dismissed EB-3 Case: Systems Technology

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
(3 (, 
FILE: Office: VERMONT SERVICE CENTER Date: 
EAC 04 085 50369 
 2 2 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. $ 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. 
~dbert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
subsequent appeal was dismissed by the Administrative Appeals Off~ce (AAO). The matter is now before the 
AAO on a motion to reopen. The motion will be granted, the previous decision of the AAO will be affirmed, and 
the petition will be denied. 
The petitioner is a publishing company. It seeks to employ the beneficiary permanently in the United States as 
a director of systems technology.' 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 had a bachelor's degree in science or 
technology and denied the position accordingly. The AAO in its decision on appeal upheld the denial of the 
instant petition. On motion, counsel submits additional documentation and two additional evaluation 
documents. 
According to 8 C.F.R. 8 103.5(a)(2), a motion to reopen must state the new facts to be provided and be supported 
by affidavits or other documentary evidence. According to 8 C.F.R. 5 103.5(a)(3), a motion to reconsider must 
state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the 
decision was based on an incorrect application of law or Service policy. The petitioner has submitted a recent 
district court decision as well as new documentation with regard to the equivalence of the beneficiary's three-year 
diploma to a U.S. baccalaureate degree. This evidence is viewed as sufficient to reopen the proceedings. 
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. While no degree is required for this classification, 
the regulation at 8 C.F.R. 8 204.5(1)(3)(B) provides that a petition for an alien in this classification must be 
accompanied by evidence that the beneficiary "meets the education, training or experience, and any other 
requirements of the individual labor certijkation." (Emphasis added.) 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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. 8 204.5(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. 
1 
 Although the petitioner indicated on the 1-140 that it wished to classify the beneficiary as a member of the 
professions holding an advanced degree or an alien of exceptionable ability who is not seeking a National 
Interest Waiver, the record, and the previous discussion of the petition during its initial adjudication and on 
appeal, suggest that this was a clerical error, and that the petitioner wished to classify the beneficiary as a 
skilled worker or professional. 
Page 3 
The regulation at 8 C.F.R. 5 204.5(1)(3)(ii)(B), guiding evidentiary requirements for "skilled workers," states the 
following: 
If the petition is for a skilled 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. 
Furthermore, the regulation at 8 C.F.R. 5 204.5(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." 
Thus, for petitioners seeking to qualify a beneficiary for the third preference "skilled worker" category, the 
petitioner must produce evidence that the beneficiary meets the "educational, training or experience, and any 
other requirements of the individual labor certification" as clearly directed by the plain meaning of the regulatory 
provision. And for the "professional category," the beneficiary must also show evidence of a "United States 
baccalaureate degree or a foreign equivalent degree." Thus, regardless of category sought, the petitioner must 
show that the beneficiary meets the requirements of the Form ETA 750A, which includes a bachelor degree in 
science or technology. 
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 July 20, 2001. 
The Form ETA 750 states that the proffered position requires a "Bachelor degree in science or technology" 
and five years of work experience in the job offered or in a related occupation of systems 
manager/administrator.2 
With the petition, counsel submitted the report, dated December 14, 1998 fiomand 
Atlanta, Georgia. That report stated that the beneficiary was awarded a 
diploma in television engineering from the State Board of Technical Education, India in 1983 and that this 
diploma was equivalent to a three-year program of academic studies in electronics (television) engineering 
and transferable to an accredited U.S. university. The ME1 evaluator stated that the beneficiary had over 14 
years of training and experience in software engineering, system analysis, computer program design, and that 
this experience was equivalent to or exceeded a one-year diploma of academic studies in software 
applications. The evaluator then combined both the beneficiary's education and work experience to find that 
the beneficiary had the equivalent of a bachelor degree in electronics engineering and computer sciences from 
an accredited U.S. university. 
2 
 The Form ETA 750 reflects sufficient work experience to meet the stipulated experience and other special 
requirements listed. Thus, the issue of the beneficiary's work experience is not at question in these 
proceedings. 
Page 4 
The director determined that the evidence submitted did not establish that the beneficiary had a United States 
baccalaureate degree or an equivalent foreign degree, and, on January 13,2005, denied the petition. 
On appeal, counsel stated that the ETA 750 originally submitted by the petitioner for certification allowed for 
the substitution of experience for the requirement of a bachelor's degree but that the certifying officer with 
the New Jersey State Workforce Agency informed the petitioner that the petition would not be approved 
unless that alternative qualification requirement was removed. Counsel stated that the petitioner then 
submitted an amended ETA 750 with no alternative job qualification allowing work experience to substitute 
for a bachelor's degree, and that the ETA 750 was then certified by the U.S. Department of Labor(D0L) in its 
amended form. Counsel also asserted that DOL reviewed the beneficiary's qualifications and approved them 
and that this fact should be sufficient to establish that the beneficiary is qualified for the proffered position. 
Counsel also stated that most of the advertising for the proffered position stated that work experience could be 
substituted for the requirement of a bachelor's degree, and that any deficiency on the ETA 750's qualification 
requirements was therefore harmless error. Counsel then stated that CIS has the authority to relax procedural 
rules. Counsel concluded by stating that some three-year degrees from higher education institutions in India 
are equivalent to U.S. bachelor's degrees and stated that the director should have issued a request for evidence 
to afford the petitioner an opportunity to submit evidence to show that the beneficiary's three-year diploma 
from an Indian higher education institution is equivalent to a United States bachelor's degree. 
On appeal counsel submitted extensive documentation pertaining to the ETA 750 labor certification 
underlying the instant 1-140 petition, including the petitioner's recruitment efforts, as well as a printout of a 
document titled "Higher Education in India" printed from the internet website of the Department of 
Education of the government of India that provides a detailed description of the various programs and 
institutions of higher education in India. Counsel highlighted a section of that document which states that 
study for bachelor's degrees begins after twelve years of school education and that the course of study for 
bachelor's degrees is three years, except for certain bachelor's degree programs which may require longer 
study. 
In its decision, the AAO first reviewed the materials submitted with the petition. With regard to the 
beneficiary's academic diploma, the AAO noted that the diploma indicated six semesters of study, and found 
that the course of study for the diploma was a three-year program. With regard to the ME1 educational 
evaluation report, the AAO noted that the evaluation stated that the beneficiary's studies were the equivalent 
of three years of study at an accredited U.S. university, and that the evaluation relied on a formula that for 
every year of university studies three years of specialized work experience may be substituted. The AAO 
noted that this formula is one found in the regulations governing H-1B nonimmigrant visa petitions, but that 
nonirnmigrant regulations governing H-1B visa petitions were not applicable to the instant immigrant petition. 
The AAO stated that the only regulation specifying the equivalent of a bachelor's degree in the context of 
immigrant petitions is one that pertains to professionals and referred to 8 C.F.R. 5 204.5(1)(2). The AAO 
3 
 As discussed previously, 8 C.F.R. 5 204.5(1)(2) states: "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 AAO also noted in its previous decision on appeal that the regulation uses a singular 
description of foreign equivalent degree. Thus, the AAO found that the plain meaning of the regulatory 
language stands for the requirement that a beneficiary must have one degree that is determined to be the 
noted that no provision pertaining to skilled workers specified the equivalent to a bachelor degree, and stated 
that even if it were assumed that the instant petition was for a skilled worker, the petition would thereby lack 
any criteria by which to evaluate what is to be considered equivalent to a bachelor's degree. The AAO stated 
that the petitioner was free to specify on the Form ETA 750 the qualifications that it would accept as 
equivalent to a bachelor of science degree, but the petitioner chose not to do so. 
The AAO then stated that a bachelor's degree usually requires four years of education and cited Matter of 
Shah, 17 I&N Dec. 244,245 (Reg. Cornrn. 1977). The AAO noted that even if the petition was considered as 
one for a skilled worker, the evidence shows only three years of higher education for the beneficiary, which is 
not usually sufficient for a bachelor's degree. 
With regard to the documentation as to the certification process, the AAO noted that if the petitioner 
disagreed with the actions of the New Jersey State Workforce Agency of the U.S. Department of Labor, any 
such concerns would have to be raised in another forum. The AAO noted that it did not have jurisdiction to 
review the actions of either agency, and was limited to the authority specifically granted to it by the Secretary 
of the United Stated Department of Homeland Security. The AAO referred to DHS Delegation No. 0150.1 
(effective March 1,2003)' and also 8 C.F.R. § 2.1 ( 2005 ed.). 
The AAO noted that the evaluation report found in the record made no finding that the beneficiary holds a 
foreign degree which is the equivalent to a U.S. bachelor's degree. The AAO stated that regardless of whether 
the petitioner sought classification of the beneficiary as a skilled worker or as a professional, the beneficiary 
had to meet all of the requirements stated by the petitioner in block 14 of the labor certification as of the day it 
was filed with the Department of Labor. Thus, the AAO determined that the evidence submitted by the 
petitioner as to the beneficiary education prior to the director's decision was not sufficient to establish that the 
beneficiary had a bachelor's degree in science or technology or a foreign equivalent degree on July 20,2001. 
The AAO then examined the evidence submitted on appeal with regard to the petitioner's recruitment efforts 
and counsel's assertions that the petitioner's recruitment efforts were directed at both persons with bachelor's 
degrees as well as persons who had the equivalent of a bachelor's degree. The AAO also examined counsel's 
assertion that the based on these recruitment efforts, the more restrictive requirement on the ETA 750 was a 
harmless error that CIS had the authority to revise. 
With regard to counsel's assertions as to the ability to CIS to relax the procedural rules, the AAO stated that 
CIS may not ignore a term of the labor certification, nor may it impose additional requirements. The AAO 
cited 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). The AAO also noted that 
none of the cases cited by counsel concerning the authority of CIS to relax procedural rules in the interest of 
justice provide authority for CIS to make any changes concerning job qualifications on an ETA 750. 
With regard to the document on Indian education submitted by counsel on appeal, the AAO noted that while the 
document provided a detailed description of the various programs and institutions of higher education in India, it 
foreign equivalent of a U.S. baccalaureate degree in order to be qualified as a professional for third preference 
visa category purposes. 
made no specific reference to the type of program under which the beneficiary received his diploma. The AAO 
also found that the text highlighted by counsel in the document was not directly relevant to the instant petition, 
because the beneficiary's diploma in the record is not a bachelor's degree and does not state that the beneficiary 
was awarded a bachelor's degree. The AAO fkrther noted that the document submitted also did not make any 
comparative statements as to whether a three-year bachelor's degree in India is equivalent is equivalent to a four- 
year U.S. bachelor's degree. The AAO stated that the document simply noted that in India, some courses of study 
allow for a bachelor's degree in three years. 
The AAO then determined that neither the evidence submitted prior to the director's decision or on appeal 
established that the beneficiary's diploma is a foreign equivalent degree to a U.S. bachelor of science or 
technology degree. 
On motion, counsel submits a copy of Grace Korean United Methodist Church v. Michael Chert06 CV 04- 
1849-PK (D. Ore. November 3, 2005). Counsel describes this decision as a new precedent decision and 
references the following sections of the decision: 
It is the employer, working under the supervision and direction of OED and DOL that establishes 
the requirements for employment. CIS looks to Education and Experience requirements in the 
labor certification to determine whether the applicant falls within the skilled worker or 
professional classification. That determination should be 'based on the requirement of training 
and/or experience placed on the job by the prospective employer as certified by the Department of 
Labor.' 8 C.F.R.9 204.5(1)(4). It is the responsibility of the employer, not CIS, to establish the 
criteria for the open position. 
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. 
If any agency has the power to define the job qualifications set for in the labor certification it is 
the DOL. Here, the only evidence before this court is that DOL and OED wor[k]ed with the 
Church in drafting the labor certification and advertising the position, know[ing] full well [the 
beneficiary's ] credentials. 
Counsel then states that despite the use of "B.A. degree" on the ETA 750, the use of the term does not reflect the 
job opportunity criteria that was actually offered by the employer, that the term "bachelor degree" may include 
the equivalent whereby the beneficiary would qualify and that, by virtue of the frndings in Grace Korean, the 
term bachelor degree can be broadened to include the equivalent in education. Counsel again asserts that the use 
of the term "bachelor degree" amounts to a harmless error and that the AAO has the discretion and compassion to 
adjudicate the matter favorably. 
Counsel also reiterates that the CIS denial of the instant petition based on the contents of Form ETA 750 is a 
"form over substance" approach, and again mentions that the during the recruitment process individuals 
possessing both bachelor's degrees and the equivalent work experience andlor education were sought. Counsel 
reiterates again that no U.S. worker was disadvantaged by the recruitment process and that no U.S. worker 
without a bachelor's degree was excluded during the process. 
Counsel contests the AAO's statement in its October 2005 decision that the Department of Labor's certification 
does not include a finding that the beneficiary is qualified for the proffered position. Counsel states that in fact the 
DOL is making such determinations and has denied many labor certifications based on the alien's credentials not 
meeting the terms of the ETA 750. Counsel then states that based on Grace Korean, a new standard of review 
concerning the "B.A. degree" is necessary. Counsel asserts that the beneficiary was not offered an opportunity to 
demonstrate that his three-year diploma obtained in India equates to the required degree. Counsel asserts that it is 
an error to consider all three-year degrees from India as not meeting the U.S. educational standard when the 
United Kingdom and India are based on the same educational system. 
Counsel finally requests that the AAO and CIS consider a new review in light of the Grace Korean decision, and 
in light of the petitioner's extensive advertising campaign that offered alternative educational equivalencies; the 
misdirection provided to the beneficiary from the New Jersey State Workforce Agency; and the DOL's prior 
approval of the beneficiary's educational credentials. For such a review, counsel requests that the director issue a 
request for additional evidence. 
In a subsequent submission to the record dated January 24, 2006, counsel submits two additional educational 
evaluation documents. Counsel also asserts that the petitioner used the term "BA or equivalent" throughout its 
advertising for the proffered position. Counsel also contends that despite the use of BA degree on the Form ETA 
750, the petitioner made no mention of the number of postgraduate years required, and that while the average 
U.S. bachelor degree is four years in length and 120 hours, this does not exclude the possibility of completing the 
120 hours of coursework over the course of three years. Counsel then states that it is error to simply exclude an 
Lndian three-year diploma without the opportunity to prove that the necessary 120 hours of coursework was 
completed and that the resulting diploma is in fact equivalent to a U.S. baccalaureate degree. Counsel also states 
that the term "Bachelor degree" as agreed upon by the U.S. Department of Labor and the petitioner includes the 
equivalent in educationland/or experience as they reviewed and assessed the beneficiary's education, diploma and 
equivalency evaluation and found the alien qualified for the position by certifying the application. Counsel again 
states that the use of the term "bachelor degree" amounts to harmless error as the term "bachelor degree or 
equivalent" was used in the advertising. 
The first document submitted by counsel on motion is a document entitled U.S. Equivalency Summary written by 
Career Consulting International (CCI), Sunrise, Florida. The document notes that the beneficiary's 
resulted in a three year Indian degree from the Government of Tamilnadu, Department of 
Techcal Education with a diploma in electronics, specialization in television engineering. In her evaluation, Dr. 
mines the beneficiary's six semesters of coursework, identifying each course taken during each 
semester as a "paper." She further assigns semester credit hours of 3.22 for each paper, and states that by 
utilizing the Carnegie unit: a total U.S. credit equivalency per contact hours of 125 is reached. ~r.= 
Wher establishes the beneficiary's grade point average as 3.74. a then notes that CCI considers the 
4 
In a footnote, Dr. 
 states: " CCI, like most American higher education has adopted a variant of the 
traditional 
 as a measure of academic credit. This unit is known in the University by the 
familiar term, 'semester credit hour,' and is the primary academic measure by which progress toward a degree 
is gauged. In summary, this states that 15 classroom (50 minute) hours equal 1 [one] semester credit hour. " 
beneficiary's international coursework to be comparable to a bachelor of science in electronics engineering from 
a regionally accredited U.S. higher education institution. 
~rher comments that UNESCO clearly recommends that the three-year and four-year Indian degrees 
should be treated as equivalent to a bachelor's degree by all UNESCO members. She also notes that India, the 
United States and England are members of UNESCO, and that the three-year Indian degree is based on the 
British UK CambridgeIOxford model which is a three-year degree. Dr.asserts that the three- ear English 
degree is generally, if not universally, accepted as equivalent to a U.S. bachelor's degree. Dr d~ also states 
that a number of recognized and well-regarded British universities accept an Indian three-year bachelor's degree 
for entry in master's programs, and identifies some of these institutions as Queen Mary 
 eld College, 
University of London, University of Manchester, and Anglia Polytechnic University. Dr. 
 also asserts 
U.S. universities that also consider the three-year Indian degree for admission into their graduate programs, 
include, but are not limited, to institutions such as Harvard University, Georgetown University, IMPAC 
University, Huntington College of Health Sciences, The Wharton School of Business Administration, University 
of Pennsylvania, University of Missouri-Kansas City, Hult International Business School, Kellogg Business 
School of Northwestern University, and Emory University, among others. 
Dr. also refers to the "Bologna process" which she describes as being introduced in the European 
Union that will bring about three-years of studies for all participating first degree programs, and also notes 
that certain universities in the United States allow for an accelerated route to the bachelor's degree in which 
an assessment of prior learning is taken into account. Dr. states that all programs permit the bachelor's 
degree to be awarded after a candidacy that is often substantially shorter than three years, but the standards 
under which they do so are identical to those applied to graduates of a traditional four-year academic 
program. ~r. notes that these programs can be completed through a process of exams only with no 
contact hours at all, and that it is the academic outcome, and not the duration of the program that counts. 
In a second document submitted by counsel to the record, 
 Chief Evaluator, Marquess 
Educational Consultants London, England, provides an expert opinion on the beneficiary's educational 
credentials. ~eferences a paper that he and Dr. 0-authored, entitled "Does the value of 
your degree depend on the color of your skin?'(available at htt~://www.derrree.com/articles/three-vear- 
indian-degree.htm1. ~rstates that the disparity in time between the three-year Indian program and the 
four-year U.S. baccalaureate degree is a semantic distinction because the Indian diploma 
many if not more contact hours during its three years than the four-year U.S. program. D states that 
the beneficiary's diploma contains the equivalent of 125 credit hours of post-secondary education, which 
exceeds the minimum of 120 credit hours normally expected for a recognized U.S. degree. 
With regard to the petitioner's request to either approve the petition or submit an additional request for further 
evidence to the petitioner, the AAO will neither approve the petition nor remand the petition to the director 
for the issuance of another request for further evidence. The AAO notes that both during the appeal process 
and on motion, the petitioner has had the opportunity to provide additional evidence, and has done so. 
Furthermore, as will be discussed, the AAO does not find that the petitioner has provided sufficient evidence 
on motion to establish that the beneficiary has the foreign equivalent of a U.S. bachelor degree in science or 
technology. 
The AAO also notes counsel's reiteration on motion of its assertions with regard to its recruitment efforts for 
the proffered position, its negotiations with the New Jersey State Workforce Administration on the wording of 
the labor certification, and counsel's assertions that the previous DOL approval of the labor certification 
negated any need for CIS subsequent approval of the beneficiary's educational credentials. The AAO further 
notes counsel's reiteration with regard to CIS' and the AA07s ability to relax procedural rules. Furthermore 
on appeal, counsel cites to Grace Korean, an Oregon circuit court decision that addresses the CIS role in 
determining whether a beneficiary's qualifications meet the ETA 750 requirements. Counsel's comments on 
motion with regard to the DOL approval of the labor certification negating any subsequent CIS examination 
of whether the beneficiary is qualified to perform the proffered position suggest that it would be useful to 
discuss the DOL role in the labor certification process. The AAO will then discuss the applicability of the 
findings in Grace Korean to the instant petition. Following this discussion, the AAO will examine the 
additional educational evaluations submitted on motion. 
Pursuant to labor certifications, Section 21 2(a)(5)(A)(i) provides: 
In general.-Any alien who seeks to enter the United States for the purpose of performing skilled 
or unskilled 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 working 
conditions of workers in the United States similarly employed. 
According to the regulation at 20 C.F.R. 5 656.20(c), as in effect at the time of filing,5 an employer applying for a 
labor certification must "clearly show" that: 
(I) The employer has enough funds available to pay the wage or salary offered the alien; 
(2) The wage offered equals or exceeds the prevailing wage determined pursuant to 5 656.40, 
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; 
5 
 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). 
(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 unlawful discrimination by race, creed, color, national 
origin, 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 this section shall be 
sworn (or affirmed) to, under penalty of perjury pursuant to 28 U.S.C. 1746, on the Application 
for Alien Employment Certification form. 
The regulation at 20 C.F.R. 5 656.21(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 this section. 
Finally, the regulation at 20 C.F.R. 4 656.24(b) provides that the DOL Certi@ing Officer shall make a 
determination to grant the labor certification based on whether or not: 
(1) The employer has met the requirements of this part. However, where the Certifying 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 
Certifying 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 Certifying Officer, in judging 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. 
(ii) The Certifylng 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 Certifylng Officer shall 
consider as many sources as are appropriate and shall look to the nationwide system 
of public employment offices (the "Employment Service") 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 working in 
the area of intended employment, and may also consider U.S. workers who are 
willing to move f?om 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 working 
conditions of U.S. workers similarly employed. In making this determination the Certifying 
Officer shall consider such things as labor market information, the special circumstances of the 
industry, organization, andfor occupation, the prevailing wage in the area of intended 
employment, and the prevailing working 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. This fact has not gone unnoticed by Federal Circuit Courts. 
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). 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 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 212(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 stated: 
[Ilt 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. 5 1154(b), as one of the determinations 
incident to the INS' decision whether the alien is entitled to sixth preference status. 
K. R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9' Cir. 1983). The court relied on an amicus brief fi-om 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 working 
conditions of similarly employed United States workers. The labor certzjication in no way 
indicates that the alien ofered the certiJied job opportunity is qualified (or not qualzjied) to 
perform the duties of thatjob. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.R.K. Iwine, Inc., 699 F.2d at 1006, reached a similar 
decision in Black Const. COT. v. INS, 746 F.2d 503,504 (1 984). 
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. 
5 212(a)(14), 8 U.S.C. 5 1182(a)(14). The INS then makes its own determination of the 
alien's entitlement to sixth preference status. Id. 5 204(b), 8 U.S.C. 4 1154(b). See 
generally K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
Tongatapu Woodcrqft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). 
Thus, based on Department of Labor regulations as described above and by the decisions of two circuit 
courts, CIS does have the authority and expertise to evaluate whether the beneficiary's qualifications are 
sufficient to meet the requisites outlined in the Form ETA 750. 
With regard to the circuit court decision submitted to the record on motion, the AAO is cognizant of the 
decision in Grace Korean United Methodist Church v. Michael Chert08 CV 04-1 849-PK (D. Ore. November 
3, 2005), which finds 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 States circuit court, the AAO is not bound to follow the published 
decision of a United States district court. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the 
reasoning underlying a 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. Id. at 719. 
The AAO notes that 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. 8 1103(a). 
In this matter, at least two circuits, including the Ninth Circuit overseeing the Oregon District Court, has held 
that CIS does have the authority and expertise to evaluate whether the alien is qualified for the job. Those 
Circuit decisions are binding on this office and will be followed in this matter. 
Furthermore, while counsel states on motion that the findings in Grace Korean "frowned upon CIS' narrow 
definition of a bachelor's degree that excludes all other interpretations or equivalent," counsel's assertion as 
to the findings in Grace Korean are found to be overly broad. Grace Korean explored the use of the phrase 
"or equivalent" and what such equivalence could mean. The petitioner in the instant petition removed the 
term "or equivalent" from its ETA 750 and now contends that a three-year degree program is the equivalent 
of a four year U.S. baccalaureate degree. Although the original educational evaluation report submitted to the 
record combined both the beneficiary's education and work experience, on motion, counsel and the 
petitioner's major assertion is that the beneficiary's three-year program is the equivalent of a U.S. 
baccalaureate. This assertion is quite distinct from the arguments raised in Grace Korean. 
The AAO further notes that in contrast to the petitioner in the instant petition, the petitioner in Grace Korean 
did include the phrase "or equivalent" in the educational requirements stipulated on its ETA Form 750. The 
findings of this decision centered on which party, the petitioner or CIS, could determine what the phrase "or 
equivalent" meant, if anythng, in stipulated educational requirements on a Form ETA 750. In Grace Korean, 
the petitioner wished to establish the beneficiary's educational credentials in the proffered position of a 
church director of adult activities by combining her four year degree in home economics with her further two 
years of seminary studies. The petitioner in the instant petition, contends that the beneficiary's three-year 
degree program is in fact the equivalent of a U.S. baccalaureate degree, which is a distinct issue from the 
Page 14 
issue raised in Grace Korean. Therefore the AAO does not find the analysis utilized in Grace Korean to be 
dispositive in these proceedings. 
The key to determining the job qualifications is found on Form ETA-750 Part A. 
 This section of the 
application for alien labor certification, "Offer of Employment," describes the terms and conditions of the job 
offered. It is important that the ETA-750 be read as a whole. The instructions for the Form ETA 750A, item 
14, provide: 
Minimum Education, Training, and Experience Required to Pevform the Job Duties. Do 
not duplicate the time requirements. For example, time required in training should not also 
be listed in education or experience. Indicate whether months or years are required. Do not 
include restrictive requirements which are not actual business necessities for performance on 
the job and which would limit consideration of otherwise qualified U.S. workers. 
Regarding the minimum level of education and experience required for the proffered position in this matter, 
Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: 
 The petitioner indcated "yes" for college and required a "bachelor 
degree in science or technology." 
Experience: 
 Five years in the job offered or in the related occupation of systems 
manager/administrator. 
Block 15 does not include any qualifications relating to education. Moreover, to determine whether a 
beneficiary is eligible for a preference immigrant visa, CIS must ascertain whether the alien is, in fact, 
qualified for the certified job. CIS will not accept a degree equivalency or an unrelated degree when a labor 
certification plainly and expressly requires a candidate with a specific degree. 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. Contrary to counsel's assertion, 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, Madany, 696 F.2d at 1008; K.R.K. Iwine, Inc., 699 F.2d at 
1006; Stewart Infra-Red Commissary ofMassachusetts, Inc. v. Coomey, 66 1 F.2d 1 (I st Cir. 198 1). 
Furthermore the alien must meet all of the requirements specified by the petitioner on the labor certification 
as of the filing date of the labor certification application. Matter of Wing's Tea House, 16 I. & N. Dec. 158 
(Act. Reg. Comm. 1977). In this case the labor certification required a "bachelor degree" in science or 
technology, a requirement that CIS has reasonably interpreted to mean "a bachelor's degree or foreign degree 
equivalent" in science or technology. The agency did not, therefore, base its denial of the petition on an 
improper understanding of the law. 
Once again, we are cognizant of the recent holding in Grace Korean, which held that CIS is bound by the 
employer's definition of "bachelor or equivalent." In reaching this decision, the court concluded that the 
employer in that case tailored the job requirements to the employee and that DOL would have considered the 
Page 15 
beneficiary's credentials in evaluating the job requirements listed on the labor certification. As stated above, 
the reasoning underlying a district judge's decision will be given due consideration when it is properly before 
the AAO, but the analysis does not have to be followed as a matter of law. K.S. 20 I&N Dec. at 719. In this 
matter, the court's reasoning cannot be followed because, as will become clear below, it is inconsistent with 
the actual practice at DOL. 
As discussed above, the role of the DOL in the employment-based immigration process is to make two 
determinations: (i) that there are not sufficient U.S. workers who are able, willing, qualified and available to 
do the job in question at the time of application for labor certification and in the place where the alien is to 
perform the job, and (ii) that the employment of such alien will not adversely affect the wages and working 
conditions of similarly employed U.S. workers. Section 212(a)(5)(A)(i) of the Act. Beyond this, Congress 
did not intend DOL to have primary authority to make any other determinations in the immigrant petition 
process. Madany, 696 F.2d at 1013. As discussed above, CIS, not DOL, has final authority with regard to 
determining an alien's qualifications for an immigrant preference status. KR.K Iwine, 699 F.2d at 1009 FN5 
(citing Madanv, 696 F.2d at 101 1-13). This authority encompasses the evaluation of the alien's credentials in 
relation to the minimum requirements for the job, even though a labor certification has been issued by DOL. 
Id. 
Significantly, when DOL raises the issue of the alien's qualifications, it is to question whether the Form ETA- 
750 properly represents the job qualifications for the position offered. DOL is not reaching a decision as to 
whether the alien is qualified for the job specified on the Form ETA 750, a determination reserved to CIS for 
the reasons discussed above. Thus, DOL's certification of an application for labor certification does not bind 
CIS in determinations of whether the alien is qualified for the job specified. As quoted above, DOL has 
conceded as much in an amicus brief filed with a federal court. 
Finally, where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., 
by professional regulation, CIS must examine "the language of the labor certification job requirements" in 
order to determine what the petition beneficiary must demonstrate to be found qualified for the position. 
Madany, 696 F.2d at 101 5. The only rational manner by which CIS can be expected to interpret the meaning 
of terms used to describe the requirements of a job in a labor certification is to "examine the certified job offer 
exactly as it is completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. 
Supp. 829, 833 (D.D.C. 1984)(emphasis added). CIS'S interpretation of the job's requirements, as stated on 
the labor certification must involve "reading and applying the plain language of the [labor certification 
application form]." Id. at 834 (emphasis added). CIS cannot and should not reasonably be expected to look 
beyond the plain language of the labor certification that DOL has formally issued or otherwise attempt to 
divine the employer's intentions through some sort of reverse-engineering of the labor certification. 
In order to be eligible for classification as a professional, the beneficiary must have completed four years of 
college and possess a baccalaureate degree or a foreign equivalent degree in science or technology. 8 C.F.R. 
!j 204.5(1)(2). See Matter of Shah, 17 I&N Dec. 244, 245 (Comm. 1977). 
 While the beneficiary need not 
possess a degree to be classified as a skilled worker, the beneficiary must meet the requirements of the labor 
certification, which in the instant petition, includes a baccalaureate degree or foreign equivalent degree in 
science or technology. 8 C.F.R. !j 204.5(1)(3)(B). 
 As previously discussed, the AAO does not view the 
findings of Grace Korean, which in essence examined whether a degree in an unrelated area combined with 
Page 16 
further studies in a related field could be viewed as a foreign equivalent to a U.S. baccalaureate degree, as 
dispositive in these proceedings. 
With regard to the two educational 
 submitted on motion, the AAO notes that ~r.-~ 
evaluation is basically a reiteration of Dr. 
 evaluation, with similar citations and references to British 
and U.S. universities. The AAO views several comments made by both Dr. 
immaterial. Namely, the fact that some British universities and U.S. 
post-secondary programs of studies to enter master's programs in these respective universities does not in any 
manner impact on whether a U.S. immigration agency should approve an employment-based visa petition in 
which the beneficiary's actual academic credentials appear to differ with the traditional U.S. four year 
program of studies. The purpose of these proceedings is not to determine whether the beneficiary would be 
eligible to enter a U.S. masters' program, but rather whether his academic credentials are equivalent to those 
usually held by an individual after completion of a U.S. baccalaureate program. Likewise, the fact that some 
U.S. universities assess the work experience of students and provide for programs of less than four years in 
length to obtain a baccalaureate program is not dispositive of how the majority of U.S. colleges and 
universities assess the equivalency of foreign studies to U.S. baccalaureate program. The issue of concern 
here is that counsel would have a system whereby prospective U.S. applicants could be disqualified for the 
job opportunity due to the fact that they lack a degree, whereas the beneficiary whose education is less than a 
U.S. baccalaureate degree, as set forth in Shah, could be found qualified. 
Nevertheless, both D and Drare correct in stating that academic studies equivalent to a U.S. 
baccalaureate degree program can be accomplished in less than four years. The AAO acknowledges that a 
program of studies may be completed in less than four years, in cases in which students attend school through 
the entire year, or undertake extra courses that add to the cumulative course load. It is also noted that the 
AAO in other petitions has viewed beneficiaries with three-year degrees who also possess master's degree in 
the same or related fields as possessing the equivalent of a U.S. baccalaureate degree. 
Upon review of Dr. 
w 
evaluation, the AAO notes that ~r.=~listed the number of courses which 
she identified as "papers 
 a en by the beneficiary over his six se 
Tim 
tudy, and then accorded each 
course the same number of credit hours, namely 3.22. Based on D 
 use of the Camegie Unit and 
her interpretation of this measure in a footnote, the beneficiary accomplished 48.30 contact hours for each 
course undertaken during his three years of study.6 However, it is noted that Dr. 
4m 
assignment of 3.22 
credit hours per course, or papers as she describes the coursework, is not re ecte anywhere on the 
beneficiary's marks sheets for his six semesters of studies. These marks sheets simply list the number of 
courses, with no further identification of coursework, requirements for papers, or time spent in class or any 
equivalent manner of measuring corresponding credit hours. Nor is there any indication that each course 
during the beneficiary's six semesters of studies required the same number of equivalent credit hours. Thus, 
there is no evidentiary documentation as how Dr. 
MP 
ved at her estimation of the beneficiary's 
semester hours and their equivalency to the require 
 semester hours for a four year U.S. baccalaureate 
degree. Thus, her evaluation is thus given limited evidentiary weight in these proceedings. 
6 
 ~r. stated that 15 hours of classroom house equals 1 semester credit hour; therefore 3.22 credit hours 
multiplied by 15 amounts to 48.30 (50 minute )classroom hours per course. 
Page 17 
Thus, on motion, the petitioner failed to submit evidence sufficient 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 motion to reopen is granted and the decision of the AAO dated October 20, 2005 is 
affirmed. The petition is denied.