Degree or an Alien of Exceptional Ability Pursuant to Sectio)l ~03(b )(~) of the Immigration and Na~ic>nality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCfiONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent de.cision. The AAO does no.t announce new constructioQs of law l)ot es~ablish agency policy ~h_rough non-preceqen~ decisions. If you believe the AAO incorrectly applied current law or pollcy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-Z90B) within 33 days of the date of this decision. Plea~ review the Form I-290B instructions at · http:Uwww.uscis.gov/forms for the latest infonilation on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directiy with the AAO. thank you,
0t ./ "~~ Rosen~i'g
Chief, Adrninistrative Appeals Office www~~~~s~g!)y
DlSCUSSION: The Director, Texas Service Center (the director), denied the immigrant ·ViSa petition and the matt~r is now before the Administrative Appeals Office (AAO) on appeal. the appeal will be dismissed.
The petitioner describes itself as a computer software firm. It seeks to permanently employ the benefiCiary in the United States as a team lead, softWare development. The petitioner requests classification of the benefi~iary as an ~dvanced degree professional pursuant to section 203(b )(2) of the IIttiiligration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).
At issue in this case js whether the beneficiary possesses an ·advanced degree as required by the terms of the labor certification and the requested prefereoce classification.
Procedural History
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 d~te of the petition is Me1y 10, 2012.2 Part H of the labor certification states that the offered position has the following minimum requirements:
H.4. Education: Bachelor's degree in computer science or a related field.
H.5. Training: None required.
H.6. Experience in the job offered: 60 months of experience.
H.7. Alternate field of study: None accepted.
· H.8. Alternate combination of education and experience: Master1s degree and two (2) yeats of experience.
H.9. Foreign educational equivalent: Aceepted.
H.lO. Experience in an alternate occupation: None C1Ccepted.
H.l4. Specific skills ot other tequirement_s: Jlacb,elor's degree or equivalent in computer science or · a related concentration and 5 yeats experience in the software develop@ent field, including 2 years with DOT NET, SQL setver, Java script and Sharepoint Portal System; or master's degree or equivalent in computer science or a related concentration and 2 yeats experience in the softwa.re development field, including 2 years with DOT NET, SQL server, Java script and Shatepoint Portal System.
PCirt J of the labor certification states that the beneficiary possesses a Bachelor's degree in computer science from India completed in 1998. the record contains a copy ofthe beneficiary's Bachelor of Arts degree and marks sheet from the a detailed See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.S(C1)(2). 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.P.R. § 204.5(d).
"proposed syllabus 3 of courses for B.A. Programme DisCipline course ii1 Computer Applications(' a copy of the beneficiary's Di lorna in lJusiness Management and marks sheet from· the and a copy of the beneficiary's certificate froii1 the certifying that the beneficiary was awarded the title of
The record also contains an evaluation of the beneficiary's educational credentials prepared by dated May 10, 2005. the evaluation states that, based on the beneficiary's bachelor's degree, diploma and certification, the beneficiary "has the equivalent to the degree, Bachelor of Arts in BuSiness Management with an additional concentration in Coroputer Scienc~ from a regionally accredited lJiliversity in the United States." The record also contains an updated evaluation from Ms. dated December 14, 201:2 .. Ms, provides a more detailed analysis of the beneficiary's credentials and concludes, that baSed ort the beneficiary's bach~lor's degree, diploma · and certification, the beneficiary's education is equivalent to a Bachelor of Arts in Computer Science and . in Business Management degree froro a regionally accredited university in the United States.
Part K of the labor certification states that the beneficiary possesses experience as a project lead with lndia, from
February 1, 2000 to March 13, 2005; an analysVtecun lead, with Georgia, from March 14, 2005 to February 15, 2008; and iii the proffered position with the petitioner from February 23, 2008, until May 10, 2012, the date on which the labor certification was submitted to the DOL The record contains an experience letter dated March 31, 2010, from director, bum.an resources, on the petitioner's letterhead stating that the company has employed the beneficiary as a senior software developer since May 2008. · the record contains an experience letter dated August 8, 2012, from financial officer, on the petitioner's letterhead, stating that the company beneficiary as a team lead, software development since February 2008. chief has employed the .
The record contains ail experience letter dated Match 12, 2009, from _ director on letterhead stating that the company employed the beneficiary as a team lead from February 2000 to March 2005.
The director's decision denying the petition concluded that the beneficiary does not possess tbe m_inlmum education required for classification as an advanced degree professional. -3 The syllabus does not indicate a source or d.ate of publication. The first page of th.e syllabus does contain the handwritteti date of September 3, 2011. The AAO notes that the beneficiary gradu:ated in 1998, more than 10 years prior. In order to assign a field of study to the beneficiary's Bachelor of Alts degree, the petitioner must provide corroborating information regarding the beneficiary's degree from the time the degree was issued . · ·
NON-PRECEDENT D-eCISION
On appeal, the petitioner states that the beneficiary has the equivalent of a bachelor's degree iil comput~r science ~nd bu~iness management with five (5) ye~rs of progressive ~xperience. the petitioner's appeal is properly filed, timely and makes a specific allegation of error in law or fact. The AAO conducts ~ppellate review on~ de novo basis.4 Th~ AAO considers all pertinent evidence in the rec.ord, inchiding new evidence properly submitted upon appeaL5 A petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the director does not identify all of the grounds for denial in the initicil ciecjsion.6
Law and Analysis
. The Roles of the DOL and USCIS in the Immignmt Visa Process At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Service.s (USCIS) in the employment·b~ed immigrant visa process. As noted above, the labor certification iil this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(~)(5)(A)(l) of the Act, which provides:
Aiiy alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General tb~t-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien de~cribed in clause (ii)) a,n.ci av~ilable at the time · of application for a visa and admission to the United States and at the place where the alien-is to perform such skilled or unskilled labor, and (II) the emp~oyment of such alien will not adversely affect the w~ges and working conditions of workers in the United States similarly employed.
PageS
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing the.se duties 1,111de.r 20 CF.R. § 656, involve a determination as to whether the position ap.d the alien cp-e qualified fot a specific immigrant classification. This fact has not gone UililOticed by federal circuit courts:
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In tum, DOL has the authority to make the two detenninations listed in section 212(a)(14).7 Id. at 42_3. The necessary result of these two grants Of authority is that section 212(a)(14) · determip.ations are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any detenniilations other than the two stated in section 2.12(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212(a)(14) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2,d at 1008, the Ninth Circuit stated:
[I]~ appears tha.t the DOL is responsible oilly for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic
Pa~e 6
NON-PRECEDENT DECISION whether employment of the alien under the terms set by the employer would adversely affect the wages and working conditions of similarly employed United States wor}{~rs. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job.
(EmphaSis added.) /d. at 1009. The Ninth Circuit, citingKRK Irvine, Inc.; 6Q9 F.2d at 1006, revisited thiS issue, stating:
The Departnient of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance. of the job will, not · adversely affect the wages imd workiQg conditious of similarly employed domestic workers. 1d. § 212(a)(14); 8 U.S.C. § 1182(a)(14). the INS then makes its own determination of the alien's entitlement to sixth preference status. /d. § 204(b ), 8 U.S.C. § 1154(b ). See generally KR.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir.l983).
The INS, therefore, may make a de novo determination of whetber the alien is in fact qualified to fill the certified job offer.
Tongatapl,l Woodcraft Hawaii, Ltd. v. Fe/4man, 736 F. 2d 1305, 1309 (9th Clr. 1984).
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perfonn the o_ffered posjtiol), and wheth~r the employment of the beneficiary will adversely affect similatly employed U.S. workers. It is the responsibility of USCIS to dete_rroi.ne if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification. Eligibility for the Classification Sought ·
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides inunigrant cl~sification to members of the professions holding advanced degrees. See also 8 C.F.R § 2()4.5(k)(1 ).
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." Ail "advauced degree" i~ defined as:
[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate · degree or a foreign equivalent degree followed by at least five years of progressive - e~perience in tbe specialty shall be considered the equivalent of a master's degree. If a doctoral degree is, customarily reqlJ.ired by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
NON-PRECEDENT DECISION '
A ''profession'' is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation. for whi~h a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at sectio11 101( a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or s~condt,~Iy schools, colleges, academies, or seminaries.'' · The regulation at 8 C.P.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
{A) Ail official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
(B) Ail official ·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 former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty. ln additio11, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.P.R.§ 204.5(k)(4)(i).
Tllere{ore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that Ute offered position requires, at a minimum, a professional holding an advanced degree. Further, an "advanced degree" is a U,S. ac;:tdemic or professional degree (or a foreign equivalent degree) above a baccalaureate, of a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in rhe specialty. When the beneficiary relies on a bachelor's degree (and five yeats of progressive experience) for q:ualification as an advcwced degree professional, the degree must be a single U.S. bachelor's (or foreign equivalent) degree. The Joint Explanatory Statement of the Cmnmitt~e of Conference, published as part of the House Of Representatives Conference Report on the Act, provides that "[in] considering equivalency in category 2 advanced degrees, it is antiCipated that the alien must have a bachelor's degree with at least five years progressive experience in the professions.'' H.R. Conf. Rep. No. 955, ~ . ~ . . . . .. .
101 Cong., 2 Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at 6786 (Oct. 26, 1990). In 1991, when the final rule for 8 C.P.R. § 204.5 was published in the Federal Register, t.he legacy INS responded to criticism that the regulation required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for the substitution of experience for education. After reviewing section 121 of the Immigration Act of 1990, Pub. L 101"649 (1990) and tbe Joi.J,lt E~planatory Stat~lllent of the Committee of Conference, the Service specifically noted that both the Act and the legislative history indicate that an alien must have at least a bach~lor's degree: The Act states that, in order to qualify under the second classification, alien members of the professions must hold "advanced degrees or their equivalent." As- the p. 8 Pag~ 8
NON-PRECEDENT DECISION legislative history ... indicates, the equivalent of an advanced degtee is "a bachelor's degree with at least five years progressive experience in the professions." Because neither the Act nor its legislative history indicates that bachelor's or advanced degrees must be United States degrees, the Service will recognize foreign equivalent degtees.
13\lt both tb,e Act and its legislative history make clear that, in order to qualify as a professional under the third classification or to have experience equating to an advanced degree under the second, an alien must have at least a bachelor's degree.
56 Fed. Reg. 60897,60900 (Nov. 29, 1991) (emphasis added).
41 Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court held that, in professional and advanced degree professional cases, where tl1e beneficiary is statutorily required to hold at least a baccalaureate degree, USCIS properly concluded that a single foreign degree or its equivalent is required. Where the analysis of the beneficiary's credentials relies on work experience alone or a combination of multiple lesser degrees, the result is the ''equivalent'' of a bachelor's degree rather than a "foreign equivalent degree. "8 In order to have experience and education equating to an advanced degree under section 203(b )(2) of the Act, the beneficiary must have a single degiee that is the "foreign equivalent degree" of a United States baccalaureate degree. See 8.C.F.R. § 204.5(k)(2).
The beneficiary's degree must also be from a college or university. the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academi~ record sbowing that the beneficiary has a United States baccalaureate degree ot a foreign equivalent degree." For classification as a m..e111ber of the professions, the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) requires the submission of "an official college or university record showing the date the baccala\lreate degree was awarded and the area of concentration of study." The AAO caiinot conclude that the eviden.ce required to demonstrl:}te that a beneficiary is an advanced degree professional is any less than the · evidence required to show that the beneficiary is a professional. To do ~o WO\lld undermine the congressionally mandated classification scheme by allowing a lesser evidentiary standard for tbe more restrictive visa classification. See Silverman v. Eastrich Multiple investor Fund, L.P., 51 F. 3d 28, 3l (3rd Cir. 1995) per APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003) (the basic tenet of statutory construction, to give effect to all provisions, is equally applicable to regulatory cortsttuctiort). Moreover, the commentary accompanying the proposed adv~ced degree professional regulation specifically states that a "baccalaureate means a bachelor's degree receivedfrom a college or university, or an equivalent degree.'' (Emphasis added.) 56 Fed. Reg. 30703, 30706 (July 5, 1991).9
In addition, a three-year bachelor's degree will generally not be considered to be the "foreign equivalent" of a United States baccalaureate degree. See Matter of Shah, 17 I&N Dec. 244 (Reg1. Comm'r. 1977).10 See Maramjaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008) -.(for professional classification, USCIS regulations require the beneficii:l,l)' to possess a single four-year U.S. bachelor's degree or foreign equivalent degree); see also Sunshine Rehab Services, Inc. v. US CIS, 2010 WL 3325442 (E.D.Mich. August 20, 2010) (the beneficiary's three-year bachelor's degree was not the foreign equivalent of a tJ.S. bachelor's degree).
In the instant case, the petitioner relies on the beneficiary's three-year Bachelor of Arts-from the India followed by a one-year distance learning program diploma in business mc,tnagem.ent from the , India as being equivalent to a U.S. bachelor's degree.
As is noted above, the record contains evaluations of the beneficiary's educational credentials prepared by Ms. on May 10, 2005 and December 14, 2012, which conclude that the beneficiary's bachelor's. degree, diploma and his certification is equivalent to a Bachelor of Arts in Computer· Science and in Business Management degree from a regiop~lly accredited university in the United States.11
The AAO has reviewed the Electronic Database for Global Education (EDGE) created by the AI:nerican Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals ·who represent more than 2,600 institutiollS and age11cies in the United States and in over 40 countries around tbe world." See http://www.aacrao.org/About-AACRAO.aspx. Its mission "is to serve and advance higher education or similar c,tward from a· college, university, school or other institution of learning relating to the area of exceptional ability").
Page lQ by providing leadership in academic and enrollment services." /d. EDGE is "a web-based resource for the evahmtion of foreign educational credentials." See http://edge.aacrao.orglinfo.php. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 12
According to EDGE, a three-year Bachelor of Arts degree from India is comparable to ''three years of-university study in the United States."
EDGE also discusses postgraduate diplomas, for which the entrance requirement is completion of a two- or three-year baccalaureate degree. EDGE States that a postgraduate diploma following a two.,. year bachelor's degree represents attainment of a level of education comparable to one year of university study in the United States. EDGE also states that a postgrt,iduate diploma following a three-.yeat bachelor's degree represents attainment of a level of education comparable to a bachelor's degree in the United States.
However, the "Advice to Author Notes" section states:
Postgraduate Diplomas should be issued by an accredited university or institution approved by the All-India Council for Technical Education (AICTE). Some students complete PGDs over two years on a part -time basis. When examining the Postgraduate Diploma, note the entrance requirement and be careful not to . confuse the PGD awarded after the Higher Secondary Certificate With the PGD awarded after the three-year bachelor's degree.
The evidence in the record does not establish that the distance-learning diploma in business management program at required a three year degree for admission or that is accredited by the AICTE. Counsel states in his brief that the PGD program at required a three year degree for admission; however, counsel has not provided documentary evidence to support this statement. The assertions of counsel do not constitute evidence.Claims not backed by documents Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel notes that in the December 2012 evaluation, Ms. states that is accredited by AICTE; however, Ms.
(citing.Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). In response to a notice of intent to dismiss (NOID) issued by the AAO, counsel again cites only to the evaluation as support of the assertion that is accredited by AICTE and that a three-year degree ~s r~quired for entrance into the program. A review of website also makes it clear that the beneficiary's diploma of business management from for distance learning, is not the same as the post-graduate diploma programs offers at or its other locations. See While the website claims that the program is accredited by AICTE, the website does not list a diploma in business management as an available post-graduate diploma. website does not state whether admission to the diploma program whiCh the bene{ic:huy atten<led required a three-year bachelor's degree. Finally, the evidence in the record also does not establish that is a college or university. The beneficiary's PGD must be issued by a college or university in order to qualify for classification as an advanced degree professional, as discussed above.
Regarding the beneficiary's certification as a _, the AAO has reviewed the P.I.E.R World Education Series India: A Special Report on ·the Higher Edllcation System and Gutde 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 an earlier 1986 publication. The P.I.£.R World Edllcation 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 at 43. As with EI>GE, these publications represent conclusions vetted by a team of experts rath_er than the opinion of an individual. In the 1997 publication on page 46, it· states that the title, within the
On appeal, counsel cites to two letters dated January 7, 2003 and July 23, 2003, respectively, from of the INS Office of Adjudications to counsel in other cases, expressing his opinion about the possible means to satisfy the requirement of a foreign equivalent Of a U.S. advanced degree for purposes of 8 C.ER. 204.5(k)(2). Within the July 2003letter, M.r. states that he believes that the combination of a post-graduate diploma and a three-year baccalaureate degree may be considered to be the equivalent of a U.S. bachelor's degree.
At the outset, it is noted that private discussions . and correspondence solicited to obtain advice from USCIS ate not binding on the AAO or other USCIS adjudicators and do not have the force of law. Matterof1zummi, 22 I&:N 169, 196-197 (Comm'r 1968); see also, Memorandum from Thomas Cook, . Acting Associate Commissioner, Office of Programs, U.S Immigration & NaturaHzation Service, Significance of Letters Drafted By the Office ofAdjudications (December 7, 2000).
Moreover, the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) is cleai in allowing only for the equivalency of one foreign degree to a United States baccalaureate, Iiot a oombinatioii of degrees, diplomas or employment experience. Additionally, although 8 C.F.R. § 204.5(k)(2), as referenced by counsel and in Mr. correspondence, permits a certain combin11tion of progressive work experience and a bachelor's degtee to be considered the equivalent of an advanced degree, there is no comparable provision to substitute a combination of degrees, work experience, or certificates which, when taken together, eqJ.IalS the same amount of coursework required for a U.S. b13.~aureate degree. We do not find the detertnirtatioii of the credentials evaluation probative in this matter~ It is further noted that a bachelor's degree is generally found to require four years of education. Matter of Shah, 17 I&N Dec. 244 (ColllP1'r 1977), In that case, the Regional Commissioner declined to con.sider a three-year Bachelor of Science degree from India as the equivalent of a United States baccalaureate degree because the degree did not require four years of study. /d. at 245.
Further, even if the AAO were to accept that the beneficiary's bachelor's degree and diplomll are equivalent to a U.S. bachelor:s degree, the labor certification requires a bachelor's degree in computer
The MlnimliiD Require~_nents of the Offered Position The petitioner must also establish that the beneficiary satisfied all of the educational, training, experience, and any otber requirements of tbe offered position by the priority date. 8 C.P.R. § 103.2(b )(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971).
In evaluating the job offer portion of the labor certification to determine the requited qualifications for the position, USCIS may not ignore a term of the labor certification, nor may it impose additional requireme11ts. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regulation, USCIS mu~t examine "the language of the labor certification job requirements" in order to determine What the petitioner tp.ust demonstrate about the beneficiary's qualifications. Madany, 696 F.2d at 1015. The only rational manner by which USCIS can be expected to interpret the meaning of tertl1s used to describe the requirements of a job in a labor certification is to "exam.ine the certified job offer exactly as it is completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor certification must involve "reading and applying the plain language of ·the [labor certification]." /d. at 834 (emphasis added). USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification or otherwise attempt to divine the employer's intentions through some-sort of reverse engineering of the labor certification. Even though the labor certification may be prepared with the beneficiary in mind, USCIS has an independent role in determining whether the beneficiary meets the labor certi{icatio11 requirements. See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006).
In the instant case, the labor certification states that the offered position requires a bachelor's degree in computer science or a related field and five (5) years of experience in the proffered position or a master's degree and two (2) years of experience in the proffered position.
The record contains a letter dated March 31, 2010, from , director, human resources, on the petitioner's lette~head, indicating that the beneficiary has been employed as a senior software developer from May :2008 until the date of the letter. The record contains a letter dated August 8, 2012, from chief financial officer, on the petitioner's letterhead, indicating that the beneficiary has been employed with the company as a Team Lead, Software Development from
February 2008 until the date of the letter. The information in the two letters coQflicts as to the beneficiary's dates of employment, the position held by the beneficiary and the beneficiary's job duties. Further, the Ml:Uch 2010 letter is inconsistent with the labor certificatio11 which states that the beneficiary has been employed by the petitioner as a Team Lead, Software Development since February 23, 2008.Inconsistencies in the record It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not p. 14 suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. MatterofHo, 19 I&N Dec. 582,591-92 (BIA 1988).
For the reasons explained above, the petitioner has failed to establish that the beneficiary .possesses at least a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a u.s. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty.
The petitioner fai.led to establish that the beneficiary possessed the minimum requirements of the offered position set forth on the labor certification by the priority date. Accordingly, the pet_ition must also be denied fot this reason.
Conclusion
In summary, the petitioner failed to establish that the beneficiary possessed an advanced degree as required by the terms of the labor certific:ation and the requested prefere]Jce classification. Therefore, the benefiCiary does not qualify for classification as a member of the professions holding an advanced degree under section 203(b)(2) of the Act. The director's decision denying the petition is affirmed.
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; M{ltter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.