dismissed EB-3 Case: Advertising

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-P-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 31,2017 ! 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which describes itself as a Hispanic advertising business, seeks to employ the 
Beneficiary as an associate creative director. It requests classification of the Beneficiary as a skilled 
worker under the third preference immigrant classification. See Immigration and Nationality Act (the 
Act), section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant 
classification allows a U.S. employer to sponsor a foreign national for lawful permanent resident 
status to work in a position that requires at least 2 years of training or experience. 
The Director, Texas Service Center, denied the petition. The Director concluded that the Petitioner 
had not established that the Beneficiary possessed the minimum educational qualifications required 
by the labor certification and the job offer as of the priority date. · 
The matter is now before us on appeal. The Petitioner asserts that while it had initially petitioned for 
classification as a professional, it later amended the petition to request classification as a skilled 
worker. 1 The Petitioner asserts that labor certification allows for a combination of education and 
experience and that the Beneficiary possessed all of the requirements stated on the labor 
certification. Upon de novo review, we will dismiss the appeal. 
I. PROCEDURAL HISTORY 
Employment-based immigration is generally 
a three-step process. First, an 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 may file an immigrant visa petition with U.S. 
' Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. 
§ 1154. Finally, if USCIS approves the immigrant visa petition, the foreign national must apply for 
an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of 
the Act,r8 U.S.C. § 1255. 
1 The petition requesting classification of the Beneficiary as a professional was filed on July 15, 2014, under receipt number 
and was denied on October 21, 2015. The petition requesting classification of the Beneficiary as a 
skilled worker (the current petition) was filed on April 22, 2015, under receipt number , and was denied 
on May 6, 2016. The Petitioner filed an appeal from the Director's decision on June 6, 2016. 
Matter of P-P-, LLC 
As required by statute, a labor certification, approved by DOL, accompanies the petition. The 
priority date of the petition is October 29, 2013? 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. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also certifies that the employment of a 
foreign national in the position will not adversely affect the wages and working conditions of domestic 
workers similarly employed. Section 212(a)(5)(A)(i)(ll) of the Act. It is then 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. 
The required education, training, experience and skills for the offered position are set forth at Part H 
of the labor certification. In the instant case, the labor certification states that the position has the 
following minimum requirements: 
H.4. 
H.4-B. 
H.6. 
H.7. 
H.7-A. 
H.8. 
H.9. 
H.10. 
H.10-A. 
H.10-B. 
H.l4. 
Education: minimum level required: Bachelor's degree. 
Major field of study: Advertising. 
Is experience in the job offered required for the job? No. 
Is there an alternate field of study that is acceptable? Yes. 
If Yes, specify the alternate field of study that is acceptable. See Box 
#14. 
Is there an alternate combination of education and experience that is 
acceptable? No. 
Is a foreign educational equivalent acceptable? Yes. 
Is experience in an alternate occupation acceptable? Yes. 
If Yes, number of months experience in alternate occupation required: 
24. 
Identify the job title of the acceptable alternate occupation: See Box 
#14. 
Specific skills or other requirements: Employer will accept any 
suitable combination of education, experience, and/or training for this 
position. Requirements: Bachelor's degree or foreign academic 
equivalent in Advertising, Graphic D~sign, Art, Visual 
Communications, Computer Graphics, or closely related field. 
Experience which may have been obtained concurrently should 
include a minimum of 2 years of background and experience in the 
field of advertising and graphic design, and 2 years experience in 
Illustrator, Photo shop and Indesign. Incumbent must be fluent (oral 
and writing) in English and Spanish. 
2 
The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). 
2 
(b)(6)
Matter of P-P-, LLC 
On the labor certification, in Part J.11., 1.12., and J.13., the Beneficiary listed his education as a 
bachelor's degree in advertising from in 
Argentina, completed in 1995. The Petitioner submitted copies of the Beneficiary's academic 
transcript with English translation, showing studies at 
fro~ 1993 until 1995. The transcript states that the Beneficiary "graduated on 22112/95 
having obtained the title of Superior Technician in Advertising ( )." 
The Petitioner submitted a credentials evaluation performed on October 17, 2011, by 
Ph.D., professor and Chair of the 
of the 
concluded that the Beneficiary's academic record, alone, "satisfied requirements which are 
substantially similar to those required toward the completion of the first three years of course work 
in a four-year Bachelor's Degree program at an accredited institution of higher education in the 
United States." further concluded that when the Beneficiary's academic record was 
combined with his experience of at least 14 years of employment in advertising, it constituted "the · 
equivalent of a Bachelor's Degree in Advertising from an accredited institution of higher education 
in the United States." 
The Director denied the petition on May 6, 2016, after concluding that the Petitioner had not 
established that the Beneficiary possessed the minimum educational credentials of a bachelor's 
degree required by the labor certification. 
II. LAW AND ANALYSIS 
On appeal, the Petitioner notes that it had previously filed a petition for this Beneficiary seeking 
classification as a professional, but states that it had revised its petition to seek classification as a 
skilled worker. The Petitioner stresses that it specified at Line H.1 0-A. that the position required 24 
months' employment experience in advertising and graphic design, and states that it had submitted 
sufficient documentation to establish that the Beneficiary possessed the requisite experience. 
However, as detailed above, the labor certification also states that the position requires a bachelor's 
degree in graphic design, art, visual communications, computer graphics, or closely related field or a 
foreign equivalent degree. 
To be eligible fQr approval, a beneficiary must meet all of the requirements of the offered position set 
forth on the labor certification by the priority date of the petition. 8 C.P.R.§ 103.2(b)(l), (12). See 
Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of 
Katigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971). 
The Petitioner relies on the beneficiary's 3 years of study at 
combined with his work experience as being equivalent to a U.S. bachelor's 
degree, as described in the credentials evaluation performed by However, as 
noted above, the Petitioner specified at Line H.8. of the labor certification that it would not accept a 
combination of education and experience in place of the required bachelor's degree. 
3 
Matter of P-P-, LLC 
The Petitioner notes on appeal that it indicated at Line H.14. of the labor certification that it would 
accept "any suitable combination of education, experience and/or training for this position." 
By way of background, the regulation at 20 C.F.R. § 656.17(h)( 4)(ii) states: 
If the alien beneficiary already is employed by the employer, and the alien does 
not meet the primary job requirements and only potentially qualifies for the job by 
virtue of the employer's alternative requirements, certification will be denied 
unless the application states that any suitable combination of education, training, 
or experience is acceptable. 
This regulation ' was intended to in<;orporate the Board of Alien Labor Certification Appeals 
(BALCA) ruling in Francis Kellogg, 1994-INA-465 and 544, 1995-INA 68 (Feb. 2, 1998) (en bane), 
that "where the alien does not meet the primary job requirements, but only potentially qualifies for 
the job because the employer has chosen to list alternative job requirements, the employer's 
alternative requirements are unlawfully tailored to the alien's qualifications ... unless the employer 
has indicated that applicants with any suitable combination of education, training or experience are 
acceptable." The statement that an employer will accept applicants with "any suitable combination 
of education, training or experience" is commonly referred to as "Kellogg language." 
The Petitioner now suggests it intended to use the Kellogg language as an alternative to its response 
at Line H.4. that the position requires a bachelor's degree. The Petitioner could have indicated at 
Line H.4. that "Other" education was acceptable and could have defined "Other" at Line H.4-A.; 
however, the Petitioner did not do so. The Petitioner could also have indicated an alternate 
combination of education and experience at Line H.8. and elaborated on a combination there, or at 
Line H.l4. The Petitioner's assertion that it intended to allow job candidates to qualify with less 
education than the specified bachelor's degree contradicts the Petitioner's response at Line H.8., 
where the Petitioner specified that an applicant cannot qualify for the offered job through a different 
combination of education and experience in place of the required bachelor's degree. This claim is 
also inconsistent with the fact that the Petitioner responded to Lines H.7-A. and H.10-B. by stating 
"See Box # 14" and expanded on the required experience, but did not refer to Line H.14. or expand 
on any allowed combination in that space when it listed the degree requirement at Line H.4. The 
Petitioner did, in fact, qualify the educational requirement at Line H.4. in stating, "Bachelor's degree 
or foreign academic equivalent" at Line H.14. The Petitioner's only evaluation submitted would not 
establish that the Beneficiary has a foreign equivalent degree based on academics alone. Finally, the 
Petitioner indicated in Section J of the ETA Form 9089 that the Beneficiary qualified for the position 
based on the possession of a bachelor's degree, not that the Beneficiary qualified based on a 
combination of education and experience. 
USC IS must read the terms of the labor certification as drafted. See Matter of Silver Dragon Chinese 
Restaurant, 19 I&N Dec. 401 (Comm. 1986). When determining whether a beneficiary is eligible 
for a preference immigrant visa, USC IS may not ignore a term of the labor certification, nor may it 
impose additional requirements. See Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). 
USCIS must examine "the language of the labor certification job requirements" in order to determine 
4 
Matter of P-P-, LLC 
what the job requires. !d. The only rational manner by which USCIS can be expected to interpret 
the meaning of terms used to describe the requirements of a job in a labor certification is to examine 
the certified job offer exactly as it is completed by the prospective employer. See Rosedale Linden 
Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). The language of 
the labor certification reads that a bachelor's degree is required, and the Petitioner listed that the 
Beneficiary had a bachelor's degree, despite filing under the skilled worker category. 
The Petitioner was free to submit any evidence on appeal to help establish the language on the labor 
certification. The record does not contain any evidence of how the position was advertised and 
whether candidates without degrees were considered, which might have further elaborated on how 
the Petitioner advertised and intended the position's minimum requirements. 
After reviewing all of the evidence in the record, it is concluded that the Petitioner did not establish 
that the Beneficiary has a U.S. baccalaureate degree or a foreign equivalent degree from a college or 
university as required by the terms of the labor certification. Thus, the Petitioner did not establish 
that the Beneficiary met .the minimum educational requirements of the offered position set forth on 
the labor certification by the priority date. While the Petitioner may file the petition under the 
skilled worker category, and the Beneficiary can show that he has 2 years of experience, the 
Petitioner must still demonstrate that the Beneficiary meets the terms of the certified labor 
certification, which, here, the Petitioner has not established. 
III. CONCLUSION 
In summary, the Petitioner did not establish that the Beneficiary possesses the minimum educational 
credentials required by the labor certification. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; See Matter ofBrantigan, 11 I&N Dec. 493 
(BIA 1966); Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner has not met that 
burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofP-P-, LLC, ID# 79475 (AAO Jan. 31, 2017) 
5