remanded EB-2 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8088192 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 13, 2020 
Form I-140, Immigrant Petition for Advanced Degree Professional 
The Petitioner seeks to employ the Beneficiary as a senior software developer under the second­
preference immigrant classification as a member of the professions holding an advanced degree. See 
Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). 
The Director of the Nebraska Service Center denied the petition and dismissed the Petitioner's 
following motion to reconsider. The Director concluded that the Petitioner did not demonstrate the 
Beneficiary's possession of the minimum employment experience required for the offered position 
or the requested visa classification. 
Upon de nova review, we will withdraw the Director's decision and remand the matter for entry of a 
new decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an advanced degree professional generally follows a three-step process. To 
permanently fill a position in the United States with a foreign worker, a prospective employer must 
first obtain certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of 
the Act, 8 U.S.C. § 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, 
willing, qualified, and available for an offered position. Id. Labor certification also indicates that 
employment of a foreign national 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 USCIS. See section 204 of the Act, 8 U.S.C. § 1154. Among other 
things, USCIS determines whether a beneficiary meets the requirements of a DOL-certified position 
and a requested visa classification . If USCIS grants a petition, a foreign national may finally 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. 
II. START OF POST-BACCALAUREATE EXPERIENCE 
Advanced degree professionals must have "advanced degrees or their equivalent." Section 
203(b)(2)(A) of the Act. The term "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. 
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. 1 Matter of Wing's Tea House, 16 I&N Dec. 158, 
160 (Acting Reg'l Comm'r 1977). In evaluating a beneficiary's qualifications, USCIS must 
examine the job-offer portion of an accompanying labor certification to determine a position's 
mm1mum requirements. USCIS may neither ignore a certification term, nor impose additional 
requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL 
bears the authority for setting the content of the labor certification") ( emphasis in original). 
Here, the accompanying labor certification states the minimum requirements of the offered position 
of senior software developer as a U.S. master's degree or a foreign equivalent degree in computer 
science, computer engineering, electrical engineering, or a related analytical field, and two years of 
software engineering experience with a particular developer platform. Consistent with the definition 
of "advanced degree," the labor certification also states the Petitioner's acceptance of an alternate 
combination of education and experience: a U.S. bachelor's degree or a foreign equivalent degree 
and five years of experience. In addition, part H.14 of the certification, "Specific skills or other 
requirements," lists additional technical experience required for the job. 
On the labor certification, the Beneficiary attested that, in 2008, before the petition's priority date, an 
Indian university awarded him a bachelor's degree in computer engineering. He also stated that he 
thereafter gained more than five years of foll-time, qualifying experience by the priority date.2 
A petitioner for an advanced degree professional must submit "[ a ]n official academic record 
showing that the alien has a United States baccalaureate degree or a foreign equivalent degree," and 
"letters from current or former employer(s) showing that the alien has at least five years of 
progressive post-baccalaureate experience." 8 C.F.R. § 204.5(k)(3)(i)(B). As proof of the 
1 This petition's priority date is November 18, 2014, the date DOL accepted the accompanying labor certification 
application for filing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
2 The record shows that the Beneficiary began working for the Petitioner in December 2013, before the petition's prior 
date. A labor certification employer, however, cannot rely on experience that a foreign national gained with it, unless the 
experience occurred in a position substantially different than the offered one or the employer can demonstrate the 
impracticality of training a U.S. worker for the position. 20 C.F.R. § 656. l 7(i)(3). The Petitioner here does not contend 
that the Beneficiary gained qualifying experience with it. We will therefore disregard the experience the Beneficiary 
gained with the Petitioner before the petition's priority date. 
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Beneficiary's educational qualifications, the Petitioner submitted copies of his Indian bachelor of 
engineering diploma, a "certificate of passing" from the university that issued the degree, a letter 
from the university-affiliated institute where he studied, and an independent, professional evaluation 
equating his foreign educational credentials to a U.S. bachelor of science degree in computer 
engineering. As proof of the Beneficiary's qualifying experience, the Petitioner submitted letters 
from his former employers and affidavits from former coworkers. 
As the Director noted, the evidence does not demonstrate the Beneficiary's acquisition of at least 
five years of experience from the issuance of his degree diploma on February 18, 2009, until the 
petition's priority date of November 18, 2014. The Director therefore concluded that the Petitioner 
did not establish the Beneficiary's qualifying experience for the offered position or the requested 
classification. 
The Petitioner argues that the Beneficiary completed all requirements for his bachelor's degree in 
June 2008, about eight months before the university issued his diploma. The Petitioner notes that the 
diploma states the Beneficiary's passage of the degree's examination in "2008" and that the 
university issued the certificate of passing on June 24, 2008. The Petitioner therefore contends that 
the Beneficiary's post-baccalaureate period begins in June 2008, and that, from then until the 
petition's priority date of November 18, 2014, he gained the requisite five years of qualifying 
expenence. 
On April 17, 201 7, USCIS adopted our decision in a similar case as binding on all Agency 
employees. See Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017). O-A- held 
that a beneficiary has a degree as of a school's issuance of a pre-diploma, "provisional certificate" if 
the beneficiary completed all substantive degree requirements and the university or college approved 
the degree. Unlike in O-A-, the Petitioner here did not submit a document entitled "provisional 
certificate." As it is not clear the Director's findings are consistent with O-A-, we will withdraw the 
Director's decision and remand the matter. 
On remand, the Director should issue a Request for Evidence and ask the Petitioner whether the 
Beneficiary received a provisional certificate, pursuant to O-A-, and, if so, to provide a copy of it to 
determine whether the Petitioner can establish the Beneficiary has the required education to meet the 
terms of the labor certification. 
III. THE REQUIRED EXPERIENCE 
Even if the Beneficiary began to gain post-baccalaureate experience in July 2008 as the Petitioner 
contends, the record does not sufficiently document his possession of at least five years of 
experience as required for the offered position and the requested visa classification. On the labor 
certification, the Beneficiary attested to about 62 months of qualifying experience, as follows: 
• About 23 months as a programmer for a U.S. provider of software and information 
technology (IT) services, from December 2011 through November 2013; 
• About 16 months as a team lead for an Indian IT service provider, from July 2010 to 
November 2011; 
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• About 20 months as a software developer for another Indian IT service provider, from 
November 2008 to June 2010; and 
• About three months as a junior software engineer for a third Indian IT service provider, from 
July 2008 to October 2008. 
To support qualifying experience, a pet1t10ner must submit letters from a beneficiary's former 
employers. 8 C.F.R. § 204.5(g)(l). The letters must include the employers' names, titles, and 
addresses, and describe a beneficiary's experiences. Id. If such letters are unavailable, USCIS may 
consider other evidence of a beneficiary's experience. Id. 
Here, the Petitioner submitted two letters from the Indian company that purportedly employed the 
Beneficiary from July 2010 to November 2011. Contrary to 8 C.F.R. § 204.S(g)(l), neither letter 
describes the Beneficiary's experience at the company. The Petitioner also submitted an affidavit 
from a purported former company coworker of the Beneficiary. But the Petitioner has not 
demonstrated the unavailability of a company letter describing the Beneficiary's experience. See 
8 C.F.R. § 204.5(g)(l). The record also lacks documentary evidence corroborating the coworker's 
claimed employment by the company. In addition, the company letters indicate the Beneficiary's 
hiring as a "Software Engineer" and his promotion in July 2011 to the position of "Team Leader." 
Both the coworker's affidavit and the labor certification state the Beneficiary's service to the 
company as only a team leader. The record does not describe the Beneficiary's job duties as a 
software engineer with the company. A petitioner must resolve inconsistencies of record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591 (BIA 1988). If the Beneficiary's first year of employment with the company did not involve 
software engineering experience with the requisite developer platform, the Beneficiary would fall 
short of the required five years of qualifying experience. 
The Petitioner also submitted a letter from the Indian company that purportedly employed the 
Beneficiary from November 2008 to June 2010. Like the letters from the former employer discussed 
above, however, this company letter also does not describe the Beneficiary's experience. The 
Petitioner submitted an affidavit from a purported former company coworker of the Beneficiary. 
But the record does not establish the unavailability of a company letter describing the Beneficiary's 
experience and lacks corroborating evidence of the coworker's claimed employment at the company. 
Thus, the record does not establish the Beneficiary's claimed 20 months of qualifying experience 
with this employer. 
For the foregoing reasons, the Petitioner has not demonstrated the Beneficiary's possession of at 
least five years of experience as required for the offered position and the requested visa 
classification. The Director did not notify the Petitioner of these evidentiary deficiencies. Thus, on 
remand, the Director should inform the Petitioner of the defects and afford it a reasonable 
opportunity to respond. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The record also does not establish the Petitioner's ability to pay the proffered wage of the offered 
pos1t10n. A petitioner must demonstrate its continuing ability to pay a proffered wage, from a 
petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
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§ 204.5(g)(2). Evidence of ability to pay must include copies of annual reports, federal tax returns, 
or audited financial statements. Id. If petitioners have at least 100 employees, like the Petitioner 
here, however, USCIS may also accept a statement from a financial officer demonstrating the 
business's ability to pay a proffered wage. Id. 
The labor certification states the proffered wage of the offered position of senior software developer 
as $108,000 to $113,000 a year. As previously noted, the petition's priority date is November 18, 
2014. 
The Petitioner submitted a January 2016 statement from its executive vice president, deputy general 
counsel, indicating the company's employment of more than 100 people and asserting its ability to 
pay the position's proffered wage. The statement, however, lacks financial information about the 
Petitioner and does not indicate the company's total number of employees. Accordingly, the letter is 
insufficient to demonstrate the Petitioner's ability to pay. 3 The Petitioner submitted a copy of its 
annual report for 2014. But the record lacks required evidence of its ability to pay in later years. 
The Director did not previously notify the Petitioner of these evidentiary deficiencies. Thus, on 
remand, the Director should inform the Petitioner of the defects, request any other evidence the 
Director deems appropriate, and provide the Petitioner a reasonable opportunity to respond. Upon 
receipt of a timely response, the Director should review the entire record and enter a new decision. 
V. CONCLUSION 
We remand to allow consideration of our adopted decision detailing evidence required to 
demonstrate a beneficiary's pre-diploma completion of a bachelor's degree. Also, the Petitioner did 
not demonstrate its ability to pay the proffered wage or the Beneficiary's possession of the minimum 
experience required for the job offered and the requested visa classification. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
3 Also, USCIS records indicate the Petitioner's filing of several Form 1-140 petitions for other beneficiaries. A petitioner 
must demonstrate its ability to pay the proffered wage of each petition it files until a beneficiary obtains lawful 
permanent residence. 8 C.F.R. § 204.5(g)(2). A petitioner must demonstrate its ability to pay the combined proffered 
wages of a given petition and any others that were pending or approved as of its priority date, or filed thereafter. See 
Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's approval where, as of 
the tiling's grant, the petitioner did not demonstrate its ability to pay the combined proffered wages of multiple 
petitions). A petitioner need not demonstrate its ability to pay proffered wages of petitions that it withdrew, or that 
USCTS rejected, denied, or revoked. A petitioner also need not demonstrate its ability to pay proffered wages before the 
priority dates of their respective petitions, or after their respective beneficiaries obtained lawful permanent residence. 
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