating the Beneficiary's grades on examinations for all four 
semesters of his enrollment. The memorandum of marks for the November 2002 examination 
was issued on May 2, 2003. 
• A July 2021 letter from the head of the university's computer science department, who 
certifies that the Beneficiary "completed all substantive requirements for the degree of master 
of science when he passed the M.Sc. Degree Examination ... in November 2002." 
• Academic Equivalence Evaluation indicating that the Beneficiary was awarded a diploma for 
his master of science degree in November 2002 "[f]ollowing his completion of the required 
academic coursework and examinations." 
The Director, relying on Matter of O-A-, determined that the Beneficiary's master's degree was 
awarded in May 2003, when the university issued the provisional certificate, rather than in October 
2004, when the diploma was issued. The Petitioner maintains that the record demonstrates that the 
Beneficiary completed all substantive degree requirements in November 2002, approximately seven 
months prior to the issuance of his provisional certificate. 
A provisional certificate will constitute the official academic record of a beneficiary's "degree" for 
purposes of calculating the five-year period of post-graduate experience, if a petitioner establishes that all 
the substantive requirements for the degree were met and that the degree was in fact approved by the 
responsible university body at the time a provisional certificate was issued. Matter of O-A-, Inc., Adopted 
Decision 2017-03, at 4.5 When a petitioner submits a provisional certificate as evidence of a 
beneficiary's receipt of a degree, we consider evidence presented regarding the individual nature of 
each university's or college's requirements for each program of study and each student's completion 
of those requirements. A petitioner bears the burden to establish that a beneficiary's provisional 
certificate reflects that, at the time the certificate was issued, all the substantive requirements for the 
degree were met and the degree was in fact approved by the responsible college or university body. 
Id. 
Here, although accepted by the Director as evidence of his degree completion in May 2003, the 
Beneficiary's provisional certificate only states that he passed his master of science degree 
examination in November 2002. It does not indicate that he met all substantive requirements for his 
degree on that earlier date or specify when the degree was approved by the university. Further, the 
record does not contain sufficient evidence corroborating the substantive requirements of the 
Beneficiary's specific program of study. Without such evidence, the record does not support the 
Petitioner's claims that he completed all substantive requirements, and that the university approved 
5 The provisional degree certificate in Matter of 0-A-, Inc. was determined to be consistent with that described by The 
American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education 
(EDGE), which states that a provisional degree certificate issued by an Indian university can provide "evidence of completion 
of all requirements for the degree in question ... and is comparable to an official U.S. academic transcript with a degree 
statement certifying completion of all requirements for the degree .... " See India: Provisional Degree Certificate, 
AA CRA O, https: //www.aacrao.org/ edge/ country/ credentials/ credential/india/provisional-degree-certificate. 
4 
the issuance of his master of science degree, on a date earlier than the issuance of the provisional 
certificate. 
The Petitioner emphasizes that the earlier November 2002 date appears on his diploma, in the 
provisional certificate, on his final memorandum of marks, in the academic equivalency evaluation, 
and in the letter from the head of the computer science department at I I University. 
He asserts that the Director failed to address this case-specific evidence as required by Matter of O-A­
and maintains that he established by a preponderance of the evidence that his degree was approved by 
the university and awarded in November 2002. 
Although a university-issued statement of marks is an official academic record, the Beneficiary's 
marks statements alone do not demonstrate his completion of all degree requirements in November 
2002. The Beneficiary's marks statements simply confirm when he took his examinations in each 
semester and indicate he took his fourth semester examinations in November 2002; the Petitioner did 
not submit a consolidated statement of marks with additional relevant information, such as the date 
the university approved the degree. In addition, the memorandum of marks for the Beneficiary's final 
semester's examinations, like the provisional certificate, was issued in May 2003 and does not support 
a determination that the university approved his completion of all degree requirements in November 
2002. The Petitioner has not provided an explanation for the seven-month delay between the date of 
the fourth semester examination and the date of issuance of the provisional certificate and final 
memorandum of marks. 
We have also considered the July 2021 letter from the head of I University's computer 
science department. She certifies that the Beneficiary "completed all substantive requirements for the 
degree of master of science when he passed the M.Sc. Degree Examination ... in November 2002" 
and that "this M.Sc. Degree Examination constitutes approval by [the university] that he had earned 
his degree as of November 2002." This letter is not an official academic record substantiating that the 
degree was awarded prior to the date on the provisional certificate. The letter, written nearly 19 years 
after the Beneficiary's purported completion of the degree, was issued in response to the Beneficiary's 
inquiries, not in the university's normal course of business. Although the letter implies that the final 
substantive requirement for the degree was passing the November 2002 examination, the record 
otherwise lacks any evidence documenting the substantive requirements for the university's master of 
science in computer science degree at the time of the Beneficiary's enrollment. Even if the record 
established that passing that examination was the final substantive requirement leading to issuance of 
the master of science degree, the record does not establish that the university acknowledged the 
Beneficiary's passing marks prior to May 2003 or otherwise approved his completion of the degree 
requirements prior to that date. 
As additional proof that the Beneficiary's degree preceded the issuance of the provisional certificate, 
the Petitioner cites the submitted evaluation of his educational credentials. The evaluation, prepared 
in 2011, states that the Beneficiary's master's degree was awarded in November 2002 "following his 
completion of the required academic coursework and examinations." However, the record does not 
support this statement and the evaluator does not explain how they reached this conclusion. As 
discussed above, the evidence indicates the Beneficiary passed his final semester examinations in 
November 2002, but it does not demonstrate that the degree was approved as completed and awarded by 
the university at that time, or at any time prior to the issuance of the provisional certificate in May 2003. 
5 
Again, the Petitioner has not explained the seven-month delay between the November 2002 examinations 
and the May 2003 provisional certificate, and the record does not contain contemporaneous evidence 
indicating that the university approved the Beneficiary's completion of the degree in 2002. 
Based on a case-specific analysis of the educational documentation submitted in support of the petition, 
we conclude that the evidence does not support the Petitioner's claim that the Beneficiary was awarded 
his master of science degree in November 2002 or any date prior to the issuance of his provisional 
certificate in May 2003. The Petitioner has not demonstrated the Beneficiary's possession, by the 
petition's priority date, of the requisite five years of post-baccalaureate experience required for the offered 
position. Therefore, we will dismiss the appeal. 
C. The Beneficiary's Experience Gained with the Petitioner 
On appeal, the Petitioner asserts for the first time that even if the Beneficiary's experience can only be 
counted from May 9, 2003, the date of his provisional certificate, he nevertheless acquired five years of 
post-baccalaureate experience prior to the December 8, 2011 priority date. Specifically, the Petitioner 
asserts that it initially hired him for the position of "software development engineer in test" and that this 
position was not "substantially comparable" to the offered position. The Petitioner provides the 
Beneficiary's personnel records and letters from his former supervisors in support of these claims. 
We observe that the Petitioner indicated at section K of the labor certification that the Beneficiary had 
been working in the offered position of "software development engineer in test II," performing identical 
duties, from the time it hired him in March 2008 through the time of filing in December 2011. The 
regulation at 20 C.F.R. § 656.l 7(i)(3)(i) states that an employer cannot require domestic worker 
applicants to possess training and/or experience beyond what the beneficiary possessed at the time of 
hire unless the beneficiary gained the experience while working for the employer in a position not 
substantially comparable to the position for which certification is being sought." A "substantially 
comparable" job or position means a job or position requiring performance of the same job duties 
more than 50 percent of the time. 8 C.F.R. § 656.l 7(i)(5)(ii). If the Beneficiary was not in fact 
employed in a "substantially comparable" job when the Petitioner hired him in March 2008, the 
Petitioner should have provided this information, including his job duties and his dates of employment 
in the claimed previous job, when it completed the labor certification. A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. 
See Matter of Izwnmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
When conducting appellate review, we determine whether an unfavorable decision contains an 
erroneous conclusion of law, application of policy, finding of fact, or exercise of discretion. The 
Petitioner's request that we consider new claims and evidence intended to re-characterize the 
Beneficiary's employment history as stated on the labor certification is not properly before us on 
appeal. The Petitioner did not make these claims in response to the Director's request for evidence or 
in support of its previously filed motion to reopen and reconsider. Nor does it claim that the Director 
erred by not considering the Beneficiary's experience gained with the petitioning company based on 
the evidence previously submitted. Accordingly, we need not further address the new claims and 
evidence relating to the Beneficiary's employment history with the Petitioner. 
6 
III. CONCLUSION 
For the reasons discussed, the record does not establish that the Beneficiary satisfied all requirements 
stated on the labor certification as of the priority date. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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