dismissed EB-3 Case: Accounting

MATTER OF N-C- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 21,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of carpentry and other construction services, seeks to employ the 
Beneficiary as an accountant. It requests classification of the Beneficiary as a professional under the 
third preference immigrant category. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This category allows a U.S. business to sponsor a 
professional with a bachelor's degree for lawful permanent resident status. 
The Director, Nebraska Service Center, denied the petition. The Director concluded that the record 
did not establish the Beneficiary's possession of the educational qualifications for the offered 
position and the requested classification. 
The matter is now before us on appeal. The Petitioner asserts the Beneficiary's possession of the 
required educational qualifications. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. The Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First, a prospective U.S. employer 
must obtain an approved ETA Form 9089, Application for Permanent Employment Certification 
(labor 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). Next, the employer must file a Form l-140, Immigrant Petition for 
Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 
8 U.S.C. § 1154. Finally, if USCIS approves the petition, a 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. 
By approving the labor certification in this case, the DOL certified that U.S. workers are not able, 
willing, qualified, and available for the offered position of accountant. See section 212(a)(5)(A)(i)(l) of 
the Act. The DOL also certified that the Beneficiary's employment in the position will not hurt the 
wages and working conditions ofU.S. workers with similar jobs. See section 212(a)(5)(A)(i)(II). 
(b)(6)
Matter of N-C- Inc. 
In immigrant visa petition proceedings, USCIS must determine whether the Beneficiary meets the 
requirements of the offered position certified by the DOL. USCIS must also consider the eligibility 
of the Petitioner and the Beneficiary for the requested classification. See, e.g., Tongatapu Woodcrafi 
Haw., Ltd. v Feldman , 736 F.2d 1305, 1309 (9th Cir. 1984) (holding that the immigration service 
"makes its own determination of the alien's entitlement to [the requested] preference status"). 
B. The Beneficiary's Educational Qualifications 
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Here, the Petitioner requests classification of the Beneficiary as a professional. See section 
203(b)(3)(A)(ii) of the Act; see also 8 C.F.R. § 204.5(1). The petition must therefore be 
accompanied by a valid labor certification demonstrating that "the job requires the minimum of a 
baccalaureate degree." 8 C.F.R. § 204.5(1)(3)(i). 
To qualify for the requested classification, the Beneficiary must possess at least a baccalaureate 
degree, see 8 C.F.R. § 204.5(1)(3)(ii)(C), and have all the education , training , and experience 
specified on the labor certification by the petition 's priority date. 8 C.F.R. §§ 103.2(b)(l) , (12) ; see 
also Matter of Wing 's Tea House, 16 l&N Dec. 158, 159 (Acting Reg'! ~omm'r 1977); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971 ). 
At issue is whether the Beneficiary has the education required to meet the terms of the labor 
certification and the requested classification of professional. In evaluating a beneficiary's 
qualifications, we must examine the job offer portion of a labor certification to determine the 
minimum requirements of an offered position . We may neither ignore a term of the labor 
certification, nor impose additional requirements. See K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 
1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983); Stewart Infra-Red 
CommissaryofMass. , Inc. v. Coomey, 661 F.2d 1, 3 (lstCir. 1981). 
Here, the labor certification states the minimum requirements of the oftered position of accountant 
as a U.S. bachelor's degree or a foreign equivalent degn~e in accounting, plus 24 months of 
experience in the job offered. The labor certification also states that "No" alternate combination of 
education and experience is acceptable. 
The Beneficiary attested on the labor certification to her possession of a bachelor 's degree in 
accounting. She stated that she received the degree in 2009 from the 
in Ireland. The record contains a copy of an October 29, 2009, bachelor of business 
degree in accounting and finance from the institute in the Beneficiary's name. The accompanying 
documentation indicates that the degree required only 3 years of study. 
The Petitioner submitted an expert evaluation of the Beneficiary's foreign educational credentials. 
The evaluation concludes that the Beneficiary's bachelor's degree equates to a U.S. bachelor of 
science degree in accounting. However, the evaluation does not mention that the Beneficiary ' s 
degree required only 3 years of study , nor does it explain how the Beneficiary's 3-year bachelor 's 
degree equates to a 4-year, U.S. bachelor's degree . U.S. bachelor ' s degrees generally require 4 years 
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Matter ofN-C-lnc. 
of study. Matter of Shah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977). The Director therefore 
correctly found that the evaluation does not establish the Beneficiary's possession of a U.S. 
bachelor's degree or a foreign equivalent degree as required tor the offered position and for the 
requested classification. If an expert opinion conflicts with evidence of record or is "in any way 
questionable," we may reject it or afford it less evidentiary weight. Matter of Caron In/ 'l, Inc., 
19 I&N Dec. 791, 795 (Comm'r 1988); see also Matter of D-R-, 26 J&N Dec. 145, 160 n.13 (BIA 
2011) (noting that expert testimony may be afforded different evidentiary weight depending on an 
expert's qualifications and the testimony's relevance, reliability, and probative value). 
The Director also noted that the Electronic Database for Global Education (EDGE), an online tool 
that federal courts have found to be a reliable, peer-reviewed source of information about foreign 
educational equivalencies, indicates that the Beneficiary's foreign degree does not equate to a U.S. 
bachelor's degree. See, e.g., Viraj, LLC v. US. Att'y Gen., 578 Fed. Appx. 907, 910 (11th Cir. 2014) 
(holding that USCIS may discount letters and evaluations submitted by a petitioner if they differ 
from reports in EDGE, which is "a respected source of information").' EDGE reports that a 3-year 
bachelor's degree in Ireland is comparable to 3 years of university studies in the United States. As 
previously indicated, U.S. bachelor's degrees usually require 4 years of study. Shah, 17 l&N Dec. at 
245. 
On appeal, the Petitioner asserts that the Beneficiary's 3-year bachelor's degree meets the 
requirements specified on the labor certification and for classification as a professional. We 
disagree. Concerning the requirements of the offered position, the Petitioner specifically stated in 
part H.4 of the labor certification that the offered position requires a "Bachelor's" degree, rather than 
an "Associate's" degree or some "Other" educational credential. While part H.9 of the labor 
certification states that a foreign equivalent of a U.S. bachelor's degree is also acceptable, part H.8 
states that the Petitioner will not accept an alternate combination of education and experience. Part 
H.14 states a "[m]inimum [educational] requirement of [a] Bachelor's degree in Accounting or [a] 
Foreign Equivalent." This language appears to reinforce the educational requirements stated in parts 
H.4 and H.9 of the labor certification. Thus, the plain language of the labor certification states the 
minimum educational requirement of the offered position as a U.S. bachelor's degree, or a foreign 
equivalent degree, in accounting. 
As discussed above, the record does not establish the equivalency of the Beneficiary's 3-year 
bachelor's degree to a U.S. bachelor's degree. We therefore find that the Beneficiary does not have 
a U.S. bachelor's degree, or a foreign equivalent degree, in accounting, and does not meet the terms 
of the labor certification. 
1 EDGE was created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). 
AACRAO is a "non-profit, voluntary, professional association of more than 11,000 higher education professionals who 
represent approximately 2600 institutions in more than 40 countries." See AACRAO, at 
http://www4.aacrao.org/centennial/about.htm (last visited Jan. 30, 2017). 
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(b)(6)
Matter of N-C- Inc. 
We next examine whether the Beneficiary has the education required for classification as a 
professional. The Act and its legislative history indicate that a professional worker must possess at 
least a U.S. bachelor's degree or a foreign equivalent degree. The degree may not combine lesser 
educational credentials, or education and experience. In response to public criticism that the 
regulations bar the substitution of experience for baccalaureate education in immigrant visa 
petitions, the former Immigration and Naturalization Service (INS) reviewed the Immigration Act of 
1990, Pub. L. I 01-649 . The INS concluded that "both the Act and its legislative history make clear 
that, in order to qualify as a professional under the third classification or to have experience equating 
to an advanced degree under the second, an alien must have at least a bachelor's degree." Final Rule 
for Immigrant Visa Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991 ). As noted, the record does 
not demonstrate the Beneficiary's possession of a U.S. bachelor ' s degree or foreign equivalent 
degree. Therefore, the Beneficiary is ineligible for classification as a professional. 
In sum, the record does not establish the Beneficiary's possession of the educational qualifications 
required for the requested classification or for the offered position, as specified on the labor 
certification. We will therefore affirm the Director's decision and dismiss the appeal. 
C. Remaining Issues 
The Director did not address other defects in the petition. Because the Petitioner did not receive 
notice of these remaining issues and an opportunity to respond to them, they will not constitute 
grounds for dismissal of this appeal. See 8 C.F.R. § I 03.2(16)(i) (requiring USCIS, before issuing 
an adverse decision, to advise a petitioner of derogatory information of which it is unaware and to 
afford it an opportunity to respond). In any future filings in this matter , however, the Petitioner must 
submit additional evidence to overcome the following defects. 
1. The Petitioner's Intention to Employ the Beneficiary 
A U.S. business may file an immigrant visa petition if it is "desiring and intending to employ" a 
foreign national. Section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). A petitioner must 
intend to employ a beneficiary pursuant to the terms and conditions of an accompanying labor 
certification. See Matter of Izdebska, 12 T&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a 
petition's denial where a petitioner did not intend to employ a beneficiary as a live-in domestic 
worker pursuant to the terms of an accompanying labor ce11ification). 
For labor certification purposes, an employer must propose to employ a foreign national full-time in 
the United States and must possess a valid, distinctive federal employer identification number 
(FEIN). 20 C.F.R. § 656.3 (defining the tem1 "employer"). 
Here, the labor certification states the Petitioner 's intention to employ the Beneficiary full-time as an 
accountant. The Form I-140 and the labor certification identify the Petitioner by the same address 
and FEIN. However , online, public information indicates that a separate , active corporation , 
operates at the same address as the Petitioner. See N.Y. Dep ' t of State, Div. of Corps. , 
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(b)(6)
Matter ofN-C- Inc. 
Entity Info., at http://www.dos.ny.gov/corps/bus _entity_ search.html (last visited Jan. 30, 20 17). 
This company's website states that the Petitioner and another company merged in 2011 to form the 
company now known as See at 
(last visited Jan. 30, 2017). The online information indicates that the Petitioner merged to 
form a new company in 2011, before the filing of the labor certification. As such, it is unclear 
whether the Petitioner was in fact eligible to file the labor certification and Form I-140 as a U.S. 
employer. Moreover, information regarding the merger raises doubts about the Petitioner's current 
business operations and its intention to employ the Beneficiary. 
2. The Petitioner's Ability to Pay the Proffered Wage 
Our review of the record has also found insufficient evidence of the Petitioner's ability to pay the 
proffered wage. 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. 
§ 204.5(g)(2). Evidence of ability to pay must include copies of annual reports, federal income tax 
returns, or audited financial statements. Id. 
In this case, the petition's priority date is February 22, 2015.2 The record contains a copy of the 
Petitioner's federal income tax return for 2014, the most recent returns available at the time of tiling. 
Pursuant to 8 C.F.R. § 204.5(g)(2), however, the record lacks required evidence of the Petitioner's 
ability to pay the proffered wage in 2015, the year of the petition's priority date. The Petitioner did 
submit a profit and loss statement for 2015, but, contrary to 8 C.F.R. § 204.5(g)(2), the record does 
not indicate that this financial statement was audited. Therefore, the profit and loss statement does 
not establish the Petitioner's ability to pay the proffered wage in 20 i 5. 
Thus, the record lacks required evidence of the Petitioner's ability to pay the proffered wage from 
the petition's priority date onward. 
II. CONCLUSION 
The record does not establish the Beneficiary's educational qualifications for the offered position or 
the requested classification. We will therefore affirm the Director's decision and dismiss the appeal. 
In any future filings in this matter, the Petitioner must also establish its intention to employ the 
Beneficiary and its ability to pay 
the proffered wage. 
In visa petition proceedings, a petitioner bears the burden of establishing eligibility for a requested 
benefit. Section 291 of the Act, 8 U.S.C. § 1361. Here, the Petitioner did not meet that burden. 
2 This is the date the DOL accepted the accompanying labor certification application for processing. See 8 C.F.R. 
§ 204.5(d) (explaining how to determine a petition's priority date). 
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Matter of N-C- Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-C- Inc., ID# 95896 (AAO Feb. 21, 2017) 
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