sustained EB-2 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-. INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 12.2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software and data sharing firm that caters to real estate brokers. seeks to employ the 
Beneficiary as a director of engineering. and classify him as a member of a profession holding an 
advanced degree or an individual of exceptional ability (EB-2 classification). Sec Immigration and 
Nationality Act (the Act) section 203(b)(2). 8 U.S.C. § 1153(b)(2). 
The Director of the Nebraska Service Center erroneously denied the petition. by concluding that the 
Beneficiary was ineligible for classification as a professional with a baccalaureate degree (EB-3 
classification).
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when the Petitioner sought to establish the Beneficiary's eligibility under the EB-2 
classification as an individual of exceptional ability. 
On appeal. the Petitioner submits a brief and an additional copy of the evidence previously provided 
to the Director at the time of tiling the petition. 
Upon de novo review. we will sustain the appeal. 
I. LAW 
Second preference immigrant visas are available for qualified individuals who are advanced-degree 
professionals or 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. Section 203(b )(2) of the Act. Exceptional ability in the sciences. arts. or 
business means a degree of expertise significantly above that ordinarily encountered in the sciences. 
arts. or business. 8 C.F.R. § 204.5(k)(2). 
Every petition under this classification must include one of the following three items: (I) an 
individual labor certification from the Department of Labor. (2) an application for Schedule A 
designation, or (3) documentation to establish that the beneficiary qualities for one of the shortage 
1 
See section 203(b)(3)(A)(ii) of the Act. 8 U.S.C. ~ 1153(b)(3)(A)(ii). The third-preference. employment-based 
immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful 
permanent resident status. 
Maller olM-,!nc. 
occupations m the Department of Labor·s Labor Market Information Pilot Program. 8 C.F.R. 
~ 204.5(k)(4)(i). 
II. ANALYSIS 
The Director in denying the petition did not consider whether the Beneficiary was qualified for the 
EB-2 visa classification. or whether he met the job requirements specified in the labor certification 
submitted in support of the petition. On appeal. we find that the evidence in the aggregate is 
sufficient to show that the Beneficiary qualities for the benefit sought on his behalf. 
A. Exceptional Ability under 8 C.F.R. ~ 204.5(k)(2) 
To meet the definition of""exceptional ability."· the regulation at 8 C.F.R. ~ 204.5(k)(3)(ii) provides that 
a petitioner must submit sufficient evidence that meets at least three of the six criteria detailed therein. 
The list include evidence showing that the beneficiary possesses at least I 0 years of full-time experience 
tor the occupation being sought; evidence that he has commanded a salary or other remuneration for 
services. which demonstrates exceptional ability: and. evidence of membership in professional 
associations. 
The Petitioner wishes to permanently employ the Beneficiary as a director of engineering. specializing 
in software development that focuses on creating data sharing products for use by real estate brokers. It 
maintains that he has met at least three of the six criteria at 8 C.F.R. ~ 204.5(k)(3)(ii). and thus qualities 
an individual of exceptional ability. We agree. 
To meet the requirements of 8 C.F.R. ~ 204.5(k)(3)(ii)(B). the record contains letters from current and 
former employers indicating that he has at least I 0 years of full-time work experience in the occupation 
sought. specifically as a programmer analyst. soflware engineer. and ultimately as a director of 
engineering. The record contains sufficient evidence of the Beneticiary"s employment activities 
within the field of software engineering to meet the I 0 year experience requirement. Therefore. he has 
met this criterion. 
The plain language of the criterion at 8 C.F.R. ~ 204.5(k)(3)(ii)(D) requires the submission of 
evidence that the Beneficiary has commanded a salary or other form of compensation for his 
services at a level which demonstrates his exceptional ability. The Petitioner has provided evidence 
of the Beneticiary·s salary and corresponding wage data from the Department of Labor·s Foreign 
Labor Certification Data Center"s Online Wage Library tor the years 20 II through 2015. This wage 
library relies on the Bureau of Labor Statistics (BLS) Occupational Employment Statistics (OES) wage 
estimates. 2 The Petitioner has submitted employment data and wage data !()f the sotlware engineer 
2 See http://www. tlcdatacenter.com/casedata.aspx. See also http://www.bls.gov/oes/ocs cmp.htm#estimates. 
The OES program collects data on wage and salary workers in nonfarm establishments in order to produce employment and 
wage estimates tor about 800 occupations. The BLS produces occupational employment and wage estimates tor over 450 
industry classifications at the national level. 
2 
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Matter of M-.Inc. 
occupation in the metropolitan statistical area for the intended employment, California. 
The Petitioner highlighted that the Beneficiary received a salary that exceeded the wages paid at the 
highest skill level for the occupation in 2011 through 2015 by 12-40% each year. Additionally, it 
submitted evidence that the Beneficiary received company stock options from his employers during this 
timeframe. Based on this evidence, we conclude he has met this criterion as it is more likely than not 
that the Beneficiary commanded a salary that is indicative of his exceptional ability in the occupation. 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) involves the submission of evidence of the Beneficiary's 
membership in professional associations. The record contains material that shows he holds 
membership in two professional organizations, the 
and the . and so meets this criterion . 
In light of the above. the record includes sufficient documentary evidence that the Beneficiary meets at 
least three of the six regulatory critera at 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner has shown the 
Beneficiary to be an individual of exceptional ability in the sciences.J 
B. Qualifying Work Experience 
A petitioner must establish a beneficiary's possession, by a petition's priority date. of all DOL­
certified job requirements. See Matter of' WinK ·s Tea House. 16 I&N Dec. 158. 160 (Acting Reg'l 
Comm'r 1977).4 In evaluating a beneficiary's qualifications. U.S. Citizenship and Immigration 
Services (USCIS) must examine the job offer portion of an accompanying labor certification to 
determine the minimum requirements of an offered position . USCIS may neither ignore a 
certification term. nor impose additional requirements. See. e.g .. Madany r. Smith. 696 F.2d I 008. 
I 015 (D.C. Cir. 1983) (holding that the ·'DOL bears the authority for setting the content of the labor 
certification") (emphasis in original). 
The terms of the labor ce11ification allow an applicant to qualify tor the job oftered with ten years of 
work experience in either the proffered position. or in alternative occupations as a programmer analyst. 
or a software engineer. The Petitioner has provided letters from current and tanner employers that 
show the Beneficiary meets the work experience requirements through his employment in the field of 
software engineering. The labor certification also requires that an applicant tor the joh must command a 
salary which demonstrates exceptional ability, and hold memb ership in professional associations. As 
previously discussed. the Beneficiar y meets these additional job requirements as well. Theretorc. we 
' The Petitioner maintains that the Beneficiary also meets the requirements of the criterion at 8 C.F.R. ~ 204.5(k)(3)(ii)(F). 
However, since the Beneficiary has already met at least three of the six criteria at 8 C.F.R. ~ 204.5(k}(3)(ii), an analysis of 
this founh criterion is moot. 
• This petition's priority date is June 29. 2013, the date the DOL received the instant labor certification aprlication for 
processing. See 8 C.F.R. ~ 204.5(d) (explaining how to determine a petition' s priority date). In this case the Beneficiary 
may be eligible to retain his priority date from a previously approved petition conferring a priority date of May 29. 2006. 
See 8 C.F.R. § 204.5(e) (explaining how to determine whether a beneficiary may retain a previously accorded priority 
date). 
Matter of M-.Jnc. 
conclude that the Beneficiary has met the requirements of the position. See 8 C.F.R. § 204.5(a)(2). 
(k)(4). 
III. CONCLUSION 
The Petitioner has established that the Ikncfieiary qualities as an individual possessing e:-;ccptinnal 
ability under section 20:\(b)(2) ol'the Act. 
ORDER: The appeal is sustained. 
Cite as Malter ofM-. Inc.. ID# 760341 (AAO Jan. 12, 20 18) 
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