dismissed EB-3 Case: Software Development

U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
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U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
Office: NEBRASKA SERVICE CENTER Date: 
LIN 04 079 52688 
 MAY 1 6 2006 
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. § 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. 
kobert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a telecommunications software development corporation. It seeks to employ the beneficiary 
permanently in the United States as a system analyst. 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 has the college degree required 
by the preference classification for which the Alien Employment Certification accompanying the petition 
specified and denied the position accordingly. 
On appeal, the counsel submits a brief. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. 5 1153(b)(3)(A)(i), provides for granting 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. 
8 CFR 9 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slulled workers, professionals, or 
other workers must be supported by letters from trainers or employers ~ving 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 occupation designation. The 
minimum requirements for this classification are at least two years of training or experience. 
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 granting preference classification to qualified immigrants who hold baccalaureate degrees and 
are members of the professions. 
The regulation at 8 C.F.R. 
 204.5(1)(2) states, in pertinent part: 
"Professional means a qualified alien who holds at least a United States baccalaureate degree or a foreign 
equivalent degree and who is a member of the professions." 
The regulation at 8 C.F.R. 
 204.5(1)(3)(ii)(C) states, in pertinent part: 
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. 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. 
Page 3 
If the petition is for a professional pursuant to 8 C.F.R.§204.5(1), then, the petitioner must demonstrate that 
the beneficiary received a United States baccalaureate degree or an equivalent foreign degree prior to the 
priority date, the day the Form ETA 750 was accepted for processing by any office within the employment 
system of the Department of Labor. Here, the Form ETA 750 was accepted for processing on October 7 
2002. The petitioner selected in Part 2, box "e" of the 1-140 petition. That selection states, "A professional 
(at a minimum, possessing a bachelor's degree or a foreign degree equivalent to a U.S. bachelor's degree) or a 
skilled worker (requiring at least two years of specialized training or experience)." 
To determine whether a beneficiary is eligble for an employment based immigrant visa, Citizenship & 
Immigration Services (CIS) must examine whether the alien's credentials meet the requirements set forth in the 
labor certification. 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, Form ETA 750 A, item 14 describes the requirements of the proffered position and occupation 
of system analyst as follows: 
............... 
14. 
 Education (enter number of years) 
Grade School 
High School 
College 
College Degree Required 
Major Field of Study 
Training 
Experience .................. 
Job Offered .................. 
Number -Years / Mos. 
Related Occupation .................. 
Number -Years / Mos. 
Related Occupation ... .................. 
Specify 
8 
- 
4 
4 
Bachelor's (or equivalent) 
Computer science, mathematics or any 
engineering field 
Blank 
*2/0 Exp may have been gained in the job 
described or any other iob or iobs 
*2/0 Exp may have been gained in the iob 
described or any other iob or iobs 
*"computer programmer" or "systems 
analyst" or any occupation with experience in 
item 15 
Form ETA 750 A, item 15 describes "Other special Requirements" as follows: 
*2 yrs exp inlwith/using 
9 Window NT 
9 UNIX 
9 Oracle 
k Visual basic 
The employer who is the petitioner has prepared the above ETA 750 A as an essential part of the labor 
certification process used to support a preference visa petition that is employment based. The employer who 
desires to employ an alien in the United States must undertake a multiple step process as directed by the 
United States Department of Labor which, once approved, certifies the Alien Employment Application for the 
occupation based upon the above criteria. In the present case, the above requirements also state that the 
occupation of system analyst requires four years of resulting in a college Bachelor's degree (or equivalent) in 
the major field of study in computer science, mathematics or any engineering field. 
Along with Form ETA 750, Part A, set forth above; the employer also is required to submit Form ETA 750, 
Part B that is a "Statement of Qualifications of Alien." Part B identifies the alien, specifies his current and 
prospective address in the United States, his education including trade and vocation training, and lists his 
work experience. 
The Form ETA 750 Part B prepared by the beneficiary states the following educatidn history: 
Block 11 
Names and Addresses of 
 Schools, Colleges, and Universities Attended 
 (including trade or 
vocational training facilities) 
OSMANIA UNIVERSITY, Hyderabad, India 
Field of Study 
From . . . [mo./yr] 
To . . . [mo./yr.] 
Degrees or Certificates Received 
computer science 
June r1990190 
May r1993193 
bachelor's 
The director issued a request for evidence dated March 22, 2004. The director requested evidence that the 
beneficiary completed four years of college education, and obtained the required bachelor's degree, or 
equivalent, in one of the specified fields (i.e. computer science, mathematics or any engneering field) before 
October 7,2002. 
The request for evidence stated that if the beneficiary possessed a degree received outside the United States, 
then in that case, the petitioner should also submit a credentials evaluation report of the beneficiary's 
educational attainment. It also requested substantiation of the beneficiary's "relevant industrial experience" as 
of the priority date. 
Counsel submitted as evidence in response to the above an education credential evaluation by Education 
Evaluators International, Inc. dated February 3, 2000; a copy of the U.S. Department of Labor guidance on 
"Specific Vocational Preparation"; and an explanatory letter from counsel. 
The director determined that the petitioner had not established that the beneficiary has the college degree 
required by the preference classification for which the Alien Employment Certification accompanying the 
petition specified, and denied the petition on October 5,2004. 
On appeal, the counsel asserts that the director erred by finding that the beneficiary has not earned the foreign 
equivalent to a U.S. bachelor's degree, that "a single foreign degree equivalency can take into account other 
further foreign education; that the director's reliance on Matter of Shah, 17 I&N Dec. 244 (reg. Comm.1977) 
is misplaced; and, a prior AAO decision that will be discussed below. 
Page 5 
The subject Form ETA 750 Part A requires a degree from a college and the completion of four years of 
baccalaureate studies. CIS regulations do not provide that a combination of education and experience may be 
accepted in lieu of a four-year degree. While the regulation at 8 C.F.R. 5 204.5(1)(3)(ii)(B) do state that the 
"relevant post secondary education may be considered as training for the purposes of this paragraph;" there is 
no regulation that would allow for a converse, that the experience may be considered for education 
requirements. The record of proceeding demonstrates that the beneficiary has three years of college education 
and several additional diplomas and certificates issued by various nonacademic services. 
Petitioner's clear intent is expressed in the certified Alien Employment Application. A four-year college 
degree is required in computer science, mathematics or any engineering field of study. Note that even if this 
petition were considered under the slulled worker regulations, the result would be the same. While it is clear 
that regulations governing the skilled worker classification do not contain a baccalaureate degree requirement, 
CIS is still bound by the regulations and above-cited case law to require the petitioner and beneficiary to meet 
the requirements specified on the ETA-750. See 8 C.F.R. 5 204.5 (1)(3)(ii)(B). Regardless of classification, 
the ETA-750 contains the requirements that the beneficiary must have four years of college education 
culminating in a bachelor's degree (or equivalent) in computer science, mathematics or any engineering field of 
study or it's equivalency. The beneficiary does not meet this requirement. 
An education credential evaluation by Education Evaluators International, Inc. dated February 3, 2000, stated 
that the beneficiary " ... completed the three year full time program and earned the Bachelor of Science in 
Mathematics, Computer Science and Physics. " The evaluation service also stated "[The beneficiary] . . . 
earned the Honours Diploma in Information and Systems management from APTECH Computer   ducat ion' 
located in India. These studies are comparable to the completion of United States continuing education 
computer studies." 
In reference to the petitioner's assertion that the beneficiary's education is the equivalent to a bachelor's 
degree secured from an institution of higher learning (a university or college) in the United States, petitioner 
submitted an education credential evaluation by Education Evaluators International, Inc. dated October 19, 
2000, of the beneficiary's foreign schooling as it equates to a higher education offered in the United States. 
The evaluation offered as a clarification of an earlier evaluation stated in pertinent part that in the United 
States or Canada ". . . the normal four year undergraduate program" has within it one year of general studies 
that "most foreign educational systems" allow to be met by the completion of a high school diploma. The 
evaluator goes on to state that an indication of the bachelor's level acceptance (of what in the subject case 
would be a three year college curriculum) in India is the acceptance of a three-year college degree into an 
Indian graduate level program. 
A credential evaluation report from The Trustforte Corporation submitted by petitioner dated October 28, 
2004, stated in pertinent part: 
' The combination of a degree deemed less than the equivalent to a U.S. baccalaureate degree and a diploma or 
certificate does not meet that requirement. Further, the credentials evaluation does not conclude that the 
applicant's course of instruction that led to the honors diploma certificate to be the equivalent of any specific 
amount of time spent at a U.S. college or university. Therefore, the petitioner has not established that the 
beneficiary has the required number of years of college education. 
Page 6 
{The beneficiary] . . . completed a Bachelor of Science program at Osmania University and 
an Honors Diploma program in Information and Systems Management at Aptech Computer 
Education, both located in India. Based on the foregoing academics credentials, I find that 
. . . [the beneficiad attained a Bachelor of Science Degree in Computer Science from an 
accredited US college or university.. . . 
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 this instance, by petitioner's credential evaluators, the beneficiary has less than a four-year college 
degree. This matter is not in dispute. 
The above regulations at 8 C.F.R. 8 204.5(1)(3)(ii)(C) use a singular description of foreign equivalent degree. 
Thus, for professionals, the plain meaning of the regulatory language 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 third preference visa category purposes. 
The petitioner also has provided a prior AAO decision in support of the above contentions. While 8 C.F.R. fj 
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. See the regulation at 8 C.F.R. fj 103.9(a). The AAO reviews appeals on 
a de novo basis. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). Counsel's contentions have been 
discussed. Each case must be reviewed upon its own merits, and by definition, each case has its own 
particular fact situation that may result, and often does, in differing legal analysis and applicable of regulation. 
Counsel also submits a copy of a letter dated January 7, 2003, fromof the INS Office of 
Adjudications to counsel in other cases, expressing his opinion about the possible means to satisfy the 
of a U.S. advanced degree for purposes of 8 C.F.R. 204.5(k)(2). Within the 
states that he believes that a foreign degree or degrees may be considered to be 
At the outset, it is noted that private discussions and correspondence solicited to obtain advice from CIS are not 
binding on the AAO or other CIS adjudicators and do not have the force of law. Matter of Izummi, 22 I&N 169, 
196-197 (Comm. 1968); see also, Memorandum from Thomas Cook, Acting Associate Commissioner, Office of 
Programs, U.S Immigration & Naturalization Service, Significance of Letters Drafted By the gffice of 
Adjudications (December 7,2000). 
Moreover, the regulation at 8 C.F.R. 8 204.5(1)(3)(ii)(C) is clear in allowing only for the equivalency of one 
foreign degree to a United States baccalaureate, not a combination of degrees, diplomas or employment 
experience. There is no comparable provision to substitute a combination of degrees, work experience, or 
certificates which, when taken together, equals the same amount of coursework required for a U.S. baccalaureate 
degree. We do not find the determination of the credentials evaluation probative in this matter. It is further noted 
that a bachelor's degree is generally found to require four years of education. Matter of Shah, 17 I&N Dec. 244 
(Comm. 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 because the degree did not require 
four years of study. Matter of Shah, at 245. While counsel argues that Matter of Shah is not controlling on the 
question of equivalent degrees, counsel also focuses on the fact that the case states that "usually" three year 
degrees are not the equivalent of four year degrees, and, counsel contends sometimes three year degrees can be 
the equivalent of four year degrees. 
The AAO finds that when the case of Matter of Shah states that a bachelor's degree "usually" requires four years 
of study, the exception to this rule is that it is possible to accumulate sufficient college credits in for example, 
college summer sessions, to complete a four year bachelor degree in less chronological time but with the same 
total credit hours as a four year bachelor's degree program requires in the United States. Regardless of Matter of 
Shah, however, the Application for Alien Employment Certification as submitted by the petitioner, and as 
certified by the U.S. Department of Labor renders this point moot since the subject certified Alien Employment 
Application contains the requirement that the alien applicant, or any American worker who applied for the 
position, complete four years of college education. If the petitioner had intended to accept applicants with less 
than four years of college, it could have submitted the Form ETA 750 requiring three years of college andlor 
some degree less than a United States' bachelor degree. If the AAO were to agree with the petitioner that the 
alien is qualified, then it would be approving an alien with lesser qualifications then that set forth on the Form 
ETA 750. Clearly, this would be contrary to the plain language of the labor certification. During recruitment, the 
petitioner was able to reject qualified United States workers who did not possess four years of college or a United 
States bachelor degree. Allowing the petitioner to circumvent the clear and unequivocal language stated in the 
Form ETA 750 Part A would frustrate the purpose of the Application for Alien Employment Certification. 
The petitioner failed to submit evidence to demonstrate that the beneficiary has a United States baccalaureate 
or an equivalent foreign degree. The instant petition, submitted pursuant to 8 C.F.R.§204.5(1), may not be 
approved. 
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.