dismissed EB-3 Case: Computer Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-A-. INC. 
Non-Precedent I>ecision of the 
Administrative Appeals Office 
DATE: fEB. 2L 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a provider of computer consulting services. seeks to employ the Beneliciary as a web 
architect. It requests his classilication as a skilled worker under the third-pn:lerence. immigrant 
classilication . .\'ee Immigration and Nationality Act (the Act) section 2fn(b)(J)(A)(i). 8 U.S.C. 
§ 115J(b)(])(A)(i). This employment-based. "EB-r category allows a U.S. business to sponsor a 
foreign national with at least two years of training or experience for lawful permanent resident 
status. 
The Acting Director of the Nebraska Service Center denied the petitiOn. concluding that the 
Petitioner did not establish the Beneficiar{s possession of the minimum education required for the 
ot1ered position. Based on the accompanying certification from the U.S. Department of Labor 
(DOL). the Director found that the position requires at least a bachelor·s degree. 
On appeaL the Petitioner submits additional evidence and asserts that the Director disregarded its 
alternative job requirements. The Petitioner contends that the labor certification indicates the 
company's acceptance of a combination of education and experience to meet the baccalaureate 
requirement. 
Upon de no\'0 review. we will dismiss the appeal. 
l. THE EMPLOYMENT-BASI]) IMMIGRATION I'ROCFSS 
Employment-based immigration generally follows a three-step process. First. an employer applies 
for certification from the DOL. S'ee section 212(a)(5)(A)(i) of the Act. S U.S.C. 
§ 1182(a)(5)(A)(i). The DOL must determine whether the United States has able. willing. qualilicd. 
and available workers for an ofTered position. and whether employment of a fixeign national would hurt 
the wages and working conditions of lJ .S. workers \vith similar jobs. Jd 
If the DOL certifies a foreign national to permanently till an oftercd position. an employer must next 
submit the certification with an immigrant visa petition to U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act. S U.S.C. § 1154. If USCIS approves a petition. a 
foreign national may linally apply for an immigrant visa abroad or. if eligible. adjustment of status in 
the United States. ,\'ee section 245 ofthe Act 8 lJ.S.C. § 1255. 
Maller o(( '-A-. Inc. 
IL THE EDUCATIONAL REQUIREMENTS OF THE OFFERED POSITION 
A petitioner must establish that a beneficiary meets all DOL-certified job requirements by a 
petition· s priority date. 
1 
1\,faller of Wing's Tea House. 16 I&N Dec. 158. 160 (Acting Reg ·1 Comm · r 
1977). In evaluating a beneficiary's qualifications. USCIS must examine the job otTer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position. 
USC IS may neither ignore a certification term. nor impose additional requirements. See. e.g. 
Madany v. S'milh, 696 F.2d 1008. 1015 (D.C. Cir. 1983) (holding that the ··ooL bears the authority 
for setting the content of the labor certification .. ). 
Here. the accompanying labor certification states the primary requirements of the offered position of 
web architect as a U.S. bachelor's degree or a foreign equivalent degree. and two years of 
experience. Instructed in Part H.4 of the certification to indicate the minimum level of education 
required for the offered position. the Petitioner selected .. Bachclor"s."· In Part H.9. the Petitioner 
indicated its acceptance of .. a foreign educational equivalent. .. In Pari H.8. the Petitioner indicated 
that .. No .. alternate combination of education and experience was acceptable. The labor ccrti tical ion 
therefore states the minimum educational requirement of the position as a U.S. bachelor's degree or 
a foreign equivalent degree. 
On the labor ce1iification. the Beneficiary attested that. by the petition· s priority date. he obtained a 
bachelor of commerce degree in India and more than eight years of full-time. related experience. The 
Petitioner submitted an independent evaluation of the Beneficiary"s foreign educational credentials. 
indicating that his three-year. foreign degree equates to three years of U.S. university studies. 
Combining the degree with three years of the Beneficiary's employment experience. the evaluation 
concludes that he has the equivalent of a U.S. bachelor of science degree in computer information 
systems. As the Director found. the Beneficiary's three-year, foreign degree docs not meet the 
position ·s minimum educational requirements of a U.S. bachelor"s degree or a foreign equivalent 
degree. A U.S. bachelor's degree usually requires f(mr years of university studies. ,\taller of5;huh. 17 
I&N Dec. 244. 245 (Reg'! Comm·r 1977). Thus, as the evaluation indicates. the Bcncficiary·s 
three-year. foreign degree does not equate to a U.S. baccalaureate degree. 
On appeaL the Petitioner docs not dispute that the Beneficiary does not possess a U.S. bachelor's degree 
or foreign equivalent degree. Rather. the Petitioner asse1is that the Director erred in determining the 
requirements of the labor certification by disregarding its statement in Part 1-1.14 ( .. Special skills or 
other requirements .. ) of the labor certification. That section states: .. Pursuant to 20 CFR 
~ 656.17(h)(4)(ii). we will accept any suitable combination of education. training. or experience for 
this position:· The DOL regulation at 20 C.F.R. ~ 656.17(h)(4)(ii) codifies the follovving holding of 
the Board of Alien Labor Certification Appeals (BALCA): 
'This petition's priority date is .June 17. 2015. the date the DOL received the accompanyin~ labor certillcation I(Jr 
processing. See 8 C.F.R. ~ 204.5(d) (explaining how to determine a petition's priority date). 
2 
.lvfaller of ('-A-. Inc. 
[W]here the alien does not meet the primary job requirements. but only potentially 
qualifies for the job because the employer has chosen to list alternative job 
requirements. the employer's alternative requirements arc unlawfully tailored to the 
alien's qualifications ... unless the employer has indicated that applicants with any 
suitable combination of education. training or experience arc acceptable. 
lvfaller of Kellogg. 94-INA-465. *6 (BALCA Feb. 2. 1998) (en hanc). Like the Director ami the 
Petitioner. we will therefore refer to the Petitioner's statement in Part H.l4 as ··Kellogg language ... 
The Petitioner argues that its Kellogg language constitutes alternative job requirements of the otkrcd 
positiOn. The Petitioner maintains that the language indicates the company" s acceptance of a 
combination of education and experience. like the Beneficiary's. in lieu of the primary baccalaureate 
requirement. In support of its argument. the Petitioner submits a 2013 ··practice tip·· pub I ishcd by the 
American Immigration Lawyers Association (AILA). The document states that. in a meeting with 
AI LA members. representatives of USC IS service centers "reaftirmcd" that ··the policy is to rc\ ie\\ 
the entire !labor certification form] to determine the employer"s intent as to the requirements for the 
position:· It is indeed our policy to review the form as a whole. In this case. an examination of the 
entire form demonstrates that the Petitioner did not indicate its acceptance of an alternate 
combination of education and experience. Instructed in Part H.4 of the certification to indicate the 
minimum level of education required f()r the offered position. the Petitioner selected ··Bachelor"s ... 
rather than ··Associate·s·· or some ""Other·· educational credential. The Petitioner also indicated that 
"No·· alternate combination of education and experience was acceptable in part 11.8. We generally 
do not interpret the insertion of Kellogg language in part 11.14 to mean that the employer would 
accept lesser qualifications than the stated primary and alternate requirements. Were we to read the 
Kellogg language as an alternative requirement: the actual minimum requirements of the offered 
position would impossible to discern. the primary and alternative requirements would be rendered 
meaningless. and any labor certification with alternative requirements would be potentially ineligible 
for the requested classification. 
The AI LA practice tip cites a case where BALCA found a statement on a labor certification similar 
to the Petitioner's to clarify rather than eonilict >vith the alternate requirements stated elsewhere on 
the form. S'ee 1'vfatter o/Cen E/ec. Co .. 2011-PER-02696 (BALCA Jan. 22. 2013) (interpreting an 
employer"s stated acceptance of a combination of education and experience in lieu of a bachelor's 
degree). BALCA decisions do not bind us. ,\'ee 8 C.F.R. ~ I 03.1 O(b) (stating that USC IS employees 
must follow the precedent decisions of the Board of Immigration Appeals and the Attorney General 
in proceedings involving the same issues). Also. unlike here. the employer in General Ucctric 
indicated its acceptance of an alternate combination of education and experience. Matter of Gen. 
E/ec .. 2011-PER-02696 at *3. 
In a more recent and more tactually similar case. BALC A held that the inclusion of Kellogg 
language did not create an alternative requirement. There. like here. the employer stated no 
acceptable. alternative combination of education and experience in Part 11.8 of a certification. hut 
indicated its acceptance of "any suitable combination of education. training and experience" in Part 
l'vfaller of C-A-. Inc. 
H.l4. See Matter of IT & £Business Consult in~ 5.'en•s .. Inc.. 20 12-PER-0 190 I (BALCA Sept. 8. 
2016). BALCA ruled that the Kello~~ language did not alter the offered position·s minimum job 
requirements. in part. because ··the Employer did not list any alternative requirements on the 
fcertification]:· !d. at *3.2 Like the employer in IT & £Business Sen·ices. the Petitioner indicated in 
Part H.S of the certification that "No·· alternate combination of education and experience was 
acceptable. Therefore. the Petitioner·s Ke/lug~ language in Part 11.14 is ineffective. If the Petitioner 
intended the Kellogg language as an alternative requirement. it has not explained why it indicated 
"No·· alternative combination of education and experience in Part H.S. See i'vfatter of flo. 19 l&N 
Dec. 582. 591 (requiring a petitioner to resolve inconsistencies of record by independent. object in: 
evidence). 
We acknowledge that the requested classification of skilled worker docs not require a bachelm·· s degree 
and that the Petitioner prepared the labor certification application with the Beneticiar{s qualifications 
in mind. But USC IS: 
has an independent role in determining whether the alien meets the labor ccrtitication 
requirements. and where the plain language of those requirements docs not suppot1 the 
petitioner's asserted intent. the agency docs not err in applying the requirements as 
written. 
SnapNames.com. Inc.\'. Chertoff: No. CV 06-65-MO. 2006 WL 3491005. *7 (D. Or. Nov. 30. 2006). 
As evidence that it intended the Kello~g language as an alternative requirement. the Petitioner submitted 
a copy of its job order for the offered position. The job order. which advct1iscd the position through a 
state workforce agency. indicates that any applicant "must possess a bachelor·s degree or equivalent in 
Engineering. Computer Science. or a related field: and two years of experience in the job offered or as a 
software designer. developer. tester. or analyst. Employer will accept any suitable combination of 
education. training. or experience:· The Petitioner. however. did not submit evidence that the Kc/lo~~ 
language appeared in any other of its advertisements for the position during the labor certification 
process. including: the notice of tiling: and ads in a newspaper. with a professional organization. and at 
a campus placement ot1icc. The Petitioner also did not submit evidence that it considered U.S. workers 
for the offered position who potentially qualified based on a combination of education and experience. 
The Petitioner's job order therefore does not establish that it recruited for the off'crcd position with the 
intention to accept a combination of education and experience in lieu orthe baccalaureate requin:ment. 
For the foregoing reasons. the record does not establish the Petitioner's Kc/lo~~ language in Part 11.14 
of the labor certification as an alternative job requirement. Rather. the labor certification indicates the 
offered position·s minimum educational requirement as a U.S. bachelor·s degree or a tlxeign equivalent 
degree. 
'While we are not bound by BALCA decisions. we. nevertheless, may take note of the reasoning in such decisions when 
considering issues that arise in the employment-based immigrant visa process. 
4 
Maller of( '-A-. Inc. 
Ill. CONCLUSION 
The Petitioner has not established the Beneficiary's possession of the minimum education required 
for the offered position. We will therefore atlirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as lvfatler oj( '-A-. Inc .. ID# 938493 (AAO Feb. 21. 2018)