The Petitioner, a professional consulting company, seeks to permanently employ the Beneficiary as a senior software developer under the immigrant classification of advanced degree professional. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful pennanent resident status.
The Director, Nebraska Service Center, denied the petition. The Director found that the Beneficiary does not qualify for the profTered position because he does not have a bachelor"s degree or a master's degree in a field of study specified in the labor certification.
The matter is now before us on appeal. The Petitioner submits a brief and additional documentation, and asserts that the Beneficiary has a foreign equivalent degree to a U.S. master"s degree in applied computer science which qualities the Beneficiary for classification as an advanced degree professional under the terms of the labor certification. Upon de nom review. we will dismiss the appeal.
Procedural History
The instant petition, Form I-140, was tiled on March 6, 2015. As required by statute. the petition was accompanied by an ETA Form 9089, Application for Permanent Employment Certification. which was filed with the U.S. Department of Labor (DOL) on July 9, 2014. and certified by the DOL (labor certification) on December 4, 2014. In Section H of the ETA Form 9089 the Petitioner set forth the following requirements for the proffered position of senior software developer: 4.
4-B.
5.
6.
6-A.
7.
Education: Minimum level required:
Major Field of Study:
Is training required in the job opportunity?
Is experience in the job offered required?
How long?
Is there an alternate field of study that is acceptable?
Master's degree
Computer Science. Engineering.
MIS, or Mathematics
No
Yes
24 months
No
Matler of £-US. INC.
8. Is an alternate combination of education
and experience acceptable? Yes
8-A.
8-C
9.
10.
Alternate level of education required:
Number of years experience acceptable:
Is a foreign educational equivalent acceptable?
Is experience in an alternate occupation acceptable?
Bachelor's degree
Five years
Yes
No
As evidence of the Beneficiary's education and experience the Petitioner submitted copies of the following documentation with the Form I-140 petition and in response to the Director"s request for evidence (RFE):
- A diploma and transcripts from India, showing that the Beneficiary was awarded a bachelor of computer applications (BCA) on .January 6. 2006. following the completion of a three-year degree program in the years 2001-2004:
- A diploma and transcripts from India, showing that the Beneficiary was awarded a master of computer application (MCA) on August 19, 2008. following the completion of a three-year degree program in the years 2005-2008:
- A letter tl-om an HR manager at . Illinois. dated February 3, 2015. stating that the Beneficiary had been employed as a senior systems analyst from September I, 2005 to July 26, 2013, on various projects in the United States and India. and describing the job duties he performed.
- An "Evaluation of Education, Training, and Experience'' from . dated .January 25. 201 L claiming that the Beneficiary's three-year BCA ffom plus his nearly five and one-half years of experience at Accenture (at that time) was equivalent to a bachelor of science in computer information systems tl·om an accredited U.S. college or university.
- An "Academic Equivalency Evaluation'' from dated April 6, 2015, claiming that the Beneficiary" s MCA from was equivalent to a bachelor of science in computer science tl·om an accredited U.S. college or university.
On May 8, 2015, the Director denied the petition on the ground that the evidence of record did not establish that the Beneficiary has the minimum educational credentials for the proffered position under the terms of the labor certification. With respect to the Beneficiary's three-year bachelor of computer applications from the Director found that it was not in a field of study specified on the labor certification and, in addition. was not equivalent to a U.S. baccalaureate degree which generally requires four years of study, citing A1atter (~{Shah, 17 I&N Dec. 244 (Reg' I Comm'r 1977). The evaluation was not helpful, the Director explained. because it concluded that the BCA was equivalent to a U.S. bachelor's degree in computer information systems, which is not an acceptable field of study on the labor certification. As for the evaluation, the Director indicated that it had little evidentiary weight because it provided no rationale for its conclusion that the Beneficiary"s master of computer application, following his three-year BCA. was equivalent to a U.S. bachelor's degree in a different field of study- computer science. The Director also cited information in the Educational Database for Global Education (EDGE). created by the p. 3 Matter of E-U..), INC.
American Association of Collegiate Registrars and Admissions Officers (AACRAO), advising that a three-year BCA in India is comparable to three years of university study in the United States, not a U.S. bachelors' degree. and that an MCA in India is comparable to a master's degree in the United States- but in the field of computer applications, not computer science. Finally, the Director stated that the evidence of record did not establish that during the recruitment and labor certification process the Petitioner allowed applicants with foreign degrees in computer applications to be considered for the proffered position. Thus. the Petitioner did not establish that U.S. workers were put on notice that they could apply for the proffered position with a bachelor's degree or a master's degree in computer applications.
The Petitioner tiled an appeal with a brief and supporting documentation on June 2, 2015. The Petitioner asserts that a master of computer applications cannot be evaluated as equivalent to a U.S. master of computer applications because no such degree exists in the United States. According to the Petitioner, the U.S. equivalent of an MCA from India is a master's degree in applied computer science or computer science (applied). The Petitioner claims that the Beneficiary's MCA is equivalent to a U.S. master's degree in applied computer science. and that this field of study accords with the requirements of the labor certification.
On December 2 L 2015. we sent an RFE to the Petitioner requesting specific documentation from the recruitment and labor certification process to assist us in determining the actual minimum educational requirement for the proffered position of senior soft\vare developer. The Petitioner responded on March 10. 2016, \vith a letter from counsel and additional documentation in accord with the RFE.
The issue on appeal is whether the Beneficiary's educational credentials meet the mmmmm educational requirement on the labor certification to qualify for the proffered position.
Law and Analysis
A. The Roles ofthe DOL and USCIS in the Immigrant Visa Process
A United States employer may sponsor a foreign national for lawful permanent residence. which is a three-part process. First the U.S. employer must obtain a labor certification. which the DOL processes. See 20 C.F.R. § 656 et seq. The labor certification states the position's job duties and the position's education, experience and other special requirements along with the required proffered wage and work location(s). The beneficiary states and attests to his or her education and experience. The DOL's role in certifying the labor certification is set forth at section 212(a)(5)(i) ofthe Act. The DOL ·s certification affirms that, .. there are not sufficient [U.S.] workers who are able, willing. qualified" to perform the position offered where the beneficiary will be employed. and that the employment of such beneficiary will not '·adversely affect the wages and working conditions of workers in the United States similarly employed." See Section 212(a)(5)(A)(i) ofthe Act. Following labor cetiification approvaL a petitioner files a Form I-140, Immigrant Petition for Alien Worker. with U.S. Citizenship and Immigration Services (USCIS) within the required 180 day labor p. 4 Matter (~lE-U'i. INC. certification validity period. See 20 C.F.R. ~ 656.30(b)(l): 8.C.F.R. ~ 204.5. USCIS then examines whether: the petitioner can establish its ability to pay the proffered wage. the petition meets the requirements for the requested classification. and the beneficiary has the required education. training. and experience for the position offered. See Section 203(b)(3)(A)(ii) of the Act: 8 C.F.R. § 204.5. 1
Thus. it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perform the job offered. and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the job offered under the terms of the labor certification. and whether the job offered and the beneficiary are eligible for the requested employment-based immigrant visa classification. As previously noted. the I-140 petition in this case is accompanied by a labor certification. approved by the DOL, with a priority date of July 9. 2014.
B. Eligibility for the Classification of Advanced Degree Professional
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2). provides immigrant classification, inter alia, to members of the professions holding advanced degrees. See also 8 C.F.R. ~ 204.5(k)(l ).
The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree: or
(B) An otlicial academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree. and evidence in the form of letters from current or f(.)m1er employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i).
As previously discussed, the Beneficiary has two degrees from Indian universities - a three-year bachelor of computer applications and a three-year master of computer applications. The AACRAO database, EDGE, advises that these degrees are comparable to three years of university study in the United States and a master's degree in the United States. respectively.2 1 In the final step. the beneficiary would tile a Fonn 1-485. Application to Register Permanent Residence or Adjust Status, either concurrently with the 1-140 petition based on a current priority date, or following approval of an 1-140 petition and a current priority date. See.S C.F.R. § 245.
Matter l?f E-US. INC.
Based on the evidence of record, we conclude that the Beneficiary's master of computer applications is a foreign equivalent degree to a U.S. master's degree in that field of study. Therefore, the Beneticiary's MCA meets the definition of an "advanced degree'' in 8 C.F.R. § 204.5(k)(2). Accordingly, the Beneficiary is eligible for classification as an advanced degree professional under section 203(b )(2) of the Act.
However, the Beneticiary cannot be approved for classification as an advanced degree professional because his degree is not in a field of study specified on the labor certification.
C. Minimum Requirements of the Labor Certification
To be eligible for approval under the immigrant visa petition, the Beneficiary must have all the education, training, and experience specified on the underlying labor certification as of the petition' s priority date, which is the date the labor certification application was accepted for processing by the DOL. See 8 C.F.R. § 204.5(d); Matter l~l Wing's Tea House , 16 I&N 158 (Act. Reg'! Comm·r 1977). The priority date ofthe instant petition is July 9, 2014.
The key to determining the qualifications for the prot1ered position is found in Part H of the ETA Form 9089, which describes the terms
Mauer of £-US. INC. labor certification. Moreover. in box H.7 of the labor certification the Petitioner answered .. No .. to the question of whether an alternate field of study is acceptable.
On appeal the Petitioner claims that the Director erred in finding that the Beneficiary"s master of computer applications is comparable to a U.S. master's degree in that field of study because no such degree exists in the United States. While agreeing with EDGE's credential advice that an Indian MCA is "comparable to a master's degree in the United States:· the Petitioner disagrees with the qualification in EDGE's ·'credential author notes·· that the MCA is ''[c]omparable to a degree in computer application, not computer science:· The Petitioner asserts that an Indian MCA is equivalent to a U.S. master's degree in applied computer science. or computer science (applied).Degree not shown to be a U.S. advanced degree equivalent According to the Petitioner, therefore, the Beneficiary's MCA is equivalent to a U.S. master's degree in applied computer science and. as such. falls within one of the fields of study - computer science -specified on the labor certification.
In support of these contentions the Petitioner submits an evaluation of the Beneficiary's educational credentials from of . dated May 21,2015 evaluation) and a supplemental letter from dated May 27, 2015, to which are appended various website extracts from U.S. universities that otTer master of science degrees in applied computer science. According to the evaluation, the Beneficiary's three-year MCA, in conjunction with his three year BCA. is equivalent to a master's degree in computer science (applied) from a regionally accredited university in the United States. In her supplemental letter states that applied computer science, or computer science (applied). is the equivalent field of study in the United States to computer application(s) in India. The website extracts from six U.S. universities offering master of science degrees in applied computer science show substantial overlap in their course offerings with the coursework completed by the Beneficiary for his MCA in India.
Regardless of whether a master of computer applications in India may be considered comparable to a master of applied computer science. or computer science (applied), in the United States. the fact remains that this field was not listed on the labor certification as an acceptable field of study to qualify for the proffered position of senior software developer. Even if we accept the Petitioner"s claims, arguendo. that a master's degree in computer applications does not exist in the United States and that the Beneficiary's MCA from India is comparable to a U.S. master's degree in applied computer science, that field of study is not one of the four disciplines specified in box H.4-B of the ETA Form 9089 ("Major field of study'"}, which includes computer science, engineering, MIS. and mathematics. While applied computer science is certainly related to computer science. it is not the same field. If the Petitioner meant to include applied computer science as an acceptable field of study, that intention could have been expressed in boxes ll.7 and H.7-A of the labor certification. which asked whether an alternate field of study was acceptable and. if so. what tield. However. the Petitioner
Matter of E-Wi. INC.
In response to our RFE the Petitioner submitted copies of its Application for Prevailing Wage Determination (ETA Form 941) submitted to the DOL, internal and external job postings. the recruitment report. and a resume from an applicant. None of these materials indicates that a degree in the tield of computer applications (or applied computer science). was an acceptable alternative to a degree in computer science, engineering. MIS. or mathematics. Thus, the evidence of record does not show that the actual minimum educational requirement for the proffered position allowed for a degree in the tield of computer applications (or applied computer science). In accord with the Director, therefore, we conclude that U.S. workers were not put on notice during the recruitment and labor certification process that they could apply for the job of senior software developer vvith a degree in computer applications (or applied computer science).
For all of the reasons discussed above the Petitioner has not established that the Beneficiary meets the minimum educational requirement of the labor certification- which requires either a bachelor's degree or a master's degree in the field of computer science. engineering, MIS. or mathematics. or a foreign equivalent degree. The Beneficiary does not have a degree in one of those fields of study. Therefore. he does not qualify for the job of senior software developer under the terms ofthe labor certification. D. Standard of Proof
In its appeal briet: dated June 1, 2015, the Petitioner asserts the Director's denial decision did not accord with the preponderance of the evidence standard applicable in this USCIS proceeding. citing Matter (?( Chawathe. 25 I&N Dec. 369 (AAO 201 0). The Petitioner cites a decision by our predecessor office. the Immigration and Naturalization Service (INS). that the preponderance of the evidence standard requires a petitioner to show that its claim is ··more likely than not'" or ··probably true'' (Matter (?(E-M-, 20 I&N Dec. 77. 79-80 (Comm'r 1989). as well as a federal appeals court decision stating that ·'an agency abuses its discretion when it fails to issue opinions with rational explanations and adequate analysis of the record." Siddiqui v. Holder, No. 09-3912 (7th Cir. January 12, 2012).
We identity no indication in the record that the Director applied an erroneous standard of proof or failed to present rational explanations and adequate analysis of the record in his decision denying the petition. Nor have we done so in our adjudication of the appeal.
The Petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the evidence. See Chmrathe at 375-376. In other words, the Petitioner must show that what it claims is "more likely than nof' or "probably" true. To determine whether the Petitioner has met its burden under the preponderance standard. we consider not only the quantity. but also the quality (including relevance. probative value. and credibility) of the evidence. !d. at 376: see also Matler (?lE-M-. We consider the evidence both individually and in its totality. See Chawathe at 376.
Matter of E-U5i, INC.
Conclusion
We atlirm the Director"s finding that the Petitioner's request to classify the Beneficiary as a second preference employment-based advanced degree professional must be denied because the Beneficiary does not qualify for the protTered position under the terms of the labor certification. In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. See Section 291 of the Act, 8 U.S.C. § 1361; Matter (~lOtiende. 26 I&N Dec. 127. 128 (BIA 2013 ). The Petitioner has not met that burden.
ORDER: The appeal is dismissed.
Cite as Matter (~lE-US. Inc .. ID# 15613 (AAO Apr. 22, 2016)