sustained EB-3 Case: Information Systems

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
b4 
FILE: 
WAC 05 196 52174 
Office: CALIFORNIA SERVICE CENTER 
 Date: 2 1 2006 
PETITION: 
 Immigrant petition for Alien Worker as a Slulled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The director of the Texas Service Center certified a decision to the Administrative Appeals 
Office (MO). While the director in his decision indicated the petition would be denied, the text of the decision 
appears to approve the three major issues identified by the director. Upon review of the decision, the MO affirms 
the director's decision. The immigrant visa petition is approved. 
The petitioner is a supplier of programmable logic solutions. It seeks to permanently employ the beneficiary in the 
United States as a senior information systems analyst. The petitioner submitted a request dated June 8, 2005 to 
dm 
tute the present beneficiary for the ETA 750 initially submitted and subsequently approved for 
The petitioner further requested to withdraw the 1-140 petition filed on behalf of its former employee q 
The petitioner submitted Form ETA 750, Part B, executed by the substituted beneficiary, along with a 
resume, education and experience documentation of the instant beneficiary. The petitioner indicated on the 1-140 
that it wished to classify the beneficiary as a professional or skilled worker. The director in his decision certified 
to the MO denied the petition' and addressed three issues to be examined in the proceedings.2 The director then 
certified the decision to the AAO for review. 
Counsel in response to the certification of the Service Center decision to the AAO corresponded with the AAO in 
a letter dated August 29, 2006. Counsel stated that on August 3, 2006, her office received notification of the 
certified decision dated July 28, 2006. Counsel then stated that she had received an 1-797, Approval Notice, for 
the instant petition dated July 29, 2006. Counsel stated that it was unclear if any action needed to be taken in the 
matter, and that if the matter was still before the AAO, the petitioner supported the Texas Service Center's 
recommendation that the petition be approved, based on the factors cited in the Notice of Certification. Counsel 
also requested that the petition be approved in the original requested classification, skilled worker or professional, 
which was the requested classification of the 1-140 petition. Counsel submits copies of the Service Center's notice 
of certification, the notice of approval, and a fax sent to the Texas Service Center requesting the classification 
change. 
The director in his decision quotes extensively from a legacy INS memo that he identifies as "HQ Memo 
27(MM6E03)." This memo is written by Luis G. Crocetti, Associate Commissioner, Immigration and 
Naturalization Service, to Regional Directors, et al., Immigration and Naturalization Service, Substitution of 
Labor Certijkation Beneficiaries, March 7, 1996, HQ 204.25-P. It can be seen at 3, 
http://ows.doleta.gov/dmsh-ee/fm/fm96/fm96/fm28-96a.pdf (March 7, 1996). 
In the certified decision, the director identified three issues to be addressed in the decision, namely that the 
petitioner filed on behalf of the beneficiary under an ineligible preferred classification; that the petitioner 
requested substitution of the original beneficiary on the labor certification for the instant beneficiary; and that the 
petitioner also requested that CIS, under current labor certification substitution policy, procure the original labor 
certification. 
With regard to the beneficiary's classification as a professional, the director noted that the labor certification did 
not require the minimum of a bachelor's degree for entry into the position, but rather the minimum of a master's 
1 
 As stated previously, the director's decision is confused as he initially stated the petition would be denied, then 
identified three issues to be examined in the proceedings, and finally with regard to at least one issue clearly 
determined that the petition should be approved. The denial of the instant petition only appears on page two 
wherein the director states "upon review, it is determined that the petition be denied." The possibility of a 
typographical error exists based on the contents of the certified decision. 
These three issues will be discussed more fully further in these proceedings. 
Page 3 
degree. In a footnote, the director noted that the petitioner placed a special requirement on the labor certification 
that the employer would accept a bachelor of science degree and two years of experience in lieu of a master's 
degree with no experience, but that the record demonstrated that the beneficiary held a master's degree in 
computer science and did not present evidence of the beneficiary's experience in computer science via letters 
from current or former employers in accordance with 8 C.F.R. 204.5(1)(3)(ii)(a). The director concluded that the 
record as a whole did not support the finding that the job opportunity is for a professional under section 
203(b)(3)(A)(ii). 
Next, the director examined the substitution of the beneficiary on the original labor certification for the instant 
beneficiary. The director stated that such substitutions are allowed based on the Crocetti memo; however, CIS 
must determine if the petitioner is attempting to use the labor certification more than once. The director then noted 
that CIS records indicated that the original beneficiary of the labor certification was admitted as a lawful 
permanent resident pursuant to section 201(b)(2)(ii), and that it was clear that the original beneficiary did not fill 
the job opportunity on the labor certification based on this admission. The director then noted that it was not clear 
whether the request for substitution of the beneficiary on the labor certification is the first request or a successive 
request. The director noted that the original visa petition was sent to the United States consulate in Taipei, Taiwan 
and was not available for review. Therefore the director determined that CIS could not determine whether the 
petitioner had attempted to use the labor certification more than once. 
A third factor discussed by the director was the requisite review of the original labor certification, and the CIS 
inability to obtain the original labor certification. The director noted that the petitioner filed the original visa 
petition with legacy INS on October 20, 1999, and legacy INS approved the visa petition on October 13,2000 and 
subsequently forwarded the visa petition to the National Visa Center (NVC). The director stated that the petitioner 
had requested the original visa petition be sent to the NVC for consular processing, and thus CIS was obligated to 
recall the visa petition from the NVC. The director then stated that the NVC informed CIS that the visa petition 
had already been sent to post in Taipei, Taiwan, and that some United States Consulates and embassies, such as 
Taipei, do not return visa petitions to NVC for revocation under section 205. Such consulates simply terminate 
registration under Department of State (DOS) guidelines and destroy the visa generally after five years if the alien 
beneficiary fails to appear for consular processing. The director noted that legacy INS policy and federal 
regulations stood in conflict of each other and required reconciliation of authority, since 8 C.F.R. 103.2(b)(4) 
and 204.5(g)(l) required the original labor certification and did not allow for photocopies or exception to this rule. 
The director stated that the central question with regard to the original labor certification hinged on the 
discretionary authority of CIS to approve a visa petition supported by a photocopy of the labor certification in 
cases where the original labor certification no longer exists. 
The director also noted that CIS may request a duplicate labor certification from the Department of Labor (DOL) 
in cases where the original labor certification has been lost; however, the DOL only retains records of labor 
certifications for five years after which the records are destroyed. Therefore, the director noted that CIS may not 
request a duplicate of the original labor certification. 
The director then determined that the approval of the instant visa petition predicated on a photocopy of the 
original labor certification was a matter of discretion in cases where CIS cannot obtain the original labor 
certification. The director stated that the petitioner had correctly followed all possible policy procedures for 
requesting the substitution of the beneficiary on the labor certification. The director also noted the petitioner could 
not deter DOS from destroying visa petitions under the rules and regulations of the Secretary of State, and the 
petitioner could not request a duplicate of the labor certifications by rules and regulations of the Secretary of the 
Department of Labor. The director concluded that the instant visa petition cannot be supported by the original 
labor certification because of its destruction. The director stated that CIS may approve the visa petition without 
Page 4 
the original labor certification as a matter of discretion based on the intent of the Crocetti memo. The director 
stated that the language in question from the memo is to be construed in harmony with the thrust of related 
provisions and with the statute as a while. The director cited KMart Corp. V. Cartier, Inc., 486 U.S. 
28 1,29 l(1988); COIT Independence Joint Venture v. Federal Sav. And Loans Ins. Corp., 489 U.S. 561 (1 989); 
and Matter of W-F-, 21 I& N Dec. 503 (BIA 1996). 
Upon review of the record, the director's decision does appear to follow the intent of the Crocetti memo with 
regard to the greater goal of facilitating the substitution of beneficiaries on approved labor certifications. With 
regard to the various procedures for obtaining the original labor certifications either from the petitioner, the NVC, 
or CIS, the petitioner's circumstances involving a petition filed over five years ago that technically could be 
destroyed by either the Taipei consulate office or DOL are not addressed in the Crocetti memo The procurement 
of the original labor certification in part is to satisfy regulatory criteria at 8 C.F.R. 9 204.5(k)(4) but also to ensure 
that the petitioner is not using the same labor certification more than once. The Crocetti memo states: 
The service center should ensure that the petitioner is not using the same labor certification more than 
once. The adjudicator, using the Central Index System, must determine whether the original labor 
certification beneficiary has immigrated or applied for adjustment of status based on the labor 
certification and 1-140 petition filed by the employer. The adjudicator must also look up the status of 
any previous petition in [CIS systems]. 
The Crocetti memo continues: 
If the original 1-140 petition with the labor certification has been forwarded to the National Visa Center 
(NVC), the service center should issue a notice of automatic revocation and update [CIS systems] 
accordingly. The service center may either request the NVC to return the original 1-140 petition to the 
service center or send a VISAS 90 cable to the NVC or United states consulate. Once this has been 
completed, the service center may adjudicate the new 1-140 petition filed on behalf of the substituted 
alien. 
If the center follows this guidance with regard to checking if the previous beneficiary had adjusted his status by 
using the original labor certification, which the record of proceedings establish that it has, the service center has 
complied with all policy guidance. The AAO notes that the director's decision states that the Service Center 
contacted the NVC and was notified that the Taipei consulate destroyed pending visa petitions after five years. 
Thus, the AAO affirms the director's decision to approve the instant petition even though the original labor 
certification was not submitted by the petitioner or obtained by the service center from either the U.S. consulate in 
Taipei or a substitute labor certification was obtained from DOL. 
Furthermore, the second issue of whether the petitioner has used the original labor certification more than once 
appears to have been satisfied by the fact that the original beneficiary was admitted as a lawful permanent resident 
pursuant to section 201(b)(2)(ii) and did not fill the job opportunity on the labor certification based on this 
admission. As previously stated, the Service Center also determined that when the initial 1-140 petition was 
approved the original beneficiary entered the United States under CR6 status. The Service Center also determined 
that since the visa petition was no longer available for review, the director could not determine if the petitioner 
had attempted to use the labor certification more than once. Since the director has allowed the matter to proceed 
without the original labor certification, and appears to have fulfilled the prerequisite systems enquiry and search 
for multiple beneficiaries without finding derogatory information on the petitioner's use of 1-140 petitions and 
labor certifications, the second issue raised by the director can be resolved favorably for the petitioner. 
Furthermore, the record also indicates that the Service Center did find at least 840 petitions filed by the petitioner 
Page 5 
either under H-1B nonimmigrant, 1-140 employment based immigrant petitions, and other classifications. Upon 
examination of a cross section of these petitions, the Service Center concluded that the petitions were filed for 
individuals who later adjusted their status, utilizing the same labor certifications. Thus, the AAO will withdraw 
this part of the director's decision, if this was the basis of a proposed denial of the petition. 
The AAO does not agree with the director's determination with regard to the first issue raised by the director, 
namely the classification of the beneficiary as a member of the professions holding an advanced degree or an alien 
of exceptional ability, rather than a professional or skilled worker. The AAO will examine the issue of the 
beneficiary's qualifications more fully in these proceedings. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(3)(A)(ii), provides 
for granting preference classification to qualified immigrants who hold baccalaureate degrees and are members of 
the professions. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. ij 1 153(b)(3)(A)(i), provides 
for granting 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. 
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." 
The regulation at 8 C.F.R. § 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. 
If the petition is for a professional pursuant to 8 C.F.R.tj204.5(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 February 24, 1998. The Form 
ETA 750 states that the proffered position requires six years of college and a Master's degree in computer 
science. The petitioner also noted under the section, college degree required, that it "will accept B.S. in CS plus 2 
years of experience in lieu of an M.S. in CS with no experience." Thus the minimal level of education required is 
a baccalaureate degree, provided the beneficiary can demonstrate two years of experience. 
the petitioner submitted an educational equivalency document submitted by - 
Foundation of International Studies (FIS), Bothell, Washington dated December 6, 2000. 
stated that the beneficiary has the equivalent of three years of university level studies based on 
his studies in India at Madurai Kamaraz University, Faculty of Science in Palkalainagar India which is equivalent 
to three years of university level credit from an accredited U.S. college or university. hen stated 
the beneficiary's master's degree from Bharathidasan University, Faculty of Science in Tiruchirappalli, India is 
Page 6 
equivalent to a master's degree in compute science from a U.S. college or university. concludes 
by stating the beneficiary has the equivalent of a master's degree in computer science from an accredited U.S. 
institution. The beneficiary's transcripts for these two Indian institutions were also submitted to the record, as 
well as a letter of employment verification from Director, Braghasutham Software 
Technologies Pvt. Ltd. This letter stated that the beneficiary had worked as a systems executive in the business' 
software division from December 5, 1994 to November 30, 1996. Another letter of work verification is found in 
the record from CBSI, Limited, Chennai, India. This letter, written by General Manager, Human 
Resources, stated that the beneficiary worked for the company as a senior application developer from December 
2, 1996 to July 31, 1998. 
The director in the decision certified to the AAO states that the petitioner did not establish that the minimum of a 
baccalaureate degree is required for entry into the occupation. As stated previously the director noted the 
petitioner's special requirement on the labor certification that it would accept a bachelor of science degree and 
two years of experience in computer science in lieu of a master's degree with no experience. But the director 
stated that the beneficiary holds a master's degree in computer science and does not present evidence of 
experience in computer ~cience.~ Thus the director stated that the petition classification should be a member of the 
professions holding an advanced degree or an alien of exceptional ability who is not seeking a National Interest 
Waiver. Therefore, the minimum requirements of a baccalaureate degree and two years of work experience, as 
stipulated by the ETA 750 do not fit the advanced degree requirements, which require a master's degree or a 
baccalaureate degree with five years of progressive experience. The beneficiary's qualifications are not 
determinative as to what visa category the labor certification would support. CIS cannot add to or subtract fkom 
the requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401,406 (Cornrn. 1986). 
The AAO will now discuss whether or not the beneficiary meets the requirements of the ETA 750. The record 
reflects that the beneficiary's bachelor's degree from Madurai Kamaraz University is in the requisite field of 
computer science; however, it is a three-year degree, adjudged to be the equivalent of 3 years of study at a 
regionally accredited institution in the United States. 
A foreign three-year bachelor's degree is not a "foreign equivalent degree" to a United States bachelor's degree. 
A United States bachelor's degree generally requires four years of education. Matter of Shah, 17, I&N Dec. 244 
(Reg. Comm. 1977). If supported by a proper credentials evaluation, a four-year bachelor's degree from India 
might reasonably be deemed to be the "foreign equivalent degree" to a United States bachelor's degree. 
However, in Matter of Shah, the Regional Commissioner declined to consider a three-year Bachelor of Science 
degree from India as the equivalent of a United States bachelor's degree because the degree did not require four 
years of study. Matter of Shah at 245. Based on the same reasoning, the beneficiary's three-year degree from 
University will not be considered the "foreign equivalent degree" to a United States bachelor's degree for 
purposes of this preference visa petition. 
The basis for distinguishing between a single degree and a combination of degrees in this context is that the Form 
ETA 750 requires a U.S. Bachelor's Degree or an equivalent foreign degree, and that the regulations governing 
the instant visa category do not permit the substitution of degrees and experience, or degrees and additional 
education, or a combination of degrees, for the requirements stated on the Form ETA 750. 
It is not clear why the director stated the beneficiary had no work experience in computer sciences. Based on 
the previously described letters from Raghasutham Software Technologies Pvt. Ltd., and CBSI, Limited, the 
beneficiary had four years of years of relevant work experience prior to the 1998 priority date year. 
Page 7 
CIS must ascertain whether the alien is, in fact, qualified for the certified job. 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. 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 (Cornrn. 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 Infia-Red 
Commissary ofMassachusetts, Inc. v. Coomq, 661 F.2d 1 (1st Cir. 1981). 
The petitioner is obliged, therefore, to demonstrate that the beneficiary has a U.S. bachelor's degree in Computer 
Science with two years of relevant work experience or a Master's degree in computer science with no experience. 
Because the record does not indicate that the beneficiary has a U.S. degree, the remaining issue is whether the 
beneficiary has a foreign degree that is equivalent. 
As stated previously, the beneficiary has a three-year degree in computer science that is not found to be equivalent 
to a U.S. baccalaureate degree from an accredited U.S. institution. In this case, the record also demonstrates that the 
beneficiary holds a master's degree in the field of computer science from St. Joseph's College, Trichy, India and that 
the beneficiary attended this program from June 1992 to November 1994, or for two years and five months. The 
AAO finds this degree to meet the requirements of the regulations. It is a single degree in the specified field of study; 
and the degree represents a total of five years and five months of study. Based on the documentation in the record, the 
beneficiary has completed five years and five months of college education. Since the petitioner stipulated that it would 
accept the minimum educational qualifications of a bachelor's degree, which usually consists of four years of study: 
the beneficiary's master's degree that constituted five years and five months of studies would qualify. In addition, as 
previously stated, the record reflects that the beneficiary has four years of work experience prior to the 1998 priority 
date year. Thus, with regard to the instant petition, the visa petition for the beneficiary can be classified as 
professional or slulled worker, based on the beneficiary's five and a half months of university studies and his master's 
degree in computer studies. Therefore the part of the director's decision pertaining to the changed classification is 
withdrawn. 
Thus, all three issues examined by the director do not appear to prevent the approval of the instant petition. The 
petitioner has met its burden of proof. The petition is approved. 
Order: The petition is approved. 
See Shah.