dismissed EB-3 Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re : 20580191 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 4, 2022 
The Petitioner seeks to employ the Beneficiary as a business systems analyst. It requests classification 
of the Beneficiary as a skilled worker under the third preference immigrant classification . Immigration 
and Nationality Act (the Act) 203(b)(3)(A)(i) , 8 U.S.C. § 1153(b)(3)(AXi). This employment-based 
immigrant classification allows a U.S. employer to sponsor a non citizen 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 minimum job requirements and, therefore , is not considered 
qualified for the position. On appeal, the Petitioner reasserts that the Beneficiary is qualified for the 
position. 
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 
Immigration as a skilled worker generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(aX5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing , qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a noncitizen will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position , an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act , 8 U.S.C. § 1154. Among other things , USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition , a noncitizen may finally 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 term "skilled worker" is defined in the regulation at 8 C.F.R. § 204.5(1)(2) as follows: 
Skilled worker means [a noncitizen] who is capable, at the time of petitioning for this 
classification, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not 
available in the United States. Relevant post-secondary education may be considered 
as training for the purposes of this provision. 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states that a petition for a skilled worker must be 
accompanied by: 
evidence that the [noncitizen] meets the educational, training or experience, and any other 
requirements of the individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information Pilot Program 
occupation designation. The minimum requirements for this classification are at least two 
years of training or experience. 
In addition, a beneficiary must meet all of the education, training, experience, and other requirements 
specified on the labor certification as of the petition's priority date. See Matter of Wing's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
II. ANALYSIS 
As noted above, the Director concluded that the record did not establish that the Beneficiary met the 
minimum job requirements and, therefore, is not considered qualified for the position. The DOL ETA 
Form 9089, Application for Permanent Employment Certification, submitted with the Form I-140, 
Immigrant Petition for Alien Workers, indicates that the minimum job requirements for the proffered 
position include a bachelor's degree in computer science, engineering, business administration, or a 
related field, and 24 months of experience in the job offered or as a computer software professional; 
or, in the alternative, "4 yrs exp in job/off or as Comp S/W Professional in lieu of Bachelor's degree 
plus 2 yrs exp." The priority date in this matter is the ETA Form 9089 filing date, April 25, 2019. 
The Petitioner asserted in a letter in support of the Form I-140 that the Beneficiary earned a master of 
science in software engineering from University inl !California, 
in 2012. However, the Petitioner also asserted that "[the] Beneficiary is not utilizing [his] education 
towards the minimum requirements of the [l]abor [ c ]ertification. [The] Beneficiary is qualifyingunder 
the alternate work requirement." Even if the Petitioner intended to establish eligibility under the 
primary requirement of a bachelor's degree and 24 months of experience in the job offered or as a 
computer software professional, the record does not establish that the Beneficiary had sufficient work 
experience, based on unresolved inconsistencies addressed below. 
Prior to denying the Form I-140, the Director first sent the Petitioner a request for evidence (RFE), 
noting inconsistent work experience dates for the Beneficiary in the record, and requesting evidence 
that may resolve those inconsistences. After the Petitioner responded to the RFE, the Director then 
sent the Petitioner a notice of intent to deny (NOID), again noting inconsistent work experience dates 
for the Beneficiary in the record that the Petitioner did not clarify, and requesting evidence that may 
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resolve the inconsistencies in the record. The Petitioner's NOID response created further 
inconsistencies regardingthe Beneficiary's work experience, rather than reso lvingthem. The Director 
found that the inconsistencies regarding the Beneficiary's work experience reduced the credibility of 
the evidence, citing Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988); and therefore, the Petitioner did 
not establish that the Beneficiary met the minimum requirements at the time the DOL accepted the 
ETA Form 9089 and thus was not qualified for the position. 
Specifically, in the decision the Director noted inconsistencies regarding the Beneficiary's w01k 
experience as follows: 
• The ETA Form 9089 submitted by the Petitioner indicates that the Beneficiary 
worked forl I from August 16, 2012, to 
February 6, 2017; however,I I filed a Form 
I-140 on behalf of the Beneficiary on February 21, 2017, including an ETA Form 
9089 signed by its president on February 1 7, 201 7, indicating that it intended to 
continue employingtheBeneficiarybeyondFebruary2017. Moreover, a letter also 
dated February 16, 201 7, signed by the president of I I I I submitted with that Form I-140 addresses current duties the 
Beneficiary continued to perfonn as an employee. USCIS denied this Fonn I-140 
in 2018. 
• The ETA Form 9089 submitted with the Form I-140 filed by 
in 2017 indicates that the Beneficiary's employment start date 
was October 16, 2014, not August 16, 2012; however, the record contains IRS 
Forms W-2, Wage and Tax Statements, for the Beneficiary indicating that he 
received income from in 2012 and 2013. 
• Rather than clarifying the inconsistencies regarding the Beneficiary's dates of 
employment atl I a letter from its CEO, 
submitted in response to the NOID, states that the Beneficiary's "correct 
employment dates, August 16, 2012[,] to February 03, 2017, are now being 
provided," further confusing the Beneficiary's employment end date. 
• The ETA Form 9089 submitted with the Form I-140 filed by I 
_____ in 201 7 indicates that the Beneficiary worked forl I 
from June 1, 2012, until September 30, 2014; however, the ETA Form 9089 
submitted by the Petitioner omits the Beneficiary's employment withl 
instead listing his next-most recent employment as being with ______ 
from May 30, 2011, until December 19, 2011. Moreover, the stated 2012-2014 
employment atl !overlaps with the employment start and end dates at 
I I listed on the ETA Form 9089 submitted 
by the Petitioner. 
• In response to the NOID, the Petitioner submitted a letter signed by the Beneficiary, 
asserting that the information entered on the ETA Form 9089 filed by I I "was neither provided by me nor did I authorize the 
filing of the I-140." However, Box L.2 of the ETA Form 9089 filed by I I lbears the Beneficiary's signature and the date of 
February 16, 2017, 10 days after the ETA Form 9089 filed by the Petitioner states 
the Beneficiary's employment atl I ended. 
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On appeal, the Petitioner initially asserts that the Director "fails to concretely indicate what the 
information in the record is and/or where the letter dated February 16, 2017[,] was produced. No 
information on the record, as it pertains to the underlying filing with [the Petitioner], contained 
contradictory information or a letter from I I dated February 
16, 2017 ." However, the Petitioner later concedes on appeal that the Director specified in the decision 
"that the 'inf ormation in the record' is '[t]he previous letter by the President of I the Form 
1-140 [sic], and labor certification filed in 2017 ."' 
Next, the Petitioner reasserts on appeal the Beneficiary, s employment history as provided on the ETA 
Form 9089 it submitted, denying employment by I I "at anytime." The Petitioner 
acknowledges that the letter from the CEO of I submitted in 
response to the NOID further confused the Beneficiary's end date of employment. However, the 
Petitioner asse1is that,"[ w ]hen all suppmiing evidence is viewed in totality, USCIS should conclude 
that the end date of employment is February 6, 201 7 ." The Petitioner further reasserts that the 
"Beneficiary has provided a signed affidavit under which he declares under penalty of perjury that he 
was not aware of the filing of [the ETA Form 9089 by _____________ did 
not sign this [ETA Form 9089], and did not authorize the filing of the [ETA Form 9089 and Form 
I-140]." The Petitioner also concedes that the NOID "fully explains the nature of the information in 
the record" on which the Director relied, before entering the decision. However, the Beneficiary's 
signature on the ETA Form 9089 submitted by I matches the 
Beneficiary's signature on other documents in the record, including his signature on the ETA Form 
9089 submitted by the Petitioner, and his signature on the affidavit in which he denies having signed 
the ETA Form 9089 submitted by I 
The Petitioner's reassertions on appeal of information already in the record, without any additionaL 
probative evidence, do not overcome the inconsistencies in the record summarized above. The 
Petitioner's denial that the Beneficiary was ever employed by I conflicts with the 2017 ETA 
Form 9089, which bears the Beneficiary's signature, reporting that he was employed by I 
from June 1, 2012, until September 30, 2014. The Beneficiary's statement in response to the NOID 
that the information entered on the ETA Form 9089 filed by I 
"was neither provided by me nor did I authorize the filing of the I-140" directly conflicts with his 
signature on that ETA Form 9089, dated 10 days after the Petitioner asserts his employment at 
ended. In addition to further confusing the Beneficiary's 
actual end date of employment at the letter from its CEO 
submitted in response to the NOID did not clarify why filed 
a Form I-140 with a related ETA Form 9089 on behalf of the Beneficiary on February 21, 2017, if his 
employment, in fact, had ended on either February 3 or 6, 2017. Moreover, the CEO letter submitted 
in response to the NOID did not clarify who, other than the Beneficiary, may have provided the 
information and signed the 2017 ETA Form 9089, which bears the Beneficiary's specific alien 
admission number reflected on his Form I-94, Arrival/Departure Record, identical to the alien 
admission number provided on the ETA Form 9089 submitted by the Petitioner. 
The numerous inconsistencies regarding the Beneficiary's employment history casts doubt on the 
accuracy of statements related to his experience, undermining the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. See Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988). Because the evidence, particularly relating to the Beneficiary's experience, bears 
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diminished reliability, the Petitioner has not met its burden to establish eligibility for the requested 
benefit. See id.; see also section 291 of the Act; 8 C.F.R. § 204.5(1)(2)-(3); Matter of Wing's Tea 
House, 16 I&NDec. at 159. 
The Petitioner also requests on appeal that we use our "discretionary authority pursuant to 8 C.F.R. 
§ 214 .1 ( c )( 4) and approve this petition so thatthe Beneficiarymay remain the United States and pursue 
his desire to become a pennanent residence, and ultimate, U.S. Citizen [sic]." 
The regulations provide that USCIS has the discretion to excuse a failure to file an extension of stay 
for a nonimmigrant who failed to maintain a previously accorded status or where such status expired 
before the application or petition was filed, upon demonstrating the following: 
(i) The delay was due to extraordinary circumstances beyond the control of the 
applicant or petitioner, and [USCIS] finds the delay commensurate with the 
circumstances; 
(ii) The [ non citizen] has not otherwise violated his or her nonimmigrant status; 
(iii) The [noncitizen] remains a bona.fide nonimmigrant; and 
(iv) The [ noncitizen] is not the subject of deportation proceedings under section 242 
of the Act (prior to April 1, 1997) or removal proceedings under section 240 of 
the Act. 
8 C.F.R. § 214.l(c)(4). The regulation at 8 C.F.R. § 214.l(c)(4) relates to nonimmigrant 
classifications, not immigrant classifications. Because the current petition requests an immigrant 
classification, the regulation at 8 C.F.R. § 214.1 ( c)(4) is inapplicable here. Accordingly, we need not 
address the Petitioner's request regarding 8 C.F.R. § 214.1 (c)(4) further. 
III. CONCLUSION 
The record does not establish that the Beneficiary meets the experience requirements of the labor 
certification; therefore, the Beneficiary is ineligible for the offered position. See Matter of Wing's Tea 
House, 16 I&NDec. at 159. 
ORDER: The appeal is dismissed. 
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