dismissed EB-3 Case: Finance

MATTER OF M-T-, INC. 
· Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 26, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a maker of semiconductor devices, seeks to employ the Beneficiary as a financial 
project manager. It requests his classification under the third-preference immigrant category as a 
skilled worker. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based "EB-3" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status based on a job offer requiring at least two years 
of training or experience. 
The Acting Director of the Nebraska Service Center denied the petition. The Director concluded 
that, contrary to the job requirements of the offered position, the Petitioner did not establish the 
Beneficiary's possession of a baccalaureate equivalency in an acceptable field of study. 
On appeal; the Petitioner submits additional evidence and asserts that the Beneficiary's educational 
qualifications meet the plain language of the job requirements. 
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, an employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1 l 82(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for a position, and that employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id 
If the 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 considers whether a Beneficiary meets the 
DOL-certified job requirements of a position. If USCIS approves 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. 
Matter of M-T-, Inc. 
II. THE EDUCATIONAL REQUIREMENTS 
A petitioner must establish a Beneficiary's possession of all DOL-certified job requirements by a 
petition's priority date. 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 p9rtion of an 
accompanying labor certification. USCIS may neither ignore a labor certification term, nor impose 
additional requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding 
that the "DOL bears the authority for· setting the content of the labor certification") (emphasis in 
original). 
Here, the labor certification states the minimum educational requirements of the offered position of 
project manager as a U.S. bachelor's degree or a foreign equivalent degree in "Finance Management 
or Business Administration Management" or "Finance or Economics." The labor certification also 
states that the position requires five years of experience in an occupation related to "Finance or 
Economics." In addition, the Petitioner stated its acceptance of an alternate combination of 
education and experience: an "Other" educational credential; and "Any suitable combo of ed, 
training, & exp eqiv to BS & 5yrs related exp." 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he obtained a 
master's degree in political science from an Italian university and gained more than 15 years of full­
time, qualifying experience. The Petitioner submitted copies of the Beneficiary's laurea di dottore 
degree and letter.s from former employers confirming his qualifying experience. 
To establish the Beneficiary's educational qualifications, the Petitioner primarily relies on an expert 
opinion from a U.S. business professor. Combining the Beneficiary's degree with his employment 
experience, the opinion concludes that the Beneficiary has the equivalent of a U.S. bachelor's degree 
in business administration, "with a concentration in Financial Management." 
The Director rejected the expert opinion because it used an equivalency formula that she found 
inapplicable in immigrant petition proceedings. The opinion equated some of the Beneficiary's 
employment experience to education, with three years of experience equaling one year of U.S. 
university studies. See 8. C.F.R. § 214.2(h)(4)(iii)(d)(5) (for H-IB nonimmigrant visa purposes, 
allowing three years of experience to equate to one year of U.S. university studies). While accepted 
in H-lB petition proceedings, the formula does not apply in immigrant petition proceedings unless 
specified on a labor certification. At issue here is whether the labor certification states the 
Petitioner's acceptance of a baccalaureate equivalency based on the H-IB formula. 
On appeal, the Petitioner's senior assistant general counsel notes that the labor certification states the 
company's acceptance of "any" suitable combination of education, training, and experience. He 
states: "The plain meaning of these terms should be applied and 'any' combination should mean 
1 This petition's priority date is June 16, 2016, 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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Matter of M-T-, Inc. 
precisely that." He also states that the Petitioner intended to accept any combination of education, 
training, or experience equivalent to a bachelor's degree in an acceptable field, including a 
combination under the H • l B formula. 
In certain circumstances, USCIS may consider a petitioner's intent to determine the meaning of an 
unclear or ambiguous term in the labor c_ertification. However, an employer's later statement of its 
subjective intent may not be dispositive of the meaning of the actual minimum requirements of the 
offered position. See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL), 2008 WL 9398947 *6 n.7 
(D.D.C. Mar. 26, 2008) (stating the Court's hesitancy to focus on' an employer's subjective intent 
because the DOL assesses labor certifications based on the language used on the certification 
applications). The best evidence of the Petitioner's intent concerning the actual minimum 
educational requirements of the offered position is evidence of how it expressed those requirements 
to the DOL during the labor certification process and not afterwards to USCIS. Here, the Petitioner 
did not specify on the labor certification how an equivalency would be considered and has not 
submitted evidence to demonstrate that its alleged intent to accept an equivalency based on the H• l B 
formula was otherwise made known to the DOL or to potential U.S. applicants during the labor 
certification process. 2 
On appeal, the Petitioner argues that USCIS should defer to its interpretation of the position's 
requirements because it drafted them with the Beneficiary in mind. See Grace Korean United 
Methodist Church v. Chertojf, 437 F.Supp.2d 1174, 1179 (D. Or. 2005) (finding that "it is the 
employer, working under the supervision and direction of [ state employment officials] and [the] 
DOL, that establishes the requirements for the employment"). But even if we considered the 
Petitioner's interpretation of the baccalaureate equivalency, the record does not establish the 
Beneficiary's possession of an equivalency in an· acceptable field of study. The plain language of 
the labor certification states acceptable major fields of study as "Finance Management or Business 
Administration Management" or "Finance or Economics." The expert opinion states that the 
Beneficiary has the equivalent of a U.S. bachelor's degree in business administration, not business 
administration management. The opinion also states that the Beneficiary's degree has "a 
concentration in Financial Management." But the record does not establish that the concentration 
constitutes a major field of study as the labor certification requires. Even if the concentration in 
financial· management constitutes a major field of study, the Petitioner submits another expert 
opinion on appeal indicating the Beneficiary's possession of a baccalaureate equivalency in business 
administration without an additional concentration. Thus, the expert opinions do not agree that the 
Beneficiary's degree has a concentration in financial management. The record therefore does not 
establish the Beneficiary's possession of a baccalaureate equivalency in an acceptable field of study. 
2 We note that as measured by specific vocational preparation (SVP), the primary and alternative requirements of a labor 
certification position must substantially equate. 20 C.F.R. § 656.17(h)(4)(i). The Board of Alien Labor Certification 
Appeals (BALCA) has repeatedly held that the fonnula's substitution of 12 years of experience for a bachelor's degree 
results in a substantially inequivalent, alternative requirement. See, e.g., Matter of B&M lnvs., 20l4-PER-01050, 2018 
WL 1411164 *3 (BALCA Mar. 15, 2018) (finding that a bachelor's degree, which equals two years of experience for 
SVP purposes, does not substantially equate to 12 years of experience). 
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Matter of M-T-, Inc. 
See Matter of Caron Int'[, Inc., 19 l&N Dec. 791, 795 (Comm'r 1988) (holding that adjudicators 
may reject or afford lesser evidentiary weight to expert opinions that conflict with evidence of record 
or are "in any way questionable"). 
Thus, based on the plain language of the labor certification, the record does not establish the 
Beneficiary's educational qualifications for the offered position. 
· III. THE DRUG TEST AND BACKGROUND CHECK 
Although unaddressed by the Director, the record also does not establish the Beneficiary's successful 
completion of a drug test and background check. Part H.14 of the labor certification, "Special skills 
and other requirements," states: "Upon hire, all applicants will be subject to drug testing/screening 
and background checks." 
Drug tests and background checks for offered positions constitute job requirements. See, e.g. Matter 
of Honeywell Int'/, Inc., 2016-PER-00434, 2018.WL 3232449 *2 (BALCA June 27, 2018) (citation 
omitted) (finding contingency on the successful completion of a background check and drug test to 
constitute a job requirement). The record, however, does not demonstrate the Beneficiary's 
completion of a drug test and background check. Therefore, in any future filings in this matter, the 
Petitioner must demonstrate the Beneficiary's satisfaction of these requirements by the petition's 
priority date. 
IV. CONCLUSION 
The record on appeal does not establish the Beneficiary's possession of the minimum educational 
requirements of the offered position. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as Mauer of M-T-, Inc., ID# 1323016 (AAO July 26, 2018) 
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