dismissed EB-3 Case: Information Technology

U.S. Department of IIomeland Security 
20 Mass Ave , N W , Rm 3000 
Washtngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER Date: 0 6 
SRC-05-0 12-52999 
PETITION: 
 Immigrant 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. 5 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. 
Robert P. Wiemann, Chief 
Adininistrative Appeals Office 
I 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an information technology firm. It seeks to employ the beneficiary permanently in the 
United States as a director of information technology (IT) characterized by the Department of labor as a 
Department Manager. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification approved by the Department of Labor, accompanied the petition. The director denied the 
petition because she determined that the petitioner did not present evidence that the beneficiary had the 
foreign equivalent of a United States bachelor's degree. The director concluded that the petitioner had not 
established that the beneficiary was eligible for the visa classification sought. 
On appeal, the petitioner's counsel contends that the beneficiary's credentials are sufficient to meet the 
requirements of the labor certification and resubmits credential evaluations for the beneficiary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 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 provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(1)(3)(ii)(C) states the following: 
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 that the minimum 
of a baccalaureate degree is required for entry into the occupation. 
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. 5 103.2(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. 5 204.5(d). The priority date in the 
instant petition is August 12,2002. 
To determine whether a beneficiary is eligble for an employment based immigrant visa as set forth above, 
Citizenship and Immigration Services (CIS) must look to the job offer portion of the labor certification to 
determine the required' qualifications for the position. CIS may not ignore a term of the labor certification, 
nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 
401,406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. 
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Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 
F.2d 1 (1 st Cir. 198 1). The Application for Alien Employment Certification, Form ETA-750A, items 14 and 15, 
set forth the minimum education, training, and experience that an applicant must have for the position of IT 
director. In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education 
Grade School 6 
High School 6 
College 4 
College Degree Required 
 Bachelor or Equivalent 
Major Field of Study 
 Computer Science or Information Systems 
The applicant must also have four years of employment experience in the job offered or the related occupation of 
network engineering design and IT support or IT personnel management. 
The beneficiary set forth his credentials on Form ETA-750B. On Part 11, eliciting information of the names and 
addresses of schools, college and universities attended (including trade or vocational training facilities), he 
indicated that he took courses at Algonquin College in Ottawa, Canada in. the field of "Computer Technology" 
from September 1981 through ~ecember 1981; he also took courses at Mohaivk College in Hamilton, Canada in 
the field of "Computer Electronic Technician" from September 1983 through June 1985, and he attended 
Algonquin College in Ottawa, Canada in the field of "Computer Technology" from January 1988 through April 
1988, culminating in the receipt of a "Certificate." ,He provides no further information concerning his educational 
background on this form,:which is sigried b; the beneficiary under a declaration under penalty of perjury that the 
information was true and: correct: In corroboration of the,Form ETA-750B, the etitioner rovided credential 
evaluations drafted by than- fessor of Civil 
Engineering, the University of North Carolina at Charlotte (Prof. Evett) with the initial filing ,and appeal. 
Although evaluations indicate that copies of transcripts from Brookfield High School dated 1981 arid transcripts 
from Algonquin College of Applied Arts and Technology dated 198 1-1 988 were received, these documents were 
not attached to the evaluations, nor did the petitioner submit them with the petition. 
IEE's credential evaluation attests in pertinent part the following: 
[The beneficiary] presents from Canada the Ontario Secondary School Honours Graduation 
Diploma, plus the equivalent of one year of academic credits from Algonquin College of 
Applied Arts and Technology. In the United States the combination of his credits equates to the 
Associate in Applied Science degree in Electronic Engineering Technology.' 
Prof. Evett summaries his finding in his evaluation as follows: 
In my opinion, [the beneficiaryl's educational record cited above is equivalent to two years of 
university-level credit from an accredited college or university in the U.S.A. and his professional 
employment record presents at least two additional years of university-level credit (three years of 
experience equal one year of university-level credit) toward a major in computer science. 
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Accordingly, it is my opinion that [the beneficiary] has the equivalent of a Bachelor's degree in 
Computer Science from an accredited college or university in the U.S.A. Furthermore, his 
training and work experience provide him with the theoretical and practical application of the 
knowledge required in the practice of computer science. 
The director denied the petition on March 7, 2005, finding that the petition was filed under Section 
203(b)(3)(A)(ii) of the INA as a "professional," and the Form ETA 750 specifies that the position requires a 
bachelor's degree or its foreign degree equivalent, however, "evidence beyond reasonable doubts of a US 
degree or its foreign equivalent has not been submitted for the beneficiary." The director noted that both 
evaluation reports evaluate the beneficiary's education in Canada as an equivalent of an Associate in Applied 
Science degree in Electronic Engineering Technology or the equivalent of two years of university-level credit 
from an accredited college or university in the U.S.A. 
On appeal, counsel asserts that the beneficiary's credentials are sufficient to meet the requirements of thk labor 
certification according t-dential evaluation report combining education, training and 
experience. Counsel also asserts that the beneficiary qualifies as a shlled worker based on his work experience 
in the event that he does not qualify as a thrd-preference professional because he does not have a bachelor's 
degree. 
As quoted abo- evaluation report states that the beneficiary obtained the equivalent of two 
years of university-level credit from an accredited college or university in the U.S. and has, as a result of 
progressively more responsible employment experiences, an educational background the equivalent of a 
Bachelor's degree in Computer Science from an accredited college or university in the U.S. 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, the Service is not required to accept or 
may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comrn. 1988); 
Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 1988). 
Prof. Evett's evaluation equated three years of experience for one year of education, but that equivalence 
applies to non-immigrant H1B petitions, not to immigrant petitions. See 8 CFR 9 214,2(h)(4)(iii)(D)(5). The 
beneficiary was required to have a bachelor's degree on the Form ETA 750. The petitioner's actual minimum 
requirements could have been clarified or changed before the Form ETA 750 was certified by the Department 
of Labor. Since that was not done, the director's decision to deny the petition must be affirmed. 
, On appeal counsel argues that the beneficiary may qualify under Section 203(b)(3)(A)(i) as a "skilled worker." 
However, there is no.provision permitting the petitioner to alter the visa classification sought upon its initial 
filing. Additionally, it is noted that a petitioner may not make material changes to a petition in an effort to 
' 
make a deficient petition conform to CIS requirements.,See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm. 1998). Counsel cannot materially change the analysis in the middle of proceedings upon an apparent 
realization that changing categories may result in an approved petition. Regardless of the category the 
petition was submitted under, however, the petitioner must not only prove statutory and regulatory eligibility 
under the category sought, but must also prove that the sponsored beneficiary meets the requirements of the 
proffered position as set forth on the labor certification application. 
Regulatory provisions governing the third preference visa categories as a "skilled worker" clearly require that 
the beneficiary qualify according to the terms of the labor certification application in addition to proving a 
minimum of two years of employment experience. The regulation at 8 C.F.R. 9 204.5(1)(3)(ii)(B), guiding 
evidentiary requirements for "slulled workers," states the following: 
If the petition is for a slulled 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. 
Thus, for petitioners seeking to qualify a beneficiary for the third preference "slulled worker" category, the 
petitioner must produce evidence that the beneficiary meets the "educational, training or experience, and any 
other requirements of the individual labor certification" as clearly directed by the plain meaning of the 
regulatory provision. 
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In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the labor certification 
to determine the required qualifications for the position. CIS may not ignore a term of the labor certification, 
nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 
401,406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. 
Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 
F.2d 1 (1st Cir. 1981). In the instant case, the petitioner must show that the beneficiary has the requisite 
education, training, and experience as stated on the Form ETA-750 which, in ths case, includes a bachelor's 
degree (four years in college) in computer science or information systems, plus four years of experience in the job 
offered or the related occupation of network engineering design and IT support or IT personnel management. 
Guiding the actual credentials held by the beneficiary is provided through credential evaluations submitted into 
the record of proceeding for this case. As discussed above, the IEE credential evaluation- attests that t'he 
beneficiary had an eq&valent of an associate's degree fi-om his two years of college studies.report 
evaluates the beneficiary's formal education in Canada as equivalent to two years of university-level credit. No 
documents evidence that the beneficiary had four years of college studies, and a bachelor's degree or.its foreign 
equivalent. Also as previously noted, the rule to equate three years of experience for one year of education 
only applies to non-immigrant H1B petitions, but not to immigrant petitions. A U.S. baccalaureate degree is 
generally found to require four years of education. Matter of Shah, 17 I&N Dec. 244 (Reg. Cornrn. 1977). In that 
case, the Regional Commissioner declined to consider a three-year bachelor of science degree from India as the 
equivalent of a United states baccalaureate degree. Id. at 245. Shah applies regardless of whether or not the 
petition was filed as a slulled worker or professional. 
As stated in 8 C.F.R. 
 204.5(1)(3)(ii)(B), to qualify as a "skilled worker," the petitioner must show that the 
beneficiary has the requisite education, training, and experience as stated on the Form ETA-750 which, in this 
case, includes a bachelor's degree, or an equivalent foreign degree. The petitioner simply cannot qualify the 
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beneficiary as a slulled worker without proving the beneficiary meets its additional requirement on the Form 
ETA-750 of an equivalent foreign degree to a U.S. bachelor's degree. 
Additionally, the petitioner has not indicated that a combination of education and experience can be accepted 
as meeting the minimum educational requirements stated on the labor certification, or that experience could 
be accepted in lieu of educational accolades. Thus, the combination of education and experience, and 
experience alone, may not be accepted in lieu of education. The beneficiary was required to have a bachelor's 
degree on the Form ETA 750. The petitioner's actual minimum requirements could have been clarified or 
changed before the Form ETA 750 was certified by the Department of Labor. Since that was not done, the 
director's decision to deny the petition must be affirmed. .. 
Based on the evidence submitted, we concur with the director that the petitioner has not established that the 
beneficiary possesses a bachelor's degree as required by the terms of the labor certification. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
1361. The petitioner has not met that burden. 
ORDER: The appeal is,dismissed.