dismissed EB-3 Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-M-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 16, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a seller and servicer of blow-molding machines, seeks to employ the Beneficiary as 
chief executive. It requests his classification under the third-preference, immigrant category as a 
skilled worker. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ l 153(b)(3)(A)(i). This employment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status to work in a job requiring at least two years of 
training or experience. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not demonstrate the Beneficiary's qualifications for the offered position or the prior requested 
classification of professional. See section 203(b )(3 )(A)(ii) of the Act (allowing immigration based 
on job offers requiring at least bachelor's degrees). On appeal, we remanded the matter, finding that 
the Director did not adequately explain the denial of the Petitioner's request to change the 
classification sought. See Matter of K-M-, Inc., ID# 917449 (AAO Apr. 13, 2018). On remand, the 
Director allowed the Petitioner to seek skilled-worker classification. But the Director again denied 
the petition, concluding that the Petitioner did not establish the Beneficiary's qualifications for the 
offered position. 
Before us again on appeal, the Petitioner asserts the Beneficiary's possession of the m1mmum 
education, training, and experience required for the offered position. The Petitioner argues that the 
skilled-worker classification allows the Beneficiary to meet the position's baccalaureate degree 
requirement through a combination of education and experience, and that the company did not 
unfairly reject U.S. workers for the position. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, to permanently fill a 
position in the United States with a foreign worker, a prospective employer must obtain certification 
from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ l 182(a)(5)(A)(i). DOL approval signifies that the United States lacks sufficient able, willing, 
Matter of K-M-, Inc. 
qualified, and available workers for the offered position and that employment of a foreign national in 
the job will not harm the wages or working conditions of U.S. workers similarly employed. 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). Section 204 of the Act, 8 
U.S.C. § 1154. Among other things, USCIS determines whether a foreign national meets the 
requirements of the DOL-certified position and the requested immigrant classification. If USCIS 
grants a petition, a foreign national may finally apply abroad for an immigrant visa or, if eligible, for 
adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
11. THE REQUIRED EDUCATION 
A petitioner must establish 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, the labor certification states the minimum requirements of the offered pos1t1on of chief 
executive as: a U.S. bachelor's degree, or a foreign equivalent degree, in engineering or business; 
one year of training in engineering; and 15 years of experience in the job offered. The labor 
certification specifies "No" acceptable, alternate combination of education and experience. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, a technical 
college in the United Kingdom awarded him a bachelor's degree in engineering. The Petitioner 
submitted two, independent evaluations of the Beneficiary's credentials. Both evaluations conclude 
that the Beneficiary has the equivalent of a U.S. bachelor's degree in business administration. The 
evaluations equate the Beneficiary's foreign college studies to 24 U.S. university credits. 
Combining the Beneficiary's college studies with his employment experience, the evaluations state 
his possession of a bachelor's degree in business. 
The labor certification, however, does not indicate that the position's minimum requirements allow 
the equivalent of a baccalaureate degree based on a combination of education and experience. Part 
H.4 of the labor certification states a U.S. bachelor's degree as a minimum requirement, while part 
H.9 indicates that the Petitioner will also accept "a foreign educational equivalent" of a U.S. 
baccalaureate degree. As previously indicated, part H. 8 also states that the Petitioner will not accept 
"an alternate combination of education and experience." In part H.4, the Petitioner could have 
indicated its acceptance of an educational credential "Other" than a high school diploma or 
1 This petition's priority date is May 13, 2015, 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 K-M-, Inc. 
associate' s, bachelor's, master's, or doctorate degree and specified the minimum required education 
in part H.4-A. Instead, however, the Petitioner checked the box in H.4 identifying a "Bachelor's" 
degree as the minimum requirement. 
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 engineering or 
business. The Petitioner asserts the Beneficiary's possession of the equivalent of a U.S. 
baccalaureate degree in business based on a combination education and experience. But the job 
requirements do not allow such a combination as an equivalency. The Petitioner therefore has not 
demonstrated the Beneficiary's qualifying education for the offered position. 
On appeal, the Petitioner cites a federal court decision and argues that the skilled-worker 
classification allows a combination of education and experience to equate to a bachelor's degree. 
See Grace Korean United Methodist Church v. Chertoff, 437 F. Supp. 2d 1174 (D. Or. 2005). In 
Grace Korean, the court reversed USCIS's denial of a skilled-worker petition where a beneficiary 
had the equivalent of a bachelor's degree based on a combination of education and experience. The 
labor certification stated the offered position's requirement of a bachelor's degree "or equivalent." 
Id at 1176. The Petitioner argued that "or equivalent" allowed education and experience to equate 
to a baccalaureate degree. Id at 1177. The court found that neither the Act nor Department of 
Homeland Security regulations require a skilled worker to have a bachelor's degree and that the 
petitioner drafted the position's job requirements on the labor certification "with the beneficiary in 
mind." Id at 1179. The court therefore rejected USCIS' interpretation of the educational 
requirement and ordered the petition's approval. 
The Grace Korean decision, however, does not bind us in this matter. Federal agencies need not 
follow published decisions of U.S. district courts in other matters, even within the courts' districts. 
Matter of K-S-, 20 I&N Dec. 715, 718-720 (BIA 1993). Moreover, the decision's facts are 
distinguishable from this case. As previously indicated, the labor certification (then Form ETA 750, 
Application for Alien Employment Certification) in Grace Korean stated a minimum, educational 
requirement of a bachelor's degree "or equivalent." Grace Korean, 437 F. Supp. 2d at 1176. Here, 
parts H.4 and H.9 of the labor certification (now ETA Form 9089, Application for Permanent 
Employment Certification) state the minimum, educational requirement as a U.S. bachelor's degree 
or "a foreign educational equivalent." (emphasis added). In part H.8, this labor certification also 
specifies "No" alternate, acceptable combination of education and experience. Thus, unlike in 
Grace Korean, the plain language of this labor certification clearly indicates that the offered position 
requires a U.S. bachelor's degree or a foreign equivalent degree, excluding combinations of 
education and experience. We therefore decline to follow Grace Korean in this matter. 
The Petitioner also argues that it reasonably relied on USCIS' determinations in H-lB nonimmigrant 
proceedings that the Beneficiary's education and experience equated to a bachelor's degree. The 
Petitioner states: 
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Matter of K-M-, Inc. 
It is impossible for the government to argue the Beneficiary has a bachelor's degree 
qualifying him for an H-l[B] but not for the 1-140. This inconsistency is purely the 
result of the government's interpretations of its own policies and not due to any 
change in the Beneficiary's experience and education. 
Requirements for H-lB nonimmigrants and skilled-worker immigrants, however, differ. To qualify 
for H-lB status in a "specialty occupation," a petitioner may demonstrate that a beneficiary has the 
equivalent of at least a U.S. baccalaureate degree based on education, training, experience, or a 
combination of all three. 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). In contrast, job requirements on labor 
certifications, rather than regulations, determine any degree criteria for skilled workers. See 8 C.F .R. 
§ 204.5(1)(3)(ii)(B) (requiring skilled-worker petitions to demonstrate beneficiaries' possessions of 
job requirements stated on accompanying labor certifications). Thus, the Petitioner's reliance on 
determinations in H-lB proceedings to establish the Beneficiary's qualifications for the offered 
position in immigrant proceedings was not reasonable. 
The Petitioner also asserts that, in labor certification proceedings, its advertisements for the offered 
position could omit its acceptance of a baccalaureate equivalent based on a combination of education 
and experience. It argues that "therefore no U.S. citizen candidates were unfairly denied a position." 
The record is insufficient to demonstrate the propriety of the Petitioner's recruitment efforts in labor 
certification proceedings. Regardless of the nature of those efforts, however, the company has not 
demonstrated the Beneficiary's possession of the educational requirement stated on the labor 
certification, which "must represent the employer's actual minimum requirements for the job 
opportunity." See 20 C.F.R. § 656. l 7(i)(l ). 
For the foregoing reasons, the record does not establish the Beneficiary's educational qualifications 
for the offered position. We will therefore affirm the petition's denial on this ground. 
III. CONCLUSION 
The Petitioner has not demonstrated the Beneficiary's qualifying education for the offered position. 
The petition is denied for the reason stated above. In petition proceedings, a petitioner bears the 
burden of establishing eligibility. Section 291 of the Act, 8 U.S. C. § 13 61. The Petitioner here has 
not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofK-M-, Inc., ID# 3396097 (AAO Apr. 16, 2019) 
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