dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF I-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 29,2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an information technology business, seeks to permanently employ the Beneficiary as a 
director of revenue assurance under the immigrant classification of skilled worker. See Immigration 
and Nationality Act (the Act) § 203(b )(3)(A)(i); 8 US.C. § 1153(b )(3)(A)(i). 
The Director, Nebraska Service Center, denied the petition. The Director concluded that the 
Beneficiary did not possess a four-year bachelor's degree or the foreign equivalent degree. The 
Director also concluded that the Petitioner had not established its ability to pay the proffered wage. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that the Director 
miscalculated the Petitioner's net current assets when analyzing its ability to pay the proffered wage. 
The Petitioner also asserts that the Beneficiary met the minimum education requirements of the labor 
certification in that it only required a bachelor's degree (U.S. or foreign) with no foreign degree 
equivalency requirement. Upon de novo review, we will dismiss the appeal. 
Section 203(b )(3)(A)(i) of the Act provides for the granting of preference classification to qualified 
immigrants who are capable of performing skilled labor (requiring at least two years training or 
experience), not of a temporary nature, for which qualified workers are not available in the United 
States. See also 8 C.F.R. § 204.5(1)(2). 
The petition is accompanied by an ETA Form 9089, Application for Permanent Employment 
Certification (labor certification), certified by the U.S. Department of Labor (DOL). The labor 
certification was accepted on November 14, 2013, the priority date. See 8 C.F.R. § 204.5(d). 
I. THE MINIMUM REQUIREMENTS OF THE OFFERED POSITION 
The petitioner must establish that the beneficiary satisfied all of the educational, training, experience 
and any other requirements of the offered position by the priority date. 8 C.F .R. § 103 .2(b )(1), (12). 
See Matter ofWing'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'l Comm'r 1971). The Director noted that while the petition was 
for classification as a skilled worker, the terms of the labor certification required a bachelor's degree 
or a foreign equivalent degree and 120 months of experience in the job offered. 
(b)(6)
Matter of 1-, Inc. 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states: 
If the petition is for a skilled worker, the petition must be accompanied by evidence 
that the alien meets the educational, training or experience, and any other 
requirements of the [labor certification]. The minimum requirements for this 
classification are at least two years of training or experience. 
In evaluating the beneficiary 's qualifications, United States Citizenship and Immigration Services 
(USCIS) must look to the job offer portion of the labor certification to determine the required 
qualifications for the position. USCIS may not ignore a term of the labor certification, nor may it 
impose additional requirements. See Madany v. Smith, 696 F.2d 1008; K.R.K. Irvine, Inc., 699 F.2d 
at 1006; Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 
1981).USCIS must examine "the language of the labor certification job requirements" in order to 
determine what the petitioner must demonstrate that the beneficiary has to be found qualified for the 
position. Madany, 696 F.2d at 1015. USCIS interprets the meaning of terms used to describe the 
requirements of a job in a labor certification by "examin[ing] the certified job offer exactly as it is 
completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 
829, 833 (D.D.C. 1984) (emphasis added). USCIS ' s interpretation of the job's requirements, as 
stated on the labor certification must involve "reading and applying the plain language of the [labor 
certification]" even if the employer may have intended different requirements than those stated on 
the form. !d. at 834 (emphasis added). 
In the instant case, the labor certification states that the offered position has the following minimum 
requirements: 
H.4. 
H.4.B 
H.5. 
H.6. 
H.7. 
H.8. 
H.9. 
H.10. 
H.14. 
Education : Bachelor's degree. 
Major field of study: Accounting focus. 
Training: None required. 
Experience in the job offered: 120 months. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: None accepted . 
Foreign educational equivalent: Accepted. 
Experience in an alternate occupation: 120 months as an Accountant / Audit manager. 
Specific skills or other requirements: 10 years as Accountant or Audit Manager must include 
the following: 10 years of experience in the following: audit experience specifically in 
revenue area; Public Accounting background with a national firm required; Generally 
Accepted Accounting Principles (GAAP) including experience in accounting research; 
coordinating a monthly accounting system closing process; 5 years of management and 
supervisory expenence. Special requirements: CPA designation, Sarbanes-Oxley 
compliance . 
The Beneficiary possesses a Bachelor's degree in Commerce degree from 
India, and Associate Membership in the 
2 
(b)(6)
Matter of 1-, Inc. 
The Petitioner asserts on appeal that the labor certification requires a bachelor's degree (U.S. or 
foreign) with no foreign degree equivalency requirement. The record contains an evaluation of the 
Beneficiary's credentials by for in which she concludes 
that the Beneficiary's Bachelor of Commerce degree and the certificates issued by the are 
equivalent to the completion of a U.S. Bachelor of Business Administration in Accounting. 
We have reviewed the Electronic Database for Global Education (EDGE) created by the American 
Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its 
website, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher 
education admissions and registration professionals who represent more than 2,600 institutions and 
agencies in the United States and in over 40 countries around the world." See 
http://www.aacrao.org/About-AACRAO.aspx. Its mission "is to serve and advance higher education 
by providing leadership in academic and enrollment services." !d. EDGE is "a web-based resource 
for the evaluation of foreign educational credentials." See http://edge.aacrao.org /info.php. USCIS 
considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials 
equivalencies. 
1 
According to EDGE, a three-year Bachelor of Commerce degree from India is comparable to 
"three years of university study in the United States." EDGE also confirms that Associate 
Membership upon passing the Final Examination represents attainment of a level of education 
comparable to a bachelor's degree in the United States. However, is not an academic 
institution that can confer an actual degree with an official college or university record. See 
Snapnames.com , Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Ore. Nov. 30, 2006) (finding 
users was justified in concluding that membership was not a college or university "degree" 
for purposes of classification as a member of the professions holding an advanced degree). While 
the Petitioner filed the instant petition for a "skilled worker," nothing in the record shows that the 
Beneficiary has the foreign equivalent of a U.S. Bachelor's degree issued by a college or university 
in accordance with the terms of the labor certification. 
While we acknowledge the Petitioner's assertion on appeal that it intended to require any three- or 
four-year bachelor's degree (U.S. or foreign), the terms of the labor certification and the evidence in 
the record do not specify that this is the case. The assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). Part H.4 of the labor certification indicates that a Bachelor's degree with an 
Accounting focus is required. Part H.14 (specific skills or other requirements) does not indicate that 
the bachelor's degree may be a three- or four-year degree. Part H.8 asks the question, "Is there an 
1 
In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009) , the court determined that we 
provided a rational explanation for its reliance on information provided by AACRAO to support its decision . In 
Sunshine Rehab Services, Inc. v. USCIS, 2010 WL 3325442 (E.D.Mich. August 20, 2010), the court upheld a USCIS 
determination that the beneficiary's three-year bachelor 's degree was not a foreign equivalent degree to a U.S. bachelor's 
degree . Specifically , the court concluded that USCIS was entitled to prefer the information in EDGE and did not abuse 
its discretion in reaching its conclusion. The court also noted that the labor certification itself required a degree and did 
not allow for the combination of education and experience. 
3 
Matter of 1-, Inc. 
alternate combination of education and experience that is acceptable?" The Petitioner checked "no" 
in response. Part H.9 indicated that a foreign educational equivalent is accepted. This demonstrates 
that the Petitioner required a bachelor's degree in H.4 and did not state or allow for any equivalency 
in H.8. Nothing in the labor certification indicates it intended to allow for any specific equivalency 
in H.14 or elsewhere. Nothing in the record indicates that the Petitioner intended to accept a three­
or four-year bachelor's degree or associate membership following examinations from a professional 
organization in lieu of a bachelor's degree. Therefore, unlike the labor certifications in 
Snapnames.com, Inc., the required education is clearly stated on the labor certification and does not 
include the language "or equivalent" or any other alternatives to a four-year bachelor's degree. 
The labor certification does not permit a lesser degree, a combination of lesser degrees, and/or a 
quantifiable amount of work experience, such as that possessed by the Beneficiary. Nonetheless, On 
November 16, 2015, we issued the Petitioner a notice of intent to dismiss (NOID) to provide an 
opportunity to demonstrate its intent regarding the educational requirements of the labor certification 
as that intent was explicitly and specifically expressed during the labor certification process to the DOL 
and to potentially qualified U.S. workers? 
In response to our NOID, the Petitioner submitted its signed recruitment report for the position 
offered, including copies of the advertisements for the position offered and the resumes received. 
The Petitioner's advertisements state that the position offered requires a Bachelor's degree with an 
Accounting focus plus 10 years of experience as an Accountant or Audit Manager, five years of 
experience in management or as a supervisor, CPA designation, and SOX compliance. None of the 
advertisements in the record indicate that the Petitioner intended to accept, or put U.S. workers on 
notice that it would accept, anything less than a four-year U.S. bachelor's degree. The recruitment 
report submitted in response to our NOID does not contain any language that advises the DOL that 
the educational requirements for the job may be met through associate membership in a professional 
organization or anything less than a four-year bachelor's degree as a foreign educational equivalent 
to a U.S. bachelor's degree. Nothing in the record indicates that the Petitioner advised the DOL that 
the educational requirements for the job may be met through a combination of lesser degrees or other 
defined equivalency. Because the Petitioner has not defined any acceptable equivalency, U.S. 
workers may have been dissuaded from applying for the position. 
As stated above, a bachelor's degree or the foreign equivalent degree is not required for 
classification as a skilled worker. However, the Beneficiary must meet the terms of the labor 
2 In limited circumstances, USCIS may consider a petitioner's intent to determine the meaning of an unclear or 
ambiguous term in the labor certification. However, an employer's subjective intent may not be dispositive of the meaning 
of the actual minimum requirements ofthe offered position. See Maramjaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 
26, 2008). 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. The timing of such evidence ensures that the stated requirements of the offered position as set forth on 
the labor certification are not incorrectly expanded in an effort to fit the beneficiary's credentials. Such a result would be 
contrary to Congress' intent to limit the issuance of immigrant visas in the professional and skilled worker classifications to 
when there are no qualified U.S. workers available to perform the offered position. See !d. at 14. 
4 
Matter of I-, Inc. 
certification. users must examine "the language of the labor certification job requirements" in 
order to determine what the petitioner must demonstrate that the beneficiary has to be found 
qualified for the position. Madany, 696 F.2d at 1015. In this case, the labor certification requires a 
Bachelor's degree with an Accounting focus. There are no alternate requirements indicated. On 
appeal, the Petitioner indicates that it intended to require any bachelor's degree, whether it was a 
three- or four-year degree. However, the terms of the labor certification and the advertisements 
submitted simply state the educational requirement of a Bachelor's degree with an Accounting focus 
and do not allow for a three-year bachelor's degree, or a three-year degree and associate membership 
following examinations in a professional organization. 
Part H.9 of the labor certification asks, "Is a foreign educational equivalent acceptable?" The 
Petitioner indicated, "yes." The Petitioner asserts that the language in Part H.9 indicates that a degree 
that is the foreign equivalent to a bachelor's degree is "acceptable" but that a foreign equivalent 
degree is not "required." However, the Petitioner did not indicate on the labor certification what it 
would accept as an alternative to a U.S. bachelor's degree. The DOL has provided the following 
field guidance: "When an equivalent degree or alternative work experience is acceptable, the 
employer must specifically state on the [labor certification] as well as throughout all phases of 
recruitment exactly what will be considered equivalent or alternative in order to qualify for the job." 
See Memo. from Anna C. Hall, Acting Reg'l Adminst'r, U.S. Dep't. of Labor's Empl. & Training 
Administration, to SESA and JTPA Adminstrs., U.S. Dep't. of Labor's Empl. & Training 
Administration, Interpretation of "Equivalent Degree," 2 (June 13, 1994). The DOL has also stated 
that "[w]hen the term equivalent is used in conjunction with a degree, we understand to mean the 
employer is willing to accept an equivalent foreign degree." See Ltr. From Paul R. Nelson, 
Certifying Officer, U.S. Dept. of Labor's Empl. & Training Administration, to Joseph Thomas, INS 
(October 27, 1992).3 
As stated above, the Petitioner has not indicated on the labor certification that it would allow for a 
three- or four-year bachelor's degree or other alternative requirements. Therefore, it is concluded 
that the terms of the labor certification require a four-year U.S. Bachelor's degree with a focus in 
Accounting or a foreign equivalent degree. The Beneficiary does not possess such a degree. The 
Petitioner did not establish that the Beneficiary met the minimum educational requirements of the 
offered position set forth on the labor certification by the priority date. 
II. THE PETITIONER'S ABILITY TO PAY THE PROFFERED WAGE 
The petitioner must establish its ability to pay the proffered wage as of the priority date and 
continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). In 
determining the petitioner's ability to pay the proffered wage, users first examines whether the 
petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the 
petitioner has not paid the beneficiary the full proffered wage each year, users will next examine 
whether the petitioner had sufficient net income or net current assets to pay the difference between 
3 To our knowledge, these field guidance memoranda have not been rescinded. 
5 
Matter of 1-, Inc. 
the wage paid, if any, and the proffered wage.4 If the petitioner's net income or net current assets is 
not sufficient to demonstrate the petitioner's ability to pay the proffered wage, USCIS may also 
consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 
I&N Dec. 612 (Reg'l Comm'r 1967). 
We note that the Director cited the Petitioner's amounts of net current assets from the Consolidated 
Financial Statements incorrectly. The Director stated that the Petitioner's net current assets from 
2014 were $3,534. However, as the Petitioner points out on appeal, these amounts are listed in 
thousands as indicated at the top of the balance sheets. The correct amount of net current assets in 
2014 was $3,534,000. Therefore, we withdraw the Director's decision regarding the Petitioner's 
ability to pay the proffered wage. 
III. CONCLUSION 
In summary, the Petitioner has demonstrated that it has the ability to pay the Beneficiary's proffered 
wage. However, the Petitioner has not demonstrated that the Beneficiary met the terms of the labor 
certification. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of!-, Inc., ID# 14513 (AAO Feb. 29, 2016) 
4 See River Street Donuts, LLC v. Napolitano, 558 F.3d Ill (1st Cir. 2009); Elatos Restaurant Corp. v. Sava, 
632 F. Supp. 1049, 1054 (S.D.N.Y. 1986); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 
1984)); Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co. v. Sava, 
623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 
1983); and Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed 
Nov. 10, 2011).