dismissed EB-3 Case: Business Process Management Software

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-T- CORP . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR . 5, 2020 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a consulting company specializing in business process management software , seeks 
to employ the Beneficiary as a vice president. 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. § 1153(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 
position requiring at least two years of training or experience. 
The Acting Director of the Nebraska Service Center denied the petition, and we affirmed the 
decision on appeal. We agreed with the Director that, contrary to the requirements of the offered 
position, the Petitioner did not establish the Beneficiary's possession of a college or university 
degree. See Matter of A-T- Corp., ID# 1264204 (AAO May 10, 2018). We also found that the 
Petitioner did not demonstrate the bona /ides of the job opportunity or the company's ability to pay 
the position's proffered wage . Id. 
The matter is before us again on the Petitioner's motion to reconsider. The Petitioner asserts that we 
erred by "redefining" the primary educational requirements of the offered position and misapplying 
criteria of another immigrant category. The Petitioner also contends that it established the bona jides 
of the job opportunity and its ability to pay the proffered wage. 
Upon review, we will dismiss the motion. 
I. MOTION CRITERIA 
A motion to reconsider must establish that, based on the record at that time, our prior decision 
misapplied law or policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must also cite a pertinent 
precedent or adopted decision, statutory or regulatory provision , or statement of U.S. Citizenship and 
Immigration Services (USCIS) or Department of Homeland Security policy. 
Matter of A-T- Corp. 
II. THE EDUCATIONAL REQUIREMENTS OF THE OFFERED POSITION 
The accompanying certification from the U.S. Department of Labor (DOL) states the primary 
educational requirements of the offered position of vice president as a bachelor's degree. 1 
Specifically, part H.4 of the labor certification indicates a requirement of a U.S. bachelor's degree, 
while, asked in part H.9 whether "a foreign educational equivalent [is] acceptable," the Petitioner 
checked the box indicating "Yes." 
On motion, the Petitioner asserts that, contrary to DOL's interpretation of part H.9, we "redefined" 
the company's acceptance of a foreign educational equivalent as requiring a foreign degree 
equivalent to a U.S. bachelor's degree. The Petitioner contends that the Beneficiary meets the 
primary educational requirements of the offered position by virtue of a U.S. baccalaureate 
equivalency based on a combination of foreign education and experience. The Petitioner states that 
it "has required that the beneficiary hold the equivalent of a U.S. bachelor's degree, but has not 
required, in any way, that the beneficiary hold a 'foreign equivalent degree."' 
The Petitioner, however, has not established that our interpretation of part H.9 of the labor 
certification differs from DOL's. The instructions to the labor certification application form - ETA 
Form 9089, Application for Permanent Employment Certification - indicate that DOL interprets the 
phrase "a foreign educational equivalent" to mean a foreign degree equivalent to a U.S. degree 
indicated in part H.4. The form's instructions state: "If the employer will accept a foreign diploma 
or degree equivalent to the U.S. diploma or degree listed ... , mark 'Yes."' DOL, "Instructions to 
Form 9089," 11, https://www.foreignlaborcert.doleta.gov/pdf/ ETA_Form_9089 _Instructions.pdf 
(last visited Mar. 3, 2020). Thus, by stating a requirement of a U.S. bachelor's degree in part H.4 
and marking "Yes" to part H.9, the Petitioner indicated its acceptance of a foreign degree equivalent 
to a U.S. bachelor's degree. Also, the plain language of the phrase "a foreign educational 
equivalent" ( emphasis added) indicates an equivalency based solely on education. Here, the 
Beneficiary's U.S. baccalaureate equivalency combines education with experience. Thus, based on 
the plain language of the labor certification, the Beneficiary does not meet the primary educational 
requirements of the offered position. See, e.g., Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 
947 (S.D. Cal. 2015) (holding that we reasonably interpret a job's requirements based on the plain 
language of a labor certification) ( citations omitted). We therefore reject the Petitioner's argument 
that we misinterpreted its acceptance of a foreign educational equivalency in part H.9. 
The Petitioner also asserts that, by interpreting the job's primary educational requirements as a 
bachelor's degree, we incorrectly "imposed" the standards of the professional immigrant category. 
See section 203(b )(3)(A)(ii) of the Act (making immigrant visas available to "[ q]ualified immigrants 
who hold baccalaureate degrees"). The Petitioner notes that it requested the Beneficiary's 
classification as a skilled worker. 
1 The labor ce11ification also states the Petitioner's acceptance of an alternate educational requirement: a three-year, 
undergraduate degree and one year of experience in the field of computer science. The Petitioner, however, does not 
assel1 that the Beneficiary meets the alternate requirement. 
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Matter of A-T- Corp. 
Contrary to the Petitioner's assertion, however, our reading of the job's primary educational 
requirements did not rest on criteria for professional classification. Rather, as discussed above, we 
based our interpretation on the Petitioner's stated acceptance in parts H.4 and H.9 of the labor 
certification of a U.S. bachelor's degree and "a foreign educational equivalent." We agreed that the 
Beneficiary and the offered position meet the requirements of the requested classification. See 
8 C.F.R. § 204.5(1)(2) (defining a "skilled worker" as able to perform labor requiring at least two 
years of training or experience, and allowing consideration of relevant post-secondary educational 
requirements as training). Instead, we found that the record did not establish the Beneficiary's 
possession of the minimum educational requirements for the offered position as stated on the labor 
certification. See Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977) 
(requiring a petitioner to establish a beneficiary's possession of all DOL-certified job requirements). 
The motion does not establish our misapplication of law or policy in finding that the Petitioner did 
not demonstrate the Beneficiary's qualifying education for the offered position. We will therefore 
affirm that portion of our appellate decision. 
III. THE BONA FIDES OF THE JOB OPPORTUNITY 
The Petitioner also contends that we lacked authority to question the bona fides of the job 
opportunity. See 20 C.F .R. § 656.10( c )(8) (requiring a labor certification employer to attest that an 
offered position is clearly open to U.S. workers). The Petitioner argues that, by certifying the job 
offer, the DOL found the job opportunity to be bona fide. 
The Act and the regulations, however, authorize USCIS to farther examine the availability of an 
offered position to U.S. workers. USCIS must "investigat[e] ... the facts in each case" and 
determine "whether the facts stated in the petition are true." Section 204(b) of the Act, 8 U.S.C. 
§ 1154(b ). Also, the DOL has delegated authority to USCIS to invalidate a labor certification after 
its issuance upon a finding of "fraud or willful misrepresentation of a material fact involving the 
labor certification application." 20 C.F.R. § 656.30(d). In addition, we may deny petitions 
accompanied by labor certifications that violate DOL regulations. See Matter of Sunoco Energy 
Dev. Co., 17 I&N Dec. 283,284 (Reg'l Comm'r 1979) (affirming a petition's denial under the DOL 
regulation at 20 C.F .R. § 656.30( c )(2) where the labor certification did not remain valid for the 
intended geographic area of employment). We therefore had authority to question the bonafides of 
the Petitioner's job opportunity. 
Referring to factors used in determining the bona fides of a job opportunity under Matter of Modular 
Container Systs., Inc., 1989-INA-228, 1991 WL 223955 *8 (BALCA July 16, 1991) (en bane), the 
Petitioner asserts that we lacked "reason to suspect that [it] has improperly conducted its recruitment 
efforts" for the offered position. The Petitioner argues that it would not likely cease operations 
without the Beneficiary, as it has conducted business since 2002 and did not hire him in the offered 
position of vice president until 2015. The Petitioner also contends that the job duties of the offered 
position indicate that the Beneficiary has not made hiring decisions for the company and therefore 
did not influence hiring for the offered position. 
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Matter of A-T- Corp. 
In determining the bona fides of an offered position, however, we must weigh multiple factors, no 
one of which is controlling. Id. The record also indicates that, as of the filing of the labor 
certification application, the Beneficiary held a senior position with the Petitioner and was a member 
of a small group of employees. Under Modular Container, these factors indicate that the job was not 
clearly open to U.S. workers. Id. (listing a foreign national's participation in an employer's 
management and his or her membership in a small group of employees as indicators of the non-bona 
fides of a job opportunity). Thus, unless the Petitioner provides additional evidence of its good-faith 
recruitment for the offered position and in support of other Modular Container factors, the record 
does not establish the bonafides of the job opportunity. 
The Petitioner's arguments on motion do not establish the clear availability of the offered position to 
U.S. workers. We will therefore also affirm that portion of our appellate decision. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
Our appellate decision also concluded that the Petitioner did not demonstrate its continuing ability to 
pay the offered position's annual proffered wage of $166,608, in part, because the company did not 
submit required evidence. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to submit copies of 
annual reports, federal income tax returns, or audited financial statements demonstrating its 
continuing ability to pay a wage from a petition's priority date onward). On motion, the Petitioner 
submits copies of its federal tax returns for 2016, the year of the petition's priority date. As 
previously indicated, however, we cannot consider new evidence in a motion to reconsider. See 
8 C.F.R. § 103.5(a)(3) (requiring USCIS to decide a motion to reconsider based on the evidence as 
of the prior decision). Even if we could consider the tax returns, they cover the period from 
November 1, 2016 to October 31, 2017. The record therefore would still lack required evidence of 
the Petitioner's ability to pay the proffered wage as of February 20, 2016, the petition's priority date. 
Our appellate decision also noted the Petitioner's filing of multiple immigrant petitions. We 
therefore found that the Petitioner must establish its ability to pay the combined proffered wages of 
this and its other petitions that were pending or approved as of this petition's priority date, or filed 
thereafter. See Johnson v. Patel, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming a petition's 
revocation where, as of its approval, the petitioner did not demonstrate its ability to pay multiple 
beneficiaries). On motion, the Petitioner argues that, because it paid the Beneficiary more than the 
annual proffered wage, it need not demonstrate its ability to pay other beneficiaries. 
As the Petitioner contends, we generally accept a petitioner's actual payment of a proffered wage to 
a beneficiary as proof of its ability to pay in a given year when combined with the evidence required 
by 8 C.F.R. § 204.5(g)(2). The Petitioner submitted copies of payroll records indicating that its 
payments to the Beneficiary in 2016 exceeded the annual proffered wage. The payroll records, 
however, do not constitute required evidence of the Petitioner's ability to pay. Contrary to 8 C.F .R. 
§ 204.5(g)(2), the Petitioner did not provide copies of annual reports, federal tax returns, or audited 
financial statements for 2016 or 2017. Thus, despite the Petitioner's payments to the Beneficiary, 
the record does not establish its ability to pay the combined proffered wages of all applicable 
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Matter of A-T- Corp. 
beneficiaries in those years, as the record lacks the required evidence prescribed by 8 C.F.R. 
§ 204.5(g)(2). 
V. CONCLUSION 
The Petitioner's arguments on motion do not demonstrate the Beneficiary's qualifying education for 
the offered position, the bona fides of the job opportunity, or the company's ability to pay the 
proffered wage. The motion also does not establish our misapplication of law or policy. 
ORDER: The motion to reconsider is dismissed. 
Cite as Matter of A-T- Corp., ID# 1801058 (AAO Mar. 5, 2020) 
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