dismissed EB-3 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 20489424 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 11, 2022 
The Petitioner, a provider of software development and consulting services, seeks to employ the 
Beneficiary as a software engineer. The company requests his classification under the third-preference, 
immigrant visa category as a professional. See Immigration and Nationality Act ("the Act") section 
203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
demonstrate the Beneficiary's possession of a master's degree as required for the offered position. On 
appeal, the Petitioner submits additional evidence. The company also argues that the Director 
disregarded evidence of the Beneficiary's educational requirements. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also 
MatterofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard of proof) . Upon de 
nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process . First, a prospective employer 
must obtain certification from the U.S. Department of Labor (DOL) that: (1) there are insufficient U.S. 
workers able, willing, qualified , andavailableforanofferedposition; and(2) employmentofanoncitizen 
in the position will not harm wages and working conditions ofU. 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. 
Among other things, USCIS determines whether a noncitizen beneficiary meets the requirements of a 
DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally , if USCIS approves a petition, a beneficiary 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. 
II. THE DEGREE REQUIRED FOR THE OFFERED POSITION 
A petitioner must demonstrate a beneficiary's possession of all DOL-certified job requirements of an 
offered position by a petition's priority date. Matter a/Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). This petition's priority date is November 5, 2012, the date DOL 
accepted the accompanying labor certification for processing. See 8 C.F.R. § 204.5(d) (explaining 
how to determine a petition's priority date). 
In assessing a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position. 
USCIS may neither ignore a certification term nor impose unstated requirements. See, e.g., Madany 
v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority for setting the 
content of the labor certification") ( emphasis in original). 
The accompanying labor certification states the minimum educational requirements of the offered 
position of software engineer as a U.S. master's degree or a foreign equivalent degree in computer 
science, information technology (IT), business administration, mathematics, or a related field of 
study. 1 The certification also states that the Petitioner will not accept an alternate combination of 
education and experience. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, an Indian 
university awarded him a master of science degree in IT. The Petitioner provided a copy of the two­
year degree and an independent, professional evaluation of the Beneficiary's foreign educational 
credentials. 
USCIS may treat an educational evaluation from a qualified expert as an advisory opinion. But, if an 
evaluation conflicts with other evidence or "is in any way questionable," the Agency may reject it or 
afford it lesser evidentiaryweight. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). 
The evaluation that the Petitioner submitted concludes that the Beneficiary's foreign master's degree 
in IT equates to a U.S. master of science degree in information systems. 
Besides the 2007 master's degree in IT, the record indicates that Indian universities issued the 
Beneficiary a three-year bachelor of commerce degree in 1991 and a two-year master of commerce 
degree in 2001. The evaluation finds the bachelor's degree comparable to three years ofU.S. college 
or university studies, and the master of commerce degree equivalent to a U.S. bachelor's degree in 
business administration. 
The Beneficiary's three-year bachelor's degree reflects one less year of study than most U.S. 
baccalaureates require. See Matter of Shah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977) ( describing 
a U.S. bachelor's degree as "usually requiring 4 years of study"). Thus, in a written notice of intent 
to deny (NOID) the petition, the Director questioned the evaluation's conclusion thatthe Beneficiary's 
master's degree in IT equates to a U.S. graduate degree. The Director also cited the Electronic 
1 Additionally, the labor certification indicates that the offered position requires at least two years of employment 
experience in the job offered or as a software engineer, analyst, lead, CRM [ customer relationship management] consultant, 
ora related occupation. The Director found that the Petitioner demonstrated the Beneficiary's possession of the minimum 
two years of experience required for the position. 
2 
Database for Global Education (EDGE), an online resource that federal courts have found to be a 
reliable source of foreign educational equivalencies. 2 EDGE states that a two-year Indian master of 
science degree preceded by a three-year Indian bachelor's degree equates to a U.S. baccalaureate. 
EDGE also identifies a three-year, bachelor's degree as a prerequisite for admission into an Indian 
master of science program. 
Consistent with the evaluation that the Petitioner submitted, the Director agreed that the Beneficiary's 
master of commerce degree equates to a U.S. bachelor's degree in business administration. But, 
because EDGE indicates that admission to an Indian master of science program requires only a three­
year baccalaureate degree, the Director questioned the evaluation's conclusion that the Beneficiary's 
graduate IT degree equates to a U.S. master's degree. The Director stated: "Essentially, the evidence 
supports [the conclusion] that the beneficiary attained the equivalent of two separate Bachelor's 
degrees, one in Commerce and one in [IT]." 
The Petitioner's NOID response included additional evaluations of the Beneficiary's foreign education 
from two U.S. university professors, including one L who authored EDGE's information 
aboutlndian educational credentials. Consistent with the first evaluation that the Petitioner submitted, 
the professors found that, because the Beneficiary's master of commerce degree equates to a U.S. 
baccalaureate in business administration, his following two-year IT degree compares to a U.S. 
master's degree.I lstated that "the following [IT] degree of2 years would logically and typically 
be granted a Master's degree." The Petitioner also submitted online evidence that some U.S. graduate 
IT programs admit students with bachelor's degrees in any fields of study. 
We do not find the professors' explanation and supp01iing evidence sufficient to demonstrate the 
Beneficiary's possession of a U.S. master's degree. Admission to a U.S. master's degree program 
typically follows four years of undergraduate studies. See Matter of Shah, 17 I&N Dec. at 245. We 
recognize that, in addition to a three-year bachelor of commerce degree, the Beneficiary attained a 
two-year master of commerce degree. But, based on the information in EDGE, the record indicates 
that admission to the Beneficiary's graduate IT program required only a three-year bachelor's degree. 
Thus, his two-year master's degree in IT appears to build on the three-year bachelor of commerce 
degree, not on his two-year master of commerce degree. Additionally, the record does not demonstrate 
that the Beneficiary's combined four years of master's-level education in India would equate to a U.S. 
master's degree as the offered position requires. 
The website of the university that issued the Beneficiary's IT degree does not contradict EDGE's 
information. The website indicates that candidates to study for a master of science degree in IT must 
have passed "any degree of any Recognized University or authority accepted ... as equivalent" 
Alagappa Univ., Directorate of Distance Educ. "Pro amme Pro· ect Re ort for Master of Science of 
Information Technolo " 5 htt s:/ 
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3 The Petitioner has not submitted 
2 EDGE was created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). 
AACRAO is a non-profit, voluntary association of more than 11,000 professionals in more than 40 countries. See 
AACRAO, "Who We Are," https://www.aacrao.org/who-we-are; see also Viraj, LLC v. US. Att 'y Gen., 578 Fed. Appx. 
907,910 (11th Cir.2014) (describing EDGE as "a respected source of information"). 
3 In India, "recognized universities" are those authorized by the country's University Grants Commission to award degrees. 
See Univ. Grants Comm'n Act ofl 956, https:/ /www.indiacode.nic.in/bitstream/123456789/1627 /1/l 95603.pdf. 
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evidencerebuttingthe informationinEDGEoron the university's website. See Mattera/Ho, 19 I&N 
Dec. 582,591 (BIA 1988) (requiring a petitioner to resolve inconsistenciesofrecord with independent, 
objective evidence). 
The professors also found that the Beneficiary has sufficient equivalent semester credits to qualify for 
a U.S. master's degree in IT. The professors stated that a U.S. master's degree typically requires at 
least 180 semester credits: 30 credits for each of the six academic years of post-secondary education. 
I found that the Beneficiary's foreign education equates to "near 200 [U.S.] semester credits." 
Butl did not explain how he calculated that amount. The other professor concluded that the 
Beneficiary has "approximately 210 semester credits." He found that the Beneficiary gained about 30 
U.S. semester credits for each academic year of Indian university education, including: 90 semester 
credits during his three years of undergraduate studies; 60 semester credits during his two years of 
master of commerce studies; and 60 semester credits during his two-year master of science studies in 
IT. 
As previously discussed, however, the record indicates that the Beneficiary's admission to his IT 
graduate program did not require his possession of the master of commerce degree. Thus, the record 
does not establish the relevance of his master of commerce credits. Subtracting those credits from the 
professor's calculation, the Beneficiary only has 150 semester credits, less than the typical U.S. 
master's degree requirement of 180. Thus, based on semester credits, we also find insufficient 
evidence of the Beneficiary's possession of a U.S. master's degree equivalency. 
_ ___,ladditionally stated that he finds three-year Indian bachelor's degrees equivalent to U.S. 
bachelor's degrees "if passed in the First Class and if completed from a university that is graded 'A' 
by the NAAC [National Assessment and Accreditation Council] in India." He said his opinion differs 
from EDGE' s in this regard because AACRAO members chose to omit this finding from his EDGE 
contribution. Both professors described the omission ofl I finding from EDGE as "arbitrary" 
and "inconsistent" with equivalencies for similar credentials in other countries like India that base 
their educational systems on the United Kingdom's (UK). 
We acknowledge that EDGE treats three-year bachelor's degrees from India differently than three­
year baccalaureates from the UK and other British Commonwealth countries. But the Petitioner has 
not demonstrated that EDGE's treatment of three-year Indian degrees differs from that of most 
credential evaluators. For example, in 201 7, the Association of International Credential Evaluators, 
Inc. (AICE), an organization that promotes standards in the field of international credential evaluation, 
held a symposium at which participants generally agreed that three-year, Indian bachelor's degrees 
equate to three years of U.S. college or university studies. See AICE, "Setting the Standards for 
Graduate Admissions: Three-year Degrees and Other Admissions Dilemmas," https://aice­
eval.org/wp-content/uploads/2017/04/AICE-2017-Symposium-Report.pdf. AICE reported: 
Although some have suggested that a three-year Indian degree can be equated to the 
four-year U.S. bachelor's degree based on the Indian institution's ranking and the 
student's degree classification, the Symposium participants agreed that these 
considerations are not valid. Universities in India participate in accreditation on a 
voluntary basis, and only about one-third or less of all Indian universities do participate, 
which means that ranking of institutions is somewhat arbitrary and certainly is not 
4 
inclusive. In addition, degree classification is often not a valid assessment tool, as 
grades can be inflated, and the classification is often based on third-year results only 
and not the student's overall academic performance over the three-year period. 
Id. at 3-4. 
We therefore do not adopt the professors' approach to three-year Indian bachelor's degrees. Even if 
we did, the record would not support the equivalency of the Beneficiary's baccalaureate to a U.S. 
bachelor's degree. Contrary to the professors' requirements, a copy of the Beneficiary's degree 
indicates that he passed in the third - rather than the first - class. 
Citing a precedent decision of ours, the Petitioner argues that U SCIS should fully credit the educational 
evaluations thatthe company submitted. See Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799 (AAO 
2012). In Skirball, three expert opinion letters helped to persuade us of the beneficiary group's 
"cultural uniqueness" and its members' eligibilities for P-3 nonimmigrant visas. Id. at 805; see also 
section 101(a)(l5)(P) of the Act, 8 U.S.C. § 1101(a)(l5)(P). 
But we credited the opinion letters in Skirball because the director had not questioned them, and the 
record did not otherwise cast doubt on their veracity. Id. at 806. In contrast, the Director questioned 
the first evaluation that the Petitioner submitted. The Director noted that the Beneficiary's bachelor's 
degree reflects one less year of study than typically required in the United States. The Director also 
noted EDGE's indication that, unlike typical U.S. graduate programs, the Beneficiary's foreign 
master's IT program required only a three-year degree for admission. Thus, unless the Petitioner 
explains the apparent inconsistencies of record, USCIS may reject the evaluations or afford them lesser 
evidentiary weight. See Matter ofCaronint'l, 19 I&N Dec. at 795. 
The Petitioner also contends that USCIS improperly disregarded an answer that Agency officials 
publicly provided to immigration attorneys. See Am. Immigration Lawyers Assn. (AILA) Committee 
Meeting at NSC [Nebraska Service Center], A.1.d. (Apr. 12, 2007). The Petitioner notes that the 
officials indicated that Indian credentials consisting of a three-year bachelor's degree, a one-year 
postgraduate diploma, and a two-year master's degree may equate to a U.S. master's degree if the one­
year diploma represents "progressive postgraduate education." Id. The Petitioner argues that the 
Beneficiary's combination of a three-year bachelor's of commerce degree, a two-year master's of 
commerce degree, and a two-year master's degree in IT merits similar treatment because the 
combination totals seven years of post-secondary education, one more than the credentials 
combination in the officials' example. 
The meeting minutes, however, do not bind us in this matter. See R.L. Inv. Ltd. Partners v. INS, 
86 F.Supp.2d 1014, 1022 (D. Haw. 2000), aff'd, 273 F.3d 874 (9th Cir. 2001) (holding that an 
unpublished opinion lacking an agency designation of authoritativeness does not bind the immigration 
service). Also, the USCIS officials conditioned their answer on the Indian educational credentials 
being "in the same or similar field [ of study]." The Petitioner has not demonstrated that commerce 
and IT- the fields of study of the Beneficiary's credentials - are the same or similar. The Petitioner's 
argument therefore does not persuade us of the Beneficiary's qualifications for the offered position. 
5 
Finally, the Petitioner asserts that USCIS "arbitrarily and capriciously" considered the education 
evaluations it submitted by crediting the first evaluation and "taking issue" with those of the two 
professors. As previously discussed, however, the Director's NOID also questioned the initial 
evaluation. Thus, contrary to the Petitioner's contention, USCIS did not discriminate among the 
evaluations. 
For the foregoing reasons, the Petitioner has not demonstrated the Beneficiary's possession of the 
minimum educational requirements of the offered position. We will therefore dismiss the appeal. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the Petitioner also has not established its required ability to 
pay the proffered wage of the offered position. A petitioner must demonstrate its ability to pay a 
proffered wage from a petition's priority date until a beneficiary obtains lawful permanent residence. 
8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, 
federal tax returns, or audited financial statements. Id. 
In detennining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full proffered 
wage each year beginning with the year of the petition's priority date. If a petitioner did not annually 
pay the full proffered wage or did not pay a beneficiary at all, USCIS considers whether the business 
generated sufficient annual amounts of net income or net current assets to pay any differences between 
the proffered wage and the wages paid. If net income and net current assets are insufficient, USCIS 
may consider other factors potentially affecting a petitioner's ability to pay the proffered wage. See 
Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 4 
The accompanying labor certification states the proffered wage of the offered position of software 
engineer as $78,811 a year. As previously indicated, the petition's priority date is November 5, 2012. 
The Petitioner submitted copies of its federal income tax returns for 2013 through 2020. Contrary to 
8 C.F.R. § 204.5(g)(2), however, the record lacks required evidence of the company's ability to pay 
the proffered wage in 2012, the year of the petition's priority date. The Petitioner submitted copies of 
financial statements for 2012. The statements, however, do not indicate that they were audited. The 
statements therefore do not meet regulatory requirements. See 8 C.F.R. § 204.5(g)(2) (stating that 
financial statements submitted as evidence of ability to pay must be "audited"). 
Also, USC IS records indicate the Petitioner's filing of Form I-140 petitions for other beneficiaries. A 
petitioner must demonstrate its ability to pay the proffered wage of each petition it files until a 
beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). This Petitionermusttherefore 
demonstrate its ability to pay the combined proffered wages of this petition and any others it filed that 
were pending or approved as of this petition's priority date of November 5, 2012 or filed thereafter. 
See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (upholding our revocation of a petition's 
4 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, LLCv. Napolitano, 558 F.3d 111,118 (1st Cir. 2009); Estrada-Hernandezv. Holder, 108F.Supp.3d 936, 942-
44 (S.D. Cal. 2015). 
6 
approval where, as of the filing's grant, the petitioner did not demonstrate its ability to pay the 
combined proffered wages of multiple Form 1-140 petitions). 5 
USCIS does not require a petitioner to demonstrate its ability to pay the combined proffered wages of 
multiple Form I-140s in a relevant year if the business paid a beneficiary at least the proffered wage 
of the offered position that year. The Petitioner submitted copies of U.S. Internal Revenue Service 
(IRS) Forms W-2, Wage and Tax Statements, indicating that it paid the Beneficiary at least the 
proffered wage of the offered position from 2014 through 2019. The company must therefore 
demonstrate its ability to pay the combined proffered wages of this petition and any others that were 
pending or approved only in the other years of 2012, 2013, 2020, and 2021. 
USCIS records indicate that the Petitioner had 20 Form I-140s for other beneficiaries pending or 
approved in 2012, 2013, 2020, and 2021. 6 The record does not contain the proffered wages or priority 
dates of these other petitions. USCIS therefore cannot calculate the total combined proffered wages 
that the Petitioner must demonstrate its ability to pay in relevant years. For this additional reason, the 
Petitioner has not demonstrated its ability to pay the proffered wage. 
In any future filing in this matter, the Petitioner must submit copies of annual rep01is, federal tax 
returns, or audited financial statements for 2012 and 2021. The company must also provide the 
proffered wages and priority dates ofits 20 other Form 1-140 petitions. The Petitioner may also submit 
additional evidence of its ability to pay the proffered wage, including evidence of wages paid to 
relevant beneficiaries in 2012, 2013, 2020, or 2021 and materials supporting the factors stated in 
Sonegawa. See 12l&NDec. 614-15. 
IV. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
Also unaddressed by the Director, the Petitioner appears to have willfully misrepresented a material 
fact on the accompanying labor certification application. 
To approve a Form 1-140 petition, USCIS must find that "the facts stated in the petition are true." 
Section 204(b) of the Act. A petition comprises its suppmiing evidence, including a labor certification. 
8 C.F.R. § 103 .2(b )(1 ). Thus, USCIS cannot approve a petition if the facts stated on an accompanying 
labor certification are untrue. 
Part C.9 of the labor certification application asked the Petitioner "is there a familial relationship 
between the owners, stockholders, partners, corporate officers, incorporators, and the alien?" The 
Petitioner indicated "No." The company's founder and chief executive officer (CEO) signed the 
5 The Petitionerneednotdemonstrateits ability to pay the proffered wages of petitions that it withdrew or, unless pending 
on appealormotion, that USCIS rejected, denied, orrevoked. The Petitioner also need not demonstrate its ability to pay 
proffered wages before the priority dates of the corresponding petitions or after the corresponding beneficiaries obtain 
lawful permanent residence. 
6
J ISCI S records identify the 20 petitions bv th e following receipt numbers -I 
7 
application, declaring under penalty of perjury that he had read and reviewed the application and that 
its contents were true and accurate to the best of his knowledge. 
USCIS records, however, indicate that the Petitioner's founder/CEO is the Beneficiary's brother. The 
men separately filed applications for adjustment of status to that of lawful permanent residents, listing 
their parents with the same names and dates of birth. Thus, the Petitioner's labor ce1iification 
application appears to have falsely concealed the fraternal relationship between the company's 
founder/CEO and the Beneficiary. 
The misrepresentation appears to be material. "[A] concealment or misrepresentation is material if it 
'has a natural tendency to influence, or was capable of influencing, the decision of' the decision­
making body to which it was addressed." Kungysv. UnitedStates,485U.S. 759, 770(1988). Labor 
certification employers must attest to the bonafides of a job opp01iunity. 20 C.F.R. § 656.10( c)(8). 
Thus, had the Petitioner's application disclosed the apparent family relationship between the 
company's founder/CEO and the Beneficiary, DOL may have required the company "to demonstrate 
the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers." 20 C.F.R 
§ 656.17(1). 
The concealment also appears to be willful. A company's officers and principals "are presumed to be 
aware and informed of the organization andstaff oftheirenterprise." Mattera/Silver Dragon Chinese 
Rest., 19 I&N Dec. 401, 404 (Comm'r 1986). Also, as previously indicated, the Petitioner's 
founder/CEO attested that he read and reviewed the labor certification application and that its contents 
were true and accurate. See Matters of Valdez, 27 I&N Dec. 496, 499 (BIA 2018) (holding than a 
signature on an immigration application establishes a "strong presumption" that the signatory "knows 
the contents of the application and has assented to them") 
In any future filing in this matter, the Petitioner must submit independent and objective evidence 
rebutting the apparent fraternal relationship between the company's founder/CEO and the Beneficiary. 
V. CONCLUSION 
The record on appeal does not demonstrate the Beneficiary's possession of the minimum educational 
requirements of the offered position. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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