dismissed EB-3 Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 27,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a computer consulting company, seeks to employ the Beneficiary as a database 
administrator. 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 tor lawful permanent resident status to work in a position that requires at 
least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition. The Director found that the 
Beneficiary did not qualify for the job offered because he did not meet the minimum educational 
requirement of the labor certification. 
On appeal, the Petitioner asserts that the Beneficiary meets the m1mmum educational (and 
experience) requirements of the labor certification to qualify for the job offered. 
Upon de novo review, we will dismiss the appeal on the ground that the Beneficiary does not meet 
the minimum educational requirement of the labor certification, and on the additional ground that the 
evidence of record does not establish that the Beneficiary meets the minimum experience 
requirement of the labor certification. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department ofLabor (DOL). 1 See section 212(a)(5)(A)(i) of 
the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, 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. Second, the employer files an immigrant visa 
petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
1 
The date the labor certification is filed is called the "priority date," which in this case was June 29, 2016. A beneficiary 
must meet all eligibility requirements tor the requested classification as of that date. 
.
Matter ofC-A- , Inc. 
8 U.S.C. § 1154. Third , if USCIS approves the petition, the foreign national may apply 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. 
The Petitioner requests classification of the Beneficiary as a skilled worker. In order to qualify as a 
skilled worker , the Beneficiary must possess at least two years of training or experience and meet the 
"educational , training or experience, and any other requirements of the individual labor 
certification. " 8 C.F.R. § 204.5(1)(3)(ii)(B). 
II. ANALYSIS 
At issue in this case is whether the Beneficiary possesses the minimum educational and experience 
requirements of the labor certification. 
In section H of the labor certification , the Petitioner specified the following with respect to the 
education, training, and experience required to qualify for the job of database administrator: 
4. 
4-B. 
5. 
6. 
6-A. 
7. 
7-A. 
8. 
9. 
10. 
10-A. 
10-8. 
14. 
Education: Minimum level required: 
Major Field of Study: 
Is training required for the job? 
Is experience in the job oflered required ? 
How long? 
Is an alternate tield of study acceptable? 
What field? 
Is an alternate combination of education 
and experience acceptable? 
Is a foreign educational equivalent acceptable? 
Is experience in an alternate occupation acceptable? 
How long? 
Job titles of alternate occupations 
Specific skills or other requirements 
Bachelor's degree 
Engineering 
No 
Yes 
24 months 
Yes 
Computer Science or related 
No 
Yes 
Yes 
24 months 
Software designer , developer , 
tester, or analyst 
Pursuant to 20 C.F.R. 
§ 656.17(h)(4)(ii) , we will accept 
any suitable combination of 
education, training, or experience 
for this position. 
Section J of the labor certification states that the Beneficiary's highest level of education relevant to 
the job opportunity was a bachelor 's degree in computer science from University in 
India, completed in 2002. The record shows that this was a three-year degree. 
Section K of the labor certification states that the Beneficiary had 11 years of experience as a 
software engineer and developer with Indian and U.S . companies between 2003 and 2014, before 
starting work with the Petitioner. The record includes an employment verification letter from one 
2 
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Maller of C-A-. Inc. 
Indian company. The record also includes an evaluation of the Beneficiary's education and 
experience by University who asserts that the Beneficiary's three-year 
bachelor's degree is equivalent to three years of study at a U.S. college or university, that his first 
three years of experience as a software specialist with in India, are 
equivalent to an additional year of college or university study, and that the combination of this 
education and experience is equivalent to a bachelor of science degree in computer information 
systems from an accredited college or university in the United States. 
A. Beneficiary's Education 
The Petitioner does not claim , nor submit evidence to establish, that the Beneficiary's three-year 
bachelor's degree from India is the foreign equivalent of a U.S. bachelor's degree, which generally 
requires four years of education. See Matter o.lShah, 17 I&N Dec. 244, 245 (Comm'r 1977). Rather, 
the Petitioner asserts that the labor certification allows the Beneficiary to quality for the offered position 
with a combination of education and experience. 
In his decision denying the petition, the Director interpreted the job offer portion (section H) of the 
labor certification as requiring a bachelor's degree or a foreign educational equivalent and 24 months 
of qualifying experience, and found that the Beneficiary did not meet the educational requirement 
because his degree from India was not the foreign equivalent of a U.S. bachelor's degree. In section 
H.8 of the labor certification , as the Director pointed out, the Petitioner indicated that no alternate 
combination of education and experience was acceptable. The Director construed the language in 
section H.14 of the labor certification stating that "any suitable combination of education, training, 
or experience" was acceptable to be Kellogg language that was added to comply with the 
requirements of20 C.F.R. § 656.17(h)(4)(ii), which states that: 
If the alien beneficiary already is employed by the employer, and the alien does not 
meet the primary job requirements and only potentially qualifies for the job by virtue 
of the employer's alternative requirements, ce1iification will be denied unless the 
application states that any suitable combination of education, training , or experience 
is acceptable. 2 
The Director found that use of the Kellogg language was mandatory in this case because the 
Beneficiary was employed by the Petitioner and only qualified for the job offered by virtue of the 
alternative field of study and alternative occupations allowed by the labor certification. The Director 
also found that the Kellogg language was not qualified by the Petitioner in any way so as to lower 
the educational and experience requirements stated on the labor certification - namely, a bachelor's 
2 This regulation incorporates the Board of Alien Labor Certification Appeals (BALCA) ruling in Mauer of Francis 
Kellogg, 1994-INA-465 and 544, 1995-INA 68 (BALCA Feb. 2, 1998) (en bane) (if the Beneficiary only qualifies for 
the offered position based on the alternative job requirements, the labor certification must state that "applicants with any 
suitable combination of education, training or experience are acceptable"). 
3 
Matter ofC-A-, Inc. 
or foreign equivalent degree and 24 months of experience- and that the Petitioner advertised for the 
proffered position utilizing the same unqualified Kellogg language. 
On appeal the Petitioner contends that the Kellogg language was only mandatory on the labor 
certification, not on its job advertisements, and claims that its discretionary use of Kellogg language 
on its job advertisements was intended to make the job available to a wider spectrum of applicants. 
The Petitioner asserts that U.S. workers reading the job announcement -- which required a 
"bachelor's degree or equivalent ... and two years' experience" and stated that the "[e]mployer will 
accept any suitable combination of education, training, or experience" - would interpret such 
language as allowing the educational requirement to be satisfied by a combination of education and 
experience that was equivalent to a bachelor's degree. The same interpretation should be applied to 
the labor certification, the Petitioner claims, since the intent expressed in its recruitment was to 
"accept US workers possessing any US bachelor's equivalency and the requisite experience." 
Appeal Brief at 2 (emphasis in the original). In the Petitioner's view: "[U] sing the language in 
recruitment substantively changed the minimum requirements such that the [B]eneficiary, who 
possesses a US bachelor's equivalency from a reputable credential evaluation service ... and two 
years of relevant professional experience qualifies for the instant job offer ... by the stated terms of 
the [labor certification]." Appeal Brief at 3. 
We do not agree with the Petitioner's position. In order to determine the minimum requirements of a 
profTered 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 Company 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. !d. at 
834. 
In this case, the labor certification states that the minimum educational requirement is a bachelor's 
degree or a foreign educational equivalent in engineering, computer science, or a related field of 
study (sections H.4, H.4-B, H.7, H.7-A, and H.9) and that the minimum experience requirement is 
24 months in qualifying jobs (sections H.6, H.6-A, H.l 0, H.l 0-A, and H.l 0-B). Section H.8 is the 
proper location on the labor certification to identify any acceptable alternate combinations of 
education and experience. The labor certification in this case does not permit an alternate 
combination of education and experience. At section H.14, which states that "we will accept any 
suitable combination of education, training, or experience," the Petitioner indicates that this Kellogg 
language was included to comply with 20 C.F.R. § 656.17(h)( 4)(ii) - the regulation requiring such 
language when a beneficiary already employed by the petitioning employer would qualify for the 
proffered position only by virtue of the alternative educational and experience requirements in the 
labor certification. In this case, the Beneficiary does not meet the primary educational requirement 
of a bachelor's degree in engineering or the primary experience requirement of 24 months in the job 
offered, and the Petitioner asserts that he qualifies for the proffered position based on the alternative 
educational and experience requirements of the labor certification. 
4 
Matter qfC-A-. Inc. 
The minimum education and experience required by the labor certification, however, is unchanged 
by the Kellogg language in section H.14.3 The minimum requirements are still a bachelor's degree 
in an acceptable field of study and 24 months of qualifying experience. Neither in section H.l4 nor 
in any other section of the labor certification did the Petitioner state that it would accept a "US 
bachelor's equivalency from a reputable credential evaluation service," as asserted on appeal, in lieu 
of a U.S. bachelor's or foreign equivalent degree. The plain language ofthe 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. 
Nor does the preceding job advertisement submitted by the Petitioner support this claimed intent. 
The job advertisement describes the educational and experience requirements as follows: 
Applicant must possess bachelor's degree or equivalent in Engineering, Computer 
Science, or a related field; and two years' 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. 
Nothing in the above language indicates that the Petitioner would accept an equivalent to a U.S. 
bachelor's degree, based on some combination of lesser academic credentials and/ or work 
experience, in lieu of a full U.S. bachelor's or foreign equivalent degree. Thus, the Petitioner has not 
established that that it intended to require less than a U.S. bachelor's or foreign equivalent degree, as 
that intent was expressed to U.S. workers during the recruitment process and to DOL during the 
labor certification process. 
We agree with the Director's determination that the Kellogg language in section H.l4 of the labor 
certification does not change the minimum educational and experience requirements stated in 
sections H.4 to H.l 0 of the labor certification. We find that the labor certification requires a four­
year U.S. bachelor's or foreign equivalent degree in engineering, computer science, or a related field 
of study. The Beneficiary does not possess such a degree. Therefore, the Beneficiary does not meet 
the minimum educational requirement of the labor certification. 
B. Beneficiary's Experience 
The labor certification also requires at least two years of qualifying experience as a database 
administrator or in an alternate occupation as a software designer, developer, tester, or analyst. The 
labor certification lists four jobs the Beneficiary allegedly held as a software engineer or developer 
between March 2003 and March 2014, at which time the Beneficiary began working for the 
3 We generally do not interpret the insertion of Kellogg language in part H.l4 to mean that an employer would accept 
lesser qualifications than the primary and alternate requirements stated in the labor certification. If we were to read the 
Kellogg language as an alternate requirement, the actual minimum requirements of the offered position would be 
impossible to discern, the primary and alternate requirements would be made meaningless, and any labor certification 
using Kellogg language would be potentially ineligible for the requested classification. 
5 
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Maller ofC-A-, Inc. 
Petitioner as a technical specialist. A labor certification employer cannot rely on experience that a 
foreign national gained with it, unless the experience was in a job substantially ditierent than the 
offered position or the employer demonstrates the impracticality of training a U.S. worker for the 
otiered position. 20 C.F.R. § 656.17(i)(3). For these purposes, a job is substantially different from 
an otiered position if it requires performance of the same job duties less than 50 percent of the time. 
20 C.F.R. § 656.17(i)(5)(ii). On the labor certification , the Beneficiary's duties as a technical 
specialist overlap with the duties of the offered position, but the Petitioner has not demonstrated that 
the two positions are substantially ditierent. The record therefore does not support the use of 
experience that the Beneficiary gained with the Petitioner. 
With regard to the four jobs with other employers listed m the labor certification, only one 
verification letter has been submitted. It is from in India, dated September 
29, 2016, stating that the Beneficiary was employed as a software specialist from November 2006 to 
March 2014. This information is inconsistent with the labor certification, however, which states that 
the Beneficiary was employed by as a developer-senior software engineer from 
November 2006 to November 2013. According to the labor certification, the Beneficiary was then 
employed by another company, . in New York City as a software specialist from 
November 2013 to March 2014 . Thus , the employment verification letter from 
conflicts with the labor certification as to both the job title and dates of employment for the 
Beneficiary . 
lt is incumbent upon a petitiOner to resolve any inconsistencies in the record by independent 
objective evidence. Attempts to explain or reconcile such inconsistencies will not suffice without 
competent evidence pointing to where the truth lies. See Matter of Ho , 19 l&N Dec. 582 , 591-92 
(BIA 1988). Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of 
the petitioner's remaining evidence. See id. 
Since the letter from does not confirm either the job title or the dates of employment 
alleged in the labor certification, we find that it is not reliable evidence of the Beneficiary's 
employment with the company and does not establish that the Beneficiary has at least two years of 
qualifying experience. As there are no letters from the other alleged employers of the Beneficiary, 
we conclude that the record does not establish that the Beneficiary meets the minimum experience 
requirement of the labor certification. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary meets the mmtmum educational and 
experience requirements of the labor certification. 
ORDER: The appeal is dismissed. 
Cite as Matter (~lC-A-. Inc., ID# 1167389 (AAO Mar. 27, 2018)