dismissed EB-2 Case: Business Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 13717696 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 19, 2021 
Form I-140, Immigrant Petition for an Advanced Degree Professional 
The Petitioner, a consulting and professional services business, seeks to employ the Beneficiary in the 
position of "senior manager , customer & marketing, customer strategy & applied design." It requests 
advanced degree professional classification for the Beneficiary under the second preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S .C. § 1153(b )(2) . This 
employment-based "EB -2" immigrant classification allows a U.S . employer to sponsor a professional 
with an advanced degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition on the ground that the evidence of 
record did not establish that the Beneficiary met the minimum requirements of the labor certification 
to qualify for the proffered position and the requested visa classification . 
On appeal the Petitioner submits additional documentation relating to the Beneficiary's experience 
and asserts that the evidence of record establishes that he meets the minimum educational and 
experience requirements of the labor certification to qualify for the proffered position and advanced 
degree professional classification. 
In visa petition proceedings it is the Petitioner's burden to establish eligibility for the requested benefit. 
See section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process . First, an employer obtains an 
approved labor certification from the U.S . Department of Labor (DOL). See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(l)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS) . See section 204 of the Act, 8 U.S.C. § 1154 . Third, ifUSCIS approves the petition, 
the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the 
United States. See section 245 of the Act, 8 U.S.C. § 1255 . 
The term "advanced degree" is defined in the regulation at 8 C.F.R. § 204.5(k)(2) as follows: 
Advanced degree means any 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 experience 
in the specialty shall be considered the equivalent of a master's degree. 
The regulations at 8 C.F.R. § 204.5(k)(3)(i) state that a petition for an advanced degree professional 
must be accompanied by either: 
(A) An official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree; or 
(B) An 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. 
In addition, a beneficiary must meet all of the education, training, experience, and other requirements 
specified on the labor certification as of the petition's priority date. 1 See Matter o_f Wing's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
II. ANALYSIS 
The labor certification in this case specifies the following in section H (Job Opportunity Information) 
regarding the requirements for the position of senior manager, customer & marketing, customer 
strategy & applied design: 
4. 
4-A. 
5. 
6. 
6-A. 
7. 
7-A. 
8. 
8-A. 
8-C. 
9. 
10. 
10-A. 
10-B. 
Education: Minimum level required: 
Major field of study 
Is training required for the job? 
Is experience in the job offered required? 
How long? 
Is an alternate field of study acceptable? 
What field(s)? 
Is an alternate combination of education 
and experience acceptable? 
What level of education? 
How much experience? 
Bachelor's degree 
See H.14 
No 
Yes 
60 months 
Yes 
See H.14 
Yes 
Master's degree 
3 years 
Is a foreign educational equivalent acceptable? Yes 
Is experience in an alternate occupation acceptable? Yes 
How long? 60 months 
What job title(s)? See H.14 
1 The priority date of an employment-based immigrant petition is the date the underlying labor certification was filed with 
the DOL. 8 C.F.R. § 204.S(d). In this case the priority date is July 24, 2019. 
2 
14. Specific skills or other requirements: 
Bachelor's degree or foreign equivalent degree in Business Administration, 
Business, Commerce, or a related field. Five years of progressively responsible 
experience as a Manager, as a Senior Consultant, or a position in a related 
occupation. Must have five years of experience with: Setting corporate and 
business unit strategies for clients by developing future state growth scenarios, 
conducting enterprise value and value chain analyses, market and competitor 
analyses, project and portfolio planning, and investment capital allocation 
planning; Managing large, enterprise-wide cost transformation initiatives 
covering key functions sales, marketing, manufacturing, and supply chain; 
Managing large scale, cross-functional product development and 
implementation projects; Leading project objectives and timely completion of 
client deliverables; Developing proprietary methods, tools, and intellectual 
property. In the alternative, the employer will accept a Master's degree or 
foreign equivalent degree in a stated field plus three years of experience. Any 
suitable combination of education, training, or experience is acceptable. 
Thus, the minimum educational and experience requirements of the labor certification are either (1) a 
U.S. bachelor's or foreign equivalent degree in business administration, business, commerce, or a 
related field of study, plus five years of experience as a manager, senior consultant, or related position, 
including the specific experience described in section H.14; or (2) a U.S. master's or foreign equivalent 
degree in one of the stated fields of study, plus three years of experience in one of the stated 
occupational fields, including the specific experience described in section H.14. 
The record includes copies of two sets of transcripts and diplomas showing that the Beneficiary earned 
(1) a Bachelor of Technology in Mechanical Engineering froml I Institute of 
Technology inl I India, on August 12, 2006, following completion of a frur-yer degree 
program, and (2) a two-year Post-Graduate Diploma (PGD) in Management from the Institute 
of Management Society inl I India, on March 22, 2011. The record also includes an academic 
equivalency evaluation from The Trustforte Corporation asserting that the Beneficiary's PGD in 
Management, following his four-year bachelor of technology degree, is comparable to a bachelor's 
degree in business administration from a U.S. college or university. Based on the foregoing 
documentation we find that the Beneficiary meets the minimum educational requirement of the labor 
certification as well as the minimum educational requirement to qualify for classification as an 
advanced degree professional. 
Since the Beneficiary has a foreign equivalent degree to a U.S. bachelor's degree, under the terms of 
the labor certification and the requirements of 8 C.F.R. § 204.5(k)(3)(i) he must have at least five years 
of post-baccalaureate experience to qualify for the proffered position and advanced degree 
professional classification. Section K of the labor certification (Alien Work Experience) lists two jobs 
for the Beneficiary that post-dated his qualifying educational degree in March 20112 and pre-dated the 
2 Experience that predates the awarding of the Beneficiary's baccalaureate level degree is not qualifying experience in a 
petition for advanced degree professional classification because it is not "post-baccalaureate experience" as required by 
3 
commencement of his job with the Petitioner (listed at section K.a of the labor certification) as 
Manager, Customer & Marketing, Customer Strategy & Applied Design, inl I California, 
assertedly on September 24, 2017. 3 The two Jobs hsted in this qualifying the time period from March 
2011 to September 201 7 are the following: 
• 
• 
'--------~----------- ..... in._l _______ ____.I India - where 
the Beneficiary claims to have worked as a consultant from April 25, 2011, to August 31, 
2013 (section K.c of the labor certification). 
~-------=---~ (the Petitioner) inl I Pennsylvania - where the 
Beneficiary claims to have worked as a manager from May 16, 2016, to September 23, 
2017 (section K.b of the labor certification). 
With its initial evidence the Petitioner submitted a letter from a human resources official (HR letter) 
ofi linl ]dated August 25, 2018, stating that the Beneficiary was employed by 
I las: 
( 1) a consultant from April 25, 2011, to August 31, 2013; 
(2) a senior consultant from September 1, 2013, to August 31, 2015; and 
(3) a manager from September 1, 2015, to September 23, 2017. 
The HR letter described the Beneficiary's duties in each position, which incorporated the specific 
experience required in section H.14 of the labor certification, and also stated that while on the 
employee roster ot1 I the Beneficiary was "seconded" to the Petitioner for five time 
periods: 
(1) from September 15 to December 19, 2014; 
(2) from January 12 to April 9, 2015; 
(3) from August 10 to September 25, 2015; 
(4) from January 19 to March 18, 2016; and 
(5) from May 16, 2016, to September 23, 2017. 
The letter did not specify what kind of work the Beneficiary did for the Petitioner during these 
assignments or where it was performed. Thus, the HR letter froml lwas inconsistent with 
the labor certification insofar as it identified a period of employment of the Beneficiary by the 
Petitioner as a senior consultant from September 2013 through August 2015 that was not listed in the 
labor certification, and also insofar as it identified four work assignments with the Petitioner between 
8 C.F.R. § 204.5(k)(3)(irB). Thus, the Beneficiary's asserted experience as a deputy manager with 
inl .. India, from July 3, 2006, to May 28, 2009 ~ listed at section K.d of the labor certification~ is not 
qualifying experience in this petition. 
3 Section J.21 of the labor certification indicates that the Beneficiary did not gain any qualitying experience with the 
Petitioner in a position substantially comparable to the proffered position in this proceeding. Therefore, the Beneficiary's 
managerial position with the Petitioner commencing in September 2017 is not qualitying experience in this petition. 
4 
September 2014 and March 2016, during a time when the Beneficiary was on the employee roster of 
I lthat were likewise not listed in the labor certification. ' 
In a request for evidence (RFE) the Director noted that not all of the experience described in the HR 
letter froml lwas claimed in the labor certification, contrary to the section K instructions 
to list any experience that qualifies the Beneficiary for the job opportunity. 4 The Director also noted 
that the jobs listed witH I from April 2011 to August 2013 and with the Petitioner from 
May 2016 to September 201 7 amounted to less than five years of experience. The Director requested 
that the Petitioner submit documentation such as tax records, employment records, pay stubs, or Wage 
and Tax Statements (Forms W-2) to clarify the Beneficiary's employment history. 
In response to the RFE the Petitioner submitted a letter from its immigration manager inj~----~ 
dated May 7, 2020, that compared the job duties performed by the Beneficiary in the three jobs he 
held wit~ I- as a consultant (April 25, 2011, to August 24, 2013), as a senior consultant 
(August 25, 2013, to August 22, 2015), and as a manager (August 23, 2015, to September 23, 2017). 
In denying the petition the Director indicated that the Petitioner had not submitted any evidence to 
explain the discrepancy between the labor certification and the employment verification letter(s) with 
respect to the Beneficiary's employment history, and did not enhance the credibility of the claimed 
experience that was not listed in the labor certification. The Director concluded that the evidence of 
record did not establish that the Beneficiary met the minimum requirements of the labor certification 
- specifically, five years of qualifying experience to go along with his baccalaureate degree - to qualify 
for the proffered position and the requested visa classification of advanced degree professional. 
On appeal the Petitioner asserts that there was no conflict between the labor certification and the initial 
letter from] I regarding the Beneficiary's employment history because the positions listed 
in the labor certification (consultant and manager) were included in the fuller employment history 
described in the initial! I letter. That claim may be true, but does not explain why the 
fuller employment history claimed for the Beneficiary in the HR letter from I I was not 
included in the labor certification, which specifically instructed all qualifying employment to be listed 
in section K. As further evidence of the Beneficiary's employment history, the Petitioner submits a 
letter from! I who states that he is currently a principal at I I and claims 
that "I was [the Beneficiary]'s direct supervisor when he was employed with I I from 
April 25, 2011 to September 23, 2017." The evidentiary weight of this letter is lessened by the fact 
that it does not meet all of the substantive requirements 8 C.F .R. § 204.5(g)(l ), which provides that 
employment verification letters "shall include the name, address, and title of the writer, and a specific 
description of the duties performed by the alien." The letter froml I does not include an 
address and does not specifically describe the Beneficiary's job duties from 2011 to 2017. 
The Petitioner also submits copies of what it claims to be the Beneficiary's employment history as 
recorded in its HR user-portal, TalentOnDemand. None of the four pages, however, identifies the 
employee to whom the records apply. The Petitioner submits copies of a letter froml Ito 
4 The failure to list specific jobs in the labor ceitification lessens the credibility of the asse1ied work experience. See Matter 
of Leung, 16 T&N Dec. 2530 (BIA 1976). 
5 
the Beneficiary, dated February 18, 2011, offering him the position of consultant in ~I---~ 
beginning on Al)ril 25, 2011, and two subsequent employment contracts between the Beneficiary and 
I I inl I promoting the Beneficiary to senior consultant on September 1, 2013, and 
to manager on September 1, 2015. These contracts appear to identify the work location asl I 
which differs from information in the labor certification and the employment verification letters which 
identify an address forl I in I I. We note thatl I and 
I I are 310 air miles and 352 road miles apart. See distancecalculator.net/froml I I Klast visited March 16, 2021 ). 
Finally, the Petitioner submits six years of the Beneficiary's income tax records in India for the 
assessment Y,ears of2012-2013 to 2017-2018. All of these tax documents identify the Beneficiary's 
employer asl I but do not specify the Beneficiary's employment location. The tax 
documents indicate different residential addresses for the Beneficial during those years - from 
I I in 2012-2013, tol I in 2013-2016, tol in 2016-2017, to I I 
California, in 2017-2018 (as indicated on a tax document dated July 31, 2017). This latter address in 
California, assertedly in July 2017, conflicts with information in section K.b of the labor certification 
which states that the Beneficiary was employed at that time ( actually from May 16, 2016, to 
September 23, 2017) by the Petitioner inl , I Pennsylvania. Moreover, the Petitioner has not 
explained how the Beneficiary's three different residential addresses in India during the years 2012-
2017 mesh with the business addresses for identified irl this netijon, and how the 
Beneficial could have worked for in eithe .__ ___ ~or~--~ while residing in 
I (2013-2016) or.___ _ __.(2016-2017). 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Attempts to explain or reconcile such inconsistencies will not suffice without competent 
evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of the petitioner's 
remaining evidence. See id. 
As discussed above, the Petitioner has not resolved many evidentiary inconsistencies in this petition. 
The evidence of record is confusing as to where the Beneficiary resided and worked while ostensibly 
employed byl I from 2011 to 201 7, and does not explain how he could have resided in one 
place while working in another for most of those years. The evidence is unclear as to where the 
Beneficiary worked during the nine and a half months he was "seconded to~-------~' 
(a term not explained by the Petitioner) between September 2014 and March 2016. Furthermore, the 
record is conflicting as to where the Beneficiary worked during the fifth and final time he was 
"seconded" byl I to the Petitioner from May 2016 to September 2017, since the labor 
certification identifies an address i~ !Pennsylvania, while the Indian tax document from 
July 2017 identifies the Beneficiary's work address as located in I I California. Finally, the 
Petitioner has not explained why the labor certification does not list all of the qualifying experience 
which the Petitioner subsequently claimed for the Beneficiary in documentation submitted with and 
after the filing of the petition. 
Due to these evidentiary infirmities, we determine that the Petitioner has not established that the 
Beneficiary gained at least five years of qualifying experience withl I As previously 
G 
indicated, in visa petition proceedings it is the Petitioner's burden to establish eligibility for the 
requested benefit. See section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary gained at least five years of qualifying 
experience before the priority date of July 24, 2019, as required to qualify for the proffered position 
under the terms of the labor certification and to qualify for the requested visa classification of advanced 
degree professional in accordance with the requirements of 8 C.F.R. § 204.5(k)(3)(i)(B). The appeal 
will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
7