Interim Decision #2757 

MATTER OF SHAH 

In Visa Petition Proceedings 

A-20658899 

Decided by Regional Commissioner August 26, 1977 

(1) Petitioner sought classification as a member of the professions under section 

203(a)(3) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(3), based on a B.S. 

(Special) degree in chemistry from Gujarat University. He subsequently received a 

Master's Degree in Business Administration from the University of Detroit. The 

record indicated that the chemistry degree had been obtained in 3 years instead of the 

4 years normally required to obtain a baccalaureate degree in a United States 

university. Also, no explanation is given of the meaning of the designation of "Special" 

in his degree. Under these circumstances, petitioner has not shown that his degree is 

equivalent to a bachelor's degree earned in the United States which is a minimum 

requirement to qualify fur third-preference classification as a member of the 

professions. 

(2) The record indicated that the petitioner had never engaged in work in his professional field of chemistry. In order to qualify as a member of the professions, petitioner 

must intend to engage in the profession on which the claim to the preference classification is based. Here there was no history of employment or appearance of desire to take 

employment in the professional field of chemistry. Therefore, petitioner is not eligible 

for classification as a third-preference alien who is a member of the professions. 

ON BEHALF OF PETITIONER: Samuel D. Myers, Esquire 

Freedman, Freedman & Myers, Ltd. 

230 West Monroe Street, Suite 2812 

Chicago, Illinois OW 

This matter is before me on appeal from the decision of the District 

Director who on September 23, 1976, denied the petition to classify the 

petitioner as a chemist under section 203(a)(3) of the Immigration and 

Nationality Act, 8 U.S.C. 1153(a)(3), as amended. The District Director 

determined that the petitioner had failed to establish he intends to 

pursue his alleged profession in the United States. 

The petitioner is a 27-year-old male, native and citizen of India, who 

last entered the United States on July 7, 1976, as a nonimmigrant 

student. The petitioner claims membership in the professions as a 

chemist by virtue of his B.S. (Special) degree, awarded by Gujarat 

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University of India in September 1971. The degree indicates the "special subject" was chemistry. Subsequently, the petitioner entered the 

United States on January 21, 1972, and enrolled at the University of 

Detroit in September 1972, where he graduated in December 1974 with 

a master's degree in business administration. - 

The District Director noted that the petitioner has never been 

employed as a professional chemist in any related field, either in India 

or the United States, but has "been employed in nonprofessional 

occupations while attending school and ... been employed as an assistant to the business manager of an automobile dealership since graduation." It is also significant to note that the petitioner came to the 

United States to study in a field completely unrelated to his alleged 

profession. The District Director denied the petition on the principle 

set forth in Matter of Kim, 13 I&N Dec. 16 (R.C. 1968), which held that 

even though an alien is academically qualified as a member of the 

professions, he must also intend to engage in the profession for which 

the petition is filed. 

Before proceeding to the basis for this appeal, I shall examine one 

other important factor which the District Director did not consider, 

i.e., the academic equivalence of the petitioner's degree from Gujarat 

University. The United States Department of Health, Education, and 

Welfare advises that a B.S. degree in chemistry from Gujarat University is the equivalent of a B.S. degree in the United States (see Immigrant Inspector's Handbook, Appendix 5-F, p. 34-7). However, the 

degree certificate on file here indicates the petitioner's degree is a "B.S. 

(Special)." We are not told how the term "special" qualifies or limits 

this degree. Further, the degree certificate indicates the petitioner's 

"special subject" was chemistry, but we are not told if this is the same 

as a major subject in the United States, and there are no means by 

which to make such a determination since the record contains only the 

transcript for one school year, ending in April 1970. 

This transcript also raises serious questions about the validity of 

the petitioner's degree in that this transcript was issued at the end of 

the petitioner's second year of study at Gujarat; yet, the petitioner 

completed his studies at Gujarat 1 year later in April 1971. Thus, he 

could only have completed a 3-year course of study, which is not 

equivalent to a United States baccalaureate degree, usually requiring 4 

years of study. The petitioner has failed to establish that his "B.S. 

(Special), special subject—Chemistry" is equivalent to a United States 

baccalaureate degree in chemistry. Matter of Asuncion, 11 I&N Dec. 

660 (B.C. 1966), held that a characteristic common to occupations in 

the professions is the minimum attainment of a baccalaureate degree. 

Consequently, the petitioner has not established that he is even 

minimally qualified as a professional chemist. On this basis alone, we 

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find the petitioner prima facie ineligible for third-preference 

classification. 

We now turn to the primary basis for the District Director's denial 

—that the petitioner has not established he will be employed in the 

United States as a professional chemist. On appeal, counsel for the 

petitioner has submitted a brief challenging the various points raised 

by the District Director. Counsel quite correctly asserts that "... a 

third-preference petitioner need not be employed in his contemplated 

profession at the time of filing, approval, or even granting of 

permanent residence. See Matter of Stamatiades, 11 I&N Dec. 643 (D.D. 

1966); Matter of Semerfian,11 I&N Dec. 751 (R.C. 1966); Matter of Chu, 

11 I&N Dec. 881 (R.C. 1966); and Matter of Naufahu, 11 I&N Dec. 904 

(R.C. 1966). These cases recognize that there are circumstances which 

would prevent an alien professional from gaining employment in his 

chosen profession in the United States. Among these are certain 

licensing restrictions for foreigners, as well as the unwillingness of 

many employers to hire anyone who is not a citizen or lawful 

permanent resident of the United States. In this regard counsel stated: 

"It is to be expected that Companies will not give a professional job to 

one who is not yet a permanent resident. Every professional hired 

must be trained by a Company; such training requires a substantial 

investment in salary and other expenses. Companies naturally loathe 

to make such investments knowing the individual might not be permitted to remain in the United States." 

While this is one possible explanation, we must examine more closely the circumstances surrounding the petitioner's lack of employment 

in his professional field. Matter of Semerjian, supra, held that, "In 

determining whether the alien intends to engage in his profession or in 

a field related thereto, consideration may be given to factors such as 

whether he is presently so employed and, if not, the length of time he 

has not been so 'employed and the reason therefore." The instant 

petitioner received his degree from Gujarat University in 1971, but 

there is no claim made or evidence to show that he sought employment 

as a chemist in India before coming to the United States to study in the 

unrelated field of business administration. Counsel contends that 

"Many professionals ... take graduation training in business administration to enhance their potential for promotion within their profession." This generalization, whether or not relating to the matter at 

hand, is not a valid argument as presented. The petitioner had employment opportunities during the summers and from college work programs while studying at the University of Detroit, yet none of them 

were in chemistry. Furthermore, the petitioner's transcript from that 

university reveals he took no chemistry courses at all. Upon completion of his master's degree he obtained employment as the assistant to 

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the business manager of a car dealership, a position related to his 

business degree, but not to chemistry. It is not unreasonable to expect 

that someone serious about, and dedicated to, a career in chemistry 

would seek to improve his professional knowledge in his subject and 

would at least make attempts to seek some type of related employment. For the last 6 years the petitioner apparently has had no 

courses, jobs, or experiences even remotely connected with chemistry; 

yet, he would now have the Service believe he is a professional chemist 

and intends to be employed in that field. 

In Seznerjian, supra, the petitioner had received a baccalaureate 

degree in mechanical engineering, and had been employed as a junior 

mechanical engineer for 3 months and then was released. He was 

unable to obtain a permanent position because he was not a citizen, but 

he did substantiate his bona fide attempts to seek employment in his 

profession. 

Here the petitioner has at no time been employed and has apparently made no attempts to find employment as a chemist, but has instead 

obtained a degree in business administration andhas held only wirer 

lated employment. This situation parallels the most recent decision in 

these cases, Matter of Medina, 13 I&N Dee. 506 (R.C. 1970) which held 

that an alien who had received a baccalaureate degree some 6 years 

earlier, but who had never been employed as a professional in her field 

or any other field, was not a member of the professions and couldnot be 

said to have prospects for or the intention of obtaining such employment in the United States. The facts in this case would lead a reasonable person to conclude that the petitioner has abandoned his alleged 

profession of chemistry, is no longer qualified as a chemist (if indeed he 

ever was), and has not established he intends to pursue a career as a 

professional chemist. 

We find that the petitioner has failed to establish that his degree 

from Gujarat University is equivalent to a United States degree and 

qualifies him as a professional chemist. Further, Matter of Ulandav,12 

I&N Dec. 729 (BIA 1971), stipulates that a petitioner satisfactorily 

establish that he has prospects of engaging in his alleged profession in 

the foreseeable future_ The petitioner has not satisfied this requirement. The burden of proof to establish eligibility in these proceedings 

rests with the petitioner (Matter of Branagan, 11 I&N Dec. 493 (BIA 

1966). That burden of proof has not been met. The appeal will be 

dismissed. 

ORDERS The appeal is dismissed. 

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