dismissed EB-3 Case: Information Technology

MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 27,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a business providing information technology services, seeks to employ the Beneficiary 
as a programmer analyst. It requests classification of the Beneficiary as a professional under the third 
preference immigrant classification. See 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 
resident status. 
The Director, Nebraska Service Center, denied the petition. The Director determined that the record 
did not establish that the Beneficiary· held the baccalaureate degree required for classification as a 
professional under section 203(b)(3)(A)(ii) ofthe Act. 
The matter is now before us on appeal. The Petitioner asserts that the Beneficiary may qualify for 
the offered position based on a combination of education and work experience equivalent to a 
baccalaureate degree. However, as will be discussed, the Beneficiary may not qualify for 
classification as a professional based on a combination of education and experience equivalent to a 
baccalaureate degree. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved ETA Form 9089, Application for Permanent Employment Certification (labor 
certification) from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). Next, the employer must file an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. 
§ 1154. Finally, if USCIS approves the immigrant visa petition, the foreign national must apply 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. 
By approving the labor certification in this case, DOL certified that there are insufficient U.S. workers 
who are able, willing, qualified, and available for the offered position. Section 212(a)(5)(A)(i)(l) ofthe 
Matter of N-, Inc. 
Act. The DOL also certified that the employment of a foreign national in the position will not adversely 
affect the wages and working conditions of domestic workers similarly employed. Section 
212(a)(5)(A)(i)(II) of the Act. 
In visa petition proceedings, USCIS determines whether a foreign national meets the job requirements 
specified in the underlying labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madanyv. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has authority to 
make preference classification decisions). 
The priority date of a petition is the date that DOL accepts the labor certification for processing. See 
8 C.F .R. § 204.5( d). A petitioner must establish the elements for the approval of the petition at the 
time the priority date is established and continuing until the beneficiary obtains lawful permanent 
residence. See 8 C.F.R. §§ 204.5(g)(2), 1 03.2(b )(1), (12); see also Matter of Wing's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). 
II. ANALYSIS 
On appeal, the Petitioner asserts that the Director erred in denying the visa petition and that his 
decision was based on an incomplete reading of the requirements in the labor certification, which, it 
asserts, allow the Beneficiary to qualify for the offered position based on a combination of education 
and work experience. However, the Petitioner's arguments on appeal do not address the basis for the 
Director's denial of the visa petition. The Director did not deny the visa petition because he found 
that the Beneficiary did not meet the academic requirements of the labor certification but because the 
Beneficiary did not hold the single baccalaureate degree required for classification as a professional 
under section 203(b)(3)(A)(ii) of the Act. For the reasons that follow, we concur with the Director's 
decision. 
A. Classification as a Professional Under Section 203(b)(3)(A)(ii) of the Act 
The Petitioner in this matter is requesting classification of the Beneficiary as a professional. Section 
203(b)(3)(A)(ii) of the Act grants preference classification to qualified immigrants who hold 
baccalaureate degrees and are members ofthe 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 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 
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(b)(6)
Matter of N-, Inc. 
showing the date the baccalaureate degree ~as awarded and the area of concentration 
of study. 
The regulation 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 former 
Immigration and Naturalization Service (INS), responded to criticism that the regulation required a 
bachelor's degree and did not allow for the substitution of experience for education. After 
reviewing section 121 of the Immigration Act of 1990, Pub. L, 101-649, 104 Stat. 4978, enacted 
November 29, 1990, and the Joint Explanatory Statement of the Committee of the Conference, the 
former INS specifically noted that "both the Act and its legislative history make clear that, in order 
to qualify as a professional under the third classification ... , an alien must have at least a bachelor's 
degree." 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991). 
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 read 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). 
Therefore, it can be presumed that the congressional requirement for a single "degree" for members 
of the professions was deliberate. 
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). 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 learning." Section 203(b)(2)(C) of the Act (relating to aliens of exceptional ability). However, 
for the professional category, the degree must have been issued by a college or university. 
In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D.Or. Nov. 30, 2006), the court 
held that, in professional and advanced degree professional cases, where a beneficiary is statutorily 
required to hold a baccalaureate degree, USCIS properly concluded 
that a single foreign degree or its 
equivalent is required. See also Marajaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008) 
(for professional classification, USCIS regulations require a beneficiary to possess a single 4-year 
U.S. bachelor's degree or a foreign equivalent degre.e). 
Thus the plain meaning of the Act and the regulations is that the beneficiary of a petition filed for a 
professional must possess a single degree from a college or university that is at least a U.S. 
baccalaureate or foreign equivalent degree. 
Here, the Beneficiary 
holds a 3-year bachelor of commerce degree from 
However, a 3-year degree is generally not considered to be a "foreign 
equivalent degree" to a U.S. baccalaureate. See Matter of Shah, 17 I&N Dec. 244 (Reg'l Comm'r 
1977). The Petitioner submitted a credential evaluation report from which 
finds the Beneficiary's degree to be the equivalent of 3 years of university education toward a U.S. 
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(b)(6)
Matter of N-, Inc. 
baccalaureate degree. The report then relies on the Beneficiary's work experience combined with 
his 3 years of university education to reach a determination that he has the equivalent of a U.S. 
bachelor of science in computer information systems. 1 However, where the analysis of a 
beneficiary's credentials relies on a combination of lesser degrees and/or work experience, the result 
is the "equivalent" level of education of a baccalaureate degree rather than the single U.S. 
baccalaureate or foreign equivalent degree required for classification as a professional. 
Therefore, the record does not establish that the Beneficiary in this matter has a U.S. bachelor's or 
foreign equivalent degree awarded by a college or university. As such, he is not eligible for 
classification as a professional under section 203(b )(3)(A)(ii) of the Act, and the visa petition must 
be denied, regardless of whether or not the Beneficiary meets the educational requirements of the 
labor certification. 
B. Labor Certification Does Not Support the Requested Classification 
In addition, although not addressed by the Director, the labor certification does not support the 
requested classification of professional. Section 10l(a)(32) of the Act defines the term "profession" 
as including, but not limited to, "architects , engineers, lawyers, physicians , surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries ." If an offered position is not 
statutorily defined as a profession, a 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 
€lddition, the job offer portion of the labor certification underlying the petition, Part H, "must 
demonstrate that the job requires the minimum of a baccalaureate degree." 8 C.F.R. § 204.5(1)(3)(i). 
Here, the offered position of programmer analyst is not included among the professions listed in 
section 101(a)(32) of the Act, and the Petitioner has submitted no evidence to establish that the 
minimum of a baccalaureate degree is required for employment as a programmer analyst. Instead, 
Part H.l4 of the labor certification reflects that the Petitioner's requirement for a U.S. bachelor's or 
foreign equivalent degree found in Parts H.4 and H. 9 may be satisfied with a degree equivalency 
based on a combination of education and work experience? While such an equivalency may satisfy 
the Petitioner's requirements for the offered position, it is not, as previously discussed, the U.S. 
bachelor's or foreign equivalent degree from a college or university 
required for classification as a 
professional under the Act. Therefore, as the job offer portion of the labor certification does not 
demonstrate that the offered position requires the minimum of a baccalaureate degree, the labor 
certification does not support classification as a professional under section 203(b )(3)(A)(ii) of the 
Act. For this reason as well, the petition must be denied. 
1 We note that the _ used the ratio of 3 years of experience to I year of education to determine 
the academic equivalency of the Beneficiary's employment experience. However , this ratio is used in the nonimmigrant 
. H-1 B context, not in immigrant visa proceedings . See 8 C.F.R. § 2 14.2(h)(4)(iii)(D)(5). 
2 The Petitioner has submitted copies of its job advertisements for the offered position , advertising the job opportunit y as 
requiring a "(b]achelor s (or equivalent combination of education and exp) + 2 years of exp (Comp Sci, Engg, MIS 
Business Admin , Into Tech or related." 
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Matter of N-, Inc. 
III. CONCLUSION 
The petition will remain denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 
In visa proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 
2013). Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-, Inc., ID# 135018 (AAO Jan. 27, 2017) 
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