dismissed EB-3 Case: Sales Management

identifying data deleted to 
prevent dedy unwarra~ted 
inyn cipo nf wwnnrrl ~~VRCV 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 1,- a . 
.?n" 
,. . 
FILE: LIN 03 248 51520 Office: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
Date: 
MAY 0 4 2006 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. tj 1153(b) 
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. 
kobert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 03 248 5 1520 
Page 2 
DISCUSSION: 
 The Director, Nebraska Service Center denied the employrnent-based immigrant visa 
petition. The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is a design and assembly of printed circuit boards business. It seeks to employ the 
beneficiary permanently in the United States as a sales manager. As required by statute, a Form ETA 
750, Application for Alien Employment Certification, approved by the Department of Labor, 
accompanies the petition. The director determined that the petitioner had not established that the 
beneficiary met the requirements of the labor certification as of the priority date, April 27,2001. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in ths case is documented by the record and incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's October 8, 2004 denial, the single issue in this case is whether or not the 
beneficiary meets the requirements of the labor certification as of the priority date. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. 9 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 or seasonal nature, for which qualified workers are not available in the United States. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(ii), 
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. 9 204.5(1)(3) states, in pertinent part: 
(ii) Other documentation - (A) General. Any requirements of training or experience for 
skilled workers, professionals, or other workers must be supported by letters from trainers 
or employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
(B) Skilled workers. 
 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 occupational designation. The minimum requirements for this 
classification are at least two years of training or experience. 
(C) Professionals. 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. 
LIN 03 248 51520 
Page 3 
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 showing that the minimum of a baccalaureate degree is 
required for entry into the occupation. 
To be eligble for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date. The filing date of the petition is the initial receipt in the 
Department of Labor's (DOL'S) employment service system. Matter of Wing's Tea House, 16 I&N 158 
(Act. Reg. Cornrn. 1977). In this case, that date is April 27,2001. 
The approved alien labor certification, "Offer of Employment," (Form ETA-750 Part A) describes the terms 
and conditions of the job offered. Block 14 and Block 15, which should be read as a whole, set forth the 
educational, training, and experience requirements for applicants. In this case, Block 14 under the heading 
entitled "College Degree Required (specify)" there is a requirement that the beneficiary have four years of 
college with a Bachelor of Science degree or an equivalent degree in Business or Management. Block 14 
also requires that the beneficiary have two years of experience in the job offered or two years in the related 
occupation of management. 
Based on the information set forth above, it can be concluded that an applicant for the petitioner's position of 
sales manager is required to have a degree, specifically a Bachelor of Science degree or equivalent in 
Business or Management and two years of experience as a sales manager or two years experience in the 
related occupation of management. 
In the instant case, counsel submitted a copy of the beneficiary's provisional certificate, dated June 3, 
1985. from the Government Premier College in Karachi. Pakistan. The ~rovisional certificate states. 
"Thi; is to certify that 
 a student of this college, passed 
the B. Com. Examination held in 1985 with seat 
 and was 
placed in second division." Counsel also submitted a letter from Richard G. Withn, Attorney at Law, 
stating that "[d]uring the period of 1990 through 1995, in his capacity as the Collect~ons 
Account Manager at the Joseph L. Yousem Company, retained the services of my firm in connection with 
the collection of delinquent homeowners association dues and assessments and for foreclosure services 
against those properties with severely delinquent accounts." 
In addition, counsel provided an affidavit from the beneficiary detailing his experience with The Yousem 
Company; a copy of the beneficiary's resume; a copy of the beneficiary's Marks Certificate, dated May 5, 
2004, from the University of Karachi giving the marks the beneficiary received at the B. Com. Part I & I1 
Examination held in 1984 from the Government Premier College in Karachi; a letter from the beneficiary 
explaining that his documents were stolen; a copy of a Police Report filed with regard to the stolen 
documents; several additional letters confirming the beneficiary's employment with The Yousem 
Company; a copy of a certificate from Pak College of Computer and Business Education stating that the 
beneficiary completed the courses of computer software from August 20, 1984 through August 20, 1985; 
and an academic evaluation, dated November 8,2004, from Morningside Evaluations and Consulting. 
LIN 03 248 5 1520 
Page 4 
The evaluation from Morningside Evaluations and Consulting states: 
On the basis of the credibility of the University of Karachi, the number of years of 
coursework, the nature of the coursework, the grades earned in the coursework, and the 
hours of academic coursework, and considering more than four years of work experience 
and professional training in Business Administration and Management, and related areas, 
it is the judgment of Morningside Evaluations and Consulting that Mr. Bana has attained 
the equivalent of a Bachelor of Business Administration degree, with a concentration in 
Management, from an accredited institution of higher education in the United States. 
Under the "Degree Required" heading, the Form ETA 750 requires a bachelor degree or equivalent. A 
bachelor degree is generally found to require four (4) years of education. Matter of Shah, 17 I&N Dec. 244, 
245 (Cornm. 1977). The ETA 750A does not provide for the combination of education and experience, a 
combination of degrees, or certificates which, when taken together, would equal the same amount of 
coursework required for a U.S. baccalaureate degree. Given the specific degree requirement, such a 
combination may not be accepted in lieu of a four-year degree. Furthermore, 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 (Cornrn. 1986). See also Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. 
Landon, 699 F.2d 1006 (9th Cir. Cal. 1983); Stewart Infra-Red Cornrnissaly of Massachusetts, Inc. v. 
Coomey, 661 F.2d 1 (1st Cir. 198 1). 
CIS uses an evaluation by a credentials evaluation organization of a person's foreign education as an 
advisory opinion only. Where an evaluation is not in accord with previous equivalencies or is in any way 
questionable, it may be discounted or given less weight. Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 
1988). 
As stated in 8 C.F.R. § 204.5(1)(3)(ii)(C), to qualify as a professional, the petitioner must submit evidence 
showing 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. In ths case, the bachelor's degree must be in business 
or management and requires four years of college education. 
The above regulations use a singular description of foreign equivalent degree. Thus, the plain meaning of the 
regulatory language concerning the professional classification sets forth the requirement that a beneficiary 
must produce one degree that is determined to be the foreign equivalent of a U.S. baccalaureate degree in 
order to be qualified as a professional for thrd preference visa category purposes. 
Moreover, if the AAO were to consider the petition under the "slulled worker" classification, the regulation at 
8 C.F.R. § 204.5(1)(3)(ii) specifies for the classification of a slulled worker that it contain a minimum of two 
years training or experience. While they do not contain a requirement of a bachelor's degree, the ETA 
750 does contain such a requirement. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 
LIN 03 248 5 1520 
Page 5 
406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Iwine, 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). 
The evaluation in the record used the rule to equate 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 3 
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. It should also be noted that given the requirements of the ETA 750, the 
petitioner would have been able to disqualify potential U.S. workers on the sole basis that they did not 
have a bachelor degree. To now allow, the petitioner to choose a candidate with less than a bachelor 
degree would frustrate the purpose of the ETA 750. 
In addition, the ETA 750 in ths matter is certified by DOL. Thus, it is useful to discuss DOL's role in ths 
process. Section 2 12(a)(5)(A)(i) provides: 
In general.-Any alien who seeks to enter the United States for the purpose of performing 
slulled or unshlled 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 
(11) the employment of such alien will not adversely affect the wages and 
worhng conditions of workers in the United States similarly employed. 
According to the regulation at 20 C.F.R. fj 656.20(c), as in effect at the time of filing,' an employer applylng 
for a labor certification must "clearly show" that: 
(1) The employer has enough hds available to pay the wage or salary offered the alien; 
(2) The wage offered equals or exceeds the prevailing wage determined pursuant to tj 
656.40, and the wage the employer will pay to the alien when the alien begins work will 
equal or exceed the prevailing wage which is applicable at the time the alien begins work; 
(3) The wage offered is not based on commissions, bonuses or other incentives, unless the 
employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis; 
1 
Recently the Department of Labor has promulgated new regulations regarding the labor certification 
process. These new regulations only apply to applications filed on or after the effective date of the 
regulations, March 28, 2005. Applications filed before March 28, 2005, such as the one before us, are to 
be processed and governed by the current regulations quoted in this decision. 69 Fed. Reg. 77326-01 
(Dec. 27,2004). 
LIN 03 248 51520 
Page 6 
(4) The employer will be able to place the alien on the payroll on or before the date of the 
alien's proposed entrance into the United States; 
(5) The job opportunity does not involve unlawhl discrimination by race, creed, color, 
national orign, age, sex, religion, handicap, or citizenship; 
(6) The employer's job opportunity is not: 
(i) Vacant because the former occupant is on strike or is being locked out in the 
course of a labor dispute involving a work stoppage; or 
(ii) At issue in a labor dispute involving a work stoppage; 
(7) The employer's job opportunity's terms, conditions and occupational environment are 
not contrary to Federal, State or local law; and 
(8) The job opportunity has been and is clearly open to any qualified U.S. worker. 
(9) The conditions of employment listed in paragraphs (c) (1) through (8) of ths section 
shall be sworn (or afirmed) to, under penalty of pqury pursuant to 28 U.S.C. 1746, on the 
Application for Alien Employment Certification form. 
The regulation at 20 C.F.R. tj 656.21(a) requires the ETA 750 to include: 
(1) A statement of the qualifications of the alien, signed by the alien; [and] 
(2) A description of the job offer for the alien employment, including the items required by 
paragraph (b) of thls section. 
Finally, the regulation at 20 C.F.R. tj 656.24(b) provides that the DOL Certifylng Officer shall make a 
determination to grant the labor certification based on whether or not: 
(1) The employer has met the requirements of ths part. However, where the Certifylng 
Officer determines that the employer has committed harmless error, the Certifying Officer 
nevertheless may grant the labor certification, Provided, That the labor market has been 
tested sufficiently to warrant a finding of unavailability of and lack of adverse effect on U.S. 
workers. Where the Certifylng Officer makes such a determination, the Certifying Officer 
shall document it in the application file. 
(2) There is in the United States a worker who is able, willing, qualified and available for 
and at the place of the job opportunity according to the following standards: 
(i) The Certifylng Officer, in judgng whether a U.S. worker is willing to take 
the job opportunity, shall look at the documented results of the employer's and 
the Local (and State) Employment Service office's recruitment efforts, and shall 
determine if there are other appropriate sources of workers where the employer 
should have recruited or might be able to recruit U.S. workers. 
LIN 03 248 51520 
Page 7 
(ii) The Certifying Officer shall consider a U.S. worker able and qualified for 
the job opportunity if the worker, by education, training, experience, or a 
combination thereof, is able to perform in the normally accepted manner the 
duties involved in the occupation as customarily performed by other U.S. 
workers similarly employed, except that, if the application involves a job 
opportunity as a college or university teacher, or for an alien whom the 
Certifying Officer determines to be currently of exceptional ability in the 
performing arts, the U.S. worker must be at least as qualified as the alien. 
(iii) In determining whether U.S. workers are available, the Certifying Officer 
shall consider as many sources as are appropriate and shall look to the 
nationwide system of public employment offices (the "Employment Service7') 
as one source. 
(iv) In determining whether a U.S. worker is available at the place of the job 
opportunity, the Certifying Officer shall consider U.S. workers living or 
worlang in the area of intended employment, and may also consider U.S. 
workers who are willing to move from elsewhere to take the job at their own 
expenses, or, if the prevailing practice among employers employing workers in 
the occupation in the area of intended employment is to pay such relocation 
expenses, at the employer's expense. 
(3) The employment of the alien will have an adverse effect upon the wages and worlung 
conditions of U.S. workers similarly employed. In malang this determination the Certifying 
Officer shall consider such things as labor market information, the special circumstances of 
the industry, organization, andlor occupation, the prevailing wage in the area of intended 
employment, and the prevailing worlung conditions, such as hours, in the occupation. 
It is significant that none of the above inquiries assigned to DOL involve a determination as to whether or not 
the alien is qualified for the job offered. ms fact has not gone unnoticed by the Federal Circuit Courts of 
Appeals: 
There is no doubt that the authority to make preference classification decisions rests with 
INS. 
 The language of section 204 cannot be read otherwise. 
 See Castaneda-Gonzalez 
v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the 
two determinations listed in section 212(a)(14) [currently found at 212(a)(5)(A)(i)]. Id. at 
423. The necessary result of these two grants of authority is that section 212(a)(14) 
determinations are not subject to review by INS absent fraud or willful misrepresentation, 
but all matters relating to preference classification eligibility not expressly delegated to 
DOL remain within INS' authority. 
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 
LIN 03 248 5 1520 
Page 8 
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 
2 12(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on this decision, the Ninth 
Circuit Court of Appeals, which has jurisdiction over this matter, stated: 
[I]t appears that the DOL is responsible only for determining the availability of suitable 
American workers for a job and the impact of alien employment upon the domestic labor 
market. It does not appear that the DOL's role extends to determining if the alien is 
qualified for the job for which he seeks sixth preference status. That determination 
appears to be delegated to the INS under section 204(b), 8 U.S.C. 9 1154(b), as one of the 
determinations incident to the INS'S decision whether the alien is entitled to sixth 
preference status. 
K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9'h 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 worhng conditions of similarly employed United States workers. The labor 
certijkation in no way indicates that the alien offered the certijied job opportunity is 
qualijied (or not qualified) to perform the duties of that job. 
Id. at 1009 (emphasis added). The Ninth Circuit reached a similar decision one year later in Tongatapu 
Woodcraft Hawaii, Ltd. v. Feldman: 
The Department of Labor ("DOL") must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not adversely 
affect the wages and working conditions of similarly employed domestic workers. Id. 
9 212(a)(14), 8 U.S.C. 9 1182(a)(14). The INS then makes its own determination of the 
alien's entitlement to sixth preference status. Id. 8 204(b), 8 U.S.C. 9 1154(b). 
 See 
generally K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th (3.1983). 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
736 F. 2d 1305, 1309 (9'h Cir. 1984). See also Black Const. Corn. v. I.N.S., 746 F.2d 503 (9" Cir. 
(Guam) 1984) (rejecting argument that once employer's labor certifications had been approved by DOL it 
was error for INS to deny related immigrant petitions for failure to meet preference status requirements). 
We are cognizant of the recent decision in Grace Korean United Methodist Church v. Michael Chert08 
CV 04-1849-PK (D. Ore. November 3, 2005), in which the District Court found that CIS "does not have 
the authority or expertise to impose its strained definition of 'B.A. or equivalent' on that term as set forth 
in the labor certification." In contrast to the broad precedential authority of the case law of a United 
LIN 03 248 5 1520 
Page 9 
States Circuit Court of Appeals, the AAO is not bound to follow the published decision of a United States 
district court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). 
Although the reasoning underlying a federal district judge's decision will be given due consideration 
when it is properly before the AAO, the analysis does not have to be followed as a matter of law, 
particularly, as in Grace Korean, where the case is unpublished. Id. at 719. The court in Grace Korean 
makes no attempt to distinguish its holding from the Circuit Court decisions cited above. Instead, as legal 
support for its determination, the court cited to a case holding that the United States Postal Service has no 
expertise or special competence in immigration matters. Grace Korean United Methodist Church at *8 
(citing Tovar v. US. Postal Service, 3 F.3d 1271, 1276 (9th Cir. 1993)). On its face, Tovar is easily 
distinguishable from the present matter since CIS, through the authority delegated by the Secretary of 
Homeland Security, is charged by statute with the enforcement of the United States immigration laws. See 
section 103(a) of the Act, 8 U.S.C. § 1103(a). Moreover, at least two circuits, including the Ninth 
Circuit overseeing the Oregon District Court, have held that CIS does indeed have the authority and 
expertise to evaluate whether the alien is qualified for the job. Those Circuit decisions, and not Grace 
Korean, are binding on this office and will be followed in this matter. 
Therefore, based on the evidence submitted, we concur with the director that the petitioner has not established 
that the beneficiary possesses the equivalent of a United States 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. 6 
1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.