dismissed EB-3 Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF CBIO-M-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 4, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a financial services company, seeks to permanently employ the beneficiary in the 
United States as a programmer analyst. It requests classification of the Beneficiary as a skilled worker 
or professional under the third preference immigrant classification. See Immigration and Nationality 
Act (the Act)§ 203(b)(3)(A)(i) and (ii), 8 U.S.C. § 1153(b)(3)(A)(i) and (ii).1 
The Director, Nebraska Service Center, denied the petition, finding that the Beneficiary did not 
qualify for either of the classifications sought because she did not fulfill the educational requirement 
listed on the labor certification. After we rejected a late filed appeal, the Director reopened the 
proceeding and denied the petition again, finding that the terms of the labor certification require "a 
four-year single source bachelor's degree" or a foreign equivalent degree granted by an official 
college or university, that the Petitioner did not allow for any alternate combination of education and 
experience, and that the Beneficiary did not meet the minimum educational qualification set by the 
labor certification. 
The matter is now before us on appeal. The Petitioner submits additional evidence, asserting that the 
Beneficiary has the requisite education under the terms of the labor certification and otherwise 
qualifies for skilled worker classification. Upon de novo review, we will dismiss the appeal. 
I. PROCEDURAL HISTORY 
The Petitioner filed the instant petition, Form I-140, on August 16, 2007. As required by statute, the 
petition was accompanied by an ETA Form 9089, Application for Permanent Employment 
1 Section 203(b)(3)(A)(i) of the Act provides for the granting of preference classification to qualified immigrants who are 
capable of performing skilled labor (requiring at least two years training or experience), not of a temporary nature, for 
which qualified workers are not available in the United States. 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. The Form l-140 
filed in this case did not require the Petitioner to distinguish which of these third preference classifications was being filed for, 
instead listing them together in item "e" of Part 2 ("Petition type") and allowing the petitioner to file for either classification. 
In January 2010, subsequent to the filing of the instant petition, the format of the Form l-140 was changed to require 
petitioners to distinguish in Part 2 whether they were filing for professional classification (Part 2.e.) or for skilled worker 
classification (Part 2.f.). 
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Matter ofCBIO-M- , Inc. 
Certification , which was filed with the Department of Labor (DOL) on April 24, 2007, and certified 
by the DOL (labor certification) on August 3, 2007. To be eligible for approval, a beneficiary must 
have all the education, training, and experience specified on the labor certification as of the 
petition's priority date- April 24, 2007, in this case? See 8 C.F.R. § 204.5(1)(3)(ii)(B) and Matter of 
Wing's Tea House , 16 I&N 158 (Act. Reg'l Comm'r 1977). 
For the position at issue in this proceeding - programmer analyst - the Petitioner specified in section 
H ofthe ETA Form 9089 the following education, training, and experience requirements: 
4. Education : Minimum level required: Bachelor's degree 
4-B. Major Field of Study: Computer Science 
5. Is training required in the job opportunity? No 
6. Is experience in the job offered required? Yes 
6-A. How long? 24 months 
7. Is there an alternate field of study that is acceptable? No 
8. Is there an alternate combination of education and experience that is acceptable? No 
8-A. If Yes, specify the alternate level of education required No answer 
8-B. If Other is indicated in question 8-A, 
indicate the alternate level of education required: No answer 
8-C. If applicable, indicate the number of years experience 
acceptable in question 8: No answer 
9. Is a foreign educational equivalent acceptable? Yes 
10. Is experience in an alternate occupation acceptable? No 
13. Is knowledge of a foreign language required? No 
14. Specific skills or other requirements: Knowledge of Window 3.11/NT, 
C, HTML, PLISQL, Oracle 7.x, 
Developer 2000 and 
Visual Basic 5.0 
Thus, the labor certification specifies that a bachelor's degree in computer science, or a foreign 
educational equivalent, and 24 months of experience as a programmer analyst are required for the 
job . No alternate combination of education and experience is acceptable. 
In box 1.11 of the ETA Form 9089 the Beneficiary indicated that the highest level of education she 
received relevant to the occupation of programmer analyst was a bachelor's degree. The Beneficiary 
then specified that her major field of study was "computer information system/science" (box 1.12), 
and that her degree was earned in 1985 at · in India (boxes 1.13, 1.14, and 1.15). 
2 The priority date of an immigrant petition is the date the underlying labor certification application was accepted for 
processing by the DOL See 8 C.F.R. § 204.5(d) . 
2 
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Matter ofCBIO-M-, Inc. 
As evidence of the Beneficiary 's educational and experience credentials , the Petitioner submitted the 
following pertinent documentation with the Form I-140 petition and its response to the Director's 
subsequent request for evidence: 
• Copies of a diploma , academic records , and other documentation from 
India, showing that the Beneficiary was awarded a 
"Degree of Bachelor of Science (Home Science)" on November 16, 2000, based on the 
completion of a two and one-half or three-year degree program in the years 1983-1985 ;3 
• Copies of a Diploma and Memoranda of Marks from the 
India, showing that the Beneficiary was awarded a "Master 
Diploma in Computer Applications (M.D.C.A.)" on June 28, 1997, after completing a four­
semester educational program in the years 1995-1997; 
• Copies of letters or certificates from four former employers of the Beneficiary stating that 
she was employed as a programmer/analyst for (1) (at an unstated location) 
from August 1986 to September 1995; (2) m 
India, from October 9, 1995 to September 30, 1999; (3) 
(at an unstated location) from October 1999 to January 22, 2001; and (4) 
Virginia, as of August 2002 (to a date unstated); 
• Two evaluations of the Beneficiary' s foreign education and work experience seeking to 
establish the U.S. equivalency of the Beneficiary's qualifications, including: 
(1) An "Evaluation of Academics" from in 
Maryland, dated March 20, 2009, asserting that the Beneficiary' s Bachelor of 
Science degree from plus her two-year M.D.C.A. from were 
equivalent to a bachelor's degree in computer science from an accredited institution of 
higher learning in the United States; and 
• (2) A "Work Experience Evaluation Report" from 
in Virginia, dated August 31 , 2000, asserting that 
the Beneficiary's employment experience as a programmer analyst in India from 1986 to 
2000, based on a formula of three years of experience equating to one year of undergraduate 
education, is equivalent to a bachelor of science in computer information systems from an 
accredited U.S. college or university. 
On June 30, 2009, the Director denied the petition on the ground that the Beneficiary did not qualify 
for classification as a professional under the terms of the labor certification , which the Director 
interpreted as requiring a bachelor's degree in computer science or a foreign equivalent degree. 
According to the Director , if an I-140 petition is filed under third preference classification with a 
bachelor's degree requirement, the beneficiary can only be considered for approval as a skilled 
worker if the language in boxes H.8 (including 8-A, 8-B, and 8-C) and/or H.14 of the ETA Form 
9089 indicates that the employer is willing to accept alternate combinations of experience and 
3 While the Petitioner refers to the Bachelor of Science as a three-year degree , the Beneficiary's academic records only 
identify five semesters of study , not six. Thus, it appears the degree may have required just two and a half academic 
years of study. 
3 
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Matter ofCBIO-M- , Inc. 
education as meeting the requirements of the job offered. As no such language appears in these 
sections of the labor certification, the Director determined that "the petition must be processed under 
the professional category, requiring a U.S. baccalaureate degree or foreign equivalent degree." The 
Director reviewed the Beneficiary's academic credentials from _ 
He found that is not a recognized degree-granting institution and thus its Master Diploma in 
Computer Applications could not be considered baccalaureate level coursework. He determined 
that 
the Beneficiary's asserted three-year Bachelor of Science degree and two-year Master Diploma were 
not, either alone or in combination , equivalent to a U.S. bachelor 's degree. The Director concluded 
that the Beneficiary did not meet the labor certification requirement of "a foreign degree which is 
equivalent to a United States Bachelor 's Degree" and denied the petition accordingly. 
The Petitioner filed an untimely appeal on 
November 17, 2009, contending that the denial was based 
on an incorrect application of law and that the Director should reconsider his decision. The 
Petitioner asserted that the labor certification requires the foreign educational equivalent of a U.S. 
bachelor's degree based on box H.9 ofthe ETA Form 9089, not a foreign equivalent degree pursuant 
to the regulation, and that the I-140 petition requests classification of the Beneficiary as either a 
professional or a skilled worker, not just as a professional. We rejected the appeal on June 25, 2012, 
because it was not timely filed, and returned the case to the Director for determination, in accordance 
with the regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2), of whether the untimely appeal met the 
requirements of a motion to reopen or a motion to reconsider. 
On December 10, 2012, the Director issued a decision in which he reopened the proceeding but 
again denied the petition. The Director acknowledged that the Petitioner seeks to classify the 
Beneficiary as a professional or as a skilled worker, but noted that the Beneficiary must meet all of 
the requirements on the labor certification regardless of the classification requested. Consistent with 
his original decision, the Director found that the labor certification in this case "requires that a 
prospective employee have obtained a U.S. baccalaureate or foreign equivalent degree" and that the 
Beneficiary's Bachelor of Science from and two-year diploma from 
are not equivalent to a U.S. bachelor's degree. In reviewing the terms of the labor certification, the 
Director interpreted the Petitioner's affirmative answer in section H.9 of the ETA Form 9089 as 
reflecting its "willingness to accept a foreign degree determined to be the foreign equivalent of a 
bachelor's degree based on completion of one program of study for which a foreign degree 
equivalent to a U.S. bachelor 's degree was issued by a college or university." (Emphasis in the 
original.) In the Director 's view, the acceptance of a "foreign educational equivalent" in box H.9 
does not indicate the Petitioner 's willingness to accept a combination of educational credentials 
and/or experience determined to be the equivalent of a U.S. bachelor's degree since that preference 
would be set forth in box H.8, which was answered "No" by the Petitioner. The Director concluded 
once again, therefore , that the Beneficiary did not meet the minimum educational qualification of a 
bachelor's degree on the labor certification. 
The Petitioner filed a timely appeal, which was supplemented by a brief from counsel and supporting 
documentation . The Petitioner contends that the Director misinterpreted the minimum educational 
requirement on the labor certification , which does not necessitate a "foreign equivalent degree" to a 
U.S. bachelor 's degree to meet the definition of "foreign educational equivalent" in box H.9 of the 
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Matter ofCBIO-M-, Inc. 
ETA Form 9089. According to the Petitioner, the labor certification allows for a combination of 
education and experience to constitute the "foreign educational equivalent" of a U.S. bachelor's 
degree in computer science. 
The issues in this case are (1) whether U.S. Citizenship and Immigration Services (USCIS) has the 
authority to interpret the terms of the labor certification as defined by the· employer and as certified 
by the DOL; (2) whether the Beneficiary possesses a U.S. bachelor's degree or a foreign equivalent 
degree for qualification as a professional; and (3) whether the Beneficiary meets the requirements of 
the labor certification. 
II. LAW 
A. The Roles of DOL and USCIS 
It is important to discuss the respective roles of the DOL and USCIS in the employment-based 
immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. 
The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides: 
Any alien who seeks to enter the United States for the purpose of performing skilled or 
unskilled labor is inadmissible, unless the Secretary of Labor has determined and 
certified to the Secretary of State and the Attorney General that-
(I) there are not sufficient workers who are able, willing, qualified (or equally 
qualified in the case of an alien described in clause (ii)) and available at the time of 
application for a visa and admission to the United States and at the place where the 
alien is to perform such skilled or unskilled labor, and 
(II) the employment of such alien will not adversely affect the wages and working 
conditions of workers in the United States similarly employed. 
None of the above inquiries assigned to the DOL, or the regulations implementing these duties under 
20 C.F.R. § 656, involve a determination as to whether the position and the beneficiary are qualified for 
a specific immigrant classification. Federal circuit courts have considered this issue. 
Given the language of the Act, the totality of the 'legislative history, and the 
agencies' own interpretations of their duties under the Act, we must conclude that 
Congress did not intend DOL to have primary authority to make any determinations 
other than the two stated in section 212(a)(14). If DOL is to analyze alien 
qualifications, it is for the purpose of "matching" them with those of corresponding 
United States workers so that it will then be "in a position to meet the requirement of 
the law," namely the section 212(a)(14) determinations. 
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Matter ofCBJO-M-, Inc. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). See also K.R.K. Irvine, Inc. v. Landon, 
699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the 
following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing, 
qualified, and available United States workers for the job offered to the alien, and 
whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qual(fied) to perform the duties of that 
job. 
(Emphasis added.) !d. at 1009. 
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers 
available to perform the job offered, and whether the employment of the beneficiary will adversely 
affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the 
beneficiary qualifies for the job offered under the terms of the labor certification, and whether the 
job offered and the beneficiary are eligible for the requested employment-based immigrant visa 
classification. 
B. Eligibility for the Classification Sought 
In the instant case, the Petitioner requests classification of the Beneficiary as a professional or skilled 
worker pursuant to section 203(b)(3)(A) of the Act, 8 U.S.C. § 1153(b)(3)(A). We will first consider 
whether the petition may be approved in the professional classification. 
Section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(3)(A)(ii), 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: 
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 
6 
Matter ojCBIO-M-, Inc. 
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. 8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's 
Tea House, 16 I&N Dec. 158, 159 (Act. Reg'l Comm'r 1977); see also Matter ofKatigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). 
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 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 
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 an alien must 
have at least a bachelor's degree: "[B]oth the Act and its legislative history make clear that, 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.4 
4 In Snapnames.com, Inc. v. Michael Chertojf, 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. 
USCIS, 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). 
7 
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Matter of CBIO-M- , Inc. 
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(l)(3)(ii)(C) (emphasis added).5 Section 203(b)(2)(C) of the Act (relating to aliens of 
exceptional ability). For the professional category, 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. 
III. ANALYSIS 
A. Consideration as a Professional 
In the instant case, the labor certification states that the Beneficiary received a bachelor of science in 
computer information systems from India, in 1985. The 
record confirms that the Beneficiary was awarded a Bachelor of Science (Home Science) by 
based on the completion of a degree program comprising two and a half years of study in the 
years 1983-1985. The Beneficiary's degree did not include any computer coursework, however, and 
did not amount to four years of academic study, the standard length of a bachelor's degree in the United 
States. See Matter qf Shah, 17 I&N Dec. 244 (Reg' l Comm'r 1977).6 Neither of the credential 
evaluations, from evaluated the Beneficiary's education at 
as equivalent to a U.S. bachelor's degree. Thus, the Beneficiary's degree from : 
is not in the field of computer science, as required by the labor certification, and is not a 
foreign equivalent degree to a four-year bachelor's degree in the United States, which is also required 
by the labor certification. 
Though not mentioned in the labor certification, the record shows that the Beneficiary was awarded a 
Master Diploma in Computer Applications by upon completion of a 
four-semester program in the years 1995-1997. The evaluation claims that the Beneficiary's 
two-year diploma from in conjunction with her previous bachelor of science degree from 
are equivalent to a bachelor's degree in computer science from an accredited 
college or university in the United States.
7 
We are not persuaded. Neither nor the Petitioner 
has submitted any evidence that is a degree-granting college or 
university. Rather, it appears to be a government-approved vocational school, as evidenced by its 
exclusive focus on computer training and the caption "A.P. GOVT. REGD NO. below the 
school's name on the Beneficiary's transcripts and diploma. Therefore, the record does not establish 
5 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 learnin g." 
6 In Matter of Shah the Regional Commissioner declined to consider a three-year Bachelor of Science degree from India 
as equivalent to a United States baccalaureate degree because it did not require four years of study. !d. at 245 . 
7 According to admission to the M.D.C.A. program at requires graduation from Bachelor 's level 
studies (i.e. a two- or three-year degree in India) and the passage of entrance examinations. 
8 
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Matter of CBIO-M-, Inc. 
that the Beneficiary has either the "equivalent" of a bachelor's degree based on a combination of lesser 
degrees resulting from four years of university study in India, or a single foreign degree that is 
equivalent to a U.S. bachelor's degree as required by the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C). 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See 
Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility. USCIS may evaluate the content of the letters as to whether they support the 
alien's eligibility. See id at 795. USCIS may give less weight to an opinion that is not corroborated, 
not in accord with other information, or in any way questionable. Id at 795. See also Matter of 
Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter o.fTreasur e Craft ofCal(fornia, 14 I&N 
Dec. 190 (Reg'l Comm'r 1972)); Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) (expert witness 
testimony may be given different weight depending on the extent of the expeti' s qualifications or the 
relevance, reliability , and probative value of the testimony). For the reasons discussed in the 
foregoing paragraph , we do not consider the evaluation to be persuasive evidence that the 
Beneficiary 's educational credentials from and are equivalent to a 
bachelor 's degree in computer science from a U.S. college or university . 
As another resource to assess the U.S. equivalency of the Beneficiary's educational credentials we 
have reviewed the Electronic Database for Global Education (EDGE) created by the American 
Association of Collegiate Registrars and Admissions Officers (AACRAO) . According to its website, 
AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education 
admissions and registration professionals who represent more than 2,600 institutions and agencies in 
the United States and in more than 40 countries ." AACRAO , http://www.aacrao.org/home/about 
(last accessed March 31 , 20 16). "Its mission is to provide professional development, guidelines , and 
voluntary standards to be used by higher education officials regarding the best practices in records 
management, admissions, enrollment management, administrative information technology, and 
student services." Id EDGE is "a web-based resource for the evaluation of foreign educational 
credentials." AACRAO EDGE, http://edge .aacrao.org/info.php (last accessed March 31, 2016). 
USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign 
credentials equivalencies. 
EDGE indicates that a Bachelor of Science degree in India is awarded upon completion of two to 
three years of tertiary study beyond the Higher Secondary Certificate (comparable to a U.S. high 
school diploma), with the great majority being awarded after three years of tertiary study. The 
Indian degree is comparable to study at a U.S. college or university for the same number of years. 
According to EDGE, therefore, the Beneficiary's Bachelor of Science from is 
comparable to no more than three years of study at a U.S. college or university, and perhaps only 
two and a half years since the degree appears to have been awarded after five semesters of study. 
The degree is not comparable to a four-year baccalaureate from a U.S. college or university. 
As for the Beneficiary 's Master Diploma from 
it appears to fall within a credential category 
identified by EDGE as Post-Secondary Diploma and described as being awarded upon completion of 
9 
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Matter ofCBIO-M-, Inc. 
one to two years of tertiary study beyond the Higher Secondary Certificate. According to EDGE, a 
Post-Secondary Diploma in India is comparable to one year of university study in the United States. 
As previously discussed, however, the Master Diploma from the _ _ 
cannot be equated to a year of university study for the purposes of professional classification under 
8 C.F.R. § 204.5(l)(3)(ii)(C) because is not a college or university.8 
Based on the foregoing analysis, we conclude that the evidence of record does not establish that the 
Beneficiary has a U.S. baccalaureate degree or a foreign equivalent degree from a college or 
university. Therefore, the Beneficiary is not eligible for classification as a professional under section 
203(b )(3)(A)(ii) of the Act. 
B. Consideration as a Skilled Worker 
We will now consider whether the petition may be approved in the skilled worker classification. 
Section 203(b)(3)(A)(i) of the Act provides for the granting of preference classification to qualified 
immigrants who are capable of performing skilled labor (requiring at least two years training or 
experience), not of a temporary nature, for which qualified workers are not available in the United 
States. See also 8 C.F.R. § 204.5(1)(2). , 
A petition for a skilled worker must establish that the job offer portion of the labor certification requires 
at least two years of training and/or experience, and that the beneficiary meets all of the requirements 
ofthe offered position set forth on the labor certification. 
In evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor 
certification to determine the required qualifications for the position. users must examine "the 
language of the labor certification job requirements" in order to determine what the beneficiary must 
have to be found qualified for the position . Madany v. Smith , 696 F.2d at 1015. USCIS interprets 
the meaning of terms used to describe the requirements of a job in a labor certification by 
"examin[ing] the certified job offer exactly as it is completed by the prospective employer." 
Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). 
8 Though the Beneficiary's M.D.C.A. from post-dated her three-year Bachelor of Science at 
, it does not appear that her Master Diploma is a Post-Graduate Diploma (PGD) - a credential category in 
India which EDGE describes as being awarded upon completion of one to two year(s) of study beyond the two- or three­
year bachelor 's degree . According to EDGE, a PGD following a three-year bachelor 's degree is comparable to a 
bachelor's degree in the United States. However, EDGE also indicates that a PGD is not comparable to a U.S. 
bachelor's degree if the entrance requirement for the PGD program is a Higher Secondary Certificate rather than a three­
year bachelor's degree. In this case, there is no evidence in the record that the entrance requirement for the Beneficiary's 
two-year computer training program at was more than a Higher Secondary Certificate . Moreover , EDGE also 
indicates that PGDs should be issued by an accredited university or an institution approved by the All-India Council for 
Technical Education (AICTE). There is no evidence that is a university or an AICTE-approved institution, and 
the evidence is unclear as to whether the Beneficiary 's bachelor 's degree from comprised three full 
years of study. The Petitioner should submit such evidence in any further filings. 
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Matter ofCBIO-M-, Inc. 
As previously discussed, the Petitioner indicated on the ETA Form 9089 that the mm1mum 
educational requirement for the job offered is a bachelor's degree in computer science (boxes H.4 
and H.4-B) or "a foreign educational equivalent" (box H.9). The minimum experience requirement 
is 24 months as a programmer analyst (boxes H.6 and H.6-A). To the question in box H.8- "Is there 
an alternate combination of education and experience that is acceptable?" - the Petitioner answered 
No. 
On appeal the Petitioner does not contend that the Beneficiary has a single foreign degree that is 
equivalent to a U.S. bachelor's degree in computer science, but asserts that the Director incorrectly 
interpreted the labor certification as precluding the Beneficiary from satisfying its minimum 
educational requirement with a combination of education and experience that amounts to the 
"foreign educational equivalent" of a U.S. bachelor's degree. According to the Petitioner, its 
indication in box H.9 of the ETA Form 9089 that a "foreign educational equivalent" of a bachelor's 
degree in computer science was acceptable does not mean that a foreign equivalent degree is 
required. The Petitioner does not use the term "foreign equivalent degree" in the labor certification, 
and claims that its definition of "foreign educational equivalent" includes a combination of 
education and experience that is equivalent to a U.S. bachelor's degree in the field of computer 
science. According to the Petitioner, USCIS should look to the evaluations of the Beneficiary's 
credentials by - especially the latter, which concluded that the 
Beneficiary's work experience alone was equivalent to a U.S. bachelor's degree in computer 
information systems - as determinative of the education and experience that meets the definition of 
"foreign educational equivalent" on box H.9 of the labor certification. 
The labor certification itself provides the opportunity to make that intent clear - particularly in box 
H.8, which asks whether there is an alternate combination of education and experience that is 
acceptable and, in the event of a "Yes" answer, a series of more specific questions in boxes H.8-A to 
H.8-C regarding what alternate level of education would be required and how many years of 
experience would be acceptable. As previously discussed, however, the Petitioner answered "No" to 
the question in box H.8, thus indicating that no alternate combination of education and experience is 
acceptable to the requirements of a bachelor's degree in computer science (indicated in boxes H.4 
and H.4-B) and 24 months of experience in the job offered (indicated in boxes H.6 and H.6-A). Box 
H.14 also allows for elaboration of the educational and/or experience requirements along with any 
specific skills or other requirements. However, the Petitioner did not indicate in box H.14 that any 
other combination of education, experience, and/or special skills would be considered equivalent to a 
bachelor's degree in computer science. Furthermore, nothing in section J of the labor certification 
indicated that the Beneficiary had less than a bachelor's degree, or that the Petitioner sought to rely 
on a combination of the Beneficiary's education and/or experience as equivalent to such a degree. 
"Form ETA 9089 is a legal document and as such the document must be considered in its entirety." 
Matter of Symbioun Techs., Inc., 2010-PER-01422, 2011 WL 5126284 (BALCA Oct. 24, 2011) 
(finding that a "comprehensive reading of all of Section H" of Form ETA 9089 clarified an 
employer's minimum job requirements). Therefore, the Petitioner did not clearly indicate on the 
11 
Matter ojCBIO-M-, Inc. 
face of the labor certification that "a foreign educational equivalent" to a bachelor's degree m 
computer science could be met by an alternate combination of education and experience. 9 
Nevertheless, the Petitioner suggests that its intent to accept an alternate combination of education 
and experience is inherent in the open-endedness of the wording "foreign educational equivalent" in 
box H.9 of the ETA Form 9089. To help clarify the Petitioner's intent with respect to the "foreign 
educational equivalent" requirement on the labor certification, 10 we included the following language 
in a notice of intent to deny and request for evidence (NOID/RFE) which was sent to the Petitioner 
on December 14, 2015: 
[S]ince you claim that your organization intended the terms of the labor certification 
to require an alternative to a U.S. bachelor's degree or a single foreign equivalent 
degree, please submit evidence of your claimed intent. Such evidence would be of 
your organization's intent concerning the actual minimum requirements of the 
position as that intent was explicitly and specifically expressed during the labor 
certification process to the DOL and to potentially qualified U.S. workers. 
Specifically, we request that your organization provide a copy of the signed 
recruitment report required by 20 C.P.R. § 656.17(g)(l), together with copies of the 
prevailing wage determination, all online, print and additional recruitment conducted 
for the position, the job order, and the posted notice of the filing of the labor 
certification. Please also include any other communications with the DOL that may 
be probative of your intent, such as correspondences or documents generated in 
response to an audit. Your submission of this evidence may help establish your intent 
regarding the minimum requirements of the offered position and show that U.S. 
9 The DOL has provided the following field guidance: "When an equivalent degree or alternative work experience is 
acceptable, the employer must specifically state on the [labor certification] as well as throughout all phases of 
recruitment exactly what will be considered equivalent or alternative in order to qualify for the job." See Memo. from 
Anna C. Hall, Acting Reg!. Adminstr., U.S. Dep't. of Labor's Empl. & Training Administration, to SESA and JTPA 
Adminstrs., U.S. Dep't. of Labor's Em pl. & Training Administration, Interpretation of "Equivalent Degree," 2 (June 13, 
1994). The DOL's certification of job requirements stating that "a certain amount and kind of experience is the 
equivalent of a college degree does in no way bind [USCIS] to accept the employer's definition." See Ltr. From Paul R. 
Nelson, Certifying Officer, U.S. Dept. of Labor's Empl. & Training Administration, to Lynda Won-Chung, Esq., 
Jackson & Hertogs (March 9, 1993). The DOL has also stated that"[ w]hen the term equivalent is used in conjunction 
with a degree, we understand to mean the employer is willing to accept an equivalent foreign degree." See Ltr. From 
Paul R. Nelson, Certifying Officer, U.S. Dept. of Labor's Empl. & Training Administration, to Joseph Thomas, INS 
(October 27, 1992). To our knowledge, these field guidance memoranda have not been rescinded. 
10 In limited circumstances, USCIS may consider a petitioner's intent to determine the meaning of an unclear or 
ambiguous term in the labor certification. However, an employer's subjective intent may not be dispositive of the meaning 
of the actual minimum requirements of the offered position. See Maramjaya v. USCIS, Civ. Act No. 06-2158 (D. D.C. 
Mar. 26, 2008). The best evidence of the petitioner's intent concerning the actual minimum educational requirements ofthe 
offered position is evidence of how it expressed those requirements to the DOL during the labor certification process and not 
afterwards to USCIS. The timing of such evidence ensures that the stated requirements of the offered position as set forth on 
the labor certification are not incorrectly expanded in an effort to fit the beneficiary's credentials. Such a result would be 
contrary to Congress' intent to limit the issuance of immigrant visas in the professional and skilled worker classifications to 
when there are no qualified U.S. workers available to perform the offered position. See !d. at 14. 
12 
(b)(6)
Matter of CBIO-M- , Inc. 
workers without four-year bachelor's degrees were in fact put on notice that they 
were eligible to apply for the position. 
In the response we received on February 24, 2015,11 the Petitioner did not submit any of the 
documentation requested above. Instead, the Petitioner claims that our request is inconsistent with the 
law governing the instant appeal and the law governing the labor certification. 
The Petitioner asserts that its intent to accept a combination of education and experience as satisfying 
the minimum educational requirement of a bachelor's degree in computer science is implicit in its 
acceptance of a "foreign educational equivalent" in box H.9 of the ETA Form 9089. We do not agree. 
In the previously mentioned case of Snapnames .com, Inc. v. Michael Chertoff, which involved a labor 
certification that specified an educational requirement of four years of college and a "B.S. or foreign 
equivalent," the district court determined that "B.S. or foreign equivalent" relates solely to the 
beneficiary's educational background, precluding consideration of the beneficiary's combined 
education and work experience. Snapnames .com, Inc. at *11-13. Additionally, the court determined 
that the word "equivalent" in the employer's educational requirements was ambiguous and that in 
the context of skilled worker petitions (where there is no statutory educational requirement), 
deference must be given to the employer's intent. Snap names. com, Inc. at * 14. In addition, the court 
recognized that even though the labor certification may be prepared with the beneficiary in mind, 
users has an independent role in determining whether the beneficiary meets the labor certification 
requirements. !d. at *7. Thus, the court concluded that where the plain language of those requirements 
does not support the petitioner's asserted intent, users "does not err in applying the requirements as 
written." !d. 
The Petitioner refers to the information it provided on the labor certification that the Beneficiary was 
already employed in H-1B status - a nonimmigrant worker in a specialty occupation requiring a 
bachelor's degree or the equivalent- whose eligibility for this status, according to the Petitioner, hinged 
on her Bachelor of Science from and the evaluation of her work 
experience as equivalent to a bachelor's degree in computer information systems. The Petitioner 
maintains that the above referenced documentation, viewed as a whole, shows that it intended to accept 
a "foreign educational equivalent" that is not a single degree. We are not persuaded. The Petitioner 
may state its intent to accept alternative combinations of education and experience as equivalent to a 
bachelor's degree in computer science in boxes H.8, H.8-A, H.8-B, and H.8-e of the ETA Form 9089. 
Absent any entries in these boxes, it was appropriate to request additional documentation from the 
Petitioner that could shed further light on its intent. 
Finally, the Petitioner asserts that it has no obligation under applicable regulations or case law to 
indicate the job requirements in its recruitment materials. This argument is not correct. In any event, 
we did not request this documentation to determine whether the Petitioner complied with the 
substantive requirements of the recruitment materials, but because the materials may contain evidence 
11 In its response to the NOID/RFE the Petitioner submitted evidence in support of its claim that the original job offer is 
still valid, as well as evidence of its continuing ability to pay the proffered wage from the priority date up to the present. 
13 
Matter ofCBIO-M-, Inc. 
of the Petitioner's intent with regard to the credentials that would be accepted as "a foreign educational 
equivalent" to a U.S. bachelor's degree in computer science. 
Thus, the Petitioner has not submitted any of the documentation requested in our NOID/RFE to further 
illuminate its intent in the labor certification with respect to the alternative education and/or experience 
that would meet the requirement of "a foreign educational equivalent" to a U.S. bachelor's degree in 
computer science. 
Accordingly, the Petitioner has not established that that the terms of the labor certification are 
ambiguous and that it intended the labor certification to require less than a four-year U.S. bachelor's 
degree or foreign equivalent degree, as that intent was expressed during the labor certification process 
to the DOL and potentially qualified U.S. workers. 
We conclude that the terms of the labor certification require a four-year U.S. bachelor's degree in 
computer science or the foreign equivalent thereof. Since the Beneficiary does not possess such a 
degree, the Petitioner has not established that the Beneficiary met the minimum educational 
requirements of the job offered on the labor certification by the priority date. Therefore, the 
Beneficiary does not qualify for classification as a skilled worker. 
IV. CONCLUSION 
In summary, the Petitioner has not established that the Beneficiary had a U.S. bachelor's degree or a 
foreign equivalent degree from a college or university as of the priority date. The Petitioner also has 
not established that the Beneficiary met the minimum educational requirements of the offered position 
set forth on the labor certification as of the priority date. Therefore, the Beneficiary does not qualify 
for classification as a professional under section 203(b )(3)(A)(ii) of the Act or as a skilled worker 
under section 203(b)(3)(A)(i) ofthe Act. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. See section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). That burden has not been met in this case. 
ORDER: The appeal is dismissed. 
Cite as Matter ofCBIO-M-, Inc., ID# 14996 (AAO Apr. 4, 2016) 
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