dismissed EB-3 Case: Computer Science

MATTEROFD-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 27, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software development company, seeks to employ the Beneficiary as Director, 
Global Indirect Revenue. 1 It requests classification of the Beneficiary as a professional under the 
third preference immigrant classification. Immigration and Nationality Act (the Act), 
section 203(b)(3)(A)(ii), 8 U.S.C. § l 153(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary possessed the education required by the labor certification 
as of the priority date. The Director noted that the labor certification does not permit foreign 
educational equivalent degrees, and that the Beneficiary does not possess a U.S. degree. 
On appeal, the Petitioner submits additional evidence and asserts that it made a clerical error on the 
labor certification. It states that it intended to allow applicants to qualify for the offered job with 
foreign educational equivalent degrees. 
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).2 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. See section 212(a)(5)(A)(i)(l)-(Il) of 
the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and 
1 The job title listed on the labor certification application differs from the job title listed on the petition. 
2 The priority date of a petition is the date DOL accepted the labor certification for processing, which in this case is 
August 11, 2017. See 8 C.F.R. § 204.5(d). 
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Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
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. 
II. THE BENEFICIARY'S EDUCATION 
The Director denied the petition because the Petitioner did not establish that the Beneficiary 
possessed the education required by the labor certification as of the priority date. 
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)(l), (12); Matter o.f Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). In this case, the labor certification 
requires a master's degree in computer science and 12 months of experience in the job offered. At 
Part H.9., the Petitioner indicated that a foreign educational equivalent is not acceptable. 
The labor certification states that the Beneficiary received his master's degree in computer science 
from _ =- France, in 2012. The 
record contains a certificate from dated February 18, 2015, stating 
that the Beneficiary obtained his master of science degree in computer science in 2012; a copy of the 
Beneficiary's master of science degree issued by ==----======- in 2012; the 
Beneficiary's transcripts from his master's program at ; and a copy 
of the Beneficiary's bachelor of science degree issued by ___________ in 2011. 
In a notice of intent to deny (NOID), the Director indicated that the labor certification did not permit 
a foreign educational equivalent. Given that the record does not demonstrate that the Beneficiary 
has a U.S. degree, the Director notified the Petitioner that it had not established its eligibility for the 
benefit sought. In its response to the NOID, the Petitioner asserted that it made a clerical error on 
the labor certification and that it intended to allow applicants to qualify for the offered job with 
foreign educational equivalent degrees. It stated that it notified DOL about the error and DOL 
certified the ETA Form 9089, Application for Permanent Employment Certification, thereafter. It 
further stated that the labor certification clearly shows that the Beneficiary has a foreign degree, 
evidencing the Petitioner's intent to accept foreign educational equivalent degrees. 
In his decision, the Director determined that the evidence did not establish that the Beneficiary 
possessed the education required by the labor certification. He stated that a letter from counsel 
indicating the Petitioner's intent to accept foreign equivalent degrees is not acceptable evidence . 
On appeal , the Petitioner restates its assertions from its NOID response. It contends that because 
section J of the labor certification shows that the Beneficiary has a foreign degree and the Petitioner 
intends to hire him , the information on the labor certification establish.es that the Petitioner will 
accept a foreign degree as equivalent to a U.S. degree for the position. However , Section J of the 
labor certification relates solely to the Beneficiary's own qualifications, apart from the minimum 
requirements of the offered position. The fact that the Beneficiary has a foreign degree does not 
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Matter of D-
consequently demonstrate that the labor certification allows a foreign degree in lieu of a U.S. degree. 
See, e.g., SnapNames.com, Inc. v. Cherto.ff, No. CV 06-65-MO, 2006 WL 3491005, *7 (D. Or. Nov. 
30, 2006) (finding that even though an employer may prepare a labor certification with a beneficiary 
in mind, USCIS has an independent role in determining whether the beneficiary meets the labor 
certification requirements). As discussed, the labor certification at Section H reflects that no foreign 
educational equivalent degree is acceptable for the proffered position. 
During labor certification proceedings, DOL may review a beneficiary's qualifications for an offered 
position. See, e.g., 20 C.F.R. § 656. l 7(i)(3) (barring a foreign national, as of his or her hiring by a 
labor certification employer, from having less training or experience than is required of U.S. 
applicants). USCIS, however, has the ultimate authority to determine a beneficiary's qualifications 
for a DOL-certified position and for the requested immigration classification. See section 204(b) of 
the Act, 8 U.S.C. § 1154(b) (authorizing USCIS to approve a petition after determining that "the 
facts stated in the petition are true" and that a foreign national qualifies for the requested preference 
classification). Moreover, "DOL may gauge an alien's skill level in evaluating the effect of the 
alien's employment on United States workers," but that "does not foreclose [USCIS] from 
considering alien qualifications in the preference classification decision." Madany v. Smith, 696 F.2d 
1008, 1012 (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 Petitioner 
stated at Part H.9. that no foreign degree was acceptable for the offered position. 
The Petitioner further asserts that it notified DOL regarding its clerical mistake on the labor 
certification application prior to DOL's certification, but the record contains no correspondence 
between DOL and the Petitioner.3 Further, the promulgation of 20 C.F.R. § 656.1 l(b), prohibits any 
modification to labor certifications filed after July 16, 2007. The Petitioner cannot make changes to 
the offered position on the labor certification. Moreover, as DOL made clear in the preamble to the 
proposed rule, Labor Certification for the Permanent Employment of Aliens in the United States; 
Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity, 
71 Fed. Reg. 7655 (Feb. 13, 2006), "[u]nder proposed 656.1 l(b), DOL clarifies that requests for 
modification to an application submitted under the current regulation will not be accepted ... 
[ n ]othing in the streamlined regulation contemplates allowing or permits employers to make changes 
to applications after filing." Id. at 7659. The preamble goes on to highlight that: 
The online application system is designed to allow users to proofread and revise 
before submitting the application, and [DOL] expects and assumes users will do so. 
Moreover, in signing the application, the employer declares under penalty of perjury 
that he or she has read and reviewed the application and the submitted information is 
true and accurate to the best of his or her knowledge. In the event of an inadvertent 
3 A petitioner bears the burden of establishing eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 l&N Dec. 799. 806 (AAO 2012). 
MatterofD-
error or any other need to refile, an employer can withdraw an application, make the 
corrections and file again immediately ... [i]n addition, the entire application is a set 
of attestations and freely allowing changes undermines the integrity of the labor 
certification process because changing one answer on an application could impact 
analysis of the application as a whole. 
Id. Here, the attempt to change the answer from "no" to "yes" at Part H.9. materially changes the 
requirements of the offered position and impacts the analysis of the labor certification as a whole. 
On appeal, the Petitioner cites a DOL frequently asked question (FAQ) relating to appeals of denied 
labor certification applications. See DOL, Office of Foreign Labor Certification (OFLC), OFLC 
Frequently Asked Questions and Answers, 
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q !251 (last visited Dec. 20, 2018). The 
FAQ states that in limited circumstances, an employer may make corrections to a denied labor 
certification application and appeal the denial by requesting reconsideration within 30 days from the 
date of issuance of the denial. This FAQ is not applicable here, as the Petitioner did not appeal a 
denied labor certification to DOL by requesting reconsideration. Further, the FAQ states that 
corrections are only permitted by DOL when incorrect or missing information is the result of a 
typographical error and the correction is supported by documentation that existed at the time the 
application was filed (advertisements, notice of filing, prevailing wage determination, etc.). Here, 
the Petitioner submits a letter on appeal dated September 4, 2018, stating that it intended to accept 
foreign educational equivalent degrees. However, the record does not contain documentation of its 
intent that existed at the time the labor certification application was filed, such as the Petitioner's 
advertisements, notice of filing, or prevailing wage determination. Additionally, in Matter of Sushi 
Shogun, 2011-PER-02677 (BALCA May 28, 2013), the Board of Alien Labor Certification Appeals 
(BALCA) panel found that the promulgation of 20 C.F .R. § 656.11 (b ), prohibiting any modification 
to labor certifications filed after July 16, 2007, precluded the employer from making changes to the 
offered position on the labor certification. Similarly, the Petitioner is precluded from modifying the 
labor certification in this case. 
In sum, the Petitioner has not established that the Beneficiary possessed a U.S. master's degree in 
computer science as required by the labor certification as of the priority date. Thus, the record does 
not establish that the Beneficiary is qualified for the offered position. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although not addressed by the Director, the record does not establish the Petitioner's continuing 
ability to pay the proffered wage from the priority date. The proffered wage is $147,243 per year. 
The record must show the Petitioner's ability to pay the proffered wage from the priority date of 
August 11, 201 7, onward. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
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Ability of prospective employer to pay wage. Any petlt10n filed by or for an 
employment-based immigrant which requires an off er of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. In a case where 
the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. 
The record does not contain an annual report, federal tax return, or audited financial statements for 
the Petitioner as of the priority date in 2017 as required by 8 C.F.R. § 204.5(g)(2).4 Thus, the 
Petitioner has not established its continuing ability to pay the proffered wage from the petition's 
priority date onward. 
IV. CONCLUSION 
The Petitioner has not established that the Beneficiary possessed the education required by the labor 
certification as of the priority date. The Petitioner has also not established its continuing ability to 
pay the proffered wage from the priority date. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-, ID# 2194133 (AAO Dec. 27, 2018) 
4 The record contains the Petitioner's federal income tax return for calendar year 2016. It shows a significant net loss 
and considerable net current liabilities. The petition and labor certification indicate that the Petitioner employs 80 
employees. 
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