dismissed EB-3 Case: Accounting

MATTER OF M-D~,__ _ ____, 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 8, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a mosque, seeks to employ the Beneficiary as an accountant. It requests his 
classification under the third-preference, immigrant category as a professional. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § l 153(b)(3)(A)(ii). This employment­
based, "EB-3" category allows a U.S. organization to sponsor a foreign national for lawful 
permanent resident status to work in a job requiring at least a bachelor's degree. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that, 
contrary to the requirements of the offered position and the requested classification, the Petitioner 
did not demonstrate the Beneficiary's possession of a U.S. baccalaureate or a foreign equivalent 
degree. 
On appeal, the Petitioner argues that the position's requirement of a "Bachelor's or Foreign 
Equivalent" allows for a combination of training, education, or experience to equate to a bachelor's 
degree. The Petitioner also contends that the Beneficiary's membership in the Institute of Cost and 
Management Accountants of Pakistan (ICMAP) and his prior approval in U.S. H-lB nonimmigrant 
visa status demonstrate his educational qualifications for the position and the classification. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a 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, and 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 labor certification with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (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 the requested visa classification. If USCIS grants a 
Matter of M-D~._ _ ____, 
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. EDUCATIONAL REQUIREMENTS 
A pet1t10n for a professional must demonstrate that an offered position requires, and that a 
beneficiary has, at least a U.S. baccalaureate or a foreign equivalent degree. 8 C.F.R. 
§§ 204.5(1)(3)(i), (ii)(C). Evidence of a bachelor's degree must include "an official college or 
university record showing the date the baccalaureate was awarded and the area of concentration of 
study." 8 C.F.R. § 204.5(1)(3)(ii)(C). 
A petitioner also must demonstrate a beneficiary's possession of all DOL-certified, job requirements 
of an offered position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 
160 (Acting Reg'l Comm'r 1977).1 In evaluating a beneficiary's qualifications, USCIS must 
examine the job-offer portion of an accompanying labor certification to determine a position's 
minimum 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, rather than indicating a high school diploma or a university degree, part H.4. of the 
accompanying labor certification states the minimum educational level required for the offered 
position of accountant as "Other." Part H-4A. specifies the "Other" education requirements as a 
"Bachelor's or Foreign Equivalent." Part H-4B. requires accounting as the major field of study, and 
part H.9. indicates the Petitioner's acceptance of a foreign equivalent degree. 
The Director interpreted the labor certification to state the position's mm1mum educational 
requirement as a U.S. baccalaureate or a foreign equivalent degree in accounting. Thus, the Director 
found that the job requires a single degree that either is or equates to a U.S. bachelor's degree. On 
appeal, however, the Petitioner argues that the term "Foreign Equivalent" in part H-4B. of the labor 
certification "means not just an 'equivalent' foreign degree, but also includes by implication the 
equivalent training, education and/or experience of someone who holds a U.S. Bachelor's Degree in 
Accounting." 
By selecting "Other" in part H.4. of the labor certification, the Petitioner appeared to indicate that 
the offered position does not require a bachelor's degree. But, by specifying the job's educational 
requirements as "Bachelor's or Foreign Equivalent," the Petitioner did not explain how its "Other" 
requirements differ from a U.S. baccalaureate or foreign equivalent degree. Also, the Petitioner 
accepted a foreign equivalent degree in part H.9. and stated in part H.8. that it would not accept "an 
alternate combination of education and experience." The plain language of the labor certification 
therefore does not support its claimed acceptance of a bachelor's equivalent based on a combination 
of training, education, or experience. 
1 This petition's priority date is March 22, 2018, the date DOL accepted the accompanying labor certification application 
for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
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Matter of M-D□ 
Also, counsel's assertion that the term "Foreign Equivalent" indicates the Petitioner's acceptance of 
a degree equivalency based on a combination of training, education, or experience is not proof of the 
requirement's intended meaning. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) 
( citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)) (holding that an attorney's 
assertions are not evidence). Counsel's statements must be substantiated with independent proof, 
which may include affidavits or declarations. In addition, the Petitioner did not assert its acceptance of 
a combination of training, education, or experience until it filed this appeal. In response to the 
Director's two, written requests for additional evidence (RFEs ), the Petitioner argued that the 
Beneficiary's education alone equated to a U.S. bachelor's degree. Thus, a preponderance of evidence 
indicates that the offered position requires at least a U.S. baccalaureate or a foreign equivalent degree. 
Even if the record established the Petitioner's acceptance of a degree equivalency based on a 
combination of training, education, or experience, the petition would not qualify for the requested 
classification because the offered position would require less than a bachelor's degree. See 8 C.F.R. § 
204.5(1)(3)(i) (requiring the job-offer portion of an accompanying labor certification to "demonstrate 
that the job requires the minimum of a baccalaureate degree"). The Petitioner's argument is therefore 
ineffective. 
To support the Beneficiary's educational qualifications, the Petitioner submitted documentation that, by 
the petition's priority date, the Beneficiary obtained a bachelor of commerce degree from a Pakistani 
university and became a member of ICMAP. The Petitioner also provided two, independent 
evaluations of the Beneficiary's foreign credentials, which concluded that he has the equivalent of at 
least a U.S. bachelor of science degree in accounting. 2 Both evaluations indicate that the Beneficiary's 
two-year, bachelor of commerce degree equates to two years of U.S. university studies. To demonstrate 
the Beneficiary's possession of the equivalent of a U.S. bachelor's degree, one evaluation combines his 
university degree with his employment experience; the other combines his degree with his ICMAP 
membership. Both evaluations rely on combinations of education or experience. The record therefore 
does not establish the Beneficiary's possession of a U.S. baccalaureate or a foreign equivalent degree as 
the offered position and requested classification require. 
The record also does not establish the Beneficiary's claimed possession of the two-year, bachelor of 
commerce degree. As previously indicated, evidence of a bachelor's degree must include "an 
official college or university record showing the date the baccalaureate was awarded and the area of 
concentration of study." 8 C.F.R. § 204.5(1)(3)(ii)(C). The Petitioner submitted copies of the 
Beneficiary's university marks certificates and results cards. Contrary to the regulation, however, 
these documents do not show the date of the baccalaureate's award. Indeed, each results card states: 
"An entry appearing in it does not in itself confer any right or privilege independently to the grant of 
a proper Certification/Degree which will be issued under the Regulations in due course." 
The Petitioner argues that the Beneficiary's ICMAP membership constitutes a foreign degree equivalent 
to at least a U.S. baccalaureate. But the record does not establish ICMAP as a college or university 
authorized to issue degrees. As previously indicated, evidence of a bachelor's degree must include "an 
official college or university record." 8 C.F.R. § 204.5(1)(3)(ii)(C). The Petitioner submitted copies 
2 The Petitioner initially submitted an evaluation and educational credentials regarding another foreign national. In an 
RFE response, however, prior counsel acknowledged that those materials were erroneous. 
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Matter of M-D~~--~ 
of letters from ICMAP officials stating that the Pakistani government equates institute membership 
to a Pakistani master's degree and that the institute's founding statute authorizes ICMAP to "confer 
degrees." The copy of the statute that the Petitioner submitted states that the powers of ICMAP's 
council include "the registration and training of students" and "the examination of candidates for 
membership of the Institute." But the statute does not identify ICMAP as a college or university, or 
otherwise authorize it to issue academic degrees. Nor does the Higher Education Commission 
(HEC) of Pakistan list ICMAP as a recognized university or degree-awarding institution. See HEC, 
"Recognised Universities," https://www.hec.gov.pk/english/universities/pages/recognised.aspx (last 
visited July 23, 2019). In addition, the Petitioner submitted copies of the Beneficiary's "certificates" 
from ICMAP. The record does not indicate that he received a "degree" from the institute. Thus, the 
record does not support the Petitioner's argument that the Beneficiary's ICMAP membership 
constitutes a foreign degree equivalent to a U.S. baccalaureate. 
The Petitioner also contends that the Beneficiary's prior approval in H-1 B nonimmigrant visa status 
"provides prima facie evidence of his educational qualification for the position offered." Unlike 
regulations for immigrant professionals, however, H-lB rules recognize combinations of training, 
education, or experience as equivalents to U.S. bachelor's degrees. See 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5) (equating three years of training or experience to one year of U.S. college or 
university). In contrast, to immigrate as a professional, a beneficiary must have at least a bachelor's 
degree, without combining training, education, or experience. See Final Rule for Employment­
Based Immigrant Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (stating that "both the Act 
and its legislative history make clear that, in order to qualify as a professional under the third 
classification . . ., an alien must have at least a bachelor's degree") ( emphasis added). The 
Beneficiary's H-1 B approval therefore does not demonstrate his educational qualifications for the 
offered position or requested classification. 
For the foregoing reasons, the Petitioner has not demonstrated the Beneficiary's possession of the 
minimum education required for the offered position or the requested classification. We will therefore 
affirm the Director's decision. 
III. OTHER REQUIREMENTS 
Although unaddressed by the Director, the record also does not establish the Beneficiary's possession of 
"other requirements" of the offered position. Part H.14 of the labor certification, "Specific skills and 
other requirements," states: "Must have knowledge of accounting needs for a not-for-profit religious 
institution. Must have knowledge of accounting for a Mosque." 
In response to the Director's first RFE, the Petitioner submitted documentation indicating that the 
Beneficiary gained knowledge of accounting needs of a non-profit religious institution and mosque by 
contracting the services of his consulting firm to the Petitioner. In a letter, the Petitioner's president 
stated that the Beneficiary "is currently providing Accounting services" to the mosque under a 2014 
contract. 
DOL regulations, however, generally bar labor certification employers from requiring U.S. workers to 
have training or experience beyond what a foreign national had at the time of hire, "including as a 
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contract employee." 20 C.F.R. § 656.17(3). An employer cannot rely on a foreign national's training or 
experience with it unless they gained the qualifications working in a position substantially different than 
the offered one, or the employer demonstrates the impracticality of training a U.S. worker for the 
position. 20 C.F.R. §§ 656.17(i)(3)(i), (ii). 
Here, the record indicates that, as of the Petitioner's hiring of the Beneficiary as a contractor in 2014, he 
lacked the requisite knowledge of accounting needs of a non-profit religious institution or mosque. 
Also, the Petitioner has not demonstrated that the Beneficiary gained the knowledge working in a 
position substantially different than the offered one, or the impracticality of training a U.S. worker for 
the job. Thus, in any future filings in this matter, the Petitioner must demonstrate the Beneficiary's 
qualifications for one of the two exceptions under DOL regulations, or his acquisition of the knowledge 
with another trainer, educator, or employer. 
IV. CONCLUSION 
The record on appeal does not establish the Beneficiary's possession of the minimum education 
required for the offered position or the requested classification. We will therefore affirm the 
petition's denial. Contrary to section 291 of the Act, 8 U.S.C. § 1361, the Petitioner did not meet its 
burden of establishing eligibility for the requested benefit. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-D-.__I _ _.I, ID# 5374923 (AAO Aug. 8, 2019) 
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