dismissed EB-3 Case: Healthcare

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: _ LIN-03-230-5 1359 Office: NEBRASKA SERVICE CENTER Date: 
c 
SEP 2 9 2008 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. 9 1153(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. 
~odert P. Wiemann, Chief 
Administrative Appeals Office 
LIN-03-230-5 1359 
Page 2 
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 health care facility for handicapped children. 
 It seeks to employ the beneficiary 
permanently in the United States as a "Developmental Disability Specialist (DOT: 195.227-018; OES 21- 
1093)." 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 the training required to qualify as a skilled worker in the occupation of developmental 
disability specialist, and denied the petition accordingly. 
Section 203@)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 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 shlled 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. 
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. 8 103.2@)(1), (12). 
See Matter of Wing's Tea House, 16 I&N Dec. 158 (Comm. 1977). 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. 5 204.5(d). The priority date in the instant petition is October 22,2002. 
The 1-140 petition was submitted on July 28, 2003. On the petition, in Part 2, Petition type, the petitioner 
checked box "e" for "a skilled worker (requiring at least two years of specialized training or experience) or 
professional." (1-140 petition, Part 2). In Part 5 of the petition, Additional information about the petitioner, 
the petitioner claimed to have been established in 1975, to currently have 140 employees, to have a gross 
annual income of "+$20 Million," and to have a net annual income of "+$889,000." (1-140 petition, Part 5). 
With the petition, the petitioner submitted supporting evidence. 
In a November 16, 2004 decision, the director determined that the evidence failed to establish that the 
beneficiary's possessed two years of post-secondary education relevant to the position of developmental disability 
specialist. The director therefore found that the beneficiary did not meet the regulatory definition of skilled 
worker, and denied the petition. 
On appeal, counsel submits a brief and no additional evidence. Counsel also submits copies of three AAO 
decisions in petitions submitted previously by the petitioner which had been certified by the director to the AAO. 
Those decisions are not evidentiary documents, but are submitted as legal authority in support of the instant 
appeal. 
Counsel states on appeal that the beneficiary's post-secondary education is a Bachelor's degree in Pharmacy. 
Counsel states that a degree in Pharmacy is relevant to the offered position under the standards of previous AAO 
decisions in petitions submitted by the petitioner. Counsel then quotes extensively from the language of the AAO 
decision in one of those petitions. 
, The AAO reviews appeals on a de novo basis. See Dorr v. I.NS. 891 F.2d 997, 1002, n. 9 (2d Cir. 1989). 
The AAO considers all pertinent evidence in the record, including any new evidence properly submitted on 
appeal. 
LIN-03-230-5 1359 
Page 3 
The regulation at 8 C.F.R. 5 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifLing 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 developmental disability 
specialist. 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 8 
High School 4 
College 4 
College Degree Required Bachelor's** 
Major Field of Study 
 Any field 
Training - yrs n/a 
Experience 
Job Offered Yrs 0 
Related Occupation Yrs 0 
Related Occupation (specify) None 
15. Other Special Requirements ** Bachelor's1 Foreign Equivalent1 Credential 
Evaluation which shows a combination of education, 
training and or work experience equivalency 
The beneficiary states his or her qualifications on Form ETA 750B. 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 
0611978 0411983 B.S. in Pharmacy 
[remaining rows blank] 
LIN-03-230-5 1359 
Page 4 
On the ETA 750B submitted with the instant petition, in block 15, for information on the beneficiary's work 
experience the beneficiary states the following: 
Name and Address Kind of 
of Employer Name of Job From To Business 
Staff Pharmacist 
Assistant Instructor I1 
Staff Pharmacist 
Present 
 Medical Hospital 
School 
Medical Hospital 
The regulation at 8 C.F.R. tj 204.5(1)(2) states in pertinent part: 
DeJinitions. As used in this part: 
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. 
Copies of three MO decisions submitted on appeal discuss the portion of the regulatory definition of slulled 
worker which states, "Relevant post-secondary education may be considered as training for the purposes of 
, this provision." 8 C.F.R. tj 204.5(1)(2). Each of those decision was issued on July 9, 2004. In those decisions, 
the AAO discusses the meaning of the word "relevant" in the foregoing definition and states, "for a 
beneficiary's post secondary education to be considered it must be logically related and have appreciable 
probative value as to the capacity of the beneficiary to perform the job duties on the basis of the educational 
qualifications alone." (AAO decision in LIN-03-110-55083, at 6). The AAO's reasoning was based on the 
definition of the term "relevant" found in Black's Law Dictionary, a definition which appears to address the 
meaning of that term as it relates to evidentiary questions. (AAO decision in LIN-03-110-55083, at 6, 
quoting Black's Law Dictionary 1293 (7th ed. 1999)). 
None of the three cases submitted by the petitioner has been published as a precedent case. While 8 C.F.R. 
$ 103.3(c) provides that precedent decisions of CIS are binding on all its employees in the administration of the 
Act, unpublished decisions are not similarly binding. Precedent decisions must be designated and published in 
bound volumes or as interim decisions. 8 C.F.R. 8 103.9(a). Nonetheless, the analysis in the three decisions 
submitted by the petitioner of the slulled worker definition in the regulation at 8 C.F.R. 8 204.5(1)(2) is 
reasonable. . . 
Two of the decisions state that study "in various fields of health care" would be sufficient to qualify as relevant 
post-secondary education for the position of developmental disability specialist. (AAO decisions in LIN-03-067- 
51563, at 8, and in LIN-03-110-55083, at 8). The other MO decision finds that the beneficiary's education in 
the field of medicine is sufficient for that occupation. (AAO decision in LIN-03-072-5 1157, at 7). 
 The latter 
decision also states the following: 
The AAO is not suggesting that a post-secondary education other than a medical degree is not 
relevant as a number of other fields would have a substantial connection to the duties of a 
Developmental Disability Specialist as set forth in the ETA 750. Among the post secondary 
education likely to have such a connection would be areas of study involving teaching, various 
fields of health care, occupational training, or therapy. 
(AAO decision in LIN-03-072-5 1157, at 8, h. 5). 
In the instant 1-140 petition, the ETA 750 specifies the following duties for the position of developmental 
disability specialist: 
To develop and implement a continuous active treatment program for each profoundly mentally 
and physically handicapped resident to enable each individual to function as independently as 
possible and prevent slull regression. Observe, instruct and play with resident and confer with 
professionals and parents to obtain information relating to child's mental and physical 
development: Develop individual teaching plan covering self-help, motor, social, cognitive and 
language slulls development. Revises teaching plan to correspond with child's rate of 
development. Consults and coordinates plans with other professionals. 
(ETA 750, Part A, block 13). 
In his November 16, 2004 decision, the director determined that the evidence failed to establish that the 
beneficiary possessed two years of post-secondary education relevant to the position of developmental disability 
specialist. The director therefore found that the beneficiary did not meet the regulatory definition of skilled 
worker, and denied the petition. 
Based on the evidence in the record, the director's decision to deny the petition was correct. 
The record contains a copy a course transcript of the beneficiary issued by St. Louis College, Tuguegarao, 
Cagayan, Philippines, showing four semesters of study in a liberal arts program during the 1976-77 and 1977-78 
academic years. The record also contains a copy of a course transcript from Manila Central University, Manila, 
Philippines, showing the beneficiary's transfer to that university beginning with the second semester of the 
1980-81 academic year. The record also contains a copy of a diploma dated April 10, 1983 from Manila Central 
University, Manila, Philippines, granting the beneficiary a Bachelor of Science in Pharmacy. 
The record also contains a copy of an academic evaluation for the beneficiary by Morningside Evaluations and 
Consulting, New York, New York dated July 21,2003. 
The beneficiary's course transcript from St. Louis College shows no courses in education or health care. The 
transcript shows courses in the Psyche of the Person, General Inorganic Chemistry, General Zoology, General 
Sociology, and Introduction to Biological Science which could be shown to be at least indirectly relevant to the 
position of developmental disability specialist. The beneficiary's course transcript from Manila Central 
LIN-03-230-5 1359 
Page 6 
University shows four higher-level specialized courses in chemistry, as well as courses in Pharmacology and 
Toxicology. The titles of those courses indicate that they are too specialized to be considered as relevant to the 
position of developmental disability specialist. The only course at Manila Central University which could be 
indirectly relevant to the offered position of developmental disability specialist is a course in Physiology with 
Family Planning. 
The two transcripts in the record therefore show a total of six courses which have some relevance to the offered 
position, with no courses in education or health care. The transcripts indicate that a normal course load for one 
semester is about five courses. Therefore the six courses relevant to the offered position are equal to a little more 
than one semester of study. Those courses therefore fail to satisfy the regulatory requirement for two years of 
relevant post-secondary education. 
The academic evaluation by Momingside Evaluations and Consulting finds that the beneficiary's degree from 
Manila Central University is equivalent to a Bachelor of Science in Pharmacy from an accredited institution of 
higher education in the United States. 
CIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. However, 
where an opinion is not in accord with other information or is in any way questionable, CIS is not required to 
accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 
1988). In the instant petition, the academic evaluation by Momingside Evaluations and Consulting is a 
reasonable analysis of the beneficiary's academic qualifications. However, the field of Pharmacy cannot be 
considered to be sufficiently relevant to the position of developmental disability specialist to qualify as training 
for that position. Although pharmacists provide essential services to the health care professions, pharmacists are 
not themselves health care providers, nor are they responsible for prescribing medications for patients. 
In her brief, counsel states, "Pharmacy is one of the degrees one could obtain to pursue a health care related 
degree and most valuable to [the petitioner] in caring for their severely and profoundly handicapped children." 
(Brief, December 8, 2004, at 2). Counsel's assertion in effect concedes that a pharmacy degree is not itself a 
health care related degree, but is rather a degree which could prepare a person to pursue a degree in the health 
care field. 
The academic evaluation finding that the beneficiary's degree is the equivalent to a Bachelor of Science in 
Pharmacy in the United States therefore fails to establish that the beneficiary has two years of post-secondary 
education relevant to the offered position. 
The record also contains an undated copy of a professional resume of the beneficiary. In addition to the 
education discussed above, the resume states studies of the beneficiary from 1998 to 2000 toward a Master of 
Science in Pharmacy at Philippine Women's University, Manila City, Philippines. The resume states that 30 
credits were earned during those studies. 
, 
The professional resume fails to comply with the evidentiary requirements of the regulation at 8 C.F.R. 
$204.5(g)(l). Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
As noted above, 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. 8 C.F.R. $ 103.2(b)(l), (12). See Matter of 
Wing's Tea House, 16 I&N Dec. 158 (Cornm. 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
LIN-03-230-5 1359 
Page 7 
1971). The evidence in the record fails to establish that the beneficiary had at least two years of post- 
secondary education which was relevant to the position of-developmental disability specialist as of the 
priority date. 
For the foregoing reasons, the assertions of counsel on appeal fail to overcome the decision of the director 
concerning the education of the beneficiary. 
In summary, the evidence fails to establish that the beneficiary had at least two years of post-secondary 
education relevant to the offered position, as required by the definition of skilled worker in the regulation at 
8 C.F.R. 9 204.5(1)(2). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.