dismissed EB-3 Case: Clinical Chemistry

U.S. Citizenship 
and Immigration 
Services 
In Re: 13575402 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 30, 2021 
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. § 
l 153(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 that the record did not 
establish that the Beneficiary met the requirements of the labor certification . We dismissed a 
subsequent appeal. The matter is now before us on a motion to reopen and 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 reopen and 
motion to reconsider. 
I. MOTION REQUIREMENTS 
A petitioner must meet the formal filing requirements of a motion and show proper cause for granting 
the motion. 8 C.F.R. § 103.5(a)(l). A motion to reopen must state new facts and be supported by 
documentary evidence. 8 C.F.R. § 103.5(a)(2) . 
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) . A motion to reconsider must be supported by 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. 
II. ANALYSIS 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date 1 of the petition. 8 C.F.R. § 103.2(b )(1), (12); Matter o_f Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). Here, the accompanying labor 
certification states the primary, minimum requirements of the offered position of area immunoassay 
and clinical chemistry specialist as 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 H. 10, H.10-A, and H.10-B). At Part H.8, the labor certification indicates that no 
alternate combination of education and experience is acceptable. Part H.14 of the labor certification 
("Specific skills or other requirements") states, in part: "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 ojportunity is a bachelor's degree in 
computer science and engineering frornl,.... _________ __, inl I Brazil, completed 
in 2004. 3 
In his decision denying the pet1t10n, the Director interpreted the job offer portion of the labor 
certification as requiring a bachelor's degree and 24 months of experience and found that the 
Beneficiary did not meet the educational requirement because he did not have the foreign equivalent 
of a U.S. bachelor's degree. In our appeal decision, we determined that the plain language of the labor 
certification does not support the Petitioner's claimed intent to accept less than a U.S. bachelor's or 
foreign equivalent degree to meet the minimum educational requirement for the proffered position. 4 
We agreed with the Director that the Beneficiary does not qualify for the job offered because he does 
not meet the minimum requirements of the labor certification. 
1 The priority date of the petition is September 7, 2018. 
2 The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D), which is applicable to H-IB 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; certification 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 
~-------~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. 
4 In order to determine 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 Co. 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. 
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A. Motion to Reopen 
On motion to reopen, the Petitioner submits its recruitment for the position, including: the job order 
placed with the Texas Workforce Commission; newspaper advertisements; notice of filing; 
advertisement placed on a job search website; employee referral program advertisement; and copy of 
its recruitment report. Based on its recruitment, it asserts that its acceptance of an educational 
equivalency was made known to interested candidates. 5 It farther asserts that the petition should have 
been approved because the Petitioner was willing to accept the equivalent of a bachelor's degree and 
24 months of experience through a combination of education and experience. 
The Petitioner's recruitment indicates that applicants were notified that the Petitioner would accept an 
educational equivalency evaluation prepared by qualified evaluation service or in accordance with 8 
C.F.R. § 214.2(h)(4)(iii)(D). However, according to the record, nothing alerted the U.S. Department 
of Labor (DOL) that the Beneficiary sought to rely on an alternate combination of education and 
experience. The Petitioner indicated that no alternate combination of education and experience was 
acceptable at Part H.8 of the labor certification. Part H.8 is the proper location on the labor certification 
to identify any acceptable alternate combinations of education and experience. Part H.8 of the labor 
certification in this case does not permit an alternate combination of education and experience. 
Further, the labor certification does not indicate in Part J.11 that the Beneficiary had an "other" 
alternate combination of education, but instead attests that the Beneficiary met the Part H.4 primary 
educational requirement of a U.S. bachelor's degree or a foreign equivalent degree. The Petitioner 
additionally marked "NIA" to Question J.19, "Does the alien possess the alternate combination of 
education and experience as indicated in H.8?" On motion, the Petitioner asserts that the DOL 
reviewed the labor certification and made a decision not to audit the application despite the inclusion 
of the Part H.14 language. However, the DOL was unable to make a proper investigation of the facts 
when determining certification because the Petitioner shut off a line of relevant inquiry. As the labor 
certification was completed, DOL was not informed that the Beneficiary sought to rely on an alternate 
combination of education and experience. 
Additionally, as we noted in our appeal decision, the labor certification states that the job requirements 
are normal for the occupation. However, if the Part H.14 equivalency is accepted, the potential years 
of combined experience to meet the educational equivalency would exceed the standard vocational 
preparation for the position and render this response incorrect. See O*Net Online, 
https://www.onetonline.org/link/summary/l 7-2061.00 (last visited Sept. 30, 2021). The DOL would 
not have had an opportunity to assess this. 
In sum, reviewing the labor certification as a whole, the Petitioner has not demonstrated that the labor 
certification requires less than a U.S. bachelor's or foreign equivalent degree. The Beneficiary does 
not possess such a degree. Thus, the Beneficiary does not qualify for the offered job because he does 
not meet the minimum requirements of the labor certification. While the Petitioner's recruitment 
submitted on motion indicates that applicants were notified that the Petitioner would accept an 
educational equivalency, nothing alerted DOL that the Beneficiary sought to rely on an alternate 
5 One applicant applied but was not considered eligible because they lacked the required experience. 
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combination of education and experience, preventing farther inquiry by the DOL. We will therefore 
dismiss the motion to reopen. 
B. Motion to Reconsider 
On motion to reconsider, the Petitioner asserts that the Beneficiary's education and experience meet 
the minimum requirements of the offered position and the skilled worker classification, and that 
USCIS cannot attempt to adjudicate a labor certification on behalf of the DOL. The foreign labor 
certification process is designed to confirm that there are insufficient U.S. workers who are able, willing, 
qualified, and available to perform the offered position, and that the employment of the beneficiary 
will not adversely affect similarly employed U.S. workers. See section 212(a)(5) of the Act, 8 U.S.C. 
§ 1182(a)(5). The Act requires USCIS to determine eligibility for the visa classification requested. 
See section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). 6 Certain classifications require a labor 
certification to establish eligibility. See section 203(b)(3)(C) of the Act, 8 U.S.C. § l 153(b)(3)(C); 8 
C.F.R. § 204.5(a)(2); 8 C.F.R. § 204.5(1)(3)(i). Thus, USCIS is responsible for reviewing the Form 1-
140, and the labor certification is incorporated into the Form 1-140 by statute and regulation. See id. 
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, we have not attempted to adjudicate the labor certification on behalf of the DOL. Instead we 
have investigated the facts of the petition and the required labor certification and determined that the 
Beneficiary is not eligible for the benefit sought. 
On motion, the Petitioner cites the same unpublished 2007 AAO decision that it submitted on appeal. 
As we noted in our prior decision, 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. We note 
that unlike the Form ETA 750 that was reviewed in the submitted non-precedent AAO case, the ETA 
Form 9089, Application for Permanent Employment Certification, specifically asks the employer at 
Part H.8 whether an alternate combination of education and experience is acceptable. The Petitioner 
in this case answered "No." 
The Petitioner has not established that our 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). 
Therefore, we will dismiss the motion to reconsider. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
6 It is also the responsibility of USCIS to determine if the beneficiary qualifies for the offered position. See Madany v. 
Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). 
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