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: APR. 30, 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 computer and 
network systems 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 for 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 asset1s that the Beneficiary meets the mtmmum educational (and 
experience) requirements of the labor certification to qualify for the job offered. 
Upon de novo review, we will dismiss the appeaL 
l. LAW 
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. § 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, 
8 U.S.C. § I 154. Third, if USCIS approves the petition, the foreign national may apply tor 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 date the labor certification is filed with the DOL. in this case June 23,2016, is the "priority date" of the succeeding 
petition. A beneficiary must meet all eligibility requirements for the requested classification as of that date. 
.
Mall er of C-A-. Inc. 
The Petition er requests classifica tion of the Beneficiary as a ski lled worker. In orde r to qualify as a 
skilled worke r, the Benefi ciary must possess at least two years of training or experienc e and meet the 
"educational, training or ex perience , and any o ther requir ements of the individual labor 
certification ." 8 C.F.R. § 204.5(1)(3)(ii)(B). 
II. ANALYSIS 
At issue in thi s case is whether the Beneficiar y possesses the minimum educatio n required by the 
terms of the labor certificatio n. In sec tion H of the labo r certific ation, the Peti tioner spec itied the 
following with res pect to the education, training, a nd ex perienc e requir ed to qual ify for the job of 
computer and network system s administrator: 
4. 
4-B. 
5. 
6. 
6-A. 
7. 
7-A. 
8. 
9. 
10. 
10-A. 
10-B. 
14. 
Education: Minimum level required: 
Major Field of Study : 
Is trainin g requir ed fo r the job? 
Is experience in the job offered required ? 
How long? 
Is a n alternate field or study acceptable? 
What field? 
Is an alternate combination of education 
and experience acceptable ? 
Is a foreign educa tional equivalent acceptab le? 
Is expe rience in an alternate occ upati on acce ptab le? 
How long? 
Job title s 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 mo nths 
Software designer , deve loper, 
tester, or analyst 
Pursuant to 20 C.F.R. 
§ 656.17( h)(4)(ii), we will accept 
any suitable combination of 
ed ucation, trainin g, or ex perience 
for this pos ition. 
Section J o f the labor certific ation states that the Beneficiary's high est level of education relevant to 
the job opportu nity is a bachelor's degree in computer applications from 
in India, completed in 2010. The record shows that th is was a 
three-year degree. Section K of the labor certification states that th e Beneficiar y had more than four 
years of ex perience a s a senior technical support associate with (India ) in 
India, and as assistant manager of operations migr ation so ftware with 
India, between 2010 and 2015, befor e s tarting wo rk with the Petition er. 
The record includes document ary evidence of this experience . The record also includes an 
evaluation of the Beneficiary' s educa tion and experience by University 
who asse rts that the Beneficiar y's three-year bachelor's degree is equi valent to three years of study 
at a U.S. co llege or univer sity, that his first thre e yea rs of experien ce in India are equi vale nt to an 
2 
Matter of C-A-. Inc. 
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 management information systems ti·om an 
accredited college or university in ihe United States. 
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 tour years of education. See Mal/er oj'Shah, 17 l&N Dec. 244, 245 (Comm'r 1977). Rather, 
the Petitioner asserts that the labor certification allows the Beneficiary to qualify tor the otTered 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 
1-1.8 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 1-1.14 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 of 20 C.F.R. § 656.17(h)(4)(ii), which states that: 
If the alien beneficiary already is employed by the employer, and the alien docs not 
meet the primary job requirements and only potentially qualities for the job by virtue 
of the employer's alternative requirements, certification 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 
or foreign equivalent degree and 24 months of experience- and that the Petitioner advertised tor the 
protTered 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 prospective applicants for the proffered position reading the job 
announcement-- which required a "bachelor's degree or equivalent ... and two years' experience" 
2 This regulation incorporates the Board of Alien Labor Certification Appeals (BALCA) ruling in Maller ~~l Francis 
Kellogg, 1994-tNA-465 and 544, 1995-tNA 68 (13ALCA 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 
Malter ofC-A-: Inc. 
and stated that the "[e]mployer will accept any suitable combination of education, trammg, 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 
proffered position, we must examine "the language of the labor certification job requirements." 
i\Iadany 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 !'ark 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. Jd. 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 1-1.4, 1-1.4-B, 1-1.7, 1-1.7-A, and 1-1.9) and that the minimum experience requirement is 
24 months in qualifying jobs (sections 1-1.6, 1-1.6-A, 1-1.10, 1-1.1 0-A, and 1-1.1 0-B). Section 1-1.8 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 1-1.14, 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 
otTered, and the Petitioner asserts that he quali1ies for the proffered position based on the alternative 
educational and experience requirements of the labor certification. 
The minimum education and experience required by the labor certification, however, is unchanged 
by the Kellogg language in section 1-1.143 The minimum requirements are still a bachelor's degree 
in an acceptable field of study and 24 months of qualifying experience. Neither in section 1-1.14 nor 
3 \Ve generally do not interpret the insertion of Kellogg language in part H.14 to mean that an employer would accept 
lesser qualifications than the primary and alternate requireinents 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. 
4 
• 
Mauer of C-A-. Inc . 
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 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 proiTered 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, as determined by a credential evaluation service, 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 
ccrtilication does not change the minimum educational and experience requirements stated in 
sections 1-1.4 to H.1 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. 
Ill. CONCLUSION 
The Petitioner has not established that the Beneficiary meets the minimum educational requirement 
of the labor certification. 
ORDER: The appe'al is dismissed. 
Cite as Maller of C-A-. Inc. ID# 1171149 (AAO Apr. 30, 2018) 
5