dismissed EB-3 Case: Software Development

rdentifying data deleted to 
prevent dearly unw arrmted 
invasion d persmd prtvacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
bc 
FILE: EAC-04-069-5 1890 Office: VERMONT SERVICE CENTER Date: 
MAY 2 3 2006 
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. tj 1 153(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. 
Administrative Appeals Office 
EAC-04-069-5 1890 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center. Now the matter is before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a POS systems software development firm. It seeks to employ the beneficiary permanently 
in the United States as a systems software developer. 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 possessed the necessary academic requirements to perform the duties of the proffered position. 
On appeal, the petitioner's counsel contends that the beneficiary's credentials are sufficient to meet the 
requirements of the labor certification and submits additional evidence.' 
Section 203(b)(3)(A)(i) of the Act 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) also 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. $ 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 eligible 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 employment service system. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. 
Reg. Cornrn. 1977). In this case, that date is July 5,2002. 
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. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart 
Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). To determine whether a 
beneficiary is eligble for an employment based immigrant visa as set forth above, Citizenship and Immigration 
I 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. $ 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
EAC-04-069-5 1890 
Page 3 
Services (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, items 14 and 15, set forth 
the minimum education, training, and experience that an applicant must have for the position of systems software 
developer. In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education 
Grade School 
High School 4 
College 4-6 
College Degree Required BSMS 
Major Field of Study 
 Computer Science 
Training 
No. Yrs. 1 
No. Mos. 
Type of Training 
 Network or POS systems/sw 
The applicant must also have one year of employment experience in the job offered or the related occupation of 
general systems and software development, or network management. 
The beneficiary set forth his credentials on Form ETA-750B signed on June 30, 2002. 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 attended Angelicum University in Rome, Italy in the field of 
"Philosophy" from June 1993 through June 1997, culminating in the receipt of a "Licenza", and was also 
attending Suffolk University in Boston, MA in the field of "Computer Science" from September 2000 to present, 
expecting the receipt of a "MSIComputer Science" degree in 2003. He provides no further information 
concerning his educational background on thls form, which is signed by the beneficiary under a declaration under 
penalty of perjury that the information was true and correct. In corroboration of the Form ETA-750B, the 
petitioner provided a letter and transcripts from Suffolk University, and a certificate of licence and transcripts 
from Pontificia Studiorum Universitas a S. Thoma Aq. in Urbe <Angelicurn>. 
On July 29,2004, the director issued a request for additional evidence (RFE). The director specially requested an 
advisory evaluation of the beneficiary's formal education with detailed instructions. In response to the RFE, the 
petitioner submitted English translations of Polish General Secondary School Certificate and Certificate of 
Ponitifical University of Saint Thomas Aquinas, and an advisory letter from the Center for Educational 
Documentation, Inc. (CED). 
The credential evaluation drafted by 
 Director of CED listed documents that she reviewed and 
stated in pertinent parts: 
1. Certificate of Completion of General Secondary School (Swiadectwo 
DojrzaloSci Liceum Ogolnksztalcacego) stating [the beneficiary] had graduated from the 
- 
secondary school with specialization in Biology and Chemistry and listing subjects and grades 
for study and examinations, dated June 1, 1985. This represents completion of a total of 12 years 
of primarylsecondary education and is considered equivalent to a U.S. high school diploma; 
2. Certificate issued by the Pontifical University of Saint Thomas Aquinas on September 7, 
2004, stating that [the beneficiary] was enrolled in the Faculty of Philosophy in the academic 
EAC-04-069-5 1890 
Page 4 
years 1995196 and 1996197 and upon completion of all examinations [the beneficiary] was 
awarded the degree of Licence on June 5, 1997. The document lists courses and grades for two 
years of study. 
Based on the above information it can be concluded that [the beneficiary] has the equivalent to a 
U.S. high school diploma with specialization in Biology and Chemistry and two years of 
undergraduate study in Philosophy. 
The director denied the petition on November 16, 2004, finding that the academic evaluation provided does not 
support the petitioner's claim that the beneficiary possesses the academic requirements as stated on Form ETA 
750. 
On appeal, counsel asserts that the beneficiary's credentials are sufficient to meet the requirements of the labor 
certification and submits a new credential evaluation. Counsel submits two new credential evaluations and 
states that: 
[The beneficiary] was accepted to and enrolled in Suffolk University Master's degree program 
leading to a Master's degree in Computer Science in May 2002. At the time of his admission to 
this program, [the beneficiary] possessed, at a minimum, sufficient academic credentials 
qualifying him for a Bachelor's degree with a major in Computer Science. Indeed, [the 
beneficiary] would not have qualified for acceptance to a Master's degree program if he had not 
possessed these requisite academic credentials at the time of his application for admission in 
May 2002. Thus, on the day of filing of the Form ETA 750 (July 2002), [the beneficiary] 
possessed the requisite academic credentials by virtue of having completed degree programs in 
Poland, Italy and the coursework required for the Computer Science major at Suffolk University 
in the U.S. 
Contrary to her first evaluation, the new credential evaluation from 
 of CED reviewed an additional 
document for the beneficiary's education. The new document 
 issued by the Major Clerical 
Seminary, Diocese of Siedlce (Wyzsze Seminarium Duchowne, Diecezji Siedleclue) on May 23, 1995, stating 
that the beneficiary had completed six years of study in Philosophy and Theology (1985-1991) and listing his 
courses and grades." 
In her new evaluation 
 states the following: 
In Poland, Roman Catholic Seminary Education is offered both in minor seminaries (secondary 
school) and major seminaries (college-level). The Major Clerical Seminary, Diocese of Siedlce 
offers a six-year part-time study in Philosophy and Theology and upon completion of the 
program candidates are ordained to the priesthood. At the time of his study (1985-1991), the 
Diocese of Siedlce was not affiliated with a higher education institution that provided academic 
training for priesthood candidates toward the title Magster (U.S. Bachelor) and at the time his 
document was not considered an academic credential. On December 4, 1992, the Seminary was 
incorporated into the Pope's Theological Faculty in Warsaw and upon completion of studies 
seminarians were awarded the title Master (Magister) in Theology. His six years of study in 
Philosophy and Theology (degree was not awarded) can be considered equivalent to a U.S. 
Bachelor's degree in Theology. 
EAC-04-069-5 1890 
Page 5 
The Pontifical University of Saint Thomas Aquinas in the Vatican is accredited by the Sacred 
Congregation for Catholic Education and can be considered an accredited university in U.S. 
terms. It offers a two-year Licence in Philosophy, which requires for admission a Bachelor of 
Philosophy from a Pontifical UniversityIFaculty or completion of lat least two years of study in 
Philosophy from another country compatible with the Philosophy study in the Vatican system. 
The Licence in Philosophy can be considered equivalent to a U.S. Master's degree in 
Philosophy. 
Based on the above information it can be concluded that [the beneficiary] has the equivalent to 
a U.S. high school diploma with specialization in Biology and Chemistry, a Bachelor of 
Arts degree in Theology and a Master of Arts degree in Philosophy. 
(Emphasis in origmal). 
new evaluation did not attach the certificate issued by the Major Clerical Seminary, Diocese of 
Siedlce (Wyisze Seminarium Duchowne, Diecezji Siedleckij) on May 23, 1995. The claimed education at the 
Major Clerical Seminary, Diocese of Siedlce is not supported by the Form ETA 750B. The beneficiary provides 
no information concerning this educational background on Part 11, when information of the names and 
addresses of schools, college and universities attended (including trade or vocational training facilities) was 
elicited and remesentations made 1 
information was true and correct. 
that the beneficiary's six-year part- tc ime s u y 
,v the beneficiary under a declaration under penalty of perjury that the 
lid not provide the reference based on which she concluded 
I 
in Philosophy and Theology in a non-degree program can be 
considered equivalent to a U.S. Bachelor's degree in theology. 
The regulations define a third preference category professional as 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." 
See 8 C.F.R. § 204.5(1)(2). The regulation at 8 C.F.R. 9 204.5(1)(3)(ii) specifies for the classification of a 
professional that: 
(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. Evidence of a 
baccalaureate degree shall be in the form 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. 
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 thlrd preference visa category purposes. 
evaluations also provide inconsistent information. Her new evaluation says that the two year 
Licence in Philosophy program at the Pontifical University of Saint Thomas requires for admission a 
Bachelor of Philosophy from a Pontifical UniversityIFaculty or completion of lat least two years of study in 
Philosophy from another country compatible with the Philosophy study in the Vatican system. She claims in 
her revised evaluation submitted on appeal that the Licence in Philosophy can be considered equivalent to a 
U.S. Master's degree in Philosophy. However, two months earlier she stated in her first evaluation that the 
EAC-04-069-5 1890 
Page 6 
program "requires for admission completion of a university entrance qualification in the student's country of 
origin or in Italy" and the program "can be considered equivalent to two years of U.S. undergraduate study in 
Philosophy." ''It is incumbent on the petitioner to resolve any inconsistencies in the record by independent 
objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective 
evidence pointing to where the truth, in fact, lies, will not suffice." Additionally, "Doubt cast on any aspect 
of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
The AAO 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 81 7 (Cornrn. 1988). 
On appeal counsel also submits a credential evaluation drafted by 
 Professor of Computer Science 
and Chairman of the De~artment of Mathematics and Com~uter Science at Suffolk Universitv in Boston. 
concluded that the beneficiary possessed the academic equivalent of a Bachelor's of Art or 
Science degree from an accredited U.S. college or university wit 
 Computer Science at the time of 
his admission to the Master's degree program in May 2002. 
 reasoned for his conclusion as 
follows: 
(1) At the time of his admission to our Master's degree program in May 2002, [the 
beneficiary] possessed a Bachelor of Arts degree in Theology from Wyzsze Seminarium 
Duchowne in Poland (1991) and a Master of Arts degree in Philosophy from the 
Pontifical University of Saint Thomas Aquinas in Italy (1997). These two degrees have 
been evaluated for U.S. degree equivalency by a professional degree evaluator who 
arrived at the same conclusion. 
(2) At the time of his admission to our Master's degree program in May 2002, [the 
beneficiary] has also earned the equivalent of our undergraduate major in Computer 
Science, having qualified for our Certificate of Computer Science Studies whose 
prerequisites and requirements are equivalent in substance and scope to the requirements 
of our undergraduate major in Computer Science. 
did not mention the documents he reviewed for the evaluation. Therefore, it seems that he may 
have arrived at his conclusion that the beneficiary obtained a Bachelor's de ee in 1991 and a Master's degree 
in 1997 and these two degrees are equ' w. degree based on* evaluation report. As 
previously noted, the AAO cannot give 
 evaluation full weight. Furthermore, 
 did not 
explain whether there is any difference in requirements between their Certificate of Computer Science Studies 
and Bachelor's Degree in Computer Science, and did not provide the requirements for the certificate of 
computer science studies. It is noted that the Matter of Sea Inc., 19 I&N at 817, provides: 
[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. 
Based on the evidence submitted, we concur with the director that the petitioner has not established that the 
beneficiary possesses the equivalent to U.S. Bachelor's or Master's degree in Computer Science as required by 
the terms of the labor certification. Counsel's assertion on appeal cannot overcome the director's decision. 
EAC-04-069-5 1890 
Page 7 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.