dismissed EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 21182345 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 26, 2022 
The Petitioner, a software development and information technology solutions company, seeks to employ 
the Beneficiary as a software developer /systems analyst. It requests classification of the Beneficiary 
under the third-preference, immigrant visa category for professionals. 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 of the Nebraska Service Center denied the petition, concluding that the minimum 
education requirements for the position, as described on the labor certification, do not meet the 
requirements of the requested classification . 1 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S .C. § 1361; Matter ofChawathe, 25 I&N 
Dec. 369, 375 (AAO 2010). The AAO reviews the questions in this matter de nova. See Matter of 
Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will dismiss the 
appeal. 
I. LAW 
Immigration as a professional generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and (2) the employment of a 
noncitizen in the position won 't harm wages and working conditions of U.S. workers with similar jobs. 
See section 212(a)(5) of the Act, 8 U.S .C. § 1182(a)(5) . Second, an employer must submit an approved 
labor certification with an immigrant visa petition to U.S. Citizenship and Immigration Services 
(USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Finally, if USCIS approves a petition , a 
designated noncitizen may 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. 
1 The Director 's decision did not address the Beneficiary 's qualifications . The sole issue on appeal is whether the minimum 
education requir ements indicated on the labor certification support the requested classification . 
II. ANALYSIS 
To be eligible for professional classification, the labor certification must require, at a minimum, a U.S. 
bachelor's degree or a foreign equivalent degree. See 8 C.F.R. § 204.5(1)(3)(i). For the reasons 
discussed below, we agree with the Director that the labor certification does not support the requested 
classification. 2 
Upon consideration of the entire record, including the arguments made on appeal, we adopt and affirm 
the Director's decision with the comments below. See Matter of P. Singh, Attorney, 26 I&N Dec. 623 
(BIA 2015) ( citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Chen v. INS, 87 
F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments 
prescinding from them have been adequately confronted and correctly resolved by a trial judge or 
hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order 
reflects individualized attention to the case). 
On appeal, the Petitioner requests that we examine the language exactly as it appears on the labor 
certification and notes that Section H. 9 of the labor certification stated that a foreign educational 
equivalent is acceptable. The Petitioner asserts that the Beneficiary qualifies for the professional 
classification by virtue of a foreign education equivalent to a U.S. baccalaureate degree and more than 
12 years experience in computer information systems and related areas. 
Section J of the labor certification states that the Beneficiary's highest level of education relevant to 
the job offered is a bachelor's degree in computer information systems froml I University,□ 
I I in I India, completed in 1997. As evidence of this credential the 
Petitioner submitted copies of a diploma and a consolidated statement of marks showing that it was 
awarded after completion of a three-year program. In addition, the record includes an academic 
equivalency evaluation from I I from University asserting that the 
Beneficiary's academic and professional work experience is equivalent to a four-year bachelor's 
degree in computer information systems from an accredited U.S. college or university. 
In Snapnames.com, Inc. v. Michael Chertoff, No. 06-65-MO, 2006 WL 3491005 (D. Or. Nov. 30, 
2006), the court held that, in professional and advanced degree professional cases, where the 
beneficiary is statutorily required to hold a baccalaureate degree, USCIS properly concluded that a 
single foreign degree or its equivalent is required. See also Maramjaya v. USCIS, Civ. Act No. 06-
2158, 2008 WL 9398947 (D.D.C. Mar. 26, 2008) (for professional classification, USCIS regulations 
require the beneficiary to possess a single four-year U.S. bachelor's degree or foreign equivalent 
degree). Thus, for purposes of the requested immigrant visa category, a foreign equivalent of a U.S. 
bachelor's degree must constitute a single degree. 
Because a plain reading of the language in Part H, Box 14 and the Petitioner's own statements on appeal 
clearly indicate it would accept a combination of education and experience to meet a bachelor's degree 
equivalency, the labor certification does not support the requested classification. The allowance of "any 
2 On the Form 1-140. Immigrant Petition for Alien Worker, the Petitioner checked the box at part 2.1.e. which specifies 
that the petition is being filed for "[a] professional (at a minimum, possessing a bachelor's degree or a foreign degree 
equivalent to a U.S. bachelor's degree)." 
2 
suitable combination of education, progressive experience or training is acceptable" to satisfy the 
bachelor's degree requirement would result in the "equivalent" of a bachelor's degree rather than a 
"foreign equivalent degree." Compare 8 C.F.R. § 214.2(h)(4)(iii)(D) (defining "equivalence to 
completion of a United States baccalaureate or higher degree" for purposes of H-lB classification.) 
Where combinations of education or experience may equate to baccalaureate degrees, the Act and 
regulations state so explicitly. See section 214(i)(2)(C) of the Act, 8 U.S.C. § 1184(i)(2)(C) (allowing 
H-1 B workers to have "experience in the specialty equivalent to the completion of such [bachelor's] 
degree"); see also 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) (H-lB workers may have "education, specialized 
training, and/or progressively responsible experience that is equivalent to completion of a United States 
baccalaureate ... degree"). The regulations pertaining to the immigrant classification sought in this matter 
do not contain similar language. 
Neither the Act nor USCIS regulations allow a position to be classified as a professional position if 
the minimum educational requirement can be met with anything other than a single academic degree. 
Therefore, the provided labor certification does not support the requested classification of professional 
under section 203(b)(3) of the Act. 
Further, the Petitioner asserts on appeal that USCIS refused to reclassify the requested eligibility 
category from a professional to a skilled worker. We are not able to change the requested preference 
classification on appeal because the Director has already issued a decision on the petition. At the 
USCIS website under petition filing and processing procedures for Form 1-140, the agency provides 
instructions on how to correct the visa category selected in Part 2 of Form 1-140. The guidance states 
that the Petitioner must review for accuracy the receipt notice that indicates the visa category requested 
on Part 2 of Form 1-140. If the category is not correct, the Petitioner must immediately call the USCIS 
contact center to request a change in the visa classification before the agency makes a decision on the 
form. The instructions also indicate that if the Petitioner requests a change in visa classification to 
correct a clerical error, USCIS will make the final determination about whether to change the visa 
classification based on everything in the case. Finally, the instructions state that a visa category cannot 
be changed if a decision has been made on the Form 1-140. See USCIS website, Petition Filing and 
Processing Procedures for Form 1-140, Immigrant Petition for Alien Workers, 
https://www.uscis.gov/forms/all-forms/petition-filing-and-processing-procedures-for-form-i-140-
immigrant-petition-for-alien-workers#Requesting. There is no indication the Petitioner followed any 
of these steps. In any event, we are not able to change the requested preference classification on appeal 
because the Director has already issued a decision on the petition. 
III. CONCLUSION 
The Petitioner's allowance of a combination of a degree and experience to meet the bachelor's degree 
equivalency prohibits us from concluding that the labor certification supports a request for professional 
classification under section 203(b)(3) of the Act. 
ORDER: The appeal is dismissed. 
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