dismissed EB-3 Case: Finance

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-1-, INC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : JULY 30, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a manufacturer and wholesaler of grills, seeks to employ the Beneficiary as vice 
president of finance. It requests his classification under the third-preference, immigrant category as 
a professional. 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" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status to work in a job requiring at least a bachelor's 
degree. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that , 
contrary to the requirements of the offered position and the requested classification, the Petitioner 
did not demonstrate the Beneficiary's possession of a U.S. baccalaureate or foreign equivalent 
degree. 
On appeal, the Petitioner contends that it demonstrated the Beneficiary's educational qualifications 
for the job and the classification. It submits one of our non-precedent decisions, asserting that we 
"reversed" a federal court decision cited by the Director . 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, immigration as a professional follows a three­
step process. First , to permanently fill a position in the United States with a foreign worker, a 
prospective employer must obtain certification from the U.S. Department of Labor (DOL). See 
section 212(a)(5)(A)(i) of the Act, 8 U.S.C . § l 182(a)(5)(A)(i). DOL approval signifies that 
insufficient U.S. workers are able, willing, qualified , and available for an offered position, and that 
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 labor certification 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 determines whether a beneficiary meets the 
Matter ofN-1-, Inc. 
requirements of a DOL-certified position and the requested visa classification. If USCIS grants a 
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. THE REQUIRED EDUCATION 
A pet1t10n for a professional must demonstrate that an offered position requires, and that a 
beneficiary has, at least a U.S. baccalaureate or a foreign equivalent degree. 8 C.F.R. 
§§ 204.5(1)(3)(i), (ii)(C). This regulatory requirement means a single degree - uncombined with 
training, other education, or experience - that either is, or equates to, a U.S. bachelor's degree. See 
Final Rule for Employment-Based Immigrant Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) 
(stating that "both the Act and its legislative history make clear that, in order to qualify as a 
professional under the third classification ... , an alien must have at least a bachelor's degree") 
( emphasis added). 
A petitioner must also demonstrate a beneficiary's possession, by a petition's priority date, of all 
DOL-certified job requirements of an offered position. Matter of Wing's Tea House, 16 I&N Dec. 
158, 160 (Acting Reg'l Comm'r 1977).1 In evaluating a beneficiary's qualifications, USCIS must 
examine the job-offer portion of an accompanying labor certification to determine a position's 
minimum requirements. USCIS may neither ignore a certification term, nor impose additional 
requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL 
bears the authority for setting the content of the labor certification") ( emphasis in original). 
Here, the accompanying labor certification states the minimum requirements of the offered position 
of vice president of finance as a U.S. bachelor's degree or a foreign equivalent degree in accounting 
or finance, and five years of experience in the job offered or as a finance director. The Beneficiary's 
qualifying experience is not at issue. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, a South 
African university awarded him a bachelor's degree in accounting. The Petitioner provided copies 
of a degree and transcript from the university. The materials indicate that the Beneficiary earned a 
three-year, bachelor of commerce degree with a concentration in accounting sciences. The 
Petitioner also submitted an independent evaluation of the Beneficiary's foreign credentials. The 
evaluation states that the Beneficiary's degree equates to three years of U.S. college or university 
studies. Based on a combination of the Beneficiary's degree and employment experience, however, 
the evaluation concludes that he has the equivalent of a U.S. bachelor's degree in business 
administration with a concentration in accounting. 
The Petitioner contends that the Beneficiary's credentials and the evaluation demonstrate that he has 
the foreign equivalent of a U.S. bachelor's degree in accounting and meets the minimum educational 
requirements of the offered position and the requested classification. But on the labor certification, 
the Petitioner indicated that the offered position requires a U.S. baccalaureate or a foreign equivalent 
1 This petition's priority date is February 15, 2018, the date DOL accepted the 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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Matter ofN-I-, Inc. 
degree, uncombined with training, education, or experience. Part H.4. of the labor certification 
indicates the position's minimum educational level as a U.S. "Bachelor's" degree, and part H.9. 
states the Petitioner's acceptance of a foreign equivalent degree. Part H.8. states that the Petitioner 
will not accept "an alternate combination of education and experience." The Petitioner claims that 
the position does not require a U.S. bachelor's degree or a single foreign degree equating to one. 
But the language of the labor certification does not support the Petitioner's assertion. The Petitioner 
did not check the box for "Other" in part H.4. and specify in part H-4A. that it would accept a 
combination of education and experience as the equivalent of a U.S. bachelor's degree. Nor did the 
Petitioner indicate its acceptance in part H.9. of "an alternate combination of education and 
experience." The Petitioner also did not state its acceptance in part H.14., "Specific skills and other 
requirements," of a combination of education and experience. Instead, the plain language of the 
labor certification states that the position requires at least a U.S. baccalaureate or a foreign 
equivalent degree. The evaluation submitted by the Petitioner equates the Beneficiary's degree to 
only three years of U.S. college or university studies. A U.S. bachelor's degree typically requires 
four years of post-secondary studies. Matter of Shah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977). 
The record therefore does not demonstrate the Beneficiary's possession of the minimum education 
required for the offered position. 
Additionally, the Petitioner has not demonstrated the Beneficiary's possession of a single degree that 
is, or equates to, a U.S. baccalaureate as required for classification as a professional. See, e.g., 
8 C.F.R. § 204.5(1)(2) (stating that a "professional" must have "a United States baccalaureate degree 
or a foreign equivalent degree"). Thus, the record also does not establish the Beneficiary's 
possession of the minimum education required for the requested classification. 
To support the finding that the Petitioner did not demonstrate the equivalency of the Beneficiary's 
three-year, foreign bachelor's degree to a U.S. baccalaureate, the Director's notice of intent to deny 
the petition cited a federal court decision. See Sunshine Rehab Servs., Inc. v. USCIS, No. 09-13605, 
2010 WL 3325442 (E.D. Mich. Aug. 20, 2010). On appeal, the Petitioner submits a copy of one of 
our 2012, non-precedent decisions, asserting that we "subsequently reversed" the denial in Sunshine 
Rehab. Our 2012 decision, however, concerns a different petition than the one the court addressed 
in Sunshine Rehab. Our decision therefore does not reverse the court's ruling. Rather, the Petitioner 
apparently asserts that our 2012 decision reaches a different conclusion than the Sunshine Rehab 
court. 
Our 2012 decision, however, is distinguishable from Sunshine Rehab. There, the court upheld 
USCIS' conclusion that a Pakistani bachelor's degree constituted a three-year, academic degree and 
that the combination of the degree and a one-year internship did not meet the minimum educational 
requirement for classification as a professional. Sunshine Rehab, supra, at **6-9. In contrast, our 
2012 decision found that a diplome d'etudes superieures specialisees from a French university 
equated to a U.S. master's degree and qualified the beneficiary for the requested classification of 
advanced degree professional under section 203(b )(2)(A) of the Act. Thus, unlike Sunshine Rehab, 
our 2012 decision did not consider the U.S. equivalency of a three-year, foreign bachelor's degree 
and did not even involve a request for classification as a professional. Therefore, contrary to the 
Petitioner's assertion, our 2012 decision does not support a finding that the Beneficiary's three-year 
degree equates to a U.S. baccalaureate. 
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Matter ofN-I-, Inc. 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the minimum 
education required for the offered position and the requested classification. We will therefore affirm 
the petition's denial. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record also does not establish the Petitioner's ability to 
pay the proffered wage of the offered position. A petitioner must demonstrate its continuing ability 
to pay a proffered wage, from a petition's priority date until a beneficiary obtains lawful permanent 
residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must include copies of annual reports, 
federal tax returns, or audited financial statements. Id. 
Here, the labor certification states the proffered wage of the offered position of vice president of 
finance as $95,000 a year. As previously noted, the petition's priority date is February 15, 2018. 
The Petitioner submitted copies of its federal income tax returns for 2015 and 2016. Contrary to 
8 C.F .R. § 204.5(g)(2), however, the record lacks required evidence of the Petitioner's ability to pay 
the proffered wage in 2018, the year of the petition's priority date. 
Also, USCIS records indicate the Petitioner's filing of immigrant petitions for other beneficiaries. A 
petitioner must demonstrate its ability to pay the proffered wage of each petition it files until a 
beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must 
therefore demonstrate its ability to pay the combined proffered wages of this and any of its other 
petitions that were pending or approved as of this petition's priority date of February 15, 2018, or 
filed thereafter. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming revocation 
of a petition's approval where, as of the grant, a petitioner did not demonstrate its ability to pay the 
combined proffered wages of multiple petitions). 2 
USCIS records indicate that the Petitioner filed at least one other I-140 pet1t10n for another 
beneficiary that was approved as of February 15, 2018. 3 Thus, in any future filings in this matter, 
the Petitioner must provide the proffered wage and priority date of its other petition. It may also 
submit additional evidence of its ability to pay the petitions' combined proffered wages, including 
proof of any wages it paid to the beneficiaries in 2018 and materials supporting the factors stated in 
Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). In addition, the Petitioner 
must submit copies of an annual report, federal tax return, or audited financial statement for 2018. 
2 The Petitioner need not demonstrate its ability to pay the proffered wages of petitions that it withdrew or, unless 
pending on appeal, that USCIS denied, revoked, or rejected. The Petitioner also need not demonstrate its ability to pay 
proffered wages before the priority dates of their conesponding petitions, or after their corresponding beneficiaries 
obtained lawful permanent residence. 
3 USCTS records identify the other petition by the receipt number!.__ ____ __. 
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Matter ofN-1-, Inc. 
IV. CONCLUSION 
The record on appeal does not establish the Beneficiary's possession of the minimum experience 
required for the offered position or the requested classification. We will therefore affirm the 
petition's denial. 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 N-1-, Inc., ID# 5377206 (AAO July 30, 2019) 
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