dismissed EB-3 Case: Agriculture

MATTER OF B-F- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 31, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an AGR equipment operator and farming business, seeks to employ the Beneficiary as 
a "farmworker grain/livestock." It requests classification of the Beneficiary as a skilled worker under 
the third preference immigrant category. Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(B)(3)(A)(i). This employment-based "EB-3" 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 two years of training or experience. 
The Director of the Nebraska Service Center denied the petition on the ground that the Beneficiary 
did not meet the minimum educational requirement of the labor certification. The Director granted a 
motion to reopen, but after reviewing the record affirmed her denial of the petition. 
On appeal, the Petitioner asserts that the Beneficiary has the requisite education and experience to 
satisfy the requirements of the labor certification and qualify for the job offered. 
Upon de nova review, we will dismiss the appeal. For the reasons discussed in this decision, we find 
that the evidence does not establish that the Beneficiary meets the specific educational and 
experience requirements of the labor certification. In addition, we find that the labor certification 
itself does not support the requested classification of skilled worker. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 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). 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 
and that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. Second, the employer files an immigrant visa 
petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. Third, if USCIS approves the petition, the 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. 
Matter of B-F- Inc. 
II. ANALYSIS 
The Petitioner requests classification of the Beneficiary as a skilled worker. The regulation at 8 C.F.R. 
§ 204.5(1)(3)(ii)(B) states that to qualify for skilled worker classification: 
. . . the petition must be accompanied by evidence that the [beneficiary] meets the 
educational, training or experience, and any other requirements of the individual labor 
certification . . . . The minimum requirements for this classification are at least two 
years of training or experience. 
See also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
A. Minimum Requirements of the Labor Certification 
The labor certification in this case specifies the following with respect to the education, training, 
experience, and other requirements for the job of farmworker grain/livestock: 
4. 
5. 
6. 
6-A. 
7. 
8. 
9. 
10. 
10-B. 
14. 
Education: Minimum level required: 
Is training required for the job? 
Is experience in the job offered required? 
How long? 
Is an alternate field of study acceptable? 
Is an alternate combination of education 
and experience acceptable? 
Is a foreign educational equivalent acceptable? 
Is experience in an alternate occupation acceptable? 
Job title of alternate occupation 
Specific skills or other requirements 
High School 
No 
Yes 
6 months 
No 
No 
Yes 
Yes 
Commercial Truck Driver 
CDL License 
The Beneficiary must meet all of the labor certification requirements by the petition's priority date, 1 
which in this case is October 28, 2016. 
In determining the minimum requirements of a proffered position, we must examine "the language 
of the labor certification job requirements." Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 
1983). USCIS must 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). Our 
interpretation of the job's requirements must involve reading and applying the plain language of the 
labor certification application form. Id. at 834. 
1 The priority date of a petition is the date the underlying labor certification was filed with the DOL. See 8 C.F.R. 
§ 204.S(d). 
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Matter of B-F- Inc. 
1. Beneficiary Does Not Meet the Educational Requirement 
As stated in the labor certification, the minimum level of education required for the job is high 
school or a foreign educational equivalent. While the labor certification states at Section J, box 11, 
that the Beneficiary achieved this level of education, no evidence of a high school education has 
been submitted. Documentation submitted in support of the Petitioner's motion to reopen included 
two resumes and a letter to USCIS in which the Beneficiary stated that he attended 
in South Africa, up to 1999, but acknowledged that he only completed 10th grade. 
No evidence has been submitted that a 10th grade education at a South African high school is 
equivalent to a complete high school education in the United States. 
The Petitioner claims that the Beneficiary also earned a two-year "Diploma in Agriculture" in South 
Africa. In the above mentioned resumes and letter to USCIS the Beneficiary stated that he studied 
for his agricultural diploma at the in South Africa, 
in the years 2000-2002 , but has been unable to obtain a copy of this credential. Even if the 
Beneficiary were able to obtain documentary evidence of such a diploma, it would not meet the 
labor certification requirement of a high school education unless proof was submitted that the 
diploma is the foreign educational equivalent of a high school education in the United States. 
On appeal the Petitioner asserts that the Beneficiary's experience was more than equivalent to a high 
school education, and therefore meets the educational requirement of the labor certification. 
Regardless of whether the Beneficiary had sufficient experience to qualify for the job offered, the 
language of the labor certification plainly states that a high school education is required. The 
Petitioner did not state anywhere on the labor certification that experience could substitute for some 
or all of a high school education , or that some combination of experience and schooling would be 
acceptable as equivalent to a high school education. The Petitioner could have expressed this intent 
in the boxes at section H.8 of the labor certification, which ask whether an alternate combination of 
education and experience would be acceptable and, if so, what level of education and how many 
years of experience. However, the Petitioner answered "No" to the question of whether an alternate 
combination of education and experience was acceptable. 
In accord with the plain language of the labor certification, we find that the minimum level of 
education required is a high school education or a foreign educational equivalent. Since the record 
does not establish that the Beneficiary has that level of education, the Beneficiary does not meet the 
minimum educational requirement of the labor certification. On this ground alone the petition 
cannot be approved. 
2. Beneficiary Does Not Meet the Experience Requirement. 
As stated in the labor certification, six months of experience in the job offered or as a commercial 
truck driver is required for the position of farmworker grain/livestock. In section K of the labor 
certification two prior jobs are listed for the Beneficiary. The first is with in 
South Africa, where according to the labor certification, the Beneficiary was employed as a driver 45 
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Matter of B-F- Inc. 
hours per week; however, no start or end dates were recorded on the labor certification. The 
regulation at 8 C.F.R. § 204.5(g)(l) provides that: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) 
from current or former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties performed by the alien 
or of the training received. If such evidence is unavailable, other documentation 
relating to the alien's experience or training will be considered. 
Here, the Petitioner has not furnished any letter from 
employment, the nature of his work, and his dates of employment. 
establish that the Beneficiary had any qualifying experience with 
verifying the Beneficiary's 
Accordingly, the record does not 
The second job listed in the labor certification is with the Petitioner and states that the Beneficiary 
was employed as a farmworker grain/livestock 48 hours per week from April 2013 to November 
2016. While the Petitioner has submitted written confirmation that it employed the Beneficiary, a 
beneficiary's experience with the petitioner cannot be used to qualify the beneficiary for the offered 
position unless the experience was "in a position not substantially comparable to the position for 
which certification is being sought." See 20 C.F.R. § 656.l 7(h)(4)(i)(3). "Substantially 
comparable" is defined in the DOL regulations at 20 C.F.R. § 656. l 7(i)(5)(ii) as "a job or position 
requiring performance of the same job duties more than 50 percent of the time. This requirement 
can be documented by furnishing position descriptions, the percentage of time spent on the various 
duties, organization charts, and payroll records." We note that the labor certification states at 
section J, box 21, that the Beneficiary did not gain any qualifying experience with the employer 
(Petitioner) in a substantially similar position to the job opportunity in this proceeding. However, 
the position offered and the Beneficiary's prior position with the Petitioner appear to be the same 
position, sharing the same job title and many of the same duties. As the Petitioner has not 
demonstrated that the Beneficiary's prior position was substantially different from the offered 
positon, the prior experience with the Petitioner cannot be used to meet the requirements of the labor 
certification. Therefore, none of the Beneficiary' s experience working for the Petitioner can be 
counted as qualifying experience. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary gained any 
qualifying experience from the two jobs listed in the labor certification. Therefore, although the 
Director did not address this issue, we find that the Beneficiary does not have the requisite six 
months of experience as a farmworker grain/livestock or as a commercial truck driver to meet the 
terms of the labor certification. For this additional reason the petition cannot be approved. 
B. Labor Certification Does Not Support Skilled Worker Classification 
As previously indicated, section 203(b )(3)(A)(i) of the Act provides that classification as a skilled 
worker requires that the beneficiary have at least two years of training or experience. In accord with 
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Matter of B-F- Inc. 
this requirement the petition filed in February 2017 was identified in Part 2, box l.f, as being filed 
for "A skilled worker (requiring at least 2 years of specialized training or experience)." 
The labor certification that accompanied the petition, however, states in section H, box 6, that the 
minimum experience requirement for the position of farmworker grain/livestock is just six months. 
Since the labor certification does not require at least two years of qualifying experience, it does not 
support the petition's request for skilled worker classification. For this reason as well the petition 
cannot be approved. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary meets the minimum educational and 
experience requirements of the labor certification. Furthermore, the minimum experience 
requirement of the labor certification does not support the petition's request for classification of the 
Beneficiary as a skilled worker. 
ORDER: The appeal is dismissed. 
Cite as Matter ofB-F-Inc., ID# 1641284 (AAO July 31, 2018) 
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