dismissed EB-3 Case: Aerospace

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-G-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 28,2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an exporter of aerospace services and supplies, seeks to employ the Beneficiary as a 
market research analyst. It requests classification of the Beneficiary as a professional under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act). 
section 203(b)(3)(A)(ii), 8 U.S.C. ~ 1153(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the Beneficiary did not 
have the foreign equivalent of a U.S. bachelor's degree, as required for the requested classification, 
and did not meet the educational requirements of the labor certification. On appeal, the Petitioner 
submits a brief and additional evidence. The Petitioner asserts that the Beneficiary meets the 
educational requirements of the labor certification; that, in the alternative, the Beneficiary is eligible 
for the skilled worker classification; and that the petition should be approved in our discretion due to 
humanitarian and public policy reasons. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
A. Employment-Based Immigration 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved 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). As required by statute, an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by the DOL, accompanies the 
petition. By approving the labor certification, the DOL certified that there are insufficient U.S. workers 
who are able, willing, qualified, and available for the offered position. Section 212(a)(5)(A)(i)(l) of the 
Act. The DOL also ce1iified 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)(Il) ofthe Act. 
Matter off-G-. Inc. 
Next, U.S. Citizenship and Immigration Services (USCIS) must approve an immigrant visa 
petition. See section 204 ofthe Act, 8 U.S.C. § 1154. Finally, 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, 8 U.S.C. § 1255. 
In these visa petition proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the .foreign national is eligible for the requested preference classification); see 
also. e.g .. Tongatapu Woodcrafi Haw .. Ltd v. Feldman. 736 F.2d 1305, 1309 (9th Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USC IS has authority to 
make preference classification decisions). 
B. Professional Classification 
In this case, the Petitioner requests classification of the Beneficiary as a professional. The regulation at 
8 C.F.R. § 204.5(1)(3)(ii)(C) states, in part: 
If the petition is for a professional, the petition must be accompanied by evidence 
that the alien holds a United States baccalaureate degree or a foreign equivalent 
degree and by evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the tom1 of an otticial college or university record 
showing the date the baccalaureate degree was awa~ded and the area of 
concentration of study. 
Section 101(a)(32) ofthe Act defines the tetm ''profession·· to include. but is not limited to, "architects. 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges. 
academies, or seminaries." It: as in this case, the offered position is not statutorily defined as a 
profession, "the petitioner must submit evidence showing that the minimum of a baccalaureate degree is 
required for entry into the occupation." 8 C.F.R. § 204.5(1)(3 )(ii)(C). In addition, the job offer pot1ion 
of the labor certification underlying a petition for a professional "must demonstrate that the job requires 
the minimum of a baccalaureate degree.·· 8 C.F.R. § 204.5(1)(3)(i). 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) and section 203(b)(3)(A)(ii) of the Act use a singular 
description of the degree required tor classification as a professional. In Snapnames.com. fnc. v. 
Michael Cherto((; 2006 WL 3491005 (D. Or. Nov. 30, 2006), the cout1 held that, in professional and 
advanced degree professional cases, where the beneficiary is statutorily required to hold a 
baccalaureate degree, USCIS properly concluded that a single foreign degree or its equivalent is 
required. See also Maran?jaya v. USC£), Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008) (lor 
professional classification, USCIS regulations require the beneficiary to possess a single four-year U.S. 
bachelor's degree or foreign equivalent degree). 
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Matter of 1-G-. Inc. 
Therefore, a petition for a professional must establish that the occupation of the offered position is listed 
as a profession at section 10l(a)(32) ofthe Act or requires a bachelor's degree as a minimum for entry; 
the beneficiary possesses at least a U.S. bachelor's degree or a single foreign equivalent degree from a 
college or university; and the job offer portion of the labor cet1ification requires at least a bachelor's 
degree or a foreign equivalent degree. The Beneficiary must also meet all of the requirements of the 
offered position set torth on the labor certification by the priority elate of the petition. 
li. ANALYSIS 
A. The Beneficiary Does Not Possess a U.S. Bachelor's Degree or Foreign Equivalent Degree 
In this case, the labor certification states that the offered position has the following minimum 
requirements: 
H.4. 
H.5. 
H.6. 
H.7. 
H.8. 
H.9. 
H.IO. 
H.l4. 
Education : Bachelor's degree in Trade & Tourism, Business Administration. 
Training: None required. 
Experience in the job otlered: 12 months required. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: None accepted. 
Foreign educational equivalent: Accepted. 
Experience in an alternate occupation: None accepted. 
Specific skills or other requirements: BA in Trade & Tourism, Business 
Administration, Management Finance or related field or its foreign 
equivalent. Will accept any suitable combination of education , training or 
expenence. 1 year business experience. Business fluency in Kannada and 
Hindi. 
The labor certification states that the Beneficiary qualifies tor the ofiered position based on her 
bachelor's degree m tourism and business administration from 
m India, completed in 2002. 
The record contains a copy of the Beneficiary's post-secondary diploma in business administration and 
transcripts from 
m 
transcripts from 
India, issued in May 1999; her bachelor's degree in tourism studies and 
111 India, issued in December 
2002; and a statement of marks from 
Beneficiary had completed 36 credits toward a master of arts in tourism 
December 2001, but had not yet completed the requirements for the degree. 
indicating that the 
management as of 
The record also co'ntains three evaluations of the Beneficiary's credentials . The first evaluation was 
prepared by The evaluation states that the 
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Matter(?[ 1-G-, Inc. 
Beneficiary's diploma in business administration and her bachelor's degree in tourism studies are the 
equivalent of a bachelor of arts degree, with a dual major in communications and tourism studies. 
1
• 
The second evaluation was prepared by Ph.D. for 
It states that the Beneticiatf s over 1 l years of work experience, her 
diploma in business administration, and her bachelor's degree in tourism studies are the equivalent of a 
bachelor's degree in business administration and tourism from an accredited university in the United 
States.2 As noted by the Director in his decision, the evaluation used the rule to equate three years of 
experience for one year of education, but that equivalence applies to nonimmigrant H-1 B petitions, 
not to immigrant petitions. See 8 CFR § 214.2(h)(4)(iii)(D)(5). 
The third evaluation was prepared by The evaluation states that the 
Beneficiary's diploma in business administration, her bachelor's degree in tourism studies, and her one 
year of study in the master of arts program of tourism management, are the equivalent of a bachelor's 
degree in tourism management from an accredited institution of higher education in the United States:' 
The Petitioner relies on the Beneficiary's three-year bachelor's degree combined· with a post­
secondary diploma, additional coursework, work experience, or some combination of them, as being 
equivalent to a U.S. bachelor's degree. A three-year bachelor's degree will generally not be 
considered to be a "foreign equivalent degree" to a U.S. baccalaureate. See Matter of'Shah, 17 I&N 
Dec. 244 (Reg'! Comm'r 1977). Where the analysis of the beneficiary's credentials relies on a 
combination of lesser degrees and work experience, the result is the "equivalent" of a bachelor's 
degree rather than a full U.S. baccalaureate or foreign equivalent degree required for classification as 
a professional. 
1 The evaluation independently equates the Beneficiary's diploma in business administration to three years of university 
study, and equates the Beneficiary's bachelor's degree in tourism studies to three years of university study. It states that the 
entry requirement 'for the Beneficiary's diploma in business administration was completion of secondary education 
equivalent to a U.S. high school diploma. It does not indicate the entrance requirements for the Beneflciary's bachelor's 
program and does not mention the Beneflciary's master's studies. 
2 The evaluation independently equates the Beneficiary's bachelor's degree in tourism studies to three years of university 
study, and states that the Beneficiary's diploma in business administration "likely enabled her to gain entry into the 
Bachelor's program with advanced standing." However, the record contains no evidence that she entered the bachelor's 
program with advance standing. The evaluation also states that the coursework the Beneficiary completed in the master's 
program is substantially similar to bachelor's-level coursework. It states that enrollment in 
is based on graduation from high school and competitive entrance examinations, and it does not make a 
distinction in entrance requirements for the bachelor's and master's programs. 
3 The evaluation states that the entry requirement for the Beneficiary's diploma in business administration was graduation 
from lower secondary school and ·Competitive entrance examinations. It futiher states that the entry requirement for the 
Beneficiary's bachelor's degree in tourism studies is graduation from the U.S. equivalent of high school and competitive 
entrance examinations. It does not indicate the entrance requirements for the Beneficiary's master's program, but states that 
the Beneflciary was concurrently enrolled in both the bachelor's program and the master's program at 
4 
Matter of 1-G-. Inc. 
None of the evaluations submitted by the Petitioner establish that the Beneficiary possesses a single 
degree from a college or university that is at least a U.S. baccalaureate degree or a foreign equivalent 
degree, as is required for professional classification. 
We have also reviewed the Electronic Database for Global Education (EDGE) created by the 
American Association of Collegiate Registrars and Admissions Officers (AACRA0). 4 EDGE 
provides a great deal of information about the educational system in India. According to EDGE, a 
three-year bachelor's degree from India is comparable to "three years of university study in the 
United States." 5 EDGE also discusses post-secondary diplomas, for which the entrance requirement 
is completion of secondary education. EDGE provides that a post-secondary diploma is comparable 
to one year of university study in the United States, 6 but does not suggest that, if combined with a 
three-year degree, it may be deemed a foreign equivalent degree to a U.S. bachelor's degree. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, 
USCIS is not required to accept or may give less weight to that evidence. Matter ol Caron Int '!, 
19 I&N Dec. 791 (Comm'r 1988). See also Matter olD-R-, 25 J&N Dec. 445 (BIA 2011) (expert 
witness testimony may be given different weight depending on the extent of the expert's 
qualifications or the relevance, reliability, and probative value of the testimony); Viraj, LLC v. U.S. 
Att'y Gen., 2014 WL 4178338 *4 (11th Cir. 2014) (we are entitled to give letters from professors 
and academic credentials evaluations less weight when they differ from the information provided in 
EDGE). 
Based on the conclusions of the evaluations submitted by the Petitioner, as well as EDGE, the 
evidence in the record is not sufficient to establish that the Beneficiary possesses the foreign 
equivalent of a U.S. bachelor's degree. After reviewing all of the evidence in the record, we 
conclude that the Petitioner has not established that the Bendiciary has a U.S. baccalaureate degree 
or a single foreign equivalent degree from a college or university. Therefore, the Beneficiary does 
not qualify for classification as a professional under section 203(b)(3)(A)(ii) of the Act. 
On appeal, the Petitioner asserts that the Beneficiary alternatively qualifies for the skilled worker 
classification under section 203(b)(3)(A)(i) of the Act. 7 However, at Part 2. of the Form 1-140, the 
4 According to its website, AACRAO is "a nonprofit, voluntary, professional association of more than II .000 higher 
education professionals who represent approximately 2,600 institutions in more than 40 countries.'' About AACRAO. 
http://www.aacrao.org/home/about (last visited Mar. 7, 20 17). According to the registration page for EDGE, EDGE is "a 
web-based resource for the evaluation of foreign educational credentials.'' AACRAO EDGE, 
http://edge.aacrao.org/info.php (last visited Mar. 7, 20 17). 
5 A A C RA 0 EDGE, http:/ /edge .aacrao.org/country /credentia 1/bache lor-of-arts-ba-bache lor-of-commerce-bcom-bache lor­
of-science-bsc?cid=single (last visited Mar. 7, 20 17). 
6
AACRAO EDGE, http://edge.aacrao.org/country/credential/post-secondary-diploma?cid=single (last visited Mar. 7, 
2017). 
7 Section 203(b)(3)(A)(i) of the Act, 8 U .S.C. ~ I 153(b)(3)(A )(i), provides for the granting of preference classification to 
qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing 
skilled labor (requiring at least two years training or experience), not of a temporary nature, for which quali1ied workers 
5 
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Matter (?f 1-G-. Inc. 
Petitioner selected I.e. indicating that it was tiling the petition under the professional classification. 
There is no provision in statute or regulation that compels USeiS to readjudicate a petition under a 
different visa classification once the decision has been rendered. A petitioner may not make material 
changes to a petition in an effort to make a deticient petition conform to USeiS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988).8 
B. The Beneficiary Does Not Meet the Minimum Requirements of the Offered Position 
The tetms of the labor certification require a single U.S. bachelor's degree in trade and tourism. 
business administration, management, finance, or related tield, or a toreign equivalent degree.9 It is 
noted that, if the labor certification did not require at least a single U.S. bachelor's degree or a foreign 
equivalent degree, the petition could not be approved. See 8 C.F.R. § 204.5(1)(3)(i) (the labor 
certification underlying a petition for a professional must require at least a U.S. bachelor's degree or a 
foreign equivalent degree). As discussed above, the Petitioner has not established thatthe Beneficiary 
has a single U.S. bachelor's degree or toreign equivalent degree in trade and tourism, business 
administration, management, finance, or related field, as required by the labor certification. 
The Petitioner also did not establish that the Beneficiary had business fluency in Kannada and Hindi as 
required by the terms of Part H.14. of the labor certification. While the record contains several 
letters verifying the Beneficiary's experience, none of them verify her business fluency in Kannada 
and Hindi. The regulation at 8 C.F.R. § 204.5(1)(3) states that any requirements of training or 
experience tor professionals must be supported by letters from trainers or employers giving the 
name, address, and title of the trainer or employer, and a description of the training received or the 
experience of the Beneficiary. 
In summary, the Petitioner did not establish that the Beneficiary possessed a U.S. bachelor's degree 
or a single toreign equivalent degree as required by the terms of the labor certific.ation. The 
Petitioner also did not establish that the Beneticiary met the minimum skill requirements of the 
offered position set forth on the labor certification. 
are not available in the United States. 
8 The Petitioner refers to our 2007 non-precedent decision approving a petition in the skilled worker category. This decision 
was not published as a precedent and therefore does not bind USC IS officers in future adjudications. See 8 C.F.R. ~ I 03.3( c). 
Non-precedent decisions apply existing law and policy to the specific facts of the individual case, and may be distinguishable 
based on the evidence in the record of proceedings, the issues considered, and applicable law and policy. Notably, in 2007, 
the Fonn 1-140 had only one box to select both the professional and skilled worker classifications. The .January 6, 20 I 0, 
version of the Form 1-140 required petitioners to make a distinction in .the classification categories of professional or 
skilled worker using separate selection boxes. 
9 
The labor ce1tification states that the Petitioner will accept any suitable combination of education, training, or 
experience, but as noted by the Director, the Petitioner has not specified what suitable combination would be acceptable. 
The record contains the Petitioner's advertisements for the proffered job. The advertisement on the 
website states that job requirements are one year of experience and a bachelor's degree. The advertisement 
on also lists the required education level as a bachelor's degree. None of the advertisements specified what 
combination of education, training, or experience would be suitable to qualify an applicant for the job. 
6 
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Matter of 1-G-. Inc. 
C. Ability to Pay the Proffered Wage 
Although not discussed by the Director, the Petitioner has not demonstrated its ability to pay the 
proffered wage as ofthe February 28, 2014, priority date onward. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability ql pro~pective employer to pay wage. Any petitiOn filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
A petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer 
is realistic. See Matter ol Great Wall, 16 I&N Dec. 142 (Acting Reg'! Comm'r 1977); see also 
8 C.F.R. § 204.5(g)(2). In evaluating whether a job otTer is realistic, USC IS requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's profJered wages, although the totality 
of the circumstances affecting the petitioning business will be considered if the evidence wanants such 
consideration. See Malter (?lSonegawa, 12 I&N Dec. 612 (Reg'! Comm'r 1967). The proffered wage 
is $67,517 per year. · 
In this case, the record does not contain annual reports, federal tax returns. or audited financial 
statements for the Petitioner from 2014 onward as required by 8 C.F.R. § 204.5(g)(2).
10 
Therefore, 
the Petitioner has not established its continuing ability to pay the proftered wage from 2014 onward. 
In any future proceedings, the Petitioner must submit regulatory-required evidence of its continuing 
ability to pay the proffered wage. 
D. Labor Cetiification Inconsistencies 
Also, beyond the Director's decision, we find that the labor certification presents inconsistent 
information regarding the employer and proffered position. Specifically, the labor cetiitication was 
tiled by with federal employer identification number , located at 
TX This address was also listed as the 
primary worksite for the proffered job on the labor certification. However, the petition was filed by 
the Petitioner, with located at TX 
This address was also listed on the Form I-140 as the address where the Beneficiary will work. The 
employer names and addresses on the labor certification and petition do not match. 11 
10 
The record contains two paychecks issued by the Petitioner to the Beneficiary in 2015. and the Petitioner's 2013 IRS 
Form 1120S, U.S. Income Tax Return for an S Corporation. 
11 
A labor certification for a specific job otTer is valid only for the particular job oppotiunity and for the area of intended 
Matter o.fi-G-. Inc. 
Further, the proffered wage listed on the labor certification is $67,517 per year. 12 However, on the 
Form I-140, the Petitioner indicated at Part 6 that the offered wage is $61,517 per year, which is 
below the prevailing and protTered wage for the otTered job. 13 In any future proceedings, the 
Petitioner must resolve these inconsistencies with independent objective evidence pointing to where 
the truth lies. Matter qf Ho, 19 I&N Dec. 582, 591-592 (BIA 1988).
14 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary has a U.S. baccalaureate degree or a single 
foreign equivalent degree from a college or university to qualify for professional classification, or 
that the Beneficiary met the minimum requirements for the proffered position as of the priority date. 
Further, the Petitioner has not established that it had the continuing ability to pay the proffered wage 
from the priority date, and it has not resolved inconsistencies in the labor certification. 
ORDER: The appeal is dismissed. 
Cite as Malter of 1-G-. Inc., 10# 78276 (AAO Mar. 28, 20 17) 
employment stated on the labor certification. 20 C.F.R. ~ 656.30(c)(2). 
12 This is also the prevailing wage for the proffered job. 
u According to 20 C. F. R. § 656. I 0( c), the Petitioner must certify that the offered wage equals or exceeds the prevai I ing 
wage, and that the wage it will pay to the Beneficiary to begin work will equal or exceed the prevailing wage that is 
applicable at the time the Beneficiary begins work or from the time the Beneficiary is aqmitted to take up the certified 
employment. 
14 The Petitioner asserts on appeal that we should use our discretion to approve the petition for humanitarian reasons and 
public policy, including the Beneficiary's status as a single mother, the potential outsourcing of the proffered job if the 
petition is not approved, and the Beneficiary's potential contributions to society. We disagree. These considerations do 
not apply to adjudications of third preference employment-based immigrant petitions.