remanded EB-3 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 16, 2022 In Re: 27313611 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, a real estate management and services company, seeks to permanently 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). This employment-based immigrant classification 
allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful permanent 
resident status. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary is qualified for the position. The matter is now before us on appeal. 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director 's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Immigration as a professional generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a noncitizen will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application 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 considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a noncitizen may finally 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. 
The term "professional" is defined in the regulation at 8 C.F.R. § 204.5(1)(2) as follows: 
Professional means a qualified [ noncitizen] who holds at least a United States 
baccalaureate degree or a foreign equivalent degree and who is a member of the 
professions. 
In tum, the regulation at 8 C.F.R. § 204.5(k)(2) defines "profession" as "one of the occupations listed 
in section 10l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation." 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states that a petition for a professional must be 
accompanied by the following: 
evidence that the [ noncitizen] holds a United States baccalaureate degree or a foreign 
equivalent degree and by evidence that the [ noncitizen] is a member of the professions. 
Evidence of a baccalaureate degree shall be in the form of an official college or university 
record showing the date the baccalaureate degree was awarded and the area of 
concentration of study. To show that the [ noncitizen] is a member of the professions, the 
petitioner must submit evidence showing that the minimum of a baccalaureate degree is 
required for entry into the occupation. 
In addition, a beneficiary must meet all of the education, training, experience, and other requirements 
specified on the labor certification as of the petition's priority date. See Matter of Wing's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
Therefore, to establish eligibility for a professional classification, a petitioner must demonstrate that 
the occupation requires a United States baccalaureate degree or its foreign equivalent as the minimum 
requirement for entry, the beneficiary possesses a United States baccalaureate degree or its foreign 
equivalent required for entry into the occupation, and also that the beneficiary meets the requirements 
for the offered position as stated on the labor certification. 
II. ANALYSIS 
The priority date in this matter is August 5, 2021, the date on which DOL received the DOL ETA 
Form 9089, Application for Permanent Employment Certification, for processing. The ETA 
Form 9089 indicates that the minimum requirements for the position include a master's degree in 
computer science, computer engineering, or information science, and at least 24 months of experience 
in the job offered or a closely related occupation. The ETA Form 9089 also states the following: 
In lieu of this, [the Petitioner] will accept a Bachelor's Degree in Computer Science, 
Computer Engineering, Information Science, or closely related field plus Five (5) years 
of experience in the job offered or closely related occupation. Will accept foreign 
equivalent degree. [The Petitioner] will accept any suitable combination of education, 
experience, or training. 
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On the ETA Form 9089, the Beneficiary described his highest education level achieved as a bachelor's 
degree in information science, received in 2015, from j IInstitute of Technologies." 
The record contains ~ of a document, written in English, stating that an entity identifying itself 
as I I as the L_Jgraduate school of digital innovation," and also as theI I Institute 
oflnformation Technology" awarded the Beneficiary "the degree of Graduate Diploma in Information 
Technology." 1 The diploma states that it was "issued" May 21, 2016, but that the Beneficiary is a 
member of the "Class of 2015." In tum, the record contains a document titled "Expertise Cycle 
Attestation," dated June 2022, from a signaTry idenrying himself in various places as both the 
"managing director" and "general director" of stating that the Beneficiary "obtained his title 
on 16/12/2015." The record also contains two documents that appear to be academic transcripts 
written in a language other than English; however, the record does not contain an English translation 
of them. The record also contains an academic evaluation from Silvergate Evaluations Inc., stating 
that the Beneficiary "has attained the equivalent of a Bachelor's Degree in Information Science from 
an accredited institution of higher education in the United States ... in 2015." 
The Director denied the petition, concluding that the Beneficiary did not have five years of 
progressive, post-bachelor experience-to be combined with a bachelor's degree-as of the priority 
date. More specifically, the Director found that prior employers' letters, indicating that the Beneficiary 
worked for them before December 16, 2015, did not qualify toward the five years of experience that 
the ETA Form 9089 requires in addition to a qualifying bachelor's degree, in lieu of a qualifying 
master's degree combined with at least 24 months of experience in the occupation or a similar 
occupation. The Director did not specifically state how many years of qualifying experience-or the 
particular positions held-the Beneficiary accrued as of the priority date. 
On appeal, the Petitioner asserts that the five years of experience required-when combined with a 
qualifying bachelor's degree-need not necessarily be progressive, post-bachelor experience and, 
thus, the Director erred by disregarding the Beneficiary's experience accrued before the date he 
completed his bachelor's degree. We agree that the ETA Form 9089 does not require the Beneficiary's 
five years of experience to be progressive, post-baccalaureate experience. Thus, the record does not 
support the denial of the petition based on the Director's interpretation of the experience requirements 
of the labor certification. We will therefore withdraw the Director's contrary finding. 
However, the record does not establish the Beneficiary's eligibility for the benefit request. 
Specifically, it does not contain credible evidence that the Beneficiary completed a qualifying 
bachelor's degree as required by the ETA Form 9089 and the applicable third-preference professional 
regulations. "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." 
8 C.F.R. § 204.5(1)(3)(ii)(C). In tum, "[a]ny document containing foreign language submitted to 
USCIS shall be accompanied by a foll English language translation which the translator has certified 
as complete and accurate, and by the translator's certification that he or she is competent to translate 
from the foreign language into English." 8 C.F.R. § 103.2(b)(3). Although the record contains two 
1 We take administrative notice that I I website states that it "issues a Qualification of Expeti in Information 
Technology, registered by the National Commission for Professional Certification (CNCP) at Level 1 (Fr) and Level 7 
(EU)," but it does not specificall indicate that issues the equivalent of bachelor's or higher degrees. Sed I 
Who We Are, https://www .__ _______ ____, 
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documents that appear to be academic transcripts written in a language other than English, it does not 
contain an English translation of them. Therefore, we cannot meaningfully determine whether the 
transcripts support the Petitioner's claims. Further, the record does not establish that document from 
the signatory describing himself as bothl !"managing director" and "general director" is an 
official college or university record. 8 C.F.R. § 204.5(1)(3)(ii)(C). Further, the credentials evaluation 
does not indicate what educational documents, if any, the evaluator reviewed in making the 
determination that the Beneficiary has attained the equivalent of a Bachelor's Degree in Information 
Science from an accredited institution of higher education in the United States. The evaluation does 
not identify any courses the Beneficiary took, the number of years he attended college, or the number 
of college credits he received. USCIS may treat a credentials evaluation as an advisory opinion. 
Matter ofCaron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). If an evaluation is "is in any way 
questionable," however, USCIS may reject it or give it lesser evidentiary weight. Id. 
Because the record does not contain credible evidence of the Beneficiary's bachelor's degree 
completion, it does not support the Director's conclusion that the record establishes as much. 
Accordingly, we withdraw the Director's statements in the decision to the extent that they indicate the 
record establishes the Beneficiary has completed a qualifying foreign equivalent bachelor's degree. 
Based on the foregoing, we will remand the matter for the entry of a new decision. The Director may 
request any additional evidence considered pertinent to whether the Beneficiary is a member of the 
professions holding at least the foreign equivalent of a U.S. baccalaureate degree, and any other issue. 
As such, we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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