dismissed EB-2 Case: Information Technology

(b)(6)
MAT U ~ ZOl't 
U.S. Department ofHolll!JIIllld. Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
{R~ft.l-1'~ 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, initially approved the employment-based 
preference visa petition . The director served the petitioner with notice of intent to revoke the approval 
of the petition (NOIR). In a Notice of Revocation (NOR), the director ultimately revoked the approval 
of the Form I-140, Immigrant Petition for Alien Worker. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
Section 205 of the Act, 8 U.S.C. § 1155, provides that "[t]he Attorney General [now Secretary, 
Department of Homeland Security], may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition approved by him under section 204." The realization by the 
director that the petition was approved in error may be good and sufficient cause for revoking the 
approval. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). 
The AAO notes that the NOIR was properly issued pursuant to Matter of Arias, 19 I&N Dec. 568 
(BIA 1988) and Matter of Estime, 19 I&N Dec. 450 (BIA 1987). Both cases held that a notice of 
intent to revoke a visa petition is properly issued for "good and sufficient cause" when the evidence 
of record at the time of issuance, if unexplained and unrebutted, would warrant a denial of the visa 
petition based upon the petitioner's failure to meet his burden of proof. 
The petitioner is an IT solutions and services company. It seeks to employ the beneficiary 
permanently in the United States as a programmer analyst pursuant to section 203(b)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The petition is accompanied by 
ETA Form 9089, Application for Permanent Employment Certification, certified by the United 
States Department of Labor. 
The director determined that the ETA Form 9089 failed to demonstrate that the job requires a 
professional holding an advanced degree or the equivalent of an alien of exceptional ability and, 
therefore, the beneficiary cannot be found qualified for classification as a member of the professions 
holding an advanced degree or an alien of exceptional ability. 8 C.F.R. § 204.5(k)(4). The director 
denied 
the petition accordingly. 
On appeal, counsel asserts that the director has misinterpreted the language in part H, item 14 of the 
ETA Form 9089. Counsel contends that the language in part H, item 14 of the ETA Form 9089 falls 
under the guidance fotind as "Kellogg language," which should not disqualify the position for the 
requested classification. Counsel argues that the regulation at 20 C.F.R. § 656.17(h)(4) compelled 
the inclusion of this language in the ETA Form 9089 and that U.S. Citizenship and Immigration 
Services (USCIS) should construe this language "as a regulatory requirement of the [DOL] relating 
to technical language in the [Program Electronic Review Management (PERM)] form [which] does 
not detract from or defeat EB-2 eligibility." Counsel concludes, therefore, that the inclusion of the 
phrase "will accept any suitable combination of education, experience, and trai[ning]" in this case 
should not be interpreted as reducing the minimum requirements below a bachelor's degree and five 
years of work experience. 
In pertinent part, section 203(b )(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States academic or professional 
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. degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The 
regulation further states: "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. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." I d. 
Section 203(b )(2) of the Act also includes aliens "who because of their exceptional ability in the 
sciences, arts or business, will substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States." The regulation at 8 C.F .R. § 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered." 
Here, the Form I-140 was filed on March 27, 2012. On Part 2.d. of the Form I-140, the petitioner 
indicated that it was filing the petition for a member of the professions holding an advanced degree 
or an alien of exceptional ability. 
The regulation at 8 C.F.R. § 204.5(k)(4) states in pertinent part that "[t]he job offer portion of an 
individual labor certification, Schedule A application, or Pilot Program application must demonstrate 
that the job requires a professional holding an advanced degree or the equivalent of an alien of 
exceptional ability." 
By way of background, the regulation at 20 C.F .R. § 656.17(h)( 4)(ii) states: 
If the alien beneficiary already is employed by the employer, and the alien does 
not meet the primary job requirements and only potentially qualifies for the job by 
virtue of the employer's alternative requirements, certification will be denied 
unless the application states that any suitable combination of education, training, 
or experience is acceptable. 
This regulation was intended to incorporate the Board of Alien Labor Certification Appeals 
(BALCA) ruling in Francis Kellogg, 1994-INA-465 and 544, 1995-INA 68 (Feb. 2, 1998) (en bane), 
that "where the alien does not meet the primary job requirements, but only potentially qualifies for 
the job because the employer has chosen to list alternative job requirements, the employer's 
alternative requirements are unlawfully tailored to the alien's qualifications ... unless the employer 
has indicated that applicants with any suitable combination of education, training or experience are 
acceptable." The statement that an employer will accept applicants with "any suitable combination 
of education, training or experience" is commonly referred to as "Kellogg language." 
Previously, the DOL was denying labor certification applications 
containing alternative requirements 
in Part H, Question 14, if the application did not contain the Kellogg language. However, two 
BALCA decisions have significantly weakened this requirement. In Federal Insurance Co., 2008-
PER-00037 (Feb. 20, 2009), BALCA held that the ETA Form 9089 failed to provide a reasonable 
means for an employer to include the Kellogg language on the labor certification. Therefore, 
BALCA concluded that the denial of the labor certification for failure to write the Kellogg language 
on the labor certification application violated due process. Also, in Matter of Agma Systems LLC, 
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2009-PER-00132 (BALCA Aug. 6, 2009), BALCA held that the requirement to include Kellogg 
language did not apply when the alternative requirements were "substantially equivalent" to the 
primary 
requirements. 
Given the history ofthe Kellogg language requirement at 20 C.F.R. § 656.17(h)(4)(ii), the AAO does 
not generally interpret this phrase when included as a response to Part H, Question 14, to mean that 
the employer would accept lesser qualifications than the stated primary and alternative requirements 
on the labor certification. To do so would make the actual minimum requirements of the offered 
position impossible to discern, it would render largely meaningless the stated primary and alternative 
requirements of the offered position on the labor certification, and it would potentially make any 
labor certification with alternative requirements ineligible for classification as an advanced degree 
professional. In other words, the AAO does not consider the presence of Kellogg language in a labor 
certification to have any material effect on the interpretation of the minimum requirements of the 
job. 
In this case, the job offer portion of the ETA Form 9089 indicates that the minimum level of 
education required for the position is a master's degree in engineering or related field and that thirty­
six months of work experience is required. Alternatively, the petitioner will accept a bachelor's 
degree and five years of work experience. However, in Part H, Item 14, the petitioner indicated that 
it "will accept Bachelors + 5 years experience or any suitable combination of academic study and 
experience deemed equivalent." The AAO finds that the language included in Part H, Item 14 is not 
expressly written as Kellogg language defined in the requirements of 20 C.F.R. § 656.17(h)(4)(ii) 
and lessens the minimum requirements of the labor certification. Accordingly, the job offer portion 
of the ETA Form 9089 does not require a professional holding an advanced degree or the equivalent 
of an alien of exceptional ability. It is possible to qualify for the position without having earned a 
bachelor's degree. 
Beyond the decision of the director, the petitioner has also failed to establish its ability to pay the 
proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent 
residence. See 8 C.F.R. § 204.5(g)(2). 
In determining the petitioner's ability to pay the proffered wage, USCIS first examines 
whether the 
petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the 
petitioner has not paid the beneficiary the full proffered wage each year, USCIS will next examine 
whether the petitioner had sufficient net income or net current assets to pay the difference between 
the wage paid, if any, and the proffered wage.1 If the petitioner's net income or net current assets is 
not sufficient to demonstrate the petitioner's ability to pay the proffered wage, USCIS may also 
1 See River Street Donuts, LLC v. Napolitano, 558 F.3d Ill (1st Cir. 2009); Elatos Restaurant Corp. 
v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986); Tongatapu Woodcraft Hawaii, Ltd. v . Feldman, 
736 F.2d 1305 (9th Cir. 1984)); Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 
1989); K. C.P. Food Co. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v . Palmer, 539 F. Supp. 
647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983); and Taco Especial v. Napolitano, 696 F. 
Supp. 2d 873 (E.D. Mich. 2010), affd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). 
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consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 
I&N Dec. 612 (Reg'l Comm'r 1967). 
In the instant case, the petitioner did not employ the beneficiary, and its net income and net current 
assets, were not equal or greater to the proffered wage for 2012 and 2013? Further, the petitioner 
failed to establish that factors similar to Sonegawa existed in the instant case, which would permit a 
conclusion that the petitioner had the ability to pay the proffered wage despite its shortfalls in wages 
paid to the beneficiary, net income and net current assets. 
Accordingly, after considering the totality of the circumstances, the petitioner has also failed to 
establish its continuing ability to pay the proffered wage to the beneficiary since the priority date. 
Further, according to USCIS records, the petitioner has filed 35 I-140 petitions on behalf of other 
beneficiaries. Accordingly, the petitioner must establish that it has had the continuing ability to pay 
the combined proffered wages to each beneficiary from the priority date of the instant petition. See 
Matter ofGreat Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977). 
The evidence in the record does not document the priority date, proffered wage or wages paid to 
each beneficiary, whether any of the other petitions have been withdrawn, revoked, or denied, or 
whether any of the other beneficiaries have obtained lawful permanent residence. Thus, it is also 
concluded that the petitioner has not established its continuing ability to pay the proffered wage to 
the beneficiary and the proffered wages to the beneficiaries of its other petitions. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, 
that burden 
has not been met. 
ORDER: The appeal is dismissed. 
2 The record contains no evidence of the petitioner's federal income tax returns, audited financial 
statements, or annual reports for 2012 or 2013.