dismissed EB-2 Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 15764080 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 22, 2021 
Form I-140, Immigrant Petition for Advanced Degree Professional 
The Petitioner, a software consulting company, sought to employ the Beneficiary as a computer and 
information systems manager.1 The company requestedherclassificationunderthe second-preference, 
immigrant category for members of the professions holding advanced degrees or their equivalents. 
See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that he erred in approving the petition, finding that the Petitioner 
did not demonstrate the Beneficiary's possession of the minimum employment experience required 
for the offered position or the requested immigrant visa classification. 
The Petitioner appeals the decision and, in these revocation proceedings, bears the burden of 
establishing eligibility for the requested benefit by a preponderance of evidence. 2 See Matter of Ho, 
19 I&N Dec . 582, 589 (BIA 1988) (citation omitted) (regarding the burden of proof); see also Matter 
ofChawathe , 25 I&N Dec . 369,375 (AAO 2010) (regarding the standard of proof) . Upon de nova 
review , we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an advanced degree professional generally follows a three-step process. First, to 
permanently fill a position in the United States with a foreign worker, a prospective employer must 
obtain DOL certification. See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL approval 
signifies that insufficient U.S. wmkers are able, willing, qualified, and available for an offered position. 
1 The Petitioner 's Form I-140 identifies the offered position as "4 7-Engineer-specialty not list." But we will refer to the 
position ascomputerand information systems manager , the job title listed on the accompanying certification from the U.S. 
Department of Labor (DOL ). 
2 Counsel states that both the Petitioner and the Beneficiary appeal the revocation decision . The Beneficiary requested to 
"port " to a new job , andUSCIS found her eligible for portability under section 204(j)ofthe Act , 8 U.S.C. § l l 54(j). The 
Beneficiary therefore qualifies for treatment as an "affected party " in these proceedings . See Matter of V-S-G- Inc., 
Adopted Decision 2017-06 (AAO Nov . 11 , 2017). The Beneficiary, however, signed neither the Form I-290B, Notice of 
Appeal or Motion , nor Form G-28 , Notice of Entry of Appearance. Because the record does not indicate theBeneficiaiy 's 
authorization of the appeal's filing, we will not recognize her as an appellant. 
Id. Labor certification also signifies that employment of a noncitizen will not harm wages and working 
conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act. Among other things, USCIS determines whether a beneficiary meets the requirements of a 
DOL-certified position and a requested immigrant visa classification. Finally, if USCIS grants a 
petition, a designated noncitizen 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. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, USCIS may revoke 
a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by a record, the erroneous nature of a petition's approval justifies its revocation. Malter of 
Ho, 19 I&N Dec. at 590. 
USCIS may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and 
unrebutted record at the time of the notice's issuance would have warranted the petition's denial 
Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). If a NOIR response does not rebut stated 
revocation grounds, USCIS properly revokes a petition's approval. Id. at 451-52. 
II. THE REQUIRED EXPERIENCE 
The Petitioner does not challenge the Director's finding of insufficient evidence of the Beneficiaiy's 
qualifying experience for the offered position and the requested immigrant visa classification. Rather, 
the company asserts that the Act otherwise bars revocation of the petition's approval. 
If a petitioner on appeal does not challenge a revocation ground, we ordinarily do not review it. See 
Matter ofM-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009) (finding that issues not presented on appeal 
are deemed to be "waived") (citation omitted). But we cannot sustain a petition's revocation if a 
corresponding NOIR does not properly allege facts that would have warranted the filing's denial. See 
Matter of Estime, 19 I&N Dec. at 451-52. 
Where a notice of intention to revoke is based on an unsupported statement or an 
unstated presumption, or where the petitioner is unaware and has not been advised of 
derogatory evidence, revocation of the visa petition cannot be sustained, even if the 
petitioner did not respond to the notice of intention to revoke. 
Id. at 452. 
The Director issued two NOIRs, both alleging insufficient evidence of the Beneficiary's experience 
for the offered position and the requested immigrant visa classification. We will therefore review the 
sufficiency of the allegations in both NOIRs. 
Advanced degree professionals must hold "advanced degrees or their equivalents." Section 
203(b )(2)(A) of the Act. The term "advanced degree" means: 
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any United States academic or professional degree or a foreign equivalent degree above 
that of a 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. 
8 C.F.R. § 204.5(k)(2). 
A petitioner must also demonstrate a beneficiary's possession of all DOL-certified job requirements 
of an offered position by a petition's priority date. 3 Matter of Wing's Tea House, 16 I&N Dec. 158, 
160 (Acting Reg'l Comm'r 1977). When assessing a beneficiary's qualifications for an offered 
position, USCIS must examine the job-off er portion of an accompanying labor certification to 
determine the position's minimum job requirements. USCIS may neither ignore a certification te1m 
nor impose additional requirements. See, e.g., Madanyv. Smith, 696 F.3d 1008, 1015 (D.C. Cir. 1983) 
(holding that "DOL bears the authority for setting the content of the labor certification") ( emphasis in 
original). 
The Director found the minimum, primary job requirements of the offered position of computer and 
information systems manager to include a U.S. master's degree, or a foreign equivalent degree, in 
computer science, engineering, mathematics, electronics, business administration, or "any field of 
study." The labor certification indicated a need for neither training nor experience. The certification 
also stated the Petitioner's acceptance of an alternate combination of education and experience: a 
bachelor's degree followed by five years of experience. 4 
The Petitioner seeks to qualify the Beneficiary for the offered position and the requested immigrant 
visa classification based on her purported possession of a bachelor's degree and at least five years of 
progressive, post-baccalaureate experience. The Beneficiary's educational qualifications are not at 
lSSUe. 
On the labor certification, the Beneficiary attested that, before the petition's priority date in August 
2009 and her staii date of employment with the Petitioner in July 2008, she gained more than five 
years of full-time, qualifying experience. 5 She stated the following experience: 
• About one year, six months as a software engineer with a U.S. consulting company, from 
January 2007 to July 2008; 
3 This petition's priority date is August 25, 2009, the dateDOL accepted the Petitioner's laborcertificationapplicationfor 
processing. Sec 8 C.F.R. § 204.S(d) ( explaining how to dete1minea petition's priority date). 
4 The plain language of the labor certification states the position's primary requirements as a master's degree, plus five 
yea rs of experience as an engineer, analyst, programmer, consultant, lead, or manager, with a ltemate requirements of a 
bachelor's degree plus five years of experience. The Director, however, interpreted the requirements as a master's degree 
with no experience, or a bachelor's degree plus five years of experience. The Director apparently found that the Petitioner 
inadvertently conflated the primary and alternate experience requirements on the labor certification application. 
5 A labor certification employer cannot rely on experience that a noncitizen gained with it, unless the noncitizen gained 
the experience in a position substantially different than the offered one or the employer can demonstrate theim practicality 
oftraininga U.S. worker for the offered position. 20 C.F.R. § 656.l 7(i)(3). At the time of the first NOIR's issuance in 
September 2019, the Petitioner did not claim that the Beneficiary gained qualifying experience with it, nor did it submit 
evidence of such experience. 
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• About one year, seven months as a software analyst with an Indian software development finn, 
from September 2005 through March 2007; 
• About one year, three months as a lab programmer for an Indian college, from June 2004 to 
September 2005; and 
• About one year, one month as a software developer for another Indian software development 
firm, from March 2003 to April 2004. 
To establish claimed, qualifying experience, a petitioner must submit letters from a beneficiaiy's 
former employers. 8 C.F.R. § 204.5(g)(l ). The letters must contain the employers' names, addresses, 
and titles, and descriptions of the beneficiary's experience. Id. 
A. The First NOIR 
At the time of the first NOIR's issuance in September 2019, the record contained letters from the three 
most recent former employers of the Beneficiary. As the NOIR alleges, the letters do not establish the 
Beneficiary's possession of the requisite five years of experience. Together, the letters indicate her 
employment from June 2004 through July 2008, only about four years, one month of experience. The 
NOIR also notes that, contrary to 8 C.F.R. § 204.5(g)( I), the letter from the Indian college does not 
describe the Beneficiary's experience. Thus, the record at the time of the first NOIR's issuance 
established the Beneficiary's possession ofless than three years of qualifying experience. 
The NOIR further notes discrepancies in the Beneficiary's claimed dates of employment at the U.S. 
consulting company. The company's letter and the labor certification state the company's 
employment of the Beneficiary from January 2007 to July 2008. But on Form G-325A, Biographical 
Information, which the Beneficiary submitted with her 2012 application for adjustment of status, she 
attested that the company employed her from October 2007 to September 2008. The discrepancies in 
the employment dates cast additional doubts on the Beneficiary's claimed experience with the 
company. See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies of 
record with independent, objective evidence pointing to where the truth lies). 
For the foregoing reasons, the record at the time of the first NOIR's issuance did not demonstrate the 
Beneficiary's possession of the minimum experience required for the offered position or the requested 
immigrant visa classification. Thus, on this ground, USCIS properly issued the first NOIR. 
B. The Second NOIR 
The Director issued the second NOIR in Februaiy 2020. At that time, the record contained additional 
evidence that the Petitioner had submitted in response to the first NOIR. In an affidavit, the 
Beneficiary attested that she began working for the U.S. consulting company in October 2007, not 
January 2007 as listed on the labor certification and in the company's letter. The Petitioner and 
Beneficiary asserted that she provided her employment dates to the Petitioner in the dd/mm/yr format 
commonly used in her home country oflndia, not in the mm/dd/yr format usually used in the United 
States. Thus, they claimed that the labor certification inadvertently indicates a start date of Januaiy 
10, 2007 (01/10/2007), rather than the correct date of October 1, 2007 (10/01/2007). Also, they 
contended that, rather than verifying the Beneficiary's dates of employment in its own records, the 
U.S. consulting company drafted its letter using the employment dates provided by the Petitioner and 
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Beneficiary in the dd/mm/yr format. As additional proof of the Beneficiary's claimed employment by 
the U.S. consulting company, the Petitioner submitted copies of payroll records and an IRS Form W-
2, Wage and Tax Statement, for 2008. 
In addition, the Petitioner submitted another letter from the Indian college. Pursuant to 8 C.F.R. 
§ 204.5(g)(l), the new letter describes the Beneficiary's experience. The Petitioner further stated its 
reliance on experience that the Beneficiary gained with it. The Petitioner asserted that the Beneficiary 
gained about one year, one month of qualifying experience with it from July 2008 to August 2009 as 
a programmer analyst, a position that it states substantially differs from the offered job. See 20 C.F.R 
§ 656.1 7 (i)(3 )(i) ( allowing a labor certification employer to rely on experience that a noncitizen gained 
with it in a position substantially different than the offered one). The Petitioner contended that - based 
on its clarification of the Beneficiary's start date at the U.S. consulting company, the college's 
description of the Beneficiary's job duties, and the additional qualifying experience she gained with 
the Petitioner - the record demonstrates her possession of at least five years of qualifying experience. 
The Director's second NOIR, however, notes additional inconsistencies regarding the Beneficiaiy's 
claimed experience at the U.S. consulting company. The Petitioner stated that the Beneficiaiy 
provided it with her dates of employment at fonner employers and that it then asked the prior 
employers to supply letters confirming her claimed experience. Butthe letter from the U.S. consulting 
company, which states that the company began employing the Beneficiary in January 2007, is dated 
more than a year before the August 2009 filing of the labor certification application. The letter's 
issuance far before the application's filing cast doubt on the Petitioner's claims that it contacted the 
company before preparing the application and that the company's letter misstates the Beneficiaiy's 
start date based on the dd/mm/yr format. See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner 
to resolve inconsistencies with independent, objective evidence). 
The second NOIR also notes inconsistencies in the Beneficiary's end date of employment with the 
U.S. consulting company. The labor certification and the company's letter state the termination of her 
employment at the company in July 2008. But, in her affidavit and on her Form G-325A, the 
Beneficiary stated that she worked for the company until September 2008. The unresolved 
discrepancy cast additional doubt on the Beneficiary's claimed, qualifying experience at the U.S. 
consulting company. See Matter ofHo, 19 I&N Dec. at 591. 
Because of the foregoing inconsistencies, the record at the time of the second NOIR's issuance did not 
demonstrate the Beneficiary's claimed, qualifying experience with the U.S. consulting company from 
October 2007 to July 2008. The Beneficiary's other, documented experience totaled less than the 
requisite five years. Thus, the NOIR's unexplained and unrebutted allegations would have warranted 
the petition's denial. 
Based on insufficient evidence of the Beneficiary's qualifying experience for the offered position and 
the requested immigrant visa classification, the Director properly issued the NOIRs. Thus, unless the 
Petitioner demonstrates that the Act otherwise bars revocation of the petition's approval, we will 
affirm the Director's decision. 
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III. THE EFFECT OF PORTABILITY ON THE REVOCATION 
The Petitioner argues that, because the Beneficiary properly ported to another job under section 204G) 
of the Act, USCIS cannot revoke her petition's approval. The Petitioner contends that "porting ... 
trumps USCIS' [] discretionary 1-140 revocation." 
The portability provision states that a petition for a beneficiary who has an adjustment of status 
application that has remained unadjudicated for at least 180 days "shall remain valid with respect to a 
new job if the individual changes jobs or employers if the new job is in the same or a similar 
occupational classification as the job for which the petition was filed." Section 204(j) of the Act. The 
Petitioner appears to contend that USCIS cannot revoke the approval of the Beneficiary's petition 
because she properly ported and thus, under section 204(j), her petition "shall remain valid." 
The Petitioner's reasoning, however, is flawed. In its broader context, the portability provision states 
that a petition "shall remain valid with respect to a new job." Section 204(j) of the Act (emphasis 
added). The provision does not indicate "that the petition shall forevermore remain valid." Herrera 
v. USCIS, 571 F.3d 881 , 887 (9th Cir. 2009). 
Moreover, "in order for a petition to 'remain' valid , it must have been valid from the start." Id. In 
revoking the approval of the Beneficiary's petition, USCIS found that the Agency should not have 
approved the filing. Thus, "the petition was not, and has never been, valid." Id.; see also Matter of 
Al Wazzan, 25 I&N Dec . 359,367 (AAO 2010)(holdingthat, to be "valid"under section 204(j) of the 
Act, a petition must have been "approved" by a USCIS officer and filed for a beneficiary "entitled" to 
the requested classification). 
In addition, the title of the portability provision plainly states Congress's enactment of the measure to 
grant "Job Flexibility for Long Delayed Applicants for Adjustment of Status." Section 204(j) of the 
Act. If Congress had intended the provision to limit USCIS' ability to revoke petitions, the U.S. 
legislature could have easily stated so in the provision or in the revocation measure at section 205 of 
the Act. Herrera v. USCIS, 571 F.3d at 888 . 
Further, the Petitioner's reading of the portability provision would bestow unintended benefits on 
portability-eligible beneficiaries . The company's interpretation of section 204(j) of the Act would 
allow revocations of petitions for beneficiaries with long-pending adjustment applications who have 
not changed jobs, while barring petition revocations for those who have switched jobs. "Nothing in 
the legislative history, the statutory text, or common sense suggests that Congress intended 
[adjustment] applicants to have the ability, simply by changing jobs, to shield from revocation the 
agency's erroneous previous approval of an 1-140 petition." Id. 
For the foregoing reasons, the Beneficiary's change to a new job under section 204(j) of the Act does 
not bar revocation of her petition's approval. The Petitioner's argument is unpersuasive . 
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IV. CONCLUSION 
Based on insufficient evidence of the Beneficiary's qualifying experience for the offered position and 
the requested immigrant visa petition, the Director properly issued the NOIRs. Also, the Beneficiaiy's 
port to another job under the Act did not shield her petition's approval from revocation . 
ORDER: The appeal is dismissed. 
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