dismissed EB-3 Case: Education

U.S. Citizenship 
and Immigration 
Services 
In Re : 24187736 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 24, 2023 
The Petitioner, a public charter school, seeks to employ the Beneficiary as a French immersion teacher 
at the elementary level. It requests classification of the Beneficiary under the third-preference, 
immigrant classification for professional workers . Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based category 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 that minimum education requirements as listed on the underlying labor certification support 
the requested professional classification . The matter is now before us on appeal. 8 C.F.R. § 103.3 . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration 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(a)(5) 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 foreign national 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 foreign national 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. 
II. ANALYSIS 
To be eligible for professional classification, the labor certification must require, at a minimum, a U.S. 
bachelor's degree or a foreign equivalent degree. See 8 C.F.R. § 204.5(1)(3)(i). In order to determine 
what a job opportunity requires, 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 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 form. Id. at 834. Moreover, we read 
the labor certification as a whole to determine its requirements. "The [labor certification] is a legal 
document and as such the document must be considered in its entirety." Matter ofSymbioun Techs., Inc., 
2010-PER-10422, 2011 WL 5126284 (BALCA Oct. 24, 2011) (finding that a "comprehensive reading of 
all of Section H" of the labor certification clarified an employer's minimum job requirements). 
The labor certification in this case was filed on December 23, 2020. The education, training, experience, 
and other requirements for the proffered position are set forth at Part H of the labor certification. In this 
case, Part H states that the position of French immersion teacher ( elementary level) has the following 
minimum requirements: 
4. Education: Minimum level required: 
4-A. If other, specify the education required: 
4-B. Major field of study: 
5. Is training required for the job opportunity? 
6. Is experience in the job offered required for the job? 
7. Is there an alternate field of study that is acceptable? 
8. Is there an alternate combination of education 
and experience that is acceptable? 
9. Is a foreign educational equivalent acceptable? 
10. Is experience in an alternate occupation acceptable? 
Other 
** 
*** 
No 
No 
No 
No 
Yes 
No 
At Part H, Box 14, the Petitioner provided the following additional language regarding Boxes 4-A and 4-
B: 
** Employer will accept a single degree or any combination of degrees or diplomas 
determined to be equivalent to a bachelor's degree by a qualified evaluation service. 
( continuation of H.4-A. Other education required) (Emphasis added.) 
*** Education, Modem Languages (English, French), Teacher Elementary Education, 
French as a Foreign Language, English Education, Teaching or a field related to an area 
of Elementary Education (Music, Art). (continuation ofH.4-B. Major field of study) 
On appeal, the Petitioner states that the occupation of elementary school teacher customarily requires 
at least a bachelor's degree and that elementary school teachers are listed as members of the 
professions under section 10l(a)(32) of the Act, 8 U.S.C. § l 10l(a)(32). It asserts that the Beneficiary 
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possesses at least a bachelor's degree and meets the requirements for professional classification. 1 It 
further states that "nothing stated on the [labor certification] would indicate the employer would accept 
less than a Bachelor's degree equivalent based on education." 
The Director's decision did not address the Beneficiary's qualifications. However, the Beneficiary's 
academic credentials do not make him eligible for classification as a professional unless the labor 
certification itself, in accord with 8 C.F.R. § 204.5(1)(3)(i), requires at least a U.S. bachelor's degree 
or foreign equivalent degree. The issue on appeal is whether the minimum education requirements as 
listed on the labor certification support the requested classification. 
In Snapnames.com, Inc. v. Michael Chertoff, No. 06-65-MO, 2006 WL 3491005 (D. Or. Nov. 30, 
2006), the court held that, in professional and advanced degree professional cases, where the 
beneficiary is statutorily required to hold a baccalaureate degree, users properly concluded that a 
single foreign degree or its equivalent is required. See also Maramjaya v. USCIS, eiv. Act No. 06-
2158, 2008 WL 9398947 (D.D.e. Mar. 26, 2008) (for professional classification, USeIS regulations 
require the beneficiary to possess a single four-year U.S. bachelor's degree or foreign equivalent 
degree). Thus, for purposes of the requested immigrant visa category, a foreign equivalent of a U.S. 
bachelor's degree must constitute a single degree. 
Because a plain reading of the language in Part H, Box 14 and the Petitioner's own statements on appeal 
clearly indicates it would accept a combination of unspecified degrees to meet a bachelor's degree 
equivalency, the labor certification does not support the requested classification. The allowance of "a 
combination of degrees" to satisfy the bachelor's degree requirement results in the "equivalent" of a 
bachelor's degree rather than a "foreign equivalent degree." Compare 8 C.F.R. § 214.2(h)(4)(iii)(D) 
( defining "equivalence to completion of a United States baccalaureate or higher degree" for purposes of 
H-lB classification.) Where combinations of education or experience may equate to baccalaureate 
degrees, the Act and regulations state so explicitly. See section 214(i)(2)(C) of the Act, 8 U.S.C. 
§ 1184(i)(2)(C) (allowing H-lB workers to have "experience in the specialty equivalent to the completion 
of such [bachelor's] degree"); see also 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) (H-lB workers may have 
"education, specialized training, and/or progressively responsible experience that is equivalent to 
completion of a United States baccalaureate ... degree"). The regulations pertaining to the professional 
immigrant classification sought here do not contain similar language. 
Neither the Act nor users regulations allow a position to be classified as a professional position if 
the minimum educational requirement can be met with anything other than a single academic degree. 
Therefore, the provided labor certification does not support the requested classification of professional 
under section 203(b)(3) of the Act. 
Although not raised by the Director, we also conclude that the record lacks evidence of the Petitioner's 
continuing ability to pay the proffered wage from the priority date. A petitioner must demonstrate its 
continuing ability to pay a proffered wage, from a petition's priority date until a beneficiary obtains 
1 The record includes the Beneficiary's academic records and an academic equiv al ency evaluation stating that his education 
in France is equivalent to a bachelor of arts degree in music education from an accredited university in the United States. 
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lawful permanent residence. 8 C.F .R. § 204.5(g)(2). 2 Evidence of ability to pay must include copies 
of annual reports, federal tax returns, or audited financial statements. Id. 
Here, the Petitioner provided its audited financial statements for the year ending June 30, 2019, before 
the December 23, 2020 priority date. Additionally, where a petitioner has filed 1-140 petitions for 
multiple beneficiaries, it must demonstrate that its job offer to each beneficiary is realistic, and that it 
has the ability to pay the proffered wage to each beneficiary. See Patel v. Johnson, 2 F.Supp.3d 108, 
124 (D. Mass. 2014) (affirming our revocation of a petition's approval where, as of the filing's grant, 
a petitioner did not demonstrate its ability to pay the combined proffered wages of multiple 
petitions). Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of the other Form 1-140 petitions that were pending or approved as of, or filed after, the 
priority date of the current petition. The record does not include evidence of the Petitioner's ability to 
pay the proffered wage to this Beneficiary or the beneficiaries of its other petitions in 2020, the year of 
the priority date, or thereafter. The Petitioner must address this evidentiary deficiency in any further 
filings. 
III. CONCLUSION 
The labor certification does not support the requested classification of professional under section 
203(b)(3) of the Act because it allows for a combination of unspecified degrees to meet the bachelor's 
degree equivalency. 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. § 13 61. The Petitioner has not 
met that burden. 
ORDER: The appeal is dismissed. 
2 This petition's priority date is December 23, 2020, the date the DOL accepted the accompanying labor certification 
application for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
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