dismissed EB-3 Case: Education

U~ S. Citizenship 
and Immigration 
Services 
MATTER OF M-P-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 1, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a public school district, seeks to employ the Beneficiary as an elementary Chinese 
immersion teacher. It requests her classification as a professional under· the third preference 
immigrant category. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 
U.S.C. § 1153(b)(3)(A)(ii). This category allows a U.S. employer to sponsor a professional with a 
bachelor's degree for lawful permanent resident status. 
The Director, Nebraska Service Center, denied the petition. The Director concluded that the record 
did not establish the Beneficiary's possession of the minimum education and required special ski !Is 
of the offered position. 
On appeal, the Petitioner asserts that the Beneficiary meets all of the position's requirements.
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Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. USCIS' Role in the Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First, a U.S. employer must 
obtain an approved ETA Form 9089, Application for Permanent Employment Certitication (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). Next, the employer must file a Form 1-140, Immigrant Petition for Alien 
Worker, with U.S. Immigration and Citizenship Services (USCIS). See section 204 of the Act. 
Finally, if USCIS approves the petition, a foreign national may apply for an immigrant visa abroad 
or, if eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255. 
1 On the Form 1-2908, Notice of Appeal or Motion, the Petitioner stated that it would submit a brief and/or additional 
evidence within 30 days of the appeal's filing. As of the date of this decision, more than 5 months after the appeal's 
filing, we have not received any further materials. 
(b)(6)
Malter of M-P-S-
By approving the labor certification in this case, the DOL ce11itied that U.S. workers are not able, 
willing, qualified, and available tor the offered position of elementary Chinese immersion teacher. See 
section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified that the Beneficiary's pem1anent 
employment in the position will not hurt the wages and working conditions of U.S. workers with similar 
jobs. See section 212(a)(5)(A)(i)(II). 
At issue is whether the Beneficiary meets the requirements of the offered position certified by the 
DOL. See. e.g., Tongatapu Woodcrafi Haw., Ltd. v Feldman, 736 F.2d 1305, J 309 (9th Cir. 1984) 
(holding that the immigration service "makes its own determination of the alien's entitlement to [the 
requested] preference status"). 
B. The Beneficiary's Possession of the Requirements of the Offered Position 
A petitioner must establish a beneficiary's possession of all the education, training, and experience 
specified on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 
103.2(b)(l) , (12); see also Matter ol Wing 's Tea House, 16 I&N Dec. 158, 159 (Acting Reg ' l 
Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg ' l Comm 'r 1971 ). 
In evaluating a beneficiary's qualifications, we must examine the job offer portion of a labor 
certification to determine the minimum requirements of an oflered position. We may neither ignore 
a term of a labor certification, nor impose additional requirements. See K.R.K. Irvine. Inc. v. 
Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith. 696 F.2d 1008, 1012-13 (D.C. Cir. 
1983); Stewart Infi-a-Red Commissary oflvlass .. Inc. v. Coomey. 661 F.2d I, 3 (1st Cir. 1981). 
In this case, the petition 's priority date is June 12, 2015. This is the date the DOL received the labor 
certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a 
petition's priority date). 
The labor certification states the mm1mum requirements of the otlered positiOn of elementary 
Chinese immersion teacher as a U.S. bachelor ' s degree or a foreign equivalent degree in education 
or a "[f]ield related to education." The labor certification states that no training or experience is 
required. The labor certification also states that the Petitioner will not accept an alternate 
combination of education and experience . ' 
In addition , Part H.l4 of the labor certification states that the offered position requires 
"[ d]emonstrated native or near native fluency in Mandarin Chinese (Superior rating under the 
and English Languages. "2 
On the labor certification , the Beneficiary attested to her receipt of a master's degree in "business 
administration/teaching English as a foreign language" from in the United States 
appears to stand for 
2 
(b)(6)
Matter ofM-P-S-
in 2010. The Petitioner submitted copies of the Beneficiary's August 31,2010, master of business 
administration degree from the university. 
The Petitioner also submitted copies qf the Beneficiary's 2008 bachelor of management degree from 
in China and an evaluation of the credential. The evaluation concludes that the 
Beneficiary's Chinese bachelor's degree equates to a U.S. bachelor of business administration 
degree, with a major in accounting. 
As the Director found, the record does not establish the Beneficiary's possession of a bachelor's 
degree in education or a related field as specified on the labor certification. The record indicates the 
Beneficiary's possession of a U.S. master's degree in business administration. But the record does 
not establish business administration as a field of study related to education. The Petitioner 
submitted a copy of a 2009 certificate from indicating the Beneficiary's 
completion of a course in "teaching English as a foreign language." But the record does not 
establish that the course ret1ects enough credits to constitute a field of study. 
The record also indicates the Beneficiary's possession of the foreign equivalent of a U.S. bachelor's 
degree in business administration, with a major in accounting. Again, however, the record does not 
establish business administration or accounting as a field of study related to education. 
The Petitioner submitted additional evidence from including 2013 and 2015 
transcripts and a 2016 letter from an enrollment and 
student services manager. These materials 
indicate that, upon completion of three additional courses in the spring of this year, the Beneficiary 
will receive a master of arts degree in teaching. 
Because teaching is a field of study related to education, a master's degree in teaching would meet 
the educational requirements of the offered position. But the record indicates that the Beneficiary 
would not obtain the teaching degree until 2017, after the petition's 2015 priority date. See Wing's 
Tea House, 16 I&N Dec. at 160 (holding that a beneficiary may not receive a preferred priority date 
if she was not qualified for the offered position at that time). The uncompleted teaching degree 
therefore would not qualify the Beneficiary for the offered position. The record does not otherwise 
establish the Beneficiary's possession of a U.S. bachelor's degree or a foreign equivalent degree in 
education or a related field by the petition's June 12, 2q 15 priority date. 
The record also does not demonstrate the Beneficiary's possession of the required capabilities in the 
Mandarin and English languages. The Petitioner submitted a copy of 2008 Test of English as a 
Foreign Language, indicating the Beneficiary's "high" and "intermediate" ability levels, 
respectively, in reading and listening to English. But the record does not establish her "near native 
fluency" or "superior rating under the in the languages as specified 
on the labor certification in section H.14. 
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Matter of M-P-S-
Thus, the record does not establish the Beneficiary's possession of the minimum education and the 
specified H.14. language requirements of the offered position by the petition's priority date. We will 
therefore affirm the Director's decision and dismiss the appeal. 
II. CONCLUSION 
In visa petition proceedings, a petitioner bears the burden of establishing eligibility for a requested 
benefit. Section 291 of the Act, 8 U.S.C. § 1361. Here, the Petitioner did not meet that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-P-S-, ID# 290060 (AAO Mar. I, 2017) 
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