dismissed EB-3 Case: Environmental Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY23, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an environmental consulting services business, seeks to employ the Beneficiary as a 
disaster response engineering manager. 1 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 immigrant 
clas,sification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
position did not qualify for classification as a professional because the job offer did not require a 
minimum of a bachelor's degree to qualify for the position. 
The matter is now before us on appeal. The Petitioner asserts that the job offer conforms to the U.S. 
Department of Labor (DOL) regulations concerning professional occupations. Upon de novo 
review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain 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, DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
1 We note that the Petitioner indicated that it employs 12 workers. The company's tax returns reflect eight shareholders 
including two shareholders who are also compensated as company officers. Of the two officers, the highest paid officer 
appears to be related to the Beneficiary. The Petitioner indicated at line C.9. of the labor certification that there was a 
familial relationship between the "owners, stockholders, partners, corporate officers, incorporators, and the 
[Beneficiary]." However, it is not clear from the record whether the U.S. Department of Labor (DOL) audited the labor 
certification to determine whether a bonafide job offer was available to U.S. workers. Given the Beneficiary's relative's 
high level of compensation, of which DOL may not have been aware, and the relatively small number of employees, this 
raises a question regarding the bona fide nature of the position. Under 20 C.F.R. §§ 626.20(c)(8) and 656.3, the 
petitioner has the burden when asked to show that a valid employment relationship exists and that a bona fide job 
opportunity is available to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987). This question must 
be resolved in any further proceedings. 
Matter of A-, Inc. 
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. Section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer may file 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 US CIS 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. 
As noted above, it is important to note the respective roles of DOL and U.S. Citizenship and 
Immigration Services (USCIS) in the employment-based immigrant visa process. 
It is significant that to note that none of the duties in Section 212(a)(5)(A)(i)(I)-(II) assigned to DOL 
involve a determination as to whether the position and the alien are qualified for a specific immigrant 
classification. It is DOL's responsibility to determine whether there are qualified U.S. workers 
available to perform the offered position, and whether the employment of the beneficiary will 
adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if 
the beneficiary qualifies for the offered position, and whether the offered position and the 
beneficiary are eligible for the requested employment-based immigrant visa classification. 
~ 
As required by statute, the I -140 petition filed in this matter is accompanied by an approved labor 
certification certified by the DOL.2 The date the labor certification is filed is called the "priority 
date." See 8 C.F .R. § 204.5( d). A beneficiary must be eligible as of that date. The priority date of 
this petition is October 31, 2014.3 
II. REQUIREMENTS FOR CLASSIFICATION AS A PROFESSIONAL 
The regulation at 8 C.F.R. § 204.5(l)(3)(ii)(C) states, in 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." Additionally, 
"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." !d. 4 
2 
See Section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
3 The beneficiary must also 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). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. 
Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971 ). 
4 It is noted that the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) uses a singular description of the degree required for 
classification as a professional. The regulation also requires the submission of "an official college or university record 
showing the date the baccalaureate degree was awarded and the area of concentration of study." 8 C.F.R. 
§ 204.5(1)(3)(ii)(C) (emphasis added). In another context, Congress has broadly referenced "the possession of a degree, 
diploma, certificate, or similar award from a college, university, school, or other institution of learning." Section 
203(b )(2)(C) of the Act (relating to aliens of exceptional ability). However, for the professional category, it is clear that 
the degree must be from a college or university. 
2 
.
Matter of A-, Inc. 
Also, 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." 8 C.F.R. § 204.5(1)(3)(i). 
The required education, training, experience and skills for the offered position are set forth at Part H 
of the labor certification. In the instant case, the labor certification states that the position has the 
following minimum requirements: 
H.4. 
H.4-A. 
H.4-B. 
H.6. 
H.6-A. 
H.7. 
H.8. 
H.9. 
H.lO. 
H. lO-A. 
H. lO-B. 
Education: minimum level required: Other. 
If Other is indicated in question 4, specify the education required: 
Bachelor's equivalent via combination of educ and/or experience. 
Major field of study: Engineering. 
Is experience in the job offered required for the job? Yes. 
If Yes, number of months experience required. 60. 
Is there an alternate field of study that is acceptable? No. 
Is there an alternate combination of education and experience that is 
acceptable? No. 
Is a foreign educational equivalent acceptable? Yes. 
Is experience in an alternate occupation acceptable? Yes. 
If Yes, number of months experience in alternate occupation required: 
60. 
Identify the job title of the acceptable alternate occupation: any 
Engineccing position involving environmental contaminants. 
H.14. Specific skills or other requirements: Frequent travel required in 
response to disasters, with duration of travel ranging from several days 
to 3 weeks. Employer will accept a combination of coursework and 
professional credentials amounting to the Engineering Bachelor's 
degree equivalent or related degree as determined by a qualified 
credentials evaluation service. 
On the labor certification, at lines J.ll., J.12., and J.13., the Beneficiary listed his education as 
"other," a diploma/certificate in an aviation engineering program at 
Ireland, completed in 2002. The Petitioner submitted copies of ten 
training certificates issued to the Beneficiary by from 2000 through 2002. The 
Petitioner also submitted copies of certificates issued to the Beneficiary by the Environmental 
Protection Agency, the state of Florida, the 
the the State of Louisiana, 
the and 
the state of Mississippi. 
3 
.
Matter of A-, Inc. 
The Beneficiary claimed employment experience as an aviation engineer for 
in Ireland, from March 1, 2002, until October 31, 2003; 
self-employment as an aviation engineering contractor across Europe from November 1, 2003, until 
November 1, 2009; and employment experience as an environmental engineer for the Petitioner 
since November 30, 20Il. 
The Petitioner submitted an employment letter from the human resources office at 
confirming the Beneficiary's employment there from March I, 2002, when he 
completed his study program there, until September 5, 2003. The Petitioner also submitted 
employment letters from representatives of companies where the Beneficiary provided services 
during the period he claimed to have worked as a self-employed contractor. While these 
representatives do not describe the Beneficiary's work schedule or indicate that he worked full-time 
during this time period, the letters do indicate that the Beneficiary provided the following services: 
• Work as an aircraft engineer at an unnamed location from February 20, 2004, until May I6, 
2004; and from September 27, 2004, until June 7, 2005; 
• Work as a mechanic in Switzerland, "on a time limited interim contract" from June I 
through June 30, 2005;from September I, 2005, until December 31 , 2005; and from January 
11, 2006, until December 31, 2006; and, 1 
• Work "carrying out daily, weekly and full overhaul maintenance checks" as an aircraft 
mechanic in Scotland, from January 2007 until January 2009. 
) 
The Petitioner submitted a credentials evaluation performed by Ph.D. 
identified the Beneficiary's course of study at as consisting 
of a combination of required academic and technical coursework, as well as passage of required 
examinations , and indicated that the program was "approved to the requirements of JAR-147 by the 
Irish Aviation Authority." concluded that the Beneficiary 's educational record was 
similar to the completion of two years of study toward a bachelor's degree in aviation engineering 
from an accredited institution of higher education in the United States. Neither nor 
the school's website5 describes the requirements for admission into the program, and neither 
describes the academic program as leading toward the attainment of a bachelor ~ s degree. 
The September 15, 2009, evaluation also examined all of the Beneficiary' s employment from 
February 2002 until October 2003 and "from November 2003 to the present." 
summarized the Beneficiary 's experience as "approximately seven and one half years of 
progressively responsible, full-time professional experience in the field of Aviation Engineering" 
and concluded that the combination of this work experience and his academic record "exceeds the 
equivalent to training received by obtaining a U.S. bachelor's degree in Aviation Engineering as 
required by the profession." 
https://www. (last visited May 19, 20 17). 
4 
Matter of A-, Inc. 
III. LAW AND ANALYSIS 
As noted above, the Petitioner filed the current petition under section 203(b)(3)(A)(ii) of the Act, 
under the professional classification, which requires pursuant to 8 C.F.R. § 204.5(1)(3)(ii)(C) that the 
petition "must be accompanied by evidence that the alien holds a United States baccalaureate degree 
or a foreign equivalent degree." 
/ The Director determined that the job offer did not require at least a bachelor's degree as the Petitioner's 
responses at lines H.4 and H.14 of the labor certification clearly stated that the Petitioner would accept a 
combination of education, or a combination of education and experience, or even "a combination of 
coursework and professional credentials amounting to the Engineering Bachelor's degree equivalent." 
As the labor certification allowed for less than the required bachelor's degree, and the Beneficiary 
possessed less than the required bachelor's degree, the Director denied the petition as neither the 
petition nor the Beneficiary would qualifY under the professional category. On appeal, the Petitioner 
asserts that it had followed DOL guidance when completing the application for the labor certification 
and that DOL regulations allow an employer "to accept work experience in lieu of a baccalaureate or 
higher degree." 
However, as discussed above, in the employment-based immigrant visa process it is DOL's 
responsibility to determine whether there are qualified U.S. workers available to perform the offered 
position, and whether the employment of the beneficiary will adversely affect similarly employed 
U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the 
offered position, and whether the offered position and the beneficiary are eligible for the requested 
employment-based immigrant visa classification. 
In Part 2 of the Form 1-140, the Petitioner indicated that it was petitioning for the Beneficiary as "[a] 
professional (at a minimum, possessing a bachelor's degree or a foreign degree equivalent to a U.S. 
bachelor's degree)." While certain employment-based visa classifications allow a beneficiary to 
qualify based on the possession of an equivalent6 of a U.S. bachelor's degree, the professional 
classification does not make such an allowance. 7 
6 
Where the analysis of the beneficiary's credentials relies on a combination of degrees or a combination of education 
and experience, the result is the "equivalent" of a bachelor's degree rather than a "foreign equivalent degree." Compare 
8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa classification, the "equivalence to 
completion of a college degree" as including, in certain cases, a specific combination of education and experience). The 
regulations pertaining to the professional immigrant classification sought in this matter do not contain similar language. 
7 
We further note that if refiled under the proper category, the labor certification requires 60 months of experience in the 
offered job in addition to the required bachelor's equivalent education. In this case, since the credentials evaluation uses 
all of the Beneficiary's employment experience (up until 2009) to form the equivalent of a bachelor's degree, it is not 
clear that the Beneficiary would possess the full amount of required employment experience in addition to the equivalent 
of a bachelor's degree. In addition, we note that the submitted employment letters reflect seven months of employment 
at the airport where the Beneficiary received his training, and an additional 33 months of experience as a self-employed 
mechanic. Even if this employment was full-time work (which is not substantiated by the employment letters) it would 
fall short of the 60 months of employment experience required by the labor certification. Furthermore, the labor 
certification specifies that the 60 months of employment experience must be in the offered job of "Disaster Response 
5 
Matter of A-, Inc. 
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under 
section 203(b)(3)(A)(ii) of the Act with anything less than a full baccalaureate degree and the 
regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states that an employment-based immigrant petition for a 
professional "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." 
The labor certification requires less than a full bachelor's degree in allowing for an equivalent 
degree. Further, the Beneficiary does not have a United States baccalaureate degree or a foreign 
equivalent degree, and, thus, does not qualify for preference visa classification as a professional. 
IV. CONCLUSION 
_) 
The offered job does not require the minimum education required for classification of a beneficiary 
as a professional. In addition, the Beneficiary does not possess a bachelor's 'degree, as is required 
for classification as a professional. Accordingly, the Petitioner has not established the Beneficiary's 
eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-, Inc., ID# 438780 (AAO May 23, 2017) 
'--Engineering Manager" or "any Engineering pos1t10n involving environmental contaminants." In this· case, the 
employment letters describing the Beneficiary's work experience as an aviation engineer do not list any duties involving 
environmental contaminants. The Beneficiary's claimed employment as an environmental engineer ,since November 3, 
2009, did involve duties involving environmental contaminants; however, this work was performed for the Petitioner and 
20 C.F.R. § 656.17 states that experience with the petitioner may be used by the beneficiary to qualify for the proffered 
position only if the position was not substantially comparable to the offered position and the terms of the ETA Form 
9089 at line H.l 0 provide that applicants can qualify through an alternate occupation. Here, the Petitioner indicated at 
line J.21 of the labor certification that the Beneficiary's work as an environmental engineer was substantially comparable 
to the offered job of disaster response engineering manager. Therefore, it does not appear that this employment 
experience can be used to establish the Beneficiary's eligibility for the offered job.