dismissed EB-3 Case: Clinical Chemistry

U.S. Citizenship 
and Immigration 
Services 
In Re : 20632704 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 19, 2022 
The Petitioner seeks to employ the Beneficiary as an area immunoassay and clinical chemistry 
specialist. 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 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 Texas Service Center denied the petition, concluding the record did not establish 
that the Beneficiary met the requirements of the labor certification. The Petitioner later filed an appeal 
that we dismissed. The Petitioner then filed a motion to reopen and a motion to reconsider that we 
also dismissed . The matter is now before us again on a motion to reconsider. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). 
II. ANALYSIS 
A beneficiary must meet all the requirements of the offered position set forth on the labor certification 
by the priority date' of the petition. 8 C.F.R. § 103.2(b)(l), (12); Matter of Wing's Tea House, 16 I&N 
Dec. 158, 159 (Acting Reg'l Comm'r 1977). Here, the accompanying labor certification stated the 
primary, minimum requirements of the offered position of area immunoassay and clinical chemistry 
specialist is a U.S. bachelor's degree or a foreign equivalent degree in computer science and 
engineering, science, engineering, or a closely related field (Parts H.4, H.4-B, H.7, H.7-A, and H.9), 
and 24 months of experience as an immunoassay and clinical chemistry hardware specialist (Parts 
1 The priority date of the petition is September 7, 2018. 
H.10, H.10-A, and H.10-B). At Part H.8, the labor certification indicated that no alternate combination 
of education and experience is acceptable. Part H.14 of the labor certification ("Specific skills or other 
requirements") stated, in part: "[the Petitioner] will accept educational equivalency evaluation 
prepared by qualified evaluation service or in accordance with 8 CFR § 214.2(h)(4)(iii)(D)." 2 The 
Petitioner represented on Part J of the labor certification that the Beneficiary's highest level of 
education relevant to the job opportunity is a bachelor's degree in computer science and engineering 
froml I University in I I Brazil, completed in 2004. 3 
In our prior decision denying the motions, we acknowledged the Petitioner had provided supporting 
evidence on motion indicating that during its recruitment for the position, applicants were notified it 
would accept an educational equivalency evaluation prepared by qualified evaluation service or 
experience in accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D). However, we stated that the evidence 
did not reflect the U.S. Department of Labor (DOL) was notified that the Petitioner sought to rely on 
an alternate combination of education and experience. We also noted the Petitioner indicated that no 
alternate combination of education and experience was acceptable at Part H. 8 of the labor certification, 
the proper location to identify any acceptable alternate combinations of education and experience. As 
such, we concluded, similar to our conclusion in our prior appeal decision, that Part H.8 of the labor 
certification did not permit an alternate combination of education and experience. 
In addition, regarding the labor certification, we stated that the job requirements were normal for the 
occupation, but if the Part H.14 equivalency were accepted, the potential years of combined experience 
to meet the educational equivalency would exceed the standard vocational preparation for the position, 
render the response incorrect, and that DOL did not have had an opportunity to assess this. Therefore, 
we dismissed the motion to reopen, concluding that the labor certification, when viewed as a whole, 
did not require less than a U.S. bachelor's or foreign equivalent degree, and the Beneficiary does not 
possess such a degree. 
Further, in dismissing the motion to reconsider, we addressed the Petitioner's assertion that we 
improperly adjudicated the labor certification, emphasizing that we had investigated the facts of the 
petition and the required labor certification, and determined that the Beneficiary was not eligible for 
the benefit sought, consistent with our regulatory authority. See section 204(a)(l)(F) of the Act, 8 
U.S.C. § 1154(a)(l)(F). We also discussed the Petitioner's citation to an unpublished 2007 AAO 
decision, indicating that such an unpublished decision did not bind us in future adjudications. See 8 
C.F.R. § 103.3(c). 
In support of this motion, the Petitioner contends that in our prior decision we only reiterated the 
language of the Director's decision and did not properly consider the additional supporting 
2 The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D), which is applicable to H-lB nonimmigrant visas, provides several 
options for equivalency to completion of a college degree, including certain credentials evaluations; results of college­
level equivalency examinations or special credit programs; ce1iification or registration from certain professional 
associations; and a determination that the equivalent of a degree has been acquired through a combination of education, 
specialized training, and/or work experience. 
3 An evaluation of the Beneficiary's education and experience in the record indicates that the Beneficiary's diploma from 
!University in Brazil is equivalent to two and one-half years of undergraduate coursework in computer science 
and engineering at a regionally accredited university, and that the combination of this education and his experience is 
equivalent to a bachelor's degree in computer science and engineering from a regionally accredited undergraduate-level 
program or institution in the United States. 
2 
documentation submitted on motion. The Petitioner also asserts that by requiring it to establish that 
the Beneficiary could only qualify for the position by meeting the minimum educational requirements 
specified in Part H.8. of the labor certification, we applied a higher standard of proof, requiring his 
qualifications be demonstrated "beyond a reasonable doubt." In addition, the Petitioner states that we 
supplemented the skilled worker requirements with additional qualifications not specified in the 
applicable regulations. The Petitioner again points to 8 C.F.R. § 214.2(h)(4)(iii)(D) and asserts that 
the evaluations provided on the record, and the Beneficiary's experience, are sufficient to establish 
that he has the equivalent of the U.S. bachelor's degree required for the position. 
The Petitioner also states that we overlooked Part H.14 if the labor certification, within which it 
contends it clearly indicated that a combination of experience and education would be sufficient for 
the position. Specifically, the Petitioner states that the Beneficiary's extensive experience in his field 
accounts for the 1.5 years of bachelor's education he lacks to meet the minimum education 
requirement. The Petitioner again points to a 2007 non-precedent decision issued by us and contends 
this demonstrates a petitioner may establish that a combination of education and experience is 
sufficient to satisfy the minimum education requirements for the position if it provides evidence that 
this requirement was disclosed in advertisements for the position. 
The Petitioner has not established that our prior decision was based on an incorrect application of law 
or policy based on the evidence in the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). For 
instance, the Petitioner states that we only reiterated the language of the Director's decision and did 
not sufficiently evaluate the additional evidence it submitted in support of the prior motion to reopen. 
We disagree, as we directly discussed the additional evidence provided in support of the prior motion 
to reopen in our prior decision. For example, we evaluated its advertisements for the position 
submitted on motion. 
However, this assertion on the part of the Petitioner ignores the central part of our analysis set forth in 
the prior decision; namely, nothing alerted the DOL that the Beneficiary sought to rely on an alternate 
combination of education and experience. As we have discussed, the Petitioner indicated that no 
alternate combination of education and experience was acceptable at Part H. 8 of the labor certification, 
the proper location on the labor certification to identify any acceptable alternate combinations of 
education and experience. Similarly, we also noted that the labor certification did not indicate in Part 
J.11 that the Beneficiary had an "other" alternate combination of education and experience, but instead 
the Petitioner attested that he met the Part H.4 primary educational requirement of a U.S. bachelor's 
degree or a foreign equivalent degree. Likewise, the Petitioner additionally marked "N// A" to Question 
J.19, "Does the alien possess the alternate combination of education and experience as indicated in 
H.8?" Therefore, as we previously stated, despite the Petitioner's statements in Part H.14 asserting 
that some combination of education and experience would be acceptable, the face of the labor 
certification clearly reflects that only a U.S. bachelor's degree or its foreign equivalent would be 
acceptable for the position. 
U.S. Citizenship and Immigration Services (USCIS) is required to approve an employment-based 
immigrant visa petition only where it is determined that the facts stated in the petition, which 
incorporates the labor certification, are true and the foreign worker is eligible for the benefit sought. 
Section 204(b) of the Act, 8 U.S.C. § 1154(b). Here, as in our prior decisions, we have investigated 
the facts of the petition and the required labor certification and determined that the Beneficiary is not 
3 
eligible for the benefit sought, since he does not have the required U.S. bachelor's degree or foreign 
equivalent. We do not agree that this represents us adding additional regulatory requirements to a 
skilled worker position, or modifying the standard of proof in this case, as the Petitioner contends. 4 
The Petitioner also again points to 8 C.F.R. § 214.2(h)(4)(iii)(D) and asserts that the evaluations 
provided on the record, and the Beneficiary's experience, are sufficient to establish that he has the 
equivalent of the U.S. bachelor's degree required for the position. However, as previously noted, this 
regulation is only applicable to H-lB nonimmigrant visas and not relevant to the skilled worker 
category. This regulation does not relieve the Petitioner from demonstrating that the Beneficiary is 
qualified under the specific requirements set forth in the labor certification, which as we have 
discussed, explicitly require a U.S. bachelor's degree or foreign equivalent. As we have noted, nothing 
in the record demonstrates that DOL audited the labor certification and accepted that the Petitioner 
expressed an educational equivalency. 
On appeal, the Petitioner again emphasizes a non-precedent AAO decision from 2007 analyzing the 
requirements of a Form ETA 750, Application for Alien Employment Certification, in conjunction 
with the petitioner's posting and recruitment for the position. However, as we have noted twice 
previously, this decision was not published as a precedent and therefore does not bind USCIS officers in 
future adjudications. See 8 C.F.R. § 103.3(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. Further, again, unlike the Form ETA 
750 that was reviewed in the submitted non-precedent AAO case, the ETA Form 9089, Application 
for Permanent Employment Certification, in this matter specifically asks the employer at Part H.8 
whether an alternate combination of education and experience is acceptable. As noted, the Petitioner 
answered "No" to this question. 
Similarly, the Petitioner also again points to a document entitled "NSC Liaison Committee I-140 
Practice Tips and Updates" dated February 2007, representing notes from American Immigration 
Lawyers Association meetings and teleconferences with staff from the USCIS Nebraska Service 
Center. According to this document submitted, the Nebraska Service Center stated that "if petitioners 
submit recruitment documentation that establishes that the petitioner was willing to accept U.S. 
applicants with less than a 4-year bachelor's degree, the position and the beneficiary may be evaluated 
under the third preference skilled worker category." However, unpublished agency decisions and legal 
opinions are not binding, even when they are published in private publications or widely circulated. 
R.L. Inv. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd, 273 F.3d 874 (9th 
Cir. 2001). Here, the terms of the labor certification were clear, and required a U.S. bachelor's degree 
or foreign equivalent, which the Petitioner acknowledges that the Beneficiary does not have. 
Therefore, the Petitioner has not demonstrated that our prior decision to dismiss its motions was an 
incorrect application of law or policy based on the evidence in the record of proceedings at the time 
of that decision. 8 C.F.R. § 103.5(a)(3). In particular, other than 8 C.F.R. § 214.2(h)(4)(iii)(D) 
discussed above, the Petitioner does not cite to any pertinent precedent decision, statute, regulation, 
4 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 2010). To determine whether a petitioner has met its 
burden under the preponderance standard, we consider not only the quantity, but also the quality (including relevance, 
probative value. and credibility) of the evidence. Id. at 376; Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989). 
4 
binding federal court decision, USCIS policy statement, or other applicable authority to establish that 
the prior decision was defective in some regard. As such, we will dismiss the motion to reconsider. 
ORDER: The motion to reconsider is dismissed. 
5