remanded EB-2 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 01917234 
Certification of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : AUG . 26, 2022 
Form 1-140, Immigrant Petition for an Advanced Degree Professional 
The Petitioner , a software services company, seeks to employ the Beneficiary as a software developer, 
applications . It requests classification of the Beneficiary as a member of the professions holding an 
advanced degree 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 Texas Service Center denied the petition on the ground the Petitioner did not 
establish that the proffered position was a bona fide job opportunity available to U.S . workers . The 
Director based this decision on a finding that the specific educational degree required by the terms of 
the labor certification - a master's degree in computer applications or a foreign educational equivalent 
- is in a field of study for which master's degrees are not available in the United States. While finding 
that the Beneficiary meets the educational requirement of the labor certification by virtue of his 
master's degree in computer applications from an Indian university, the Director stated that the 
Petitioner's failure to establish that the proffered position was available to U.S. workers presented a 
novel issue . Therefore, the Director certified his decision to our office for review pursuant to 8 C.F.R. 
§ 103.4(a)(l), which provides that decisions by field office or service center directors may be certified 
to the AAO "when the case involves an unusually complex or novel issue oflaw or fact." 1 
Upon de nova review , we will remand the case to the Director for further consideration and the 
issuance of a new decision . 
1 In the notice of certification , the Director advised the Petitioner that it could submit a brief or other written statement to 
the AAO for our consideration in reviewing the Director's decision. However , no brief or written statement of any kind 
has been received from the Petitioner . 
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, 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 U.S. workers similarly employed. See section 212( a)( 5)(A )(i)(I)-(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, if USCIS 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. 
II. ANALYSIS 
The issue before us is whether the requirements listed on the labor certification restricted U.S. workers 
from being able to qualify for the offered position. To address this issue, it is important to first look 
at the requirements in this matter, and to review the respective roles of DOL and USCIS in the 
employment-based immigrant visa process. 
The labor certification accompanying the instant petition was filed with the DOL on August 31, 2016, 
and certified by the DOL on November 4, 2016. As delineated in section H (items 4-14) of the labor 
certification, the job requirements for the position of "software developer, applications" are a master's 
degree in computer applications or a foreign educational equivalent, and working knowledge of 
Microsoft SQL Server Solutions for BI Environments, including SQL Server, Integration Services 
(SSIS), and Reporting Services (SSRS). No experience is required to qualify for the job. The labor 
certification further specifies that no alternate field of study or alternate combination of education and 
experience is an acceptable alternative to the primary educational requirement of a U.S. master's or 
foreign equivalent degree in computer applications and knowledge of the software tools specifically 
identified. 2 
The record shows that the Beneficiary earned a Master of Computer Applications from 
University in I India, during the years 2001-2004, which followed a three-year bachelor of 
science degree from I !University. The master's degree from I I University is 
comparable to a master's degree level of education from a university in the United States. The record 
also shows that the Beneficiary gained experience with the software tools required in the labor 
certification with a prior employer, I I in India. Finally, the record indicates that 
the Beneficiary began working for the Petitioner as a programmer analyst in November 2012. 
The Director issued a request for evidence (RFE) in which the Petitioner was advised that master of 
computer application degrees only appeared to be offered by Indian universities, not by U.S. 
2 We note that, following the denial and certification of this petition, the Petitioner obtained another labor certification 
from the DOL for the position of software developer, applications, and filed a second petition with the new underlying 
labor certification. That petition was approved on June 21, 2019. The second labor ce1iification lists the minimum 
requirements for the offered position as a master's degree, or foreign educational equivalent, in computer engineering, 
computer science, or computer applications. 
2 
universities, which raised the question of whether the proffered position was a bona fide job offer 
available to U.S. workers. 3 The Director requested that the Petitioner submit specific documentation 
to establish the bona fides of its job offer. In response to the RFE the Petitioner submitted copies of 
its recruitment materials, including its internal job posting notice, its job order posted with the Hawaii 
State Workforce Agency, and newspaper advertisements, all of which stated that the educational 
requirement for the job was a master's degree or foreign equivalent in computer applications. The 
Petitioner stated that no job applications were received from its recruitment activities. The Petitioner 
also submitted computer printouts from various U.S. colleges and universities that they stated offered 
degrees in the field of computer applications. However, the computer printouts did not establish that 
any of the U.S. colleges or universities offered a master's level degree in computer applications. 
The Director concluded that while the Beneficiary's master's degree in computer applications from an 
Indian university met the educational requirement of the labor certification, the Petitioner failed to 
establish that the proffered position was available to U.S. workers because the requisite educational 
degree was not available in the United States. 
The Director reviewed this documentation in his decision and determined that it did not show that any 
of those U.S. institutions offered a master's degree in computer applications. 
A. The Roles of the DOL and USeIS in the Immigrant Visa Process 
Section 212(a)(5)(A)(i) of the Act provides that: 
Any alien who seeks to enter the United States for the purpose of performing skilled or 
unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified 
to the Secretary of State and the Attorney General that-
(!) there are not sufficient workers who are able, willing, qualified . . . and 
available at the time of application for a visa and admission to the United States 
and at the place where the alien is to perform such skilled or unskilled labor, 
and 
(II) the employment of such alien will not adversely affect the wages and working 
conditions of workers in the United States similarly employed. 
The authority to make decisions on preference classification petitions, however, rests with users. As 
stated by a federal circuit court: 
3 The job opportunity requirements listed in the Form 9089 "must represent the employer's actual minimum requirements 
for the job opportunity." 20 C.F.R. § 656.17(i)(l ). The purpose of these regulations "is to address the situation of an 
employer requiring more stringent qualifications ofa U.S. worker than it requires of the alien; the employer is not allowed 
to treat the alien more favorably than it would a U.S. worker." Your Employment Service Inc., 2009-PER-00151 (BALCA 
Oct. 30, 2009) (internal citations omitted). "The intent behind [the regulations] was to prevent employers from unlawfully 
tailoring their job descriptions to the alien worker's qualifications." Matter of CK-12 Foundation, 2016-PER-00246 
(BALCA Apr. 30, 2020). 
3 
There is no doubt that the authority to make preference classification decisions rests 
with INS.4 The language of section 204 [Procedure for Granting Immigrant Status] 
cannot be read otherwise. See Castaneda-Gonzalez v. INS, 564 F.2d 417, 429 (D.C. 
Cir. 1977). In tum, DOL has the authority to make the two determinations listed in 
section 212( a)( 14 ). 5 Id. at 423. The necessary result of these two grants of authority 
is that section 212(a)(14) determinations are not subject to review by INS absent fraud 
or willful misrepresentation, but all matters relating to preference classification 
eligibility not expressly delegated to DOL remain within INS' authority. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). See also K.R.K. Irvine, Inc. v. Landon, 
699 F.2d 1006 (9th Cir. 1983); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305 (9th 
Cir. 1984). 
Thus, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to 
perform the offered position, and whether the employment of the beneficiary will adversely affect 
similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary 
qualifies for the offered position, and whether the offered position and the beneficiary are eligible for 
the requested employment-based immigrant visa classification. 
B. Position Requirements 
According to DOL regulations at 20 C.F.R. § 656.l 7(h)(l) Job Duties and Requirements, 'The job 
opportunity's requirements, unless adequately documented as arising from business necessity, must be 
those normally required for the occupation .... " The regulations at 20 C.F.R. § 656. l 7(i) state that DOL 
will evaluate the employer's actual minimum requirements in accordance with the following criteria: 
(1) The job requirements, as described, must represent the employer's actual minimum 
requirements for the job opportunity. 
(2) The employer must not have hired workers with less training or experience for jobs 
substantially comparable to that involved in the job opportunity. 
(3) If the alien beneficiary already is employed by the employer, in considering whether the 
job requirements represent the employer's actual minimums, DOL will review the training 
and experience possessed by the alien beneficiary at the time of hiring by the employer, 
including as a contract employee. The employer can not require domestic worker 
applicants to possess training and/or experience beyond what the alien possessed at the time 
of hire .... 
Section 204(b) of the Act, provides, in pertinent part, as follows: 
After an investigation of the facts in each case, and after consultation with the Secretary 
of Labor with respect to petitions to accord a status under section 203(b )(2) or 203(b )(3), 
the [Secretary of Homeland Security] shall, if he determines that the facts stated in the 
4 Immigration and Naturalization Service, the predecessor organization to USCIS. 
5 Based on revisions to the Act, the current citation is section 212(a)(5)(A). 
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petition are true and that the alien ... is eligible for preference under subsection (a) or (b) 
of section 203, approve the petition ... . 
Since the minimum requirements as phrased appear to exclude U.S. workers, the proper course of action 
based on the facts of this matter is to consult with DOL. On remand, the Director should consult with the 
DOL regarding concerns about the effect of the minimum requirements on U.S. workers. 
The Director raised valid concerns about the bona fide nature of the offered position and whether it was 
truly open to U.S. workers because of the minimum requirements. The regulation at 20 C.F.R. § 
656.10( c) states that: "The employer must certify to the conditions of employment listed below on the 
[labor certification]." The regulation lists ten conditions, the eighth of which reads: "The job 
opportunity has been and is clearly open to any U.S . worker." 20 C.F.R. § 656 .10(c)(8). In accord 
with this regulatory requirement the Petitioner certified at section N.8 of the instant labor certification 
for the job of software developer, applications that: "The job opportunity has been and is clearly open 
to any U.S. worker." 
As previously noted, the labor certification is quite specific with regard to the educational requirement 
for the proffered position . It requires a master's degree in computer applications or a foreign 
educational equivalent and does not allow for any alternate field of study or level of degree. The record 
shows that the Beneficiary earned a Master of Computer Applications from University in 
India, which meets the educational requirement of the labor certification. However, the evidence of 
record does not show that any such degree is offered by U.S. institutions of higher education and 
available to U.S. workers. 
The computer printouts submitted by the Petitioner in response to the RFE showed that a Bachelor of 
Science in Information Technology - Software Application Programming is offered by Colorado 
Technical University (Colorado Springs, Colorado), a Bachelor of Applied Science with a major in 
Computer Application Development is offered by Metropolitan State University (St. Paul, Minnesota), 
a two-year associate level degree in computer applications is offered by Montgomery College 
(Maryland), an Associate of Science in Computer Applications is offered by American Military 
University ( online ), and an Associate of Science in Computer Applications/ Business Technology is 
offered by Cabrillo College (Aptos, California). All of these programs are at the bachelor's or associate 
degree level. None of them are master's degree programs. 
The Petitioner submitted one final printout from Boston University which appeared to show that it 
offered a master's degree program in computer applications. Upon accessing the university's website, 
however, the Director discovered that that no degree programs in computer applications - at the 
master's level or otherwise - were offered by Boston University. We have accessed the university's 
website once again and confirm that Boston University does not offer degree programs (at any level) 
in computer applications . See http :/www .bu.edu /academics /degree-programs (accessed August 23, 
2022). 
The Petitioner has not furnished any additional evidence to supplement the materials submitted in 
response to the RFE. Thus, the Petitioner has not shown that a master's degree in computer 
applications is offered by any college or university in the United States. Since a master's degree in 
computer applications is the only degree that could meet the labor certification's educational 
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requirement, and no such degree is offered in the United States as far as the record shows, it appears 
that U.S. workers who might have been interested in the proffered position would have been 
discouraged from applying and extremely disadvantaged in competition with applicants from India, 
where such a degree is offered, and from any other foreign country offering such a degree. In effect, 
U.S. workers would have had to earn the requisite degree abroad to qualify for the job offered. It is 
noteworthy in this regard that the Petitioner claims that it did not receive any applications for the 
proffered position in response to its job posting notices and advertisements. 
Accordingly, the Director should consult with DOL regarding whether such certified provisions would 
restrict the availability of the position from U.S. workers. 
C. Employment Location 
Though not addressed by the Director, we note that the Petitioner provided conflicting information on 
the labor certification and the I-140 petition about the location of the job opportunity. While the labor 
certification indicated that the primary worksite would be in I Hawaii, the 1-140 petition stated 
that the work would be performed at the Petitioner's main address inl I Texas. A labor 
certification for a specific job offer is valid only for the particular job opportunity, the foreign 
individual for whom the certification was granted, and for the area of intended employment stated on 
the [labor certification application]. 20 C.F.R. § 656.30(c)(2). (Emphasis added.) It is incumbent upon 
a petitioner to resolve any inconsistencies in the record by independent objective evidence. See Matter of 
Ho, 19 I&N Dec. 582, 591 (BIA 1988). The position was advertised as located in I Hawaii. On 
remand, the Director may wish to request evidence related to this issue, and allow the Petitioner an 
opportunity to submit evidence to demonstrate that the position is available in the stated work location to 
demonstrate the validity of the work location in the labor certification. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration. 
ORDER: The matter is remanded for the issuance of a new decision consistent with the foregoing 
analysis. 
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