remanded EB-3 Case: Software Development

itk&tify&ba6adsldto 
prevent clearly unwmted 
invasion of peRonal privacy 
PUBLIC COPY 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant petition for Alien Worker as a Skilled U'orker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3) 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originalIy decided your case. Any further inquiry must be made to that office. 
Robert P. Wiernann, Chief 
Administrative Appeals Office 
www. uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be remanded to the 
director. 
The instant petition is for a substituted beneficiary.' The petitioner is a software developing and consulting 
firm. It seeks to employ the beneficiary permanently in the United States as a systems analyst. As required 
by statute, a Form ETA 750, Application for Alien Employment Certification (labor certification or Form 
ETA 750) approved by the Department of Labor on the behalf of the original alien, accompanied the petition. 
The director denied the petition because the petitioner did not present evidence that the beneficiary possessed 
the requisite two years experience, therefore, she was ineligible for classification sought. 
On appeal, the petitioner's counsel submits a brief and contends that the beneficiary possessed the requisite 
two years experience. Counsel also submits additional evidence for additional experience.' 
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. 
A labor certification is an integral part of this petition, but the issuance of a Form ETA 750 does not mandate the 
approval of the relating petition. To be eligble for approval, a beneficiary must have all the education, training, 
and experience specified on the labor certification as of the petition's priority date. 8 C.F.R. 5 103.2(b)(l), (12). 
See Matter of Wing S Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter of Katigbak, 14 
I. & N. Dec. 45, 49 (Reg. Comm. 1971). The priority date is the date the Form ETA 750 was accepted for 
processing by any office within the employment system of the Department of Labor. See 8 C.F.R. 9 204.5(d). 
The priority date in the instant petition is August 14,2001. 
Citizenship and Immigration Services (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. 
40 1,406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K. R.K. Irvine, Inc. v. 
Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 
F.2d 1 (1st Cir. 1981). 
1 
 An 1-140 petition for a substituted beneficiary retains the same priority date as the original ETA 750. 
Memo. from 
 Associate Commissioner, Immigration and Naturalization Service, to Regional 
Directors, et al., Substitution of Labor CertiJcation Beneficiaries, at 3, 
http://ows.doleta.gov/dmstree/fm/fin96/fm28-96a.pdf (March 7, 1996). 
2 
 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. 5 103.2(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, 1 9 I&N Dec. 764 (BLA 1 988). 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. 
The certified Form ETA 750 in the instant case states that ths position requ'res two (2) years of experience in the 
job offered or in a related occupation such as SAP consultant, accountant, olfinancial business systems analyst. 
The regulation at 8 C.F.R. 5 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifylng experience or training shall be in the form of letter(s) from 
current or fonner employer(s) of trainer(s) and shall include the name, address, and title of the 
writer, &d a specific description of the duties perfornled by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
The instant 1-140 petition was submitted on November 16, 2004 with two experience letters to establish the 
beneficiary's qualifications. One letter is from Manager - MOSS Data Collection of 
A'T&T. AT&T verifies that the beneficiary worked fo 
1999 to August 3 1, 2000. The other letter is from 
and certifies that the beneficiary was employed with them as a SAP FVCO Systen~s Analyst from 
  arch 5,-2001 to February 28, 2002. ~o&ver, the director denied the petition on ~anuir~ 24, 2005 finding 
that the beneficiary's employment at AT&T amounts to fourteen (14) months and the employn~ent at 
Conlpusys can only count for six (6) months because the priority date is August 14, 2001, and therefore, the 
petitioner failed to establish that the beneficiary possessed the requisite two years experience prior to the 
priority date. 
On appeal counsel explains that the petitioner inadvertently omitted additional experience from the 
submission because the petitioner did not realize that the experience between August 14, 2001 and February 
28, 2002 could not count towards qualifylng employment experience. Counsel submits another experience 
letter to demonstrate the 
 erience for the proffered position. The beneficiary's 
third experience letter is Erom 
 of the Institute of Information Technology (I1 Tec), a 
software development 
 Tec's experience letter states that the beneficiary was 
employed by this company as a SAP Consultant from January 15, 1997 to July 15, 1998. The beneficiary's 
experience would have appeared to make the beneficiary meet the requirements of two years experience for 
the proffered position if all the employment experiences of the beneficiary were fill time. 
However, the AAO notes that all three experience letters do not confirm whether the employment of the 
beneficiary was full time. Nor did the petitioner submit any objective evidence to prove the beneficiary's full 
time employment, such as personnel records, payroll records, W-2 forms or any other documentary evidence 
showing the beneficiary worked on a full time basis or was paid a full time salary. If they were not full time, 
the thirty-eight (38) months part time experience would not be sufficient to meet the twenty-four (24) months 
requirement. The petitioner should address this issue in any future proceedings. The petition must be 
remanded to the director for further verification of the beneficiary's employment. 
In addition, the record does not contain a Form ETA 750B for the instant beneficiary. There is no evidence 
showing that the petitioner submitted a new ETA 750B form for the new beneficiary. Therefore, the AAO 
cannot verify the beneficiary's education and experience with the ETA 750B. Submission of Form ETA 
750B with the petition is required by the regulation and Memorandum from Associate 
Commissioner, Immigration and Naturalization Service ( INS, now  CIS).^ The petitioner failed to submit all 
3 
 See note 1. supra. 
 stated in that memo that "the petitioner has the right to substitute a new 
beneficiiuy on an ETA 750 labor certification application by filini a new 1-140 
 supported by a new 
required initial evidence. The director should have issued a request for additional evidence to request the 
beneficiary's Form 750B. 
Moreover, to determine whether a beneficiary is eligible for an employment based immigrant visa as set forth 
above, CIS must examine whether the alien's credentials meet the requirements set forth in the labor certification. 
The Form ETA-750A, item 14, sets forth the minimum education, training, and experience that an applicant must 
have for the position of systems analyst. In the instant case, item 14 also requires "Bachelor's degree in computer 
science, accounting or related field. Employer will accept a three year undergraduate degree plus one year of 
experience in the Computer or Accounting field as meeting the degree requirement." 
The regulation at 8 C.F.R. 8 204.5(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 i~lemnber 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 minimunl 
of a baccalaureate degree is required for entry into the occupation. 
The record does not contain the beneficiary's Form ETA 750B setting forth her credentials and providing 
information of the names and addresses of schools, college and universities attended (including trade or 
vocational training facilities). However, in corroboration of the above regulation, the petitioner provided 
copies of a Degree of Bachelor of Commerce and transcripts from Andhra University in India, Honors 
Diploma in Information and Systems Management and transcripts from Aptech Compute E 
 cation 
certificates of complet~on for computer trainings and a credential evaluation of academics from rdu 
Itzkowitz of Morningside Evaluation and Consulting pertaining to the beneficiary's credentials. 
 This 
credential evaluation report evaluates the combination of the beneficiary's bachelor of commerce from 
Andhra University and honors diploma from Aptech Computer Education as the equivalent of a Bachelor of 
Business Administration degree with a concentration in Computer Information Systems from an accredited 
institution of higher education in the United States. The record does not contain any evidence showing that 
the beneficiary's bachelor of commerce degree is from a four year college program. However, a bachelor 
degree is generally found to require four years of education. Matter of Shah, 17 I&N Dec. 244, 245 (Comm. 
1977). It is not clear that the beneficiary's bachelor of commerce is fiom a three year program or four year 
program. The evaluation and the record of proceeding do not demonstrate that the honors diploma in 
information and systems management from Aptech Computer Education is a single academic degree that is a 
foreign equivalent degree to a U.S. bachelor's degree. As stated above, the regulation 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. If the beneficiary's bachelor of commerce is a three year degree, the combination of a 
degree deemed less than the equivalent to a U.S. baccalaureate degree and a diploma or certificate does not meet 
that requirement. 
In addition, the credential evaluation submitted on appeal is re'ected as incompetent evidence by the AAO. 
Correspondence from Queens College indicates that J does not have the authority to grant 
academic credit for either the beneficiary's academic studies or for her work experience. In December 2001. 
- 7 
CIS received correspondence from 
 Assistant Vice Presidenf and Special Counsel to the 
- 
ETA 750B for the new beneficiary." 
President, Queens college.' 
 letter stated that did not have the authority to 
grant college-level credit for foreign university studies and then added: 
The only college credit that may be given at Queens College for prior work experience and 
training is that determined to be its equivalent by the Adult Collegiate Education (ACE) 
Program after a very specific process of portfolio review. It is the ACE program, not an 
individual faculty member, which has the authority to grant credit. 
CIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. However, 
where an opinion is not in accord with other information or is in any way questionable, CIS is not required to 
acceDt or mav give less weight to that evidence. Matter of caron-hternational, 19 I&N Dec. 791 (~omrn. 
1988'). For the-reasons above evaluation may be given less weight in the instant case. The 
case must be remanded to the director for details on the beneficiary's education. 
If the beneficiary does not possess the equivalent of a U.S. bachelor degree, the beneficiary must qualify 
herself for the proffered position with the alternative method that is a three year undergraduate degree plus 
one year of experience in the computer or accounting field. In the instant case, the petitioner must establish 
that the beneficiary possessed an additional one year of experience in computer or accounting to meet the 
alternative educatioiial requirement. Additionally and as discussed above, the director needs to detennine 
whether the experience verification in the record is sufficient for the beneficiary to meet the requisite two year 
experience requirement in addition to the education requirement. The director also needs to determine 
whether the beneficiary possessed an additional one year of experience as part of the educational requirement 
if he determines the beneficiary's degree is a three year undergraduate degree. 
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is remanded to 
the director to request any additional evidence considered pertinent to the beneficiary's qualifications for the 
proffered position, such as Form ETA 750B for the beneficiary, verification of full time employment and 
years of the beneficiary's bachelor of commerce program. Similarly, the petitioner may provide additional 
evidence within a reasonable period of time to be determined by the director. Upon receipt of all the 
evidence, the director will review the entire record and conduct investigation to verify the beneficiary alleged 
employment, if necessary, and enter a new decision. 
ORDER: The petition is remanded to the director for further action consistent with this decision. 
4 
 Letter to 
 Immigration and Naturalization Service, Texas Service Center, from - 
Assistant Vice President and Special Counsel to the President, dated November 7,2001,2 pages.