dismissed EB-3 Case: Clinical Chemistry

U.S. Citizenship 
and Immigration 
Services 
In Re: 9319474 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 7, 2020 
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 . The matter is now before 
us on appeal. 
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 de nova review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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) .1 See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). By approving the labor certification, the 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. See section 212(a)(5)(A)(i)(l)-(11) of the 
Act. 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, ifUSCIS approves the petition, 
the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
September 7, 2018. See 8 C.F.R. § 204.5(d). 
II. THE REQUIREMENTS OF THE OFFERED POSITION 
A beneficiary must meet all of 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 )(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, and 24 months of experience 
as an immunoassay and clinical chemistry hardware specialist. 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, however, 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 fro~ I University in I I Brazil, completed in 2004. The record 
contains the Beneficiary's diploma in hardware support and analysis froml I University 
and transcripts, with English translations. The Petitioner did not indicate in Part J.11 that the 
Beneficiary had an "other" alternate combination of education, but instead attested that he met the Part 
H.4 education requirement. 
Part K of the labor certification states that the Beneficiary has over two years of experience in the 
offered position with the Petitioner in I O I Texas, and over 16 years of experience as an 
immunoassay and clinical chemist} Latin America and Canada hardware specialist with I I 
Laboratories do Brasil inl _Brazil. The record includes a letter dated December 20, 2018, 
from the Petitioner stating that the Beneficiary was employed as an immunoassay and clinical 
chemistry Latin America and Canada hardware specialist from January 17, 2000, to August 7, 2016, 
and that he was employed in the offered job from August 11, 2016, to the date of the letter. The record 
also contains a letter dated June 12, 2017, from I I Laboratories do Brasil stating that the 
Beneficiary was employed as an immunoassay and clinical chemistry Latin America and Canada 
hardware specialist from January 17, 2000, to August 7, 2016. 
Further, the record includes an evaluation of the Beneficiary's education from I I of 
.__ _______ ,__ _____ ___.I Evaluation Services. He asserts that the Beneficiary's diploma 
froml !University in Brazil is equivalent to two and one-half years of undergraduate 
coursework in computer science and engineering at a regionally accredited universit . 3 A second 
evaluation in the record was written by I I Dean of tudies at College in 
Pennsylvania. She asserts that the Beneficiary's diploma fro .__ ____ _,University is equivalent 
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; 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 The Educational Database for Global Education (EDGE), created by the American Association of Collegiate Registrars 
and Admissions Officers (AACRAO). does not have an entry for the Beneficiary's credentials. 
2 
to two and one-half years of undergraduate coursework, and that the combination of this education 
and his over 15 years of experience in computer science and engineering 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. 
In his decision denying the petition, 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. As noted by the Director in his decision, the Petitioner indicated that no 
alternate combination of education and experience was acceptable at Part H.8 of the labor certification. 
The Director determined that the language in Part H.14 of the labor certification did not alter the 
minimum requirements stated on the labor certification, specifically, a bachelor's degree and 24 
months of experience. 
On appeal, the Petitioner asserts that the language at Part. H.14 indicated that it was willing to accept 
candidates without a bachelor's degree "provided they possess the educational equivalency in 
accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)." Thus, it 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 does not 
claim that the Beneficiary's education alone is the foreign equivalent of a U.S. bachelor's degree, and 
the evaluations submitted do not establish that the Beneficiary has the foreign equivalent of a U.S. 
bachelor's degree based solely on his education. Rather, the Petitioner asserts that the labor certification 
allows the Beneficiary to qualify for the offered position with a combination of education and experience. 
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. 
In this case, the labor certification states that the minimum educational requirement is a U.S. bachelor's 
degree or a foreign equivalent degree in computer science and engineering, science, engineering, or a 
closely related field of study (Parts H.4, H.4-B, H.7, H.7-A, and H.9) and that the minimum experience 
requirement is 24 months as an immunoassay and clinical chemistry hardware specialist (Parts H.10, 
H.10-A, and H.10-B). 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. 
Here, as noted above, the Petitioner indicated that the Beneficiary had a bachelor's degree in Part J.11 
to meet the primary educational requirement. According to the record, nothing alerted DOL that the 
Beneficiary sought to rely on an alternate combination of education and experience. 4 The Beneficiary, 
4 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?" As the form was completed, nothing alerted DOL that the Petitioner sought to rely 
3 
however, does not meet the primary education and experience requirements, and the Petitioner asserts 
that he qualifies for the offered position based on the alternative educational and experience 
requirements of the labor certification located at Part H.14. 5 
The minimum education and experience required by the labor certification, however, is unchanged by 
the language in Part H.14. The minimum requirements are still a bachelor's degree and 24 months of 
experience. 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. 
On appeal, the Petitioner submits a non-precedent AAO decision from 2007 which analyzed the 
requirements of a Form ETA 750, Application for Alien Employment Certification, in conjunction 
with the petitioner's posting and recruitment for the position. The Petitioner asserts on appeal that the 
decision permits the Beneficiary to qualify for the offered job without a bachelor's degree based 
"alternative means." However, 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." 
On appeal, the Petitioner also submits 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 the document submitted on appeal, 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). 
On appeal, the Petitioner provides its internal posting for the offered position which indicated that it 
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). The Petitioner asserts that "any individual seeking to 
understand the alternative requirements was able to directly refer to the regulatory language cited 
on an alternate combination of education and experience. 
5 The labor certification states that the states 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/17-206 l.OO (last visited June 30, 2020). DOL would not have had an 
opportunity to assess this. 
4 
within the advertisements." However, the Petitioner did not provide its job order; newspaper 6 and 
online advertisements for the offered position; the recruitment report; and resumes or applications 
received from applicants during the recruitment process. Additionally, nothing in the record 
demonstrates that DOL audited the labor certification and accepted that the Petitioner expressed an 
educational equivalency. Thus, it is unclear whether U.S. applicants outside of its office were aware 
that the Petitioner would accept applicants with less than a U.S. bachelor's degree. 
Reviewing the labor certification as a whole, we find that the Petitioner has not demonstrated that the 
labor certification requires less than a U.S. bachelor's or foreign equivalent degree in computer science 
and engineering, science, engineering, or a closely related field. The Beneficiary does not possess 
such a degree. Thus, the Beneficiary does not qualify for the job offered because he does not meet the 
minimum requirements of the labor certification. 
ORDER: The appeal is dismissed. 
6 We note that the internal posting stated the following requirement for the offered position "Must have proof of legal 
authority to work in the United States." This requirement was not listed on the labor certification. Newspaper 
advertisements cannot contain any job requirements or duties which exceed the job requirements or duties listed on 
the labor certification, and they cannot contain wages or terms and conditions of employment that are less favorable than 
those offered to the Beneficiary. 20 C.F.R. § 656. l 7(f). In any future filings, the Petitioner must demonstrate that its 
advertised job requirements did not exceed the requirements listed on the labor certification. 
5