remanded EB-3 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-T-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 24,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a business offering billing mediation solutions to telecommunications providers, seeks 
to permanently employ the Beneficiary as a Senior Software Engineer II under classification as a 
professional pursuant to section 203(b )(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § 1153(b)(3)(A)(ii). 
The Director, Texas Service Center, denied the petition, concluding that the Petitioner had not 
demonstrated that the Beneficiary met the requirements of the ETA Form 9089 (labor certification) 
before the priority date to qualify as a professional under section 203(b)(3)(A)(ii) of the Act, 8 
U.S.C. § 1153(b)(3)(A)(ii). Specifically, the Director found that the Beneficiary's foreign master's 
degree was equivalent to a U.S. bachelor's degree, that the degree was awarded in September 2009, and 
that the Beneficiary did not meet the additional requirement of five years of progressive post­
baccalaureate experience as ofthe February 18, 2014, priority date. 
The matter is now before us on appeal. The Petitioner submits additional evidence on appeal and 
asserts that the Director erred in not considering the evaluation of the Beneficiary's educational 
credentials which concluded that these credentials are equivalent to a U.S. master's degree. The 
Petitioner further asserts that the Director erred in concluding that the Beneficiary's degree was 
issued in 2009, rather than in 2006 when he completed the coursework. Upon de novo review, we 
will remand the matter to the Director for further proceedings consistent with the following opinion. 
As required by statute, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by the U.S. Department of 
Labor (DOL).1 The priority date ofthe petition is February 18, 2014.2 Section 203(b)(3)(A)(ii) of 
the Act, 8 U.S.C. § 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. 
At issue on appeal is whether the beneficiary meets the terms of the labor certification, which has the 
following minimum requirements: 
1 See 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). 
(b)(6)
Matter of 0-T-, Inc. 
H.4. Education: Master's degree m "Comp Sci, Eng'g, Comp Apps, Mgmt Info Systems, 
Mathematics or related." 
H.5. Training: None required. 
H.6. Experience in the job offered: None required. 
H.8. Is there an alternate combination of education and experience that is acceptable? Yes. 
H.8-A. If Yes, specify the alternate level of education required: Bachelor's degree. 
H.8-C. If applicable, indicate the number ofyears experience acceptable in question 8: 5. 
H.9. Is a foreign educational equivalent acceptable? Yes. 
H.lO. Is experience in an alternate occupation acceptable? Yes. 
H. lO-A. If Yes, number of months experience in alternate occupation required: 36. 
H.l 0-B. Identify the job title of the acceptable alternate occupation: "Software dev, software eng' g, 
systems eng' g and/or programmer/analyst." 
The record reflects that the Beneficiary possesses a three-year Bachelor of Science degree from 
India, awarded in April 2000, and a two-year Master of Business 
Administration degree from India, awarded in July 2009. 
At the outset, we note that the Petitioner asserts that the Beneficiary's degree from _ 
should be viewed as having been awarded in 2006. We have reviewed the Beneficiary's 
educational credentials, the evaluation of the Beneficiary's educational credentials by 
, and the Beneficiary's email correspondence with the University regarding whether 
his master's degree should be viewed as having been awarded in 2006 or 2009. Following review, 
we conclude that the date the degree was awarded by in July 2009 is the 
date that controls. This is the award date that the evaluation from relies 
upon as well, which was resubmitted on appeal. While we acknowledge the Beneficiary's 
difficulties with that resulted in the degree being awarded in 2009, we do 
not find that the Beneficiary's assertion that he completed degree requirements in 2006 alters the 
date the degree wa:s awarded in 2009. 
Part H.14 of the labor certification contains the following requirements, in pertinent part: 
Qualifying experience (three years with a Master's degree, five years of progressively 
responsible experience with a Bachelor's degree) must have included at least three 
years where duties included: telecom billing, mediation, rating or other payment 
chain software solutions design, development and implementation; applications 
development in UNIX environment; applications development in a scripting language 
such as shell, tel, or DCL, and in C or C++; and applications development for Oracle 
databases using PLISQL. Must have experience in a supervisory 
or team lead role, 
and experience mentoring junior developers. 
We note that the above requirements of the labor certification correspond with the advanced degree 
professional category under section 203(b )(2) of the Act, but the instant petition is filed under the 
"professional" degree category as indicated in Part 2, item I.e., of the Form I-140. The Petitioner 
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(b)(6)
Matter of 0-T-, Inc. 
asserted in the cover letter of the instant filing that the pet1t1on is being filed in the EB-3 
("professional") category and that if U.S. Citizenship and Immigration Services (USCIS) determines 
that the Beneficiary has the foreign degree equivalent of a U.S. master's degree the petition should be 
considered and approved in the EB-2 ("advanced degree professional") category. On appeal, the 
Petitioner asserts that the Beneficiary possesses the foreign equivalent of a U.S. master's degree . 
There is no provision in statute or regulation that compels USCIS to readjudicate a petition under a 
different visa classification in response to a petitioner 's request to change it. A petitioner may not 
make material changes to a petition in an effort to make a petition conform to users requirements . 
See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988). Therefore, the instant petition 
will only be adjudicated under the professional category as requested on the Form I-140, Part 2, Box 
I.e. 
On December 18, 2015, we sent the Petitioner a notice of intent to dismiss and request for evidence 
(NOIDIRFE) and requested that it provide evidence to establish : (1) that the Beneficiary meets the 
terms of the labor certification by having completed a concentration in Management Information 
Systems at as indicated in the evaluation by (2) that 
the position was advertised in a way that would allow candidates with a Bachelor 's degree in Business 
Administration to be considered for the position offered; and (3) that the Beneficiary has "five years of 
progressively responsible experience with a Bachelor's degree" to meet the terms of the labor 
certification. 
In response to our NOID /RFE, the Petitioner submitted evidence regarding the Beneficiary's area of 
concentration at The Petitioner did not provide a copy of the labor 
certification recruitment report as requested in the NOID/RFE and instead focused on the assertion that 
the Beneficiary 's degree is the foreign equivalent to a U.S. master 's degree. 
The Petitioner questions the reliance of USCIS on the Electronic Database for Global Education 
(EDGE) created by the American Association of Collegiate Registrars and Admissions Officers 
(AACRAO). We note that according to its website, AACRAO is "a nonprofit, voluntary , 
professional association of more thar1 11 ,000 higher education admissions and registration 
professionals who represent more than 2,600 institutions and · agencies in the United States and in 
over 40 countries around the world." See http://www.aacrao.org /About-AACRAO.aspx. Its mission 
"is to serve and advance higher education by providing leadership in academic and enrollment 
services. " Jd. EDGE is "a web-based resource for the evaluation of foreign educational 
credentials." See http://edge.aacrao.org/info .php . USCIS considers EDGE to be a reliable , peer­
reviewed source of information about foreign credentials equivalencies. 
In Confluence International , Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the court 
determined that we provided a rational explanation for its reliance on information provided by 
AACRAO to support its decision. In Tiseo Group, Inc. v. Napolitano , 2010 WL 3464314 
(E.D.Mich. August 30, 2010) , the court held that USCIS had properly weighed the evaluations 
submitted and the information obtained from EDGE to conclude that the beneficiary 's three-year 
"baccalaureate " and "master's " degree from India were only comparable to a U.S. bachelor ' s degree. 
3 
(b)(6)
Matter of 0-T-, Inc. 
In Sunshine Rehab Services, Inc. v. USCIS, 2010 WL 3325442 (E.D.Mich. August 20, 2010), the 
court upheld a USCIS determination that the beneficiary's three-year bachelor's degree was not a 
foreign equivalent degree to a U.S. bachelor's degree. Specifically, the court concluded that USCIS 
was entitled to prefer the information in EDGE and did not abuse its discretion in reaching its 
conclusion. 
EDGE provides that a Master of Business Administration degree in India "represents the attainment 
of a level of education comparable to a bachelor's degree in the United States." EDGE further notes 
that the entrance requirement for a Master of Business Administration degree program in India is 
"completion of a three year bachelor's degree." 
As stated above, the record contains an evaluation by . regarding the 
Beneficiary's educational credentials. USCIS 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, USCIS is not required to accept or may give less weight 
to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). See also Matter 
of D-R-, 25 I&N Dec. 445 (BIA 2011)(expert witness testimony may be given different weight 
depending on the extent of the expert's qualifications or the relevance, reliability, and probative 
value of the testimony). 
The evaluation by concludes that the Beneficiary's educational credentials 
are the foreign equivalent of a U.S. Master's degree in Business Administration with a concentration 
in Management Information Systems. However, this evaluation does not address the fact that the 
entry requirement for the master's degree is a three-year bachelor's degree and not a four-year 
degree. This evaluation does not address any ofthe conclusions of EDGE. 
On appeal, the Petitioner cites the International Education Research Foundation (IERF) report (The 
New Country Index) on India which indicates that a Master of Arts degree from India is equivalent 
to a "BA/BS for programs of 4 years total length or BA/BS and MAIMS/MBA for programs of more 
than 4 years total length." We note that this report is a publication from a credential evaluation 
service and is not a peer reviewed source like EDGE. In addition, the website for IERF indicates 
that the New Country Index was published in 2004, but the report submitted on appeal does not state 
a publication date. We note that the IERF report also indicates on page 145 that higher secondary 
studies preceding undergraduate education could be 11 years of study, which it states would be 
equivalent to graduation from high school in the United States. This indicates that a three-year 
bachelor's degree followed by a two-year master's degree from India may be obtained with one 
fewer year of education than in U.S. colleges and universities. 
We have also reviewed AACRAO's Project for International Education Research (PIER) 
publications: the P.I.E.R World Education Series India: A Special Report on the Higher Education 
System and Guide to the Academic Placement of Students in Educational Institutions in the United 
States (1997). We note that the 1997 publication incorporates the first degree and education degree 
placements set forth in the 1986 publication. The P.I.E.R World Education Series India: A Special 
Report on the Higher Education System and Guide to the Academic Placement of Students in 
4 
Matter of 0- T-, Inc. 
Educational Institutions in the United States at 43. As with EDGE, these publications represent 
conclusions vetted by a team of experts rather than the opinion of an individual. 
One of the PIER publications also reveals that a year-for-year analysis is an accurate way to evaluate 
Indian post-secondary education. A P.IE.R. Workshop Report on South Asia at 180 explicitly states 
that "transfer credits should be considered on a year-by-year basis starting with post-Grade 12 year." 
The chart that follows states that 12 years of primary and secondary education followed by a three­
year baccalaureate "may be considered for undergraduate admission with possible advanced 
standing up to three years (0-90 semester credits) to be determined through a course to course 
analysis." The evaluation submitted from Silvergate Evaluations has not indicated that the 
Beneficiary had 12 years of primary and secondary education prior to admission to the bachelor's 
degree program. 
On appeal, the Petitioner cites one of our non-precedent decisions from 2007 in which we held that a 
two-year Indian master's degree was equivalent to a U.S. master's degree. In that case, we found 
that the petitioner was not relying on a combination of multiple lesser degrees or education and 
experience to equate to a bachelor's degree, but rather that it was relying on the highest single degree 
(a two-year master's degree) issued to the beneficiary. That case involved a degree in a different 
field of study from a different university and does not correlate with the instant Beneficiary's Master 
of Business Administration degree. The decision does not discuss the entrance requirements for the 
master's degree in question. Further, while 8 C.F.R. § 103.3(c) provides that precedent decisions of 
US CIS are binding on all its employees in the administration of the Act, unpublished decisions are not 
similarly binding. Precedent decisions must be designated and published in bound volumes or as 
interim decisions. 8 C.F.R. § 103.9(a). 
After weighing the evidence submitted on appeal and in response to our NOID/RFE, we conclude 
that the Beneficiary's master's degree from India is the foreign equivalent of a U.S. bachelor's 
degree. 
While we agree with the Director that the Beneficiary's education is not the foreign equivalent of a 
U.S. master's degree, we find that the Director erred in not considering whether the Beneficiary 
possesses the alternate minimum requirements as stated on the labor certification. 
Part H.14 of the labor certification requires, as an alternate to a master's degree, "five years of 
progressively responsible experience with a Bachelor's degree." We note that the labor certification 
does not require this experience to be post-baccalaureate experience as concluded by the Director. 
The professional category under section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(3)(A)(ii), 
does not require five years of post-baccalaureate experience. Therefore, because the labor 
certification does not indicate that the Beneficiary's experience must be post-baccalaureate 
experience, the instant matter will be remanded to the Director to determine whether the Beneficiary 
meets the alternate requirements for the proffered position, as stated on the labor certification. 
On remand, in addition to any other matters the Director deems relevant, the Director may consider: 
(1) whether the Beneficiary possesses "five years of progressively responsible experience with a 
Matter of 0-T-, Inc. 
Bachelor's degree;" (2) whether the Beneficiary's foreign equivalent Bachelor's degree in Business 
Administration with a concentration in Management Information Systems is in the field of 
"Computer Science, Engineering, Computer Applications, Management Information Systems, 
Mathematics or related;" and (3) whether the position was advertised in a way that would allow 
someone with a Bachelor's degree in Business Administration and/or progressive experience that 
was post-baccalaureate to be considered for the position offered. 
Beyond the decision of the director, the Petitioner has not established its ability to pay the proffered 
wage as of the priority date and continuing until the Beneficiary obtains lawful permanent residence. 
See 8 C.F.R. § 204.5(g)(2). 
The regulation at 8 C.F.R. § 204.5(g)(2) states: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. In a case where the 
prospective United States employer employs 100 or more workers, the director may 
accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, 
additional evidence, such as profit/loss statements, bank account records, or personnel 
records, may be submitted by the petitioner or requested by the Service. 
In the instant case, the Petitioner has submitted a letter from the Global Vice President of Human 
Resources stating that the Petitioner has over 100 employees and that it has the ability to pay the 
Beneficiary's proffered wage. However, this letter is not from a financial officer of the organization 
as stated in the above regulation at 8 C.F.R. § 204.5(g)(2). In addition, the Petitioner's tax return in 
the record is for 2013 and does not cover the period of time from the priority date of 
February 18, 2014, onward. The Director may request additional evidence to establish that the 
Petitioner has the ability to pay the Beneficiary's proffered wage, including the proffered wages of 
its other sponsored workers. 
ORDER: The decision of the Director, Texas Service Center is withdrawn. The matter is 
remanded to the Director, Texas Service Center for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofO-T-, Inc., ID# 13538 (AAO Mar. 24, 2016)