dismissed EB-3 Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-T-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 24,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a power transformer manufacturer, seeks to employ the Beneficiary as an electrical 
design engineer. It requests classification of the Beneficiary as a professional under the third preference 
immigrant classification. See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 
8 U.S.C. § 1153(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 permanent resident status. 
The Director of the Nebraska Service Center denied the petition. The Director found that the petition 
could not be approved in the requested professional classification because the job requirements on the 
labor certification are less than a U.S. bachelor's or foreign equivalent degree. 
On appeal the Petitioner submits a brief and supporting documents. The Petitioner asserts that the labor 
certification supports the requested classification by requiring at least a bachelor's degree or a foreign 
degree equivalent to a U.S. bachelor's degree. 
Upon de novo 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). 1 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)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. Third, 
1 The date the labor certification is filed - in this case, August 14, 2015 - is called the "priority date." See 8 C.F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied from the 
priority date onward. 
Matter of P-T-T-, Inc. 
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. 
Under section 203(b )(A)(ii) of the Act, EB-3 classification may be granted to qualified immigrants 
who hold baccalaureate degrees and are members of the professions. 
\ 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states, in pertinent part: 
/' 
If the petition is for a professional, the petition must be accompanied by evidence that 
the alien holds a United States baccalaureate degree or a foreign equivalent degree 
and by evidence that the alien is a member of the professions. Evidence 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. 
In addition, 8 C.F.R. § 204.5(1)(3)(i) states that the job offer portion of the labor certification 
underlying a petition for a professional "must demonstrate that the job requires the minimum of a 
baccalaureate degree." 
U. ANALYSIS 
A. Minimum Educational Requirements on the Labor Certification 
In its Form I-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)." 
/ 
' 
As required by statute, the petition was accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), which was certified by the DOL. Section 
H of the labor certification stated the following with respect to the minimum requirements for the job 
of electrical design engineer: 
4. 
4-B. 
5. 
6. 
6-A. 
7. 
8. 
9. 
10. 
10-A. 
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? 
Is an alternate combination of education 
and experience acceptable? 
Is a foreign educational equivalent acceptable? 
Is experience in an alternate occupation acceptable? 
How long? 
Job title of acceptable alternate occupation 
2 
Bachelor's degree 
Electrical Engineering 
No 
Yes 
-24 months 
No 
No 
Yes 
Yes 
24 months 
·Transformer design 
.
Matter of P-T-T-, Inc. 
In addition, box H.14 of the labor certification - Specific skills· or other requirements - states the 
·following: 
Any suitable combination of education, work experience, or training that is equivalent 
to the actual minimum requirements of the position and shows demonstrable ability in 
the required skill sets is acceptable. Will accept single degree or any combination of 
degrees, diplomas or professional credentials determined to be equivalent by a 
qualified evaluation service. 
In section J of the labor certification the Beneficiary stated that he earned a bachelor's degree in 
electrical engineering at the in India in 
2005. The Petitioner submitted copies of a degree and transcripts showing that the Beneficiary was 
awarded a bachelor of engineering in electrical engineering from the above-named university on 
May 25, 2006, following completion of a four-year, eight semester academic program in the years 
2001-2005. 
The Director denied the petition on the ground that the minimum job requirements in part H of the 
labor certification are less than a U.S. baccalaureate or foreign equivalent degree. After noting the 
specifications at H.4 and H.6 of the labor certification that a bachelor's degree and 24 months of 
experience were required, the Director quoted the language at H.14 that the Petitioner would accept 
not only a "single degree," but also "any combination of degrees, diplomas or professional 
credentials determined to be equivalent by a qualified evaluation service." Based on this language 
indicating that the Petitioner would accept less than a full baccalaureate degree, the Director 
concluded that the offered position did not quality as a profession and the labor certification did not 
support the requested classification of the Beneficiary as an EB-3 professional. 
On appeal the Petitioner points out that the Beneficiary has a four-year bachelor of engineering 
degree in electrical engineering from an Indian university,2 and asserts that this degree is equivalent 
to a four-year bachelor's degree from an accredited U.S. college or university. We agree with this 
assertion, and find that the Beneficiary has a "foreign equivalent degree" to a U.S. baccalaureate 
degree as required by the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) for classification as an EB-3 
professional. The issue on appeal, however, is not whether the Beneficiary meets the minimum 
educational requirements for the offered position of electrical design engineer. The issue is whether 
the labor certification requires at least a U.S. baccalaureate degree or a foreign equivalent degree in 
order to qualify for the job. 
The Petitioner discusses the advent of three-year bachelor's degree programs in certain U.S. colleges 
and universities, and asserts that students in the United States can earn a bachelor's degree in less 
than four years with various combinations of work and study which may include high school credits, 
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is recognized by 
(last visited July 20, 20 17). 
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Matter of P-T-T-, Inc. 
technical training, an associate's degree, and other credentials. According to the Petitioner, it would 
discriminate against foreign workers to require a traditional four-year bachelor's degree from them 
for professional classification while allowing U.S. workers to qualify for professional classification 
with bachelor's degrees comprised of multiple lesser credentials. The Petitioner also quotes the so­
called "Kellogg language" from 20 C.F.R. § 656.17(h)( 4)(ii) which provides guidance to the DOL 
in the labor certification process by stating: 
If the alien beneficiary already is employed by the employer, and the alien does not 
meet the primary job requirements and only potentially qualifies for the job by virtue 
of the employer's alternative requirements, certification will be denied unless the 
application states that any suitable combination of education, training, or experience 
is acceptable. 
The fact situation described in the above regulation, however, does not apply in this case. While the 
Beneficiary was already employed by the Petitioner when the labor certification was filed, the 
Beneficiary met the primary educational requirement of the labor certification with her bachelor of 
engineering degree from - a foreign equivalent degree to a 
U.S. baccalaureate degree- and did not rely on the alternative requirements stated at H.14 of the 
labor certification. 3 The Petitioner contends that the language used at H.14 of the labor certification 
should not be interpreted as permitting a foreign worker to qualify for the offered position with less 
than a bachelor's degree. But the language at H.14 unambiguously states that a combination of 
academic and professional credentials, including work experience and training, may satisfy the 
educational requirement of the labor certification if the credentials are considered "by a quaf?fied 
evaluation service" to be equivalent to a baccalaureate degree. Thus, the educfltional equivalency 
determination would not be made by a degree-granting institution and would not be based on "an 
official college or university record," as required by the regulation at 8 C.F.R. § 204.5(l)(3)(ii)(C). 
An equivalency determination based on "any combination of degrees, diplomas, or professional 
credentials" could be satisfied by non-academic professional credentials or a combination of lesser 
academic credentials. 
In determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not 
ignore a term of the labor certification, nor may it impose additional requirements. See Madany v. 
Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). USCIS must examine "the language of the labor 
certification job requirements" in order to determine what the job requires. !d. The only rational 
manner by which USCIS can be expected to interpret the meaning of terms used to describe the 
requi~ements of a job in a labor certification is to examine the certified job offer exactly as it is 
completed by the prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 
829,833 (D.D.C. 1984) (emphasis added). Our interpretation ofthejob's requirements, as stated on 
3 
When a beneficiary qualifies for an offered position based on employer's alternative requirements, we generally do not 
consider Kellogg language to have any material effect on the interpretation of the minimum requirements of the job 
opportunity. However, even if Kellogg language applied to the facts of this case, the requirements stated at H.l4 of the 
labor certification is sufficiently different from the standard Kellogg language that we would apply its plain meaning. 
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Matter of P-T-T-, Inc. 
the labor .certification, must involve reading and applying the plain language of the alien 
employment certification application form; !d. at 834. 
In this case, the labor certification states that a candidate may qualify for the job of electrical design 
engineer with less than a bachelor's degree. Box H.14 of the labor certification sets forth alternative 
educational requirements whereby an applicant may qualify for the job with any combination of 
education, work experience, and training which might be deemed "equivalent" to a bachelor's 
degree by a credentials evaluation service. While various combinations of education, training, and 
experience may be considered equivalent to a bachelor's degree for some purposes, they would not 
be the/ same as a "United States baccalaureate degree or a foreign equivalent degree," as prescribed 
in the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C). Thus, the "plain language" ofthe labor certification 
unambiguously states that the minimum educational requirement for the offered position is less than 
a U.S. bachelor's degree or a foreign equivalent degree. 
The labor certification in this case does not support the requested professional classification sought in 
the Form I-140 petition since it allows an applicant to quality for the job with less than a baccalaureate 
degre.e. Accordingly, the petition cannot be approved. 
B. Beneficiary's QualifYing Experience 
Although not discussed by the Director, we note that the record does not establish that the Beneficiary 
had the requisite two years of experience as an electrical design engineer or as a transformer engineer to 
qualify for the job offered under the terms of the labor certification. For the Beneficiary to be eligible 
for the visa classification requested, the Petitioner must establish that the Beneficiary possessed all the 
education, training, and experience specified on the labor certification as of the priority date, which was 
August 14, 2015. See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 
1977). As previously discussed, the labor certification requires 24 months of experience as an electrical 
design engineer or as a transformer engineer (boxes H.6, H.10, and H.lO-B), and indicates in box J.21 
that the Beneficiary did not gain any qualifying experience with the Petitioner in a substantially 
comparable position to the job offered. 
In section K of the labor certification three jobs are listed for the Beneficiary before she began working 
for the Petitioner on January 18, 2010. They included two positions in India- with 
m and with in - and one position in the United States 
with m Michigan. The time period covered by the three jobs was 
approximately four and one-half years. 
The regulation at 8 C.F.R. § 204.5(g)((l) sets forth the following evidentiary 
requirements for 
qualifying experience: 
Evidence relating to qualifYing experience ... shall be in the form of letter(s) from 
current or former employer(s) ... and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien .... 
5 
.
Matter of P-T-T-, Inc. 
The record includes letters from in India, stating that the Beneficiary 
was employed by the company as an "Executive- Design" from July 19, 2005, to October 5, 2007, and 
from in India, stating that the Beneficiary was employed by the 
company as "Senior Engineer (Engineering)" from October 22, 2007, to December 31, 2008. However, 
neither of these letters provides a "specific description of the duties performed" by the Beneficiary. 
Thus, they do not meet the requirements for an employment experience letter under 8 C.F.R. § 
204.5(g)((l). According to the labor certification, the Beneficiary had additional qualifying experience 
as a program analyst with in Michigan, from October 1, 2009, to January 
15, 2010, but no employment verification letter has been submitted from that company. Thus, the 
evidence of record does not establish that the Beneficiary had any qualifying experience as of the 
priority date. 
Since the Petitioner has not established that the Beneficiary had two years of qualifying experience as 
an electrical design engineer or as a transformer engineer, the Beneficiary does not meet the minimum 
experience requirement of the labor certification. For this reason as well the petition cannot be 
approved. 
III. CONCLUSION 
The labor certification does not support the requested professional classification because the terms of 
the labor certification permit an individual to qualify for the job with less than a U.S. baccalaureate or 
foreign equivalent degree. Furthermore, the Petitioner has not established that the Beneficiary had two 
years of qualifying experience by the priority date, as required by the labor certification. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-T-T-, Inc., ID# 425653 (AAO July 24, 20 17]) 
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