dismissed EB-3 Case: Cytogenetics

MATTER OF U-O-C-S-D-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 19, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an institute of higher learning, seeks to employ the Beneficiary as a cytogenetic 
technologist II. It requests classification of the Beneficiary as a professional under the third preference 
immigrant category. 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 "EB-3" immigrant classification allows a U.S. 
employer to sponsor a professional with a baccalaureate degree for lawful pennanent resident status. 
The Director of the Nebraska Service Center denied the petition on the ground that the labor 
certification does not require a bachelor's degree and therefore does not support the requested visa 
classification of professional. 
On appeal the Petitioner asserts that the labor certification supports a professional classification 
because its primary requirements include the educational minimum of a bachelor's degree and the 
Beneficiary has a bachelor's degree. 
Upon de nova review, we will dismiss the appeal. 
I. 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). See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i) . By approving the labor certification, the 
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 U.S. workers similarly employed. See section 
212(a)(5)(A)(i)(I)-(II) of the Act. 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. § 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. 
Matter of U-O-C-S-D-
II. ANALYSIS 
At issue here is whether the labor certification supports the requested classification and whether the 
Beneficiary qualifies for that classification. In its Form 1-140, Immigrant Petition for Alien Worker, 
the Petitioner checked the box at Part 2.1.e. which specifies that the petition is being filed for "[a] 
professional (at a minimum, possessing a bachelor's degree or a foreign degree equivalent to a U.S. 
bachelor's degree)." 
A Labor Certification Does Not Support Professional Classification 
The regulation at 8 C.F.R. § 204.5(1)(2) defines "professional" as "a qualified alien who holds at 
least a United States baccalaureate degree or a foreign equivalent degree." A petition seeking 
professional classification, therefore, must be accompanied by a labor certification that requires a 
minimum of a baccalaureate degree. 8 C.F.R. § 204.5(1)(3)(i). In this case, section H of the labor 
certification states the following with respect to the minimum requirements for the proffered position 
of cytogenetic technologist II: 
H.4. 
H.4-B 
H.5 
H.6 
H.6-A 
H.7 
H.7-A 
H.8 
H.8-A 
H.8-C 
H.9 
H.10 
H.10-A 
H.10-B 
Education: Minimum level required: 
Major Field of Study: 
Is training required for the job? 
Is experience in the job offered required? 
How long? 
Is an alternate field of study acceptable? 
What field(s)? 
Is an alternate combination of education 
and experience acceptable? 
What level of education? 
Bachelor's Degree 
Medical Technology 
No 
Yes 
60 months 
Yes 
Biology or related field 
Yes 
None 
How much experience? 7 years 
Is a foreign educational equivalent acceptable? Yes 
Is experience in an alternate occupation acceptable? Yes 
How long? 60 months 
What job title(s)? Not specified 
In addition, H.14 of the labor certification ((Specific skills or other requirements) states that 
California licensure (CDPH) as a clinical cytogeneticist scientist is required, as well as proficiency 
in two of the following cytogenetic techniques: tissue culture ( e.g. prenatal), chromosome analysis, 
and FISH analysis. 
The Director found that because the labor certification's alternate educational and expenence 
requirements (no education and seven years of experience) allowed someone to qualify for the job 
opportunity with less than a bachelor's degree, the proffered position did not qualify as a profession 
and the labor certification did not support the requested immigrant visa classification of professional. 
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Matter of U-O-C-S-D-
On appeal the Petitioner asserts that the petition for professional classification is proper because the 
primary requirements of the labor certification, which are a bachelor's degree and five years of 
qualifying experience, include the minimum educational credential required for professional 
classification. We cannot ignore the labor certification's alternative requirements, however, which 
allow for an individual to qualify for the job of cytogenetic technologist II with seven years of 
relevant experience and no educational credential. Since the labor certification allows candidates to 
qualify for the job based on experience alone, and without a bachelor's degree, the labor certification 
does not support the requested visa classification of professional. 
B. Beneficiary is Not Eligible for Professional Classification 
Though not addressed by the Director, the record also does not demonstrate the Beneficiary's 
eligibility for professional classification. A petition requesting professional classification "must be 
accompanied by evidence that the beneficiary holds a United States baccalaureate degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(1)(3)(ii)(C). The regulation specifies that "[e]vidence 
of a baccalaureate degree shall be in the form of an official college or university record showing the 
date the baccalaureate degree was awarded and the area of concentration of study." Id. In this case 
no official college or university record has been submitted for the Beneficiary. Accordingly, the 
Beneficiary does not meet the basic evidentiary requirement for establishing that he holds a 
baccalaureate degree. 
Moreover, the labor certification indicates that the Beneficiary does not hold a baccalaureate degree. 
Rather, it states that the Beneficiary had a high school level education in Germany which culminated 
in a vocational title - medical-technical laboratory assistant - awarded in 199! upon thl completion 
of studies and training at a hospital associated with the Universities ofc=]and . The record 
does not include copies of any specific educational credentials earned by the Beneficiary. Instead, 
the Petitioner has submitted two versions of an educational equivalency evaluation by International 
Education Evaluations, Inc. (IIE) which includes lists of the coursework allegedly completed by the 
Beneficiary in earning a Zeugnis der Allgemeinen Hochschulreife, 1993-1994, and a Bescheinigung 
from the I I 1994-1997. According to the IIE evaluations the Zeugnis der 
Allgemeinen Hochschulre[fe ("certificate of general qualification for higher education") was 
equivalent to a U.S. high school education plus 30.8 semester hours of collegiate credit, and the 
Bescheinigung ("certificate") from thd~-------~~ that followed three years of additional 
coursework focused primarily in biology, chemistry, and medical lab tech, with hospital training, 
was equivalent to a bachelor of science degree in medical laboratory technology from a regionally 
accredited college in the United States. The record also includes a letter to hhe Beneficiary from an 
admissions evaluator at the University of I , stating that she had 
reviewed the Beneficiary's documents from thel ~ which confirmed that the 
Beneficiary's coursework covered three years of vocational training and that she then passed a 
Staatsexaman (state examination). According to th~ I admissions evaluator the Beneficiary's 
credential from thel lwas equivalent to a bachelor's degree in the United 
States. 
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Matter of U-O-C-S-D-
The information provided by the Petitioner in the labor certification conflicts with the information 
provided in the IIE evaluations and thel I letter with regard to the level of the Beneficiary's 
education and the institutions in which she studied and trained. It 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 I&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. 
In any event, there is no documentary evidence that the Beneficiary was awarded any educational 
credential by the University ofc=Jor the University o~ l identified in the labor certification 
~stitutions where the Beneficiary studied. The labor certification, the IIE evaluations, and the 
L___J letter all describe the Beneficiary's education as vocational in nature, and none of these 
documents indicate that she earned a degree of any sort. Thd better specifically refers to the 
~-------- where the Beneficiary earned her highest credential, as a vocational school, 
and while the IIE evaluations state that it "compares" to a U.S. college, they do not claim that the 
I is a degree-granting institution. Therefore, regardless of whether IIE and the 
---.--nd-m-is-s-io_n_s-ev~aluator may consider the Beneficiary's certificate from the I I 
~-----' 
as educationally equivalent to a U.S. bachelor's degree for purposes of professional 
employment or admission to graduate studies, the certificate ( even if there were documentary proof 
thereof in the record) is not "a United States baccalaureate degree or a foreign equivalent degree," as 
required by 8 C.F.R. § 204.5(1)(3)(ii)(C) to establish the Beneficiary's eligibility for classification as 
a professional. 
C. Petitioner Must Demonstrate Eligibility for Classification Requested 
On appeal, the Petitioner asserts that because skilled workers, professionals, and other workers are 
classified together in section 203(b)(3) of the Act, the distinction between them on the Form 1-140 
petition is inconsequential and the Petitioner's choice of "professional" rather than "skilled worker" 
should not determine our adjudication of the petition. We do not agree. The requirements for 
classification as a skilled worker, or as a professional, or as an other worker are sharply different, as 
set forth in subsections 203(b )(3)(A)(i), (ii), and (iii) of the Act. These differences are repeated on 
the Form 1-140 in Part 2, where the Petitioner is directed to select the type of classification it is 
requesting and the requirements for a professional (box 1.e.), for a skilled worker (box 1.f), and for 
any other worker (box 1.g.) are clearly distinguished from each other. Since the Petitioner selected 
"professional" as the classification it seeks in this petition, it must demonstrate that the labor 
certification requires a minimum of a bachelor's degree as required by 8 C.F.R. § 204.5(1)(3)(i) and 
establish that the Beneficiary holds a bachelor's degree or a foreign degree equivalent to a U.S. 
bachelor's degree, as required by the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C). 
III. CONCLUSION 
The labor certification does not support the requested classification of professional. The record also 
indicates that the Beneficiary does not have a bachelor's degree or a foreign equivalent degree, as 
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Matter of U-O-C-S-D-
required to be eligible for classification as a professional. The appeal will be dismissed for the above 
stated reasons, with each considered an independent and alternative basis for the decision. In visa 
petition proceedings it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of U-O-C-S-D-, ID# 4335695 (AAO July 19, 2019) 
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