dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF I-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 22,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an information technology consulting firm, seeks to permanently employ the 
Beneficiary in the United States as a systems analyst. It requests classification of the Beneficiary as 
a skilled worker under the third preference immigrant category. See Immigration and Nationality 
Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This classification allows a U.S. 
employer to sponsor a foreign national with at least two years of training or experience for lawful 
permanent resident status. 
The Director, Nebraska Service Center, denied the petition, concluding that the record did not 
establish that the Beneficiary possessed the education, experience, and training required on the 
submitted ETA Form 9089, Application for Permanent Employment Certification (labor 
certification). The Petitioner filed a motion to reconsider, which the Director granted. The Director 
ultimately reaffirmed the petition's denial, restating that that the Beneficiary did not possess the 
minimum level of education required by the labor certification. 
The matter is now before us on appeal. The Appellant, purported successor-in-interest to the 
Petitioner, asserts the Director erred in finding that the Beneficiary did not possess the minimum 
level of education required and contends that the Beneficiary's education can be combined to be 
equivalent to the minimum level of education that was required on the labor certification. Upon de 
novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain an approved labor cetiification 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 
The priority date of a petition is the date the DOL accepted the labor certification for processing. See 8 C.F.R. 
§ 204.5(d). A petitioner must establish the elements for the approval of the petition at the time the priority date is 
established and continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. §§ 204.5(g)(2), 
I 03 .2(b )(I), (12). 
Matter ~fI-T- Inc. 
offered position and that employing a foreign national in the position will not adversely atiect the wages 
and working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(J)-(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 USCJS 
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. 
USCIS determines whether a foreign national meets the job requirements specified on a labor 
certification and the requirements of the requested immigrant classification. See section 204(b) of the 
Act (stating that USCIS must approve a petition if the facts stated in it are true and the foreign national 
is eligible for the requested preference classification); see also, e.g. Tongatapu Woodcraft Haw .. Ltd. 
v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. 
Cir. 1983) (both holding that USCIS has authority to make preference classification decisions). 
II. ANALYSIS 
A. The Record Established that the Appellant is a Successor-In-Interest to the Petitioner 
As an initial matter, the appellant in this case is the claimed successor to the labor cetiification and 
Form I-140 Petitioner. USCIS has not issued regulations governing immigrant visa petitions filed by 
a successor-in-interest employer. Instead, such matters are adjudicated in accordance with Matter of 
Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm 'r 1986) a binding, legacy Immigration and 
Naturalization Service (INS) decision that was designated as a precedent by the Commissioner in 
1986.2 
Considering Matter of Dial Auto and the generally accepted definition of successor-in-interest, a 
petitioner may establish a valid successor relationship for immigration purposes if it satisfies three 
conditions. First, the petitioning successor must fully describe and document the transaction 
transferring ownership of all, or a relevant part ot~ the beneficiary's predecessor employer. Second, 
the petitioning successor must demonstrate that the job opportunity is the same as originally offered 
on the labor certification. Third, the petitioning successor must prove by a preponderance of the 
evidence that it is eligible for the immigrant visa in all respects. 
Here, the Petitioner fully described and documented its merger and transference of ownership of the 
Beneficiary's predecessor employer to the claimed successor-in-interest. The Petitioner also 
demonstrated that the proffered position continues to exist at the successor under the same 
conditions originally offered in the labor certification and that the successor is eligible for the 
immigrant visa. Therefore, applying the analysis set forth above to this petition, the Petitioner has 
established a valid successor relationship for immigration purposes. 
2 
The regulation at 8 C.F.R. § 103.3(c) provides that precedent decisions are binding on all immigration officers in the 
administration of.the Act. 
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Matter of 1-T- Inc. 
B. The Record Does Not Establish the Beneficiary's Qualifying Education for the Offered Position 
The Director denied the petition, finding that the record did not establish that the Beneficiary had the 
minimum education required on the labor certification for the proffered position. Specifically, the 
Director stated that the Beneficiary did not possess a U.S. bachelor's degree or foreign equivalent 
degree, as was required by the labor certification. 
In order to qualify for consideration as a skilled worker, the beneficiary must possess two years of 
training or experience, see 8 C.F .R. § 204.5(1)(3)(ii)(B), and otherwise 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 q[Wing's Tea House. 16 I&N Dec. 158, 159 (Acting Reg'! Comm'r 
1977); Matter q[Katigbak, 14 I&N Dec. 45,49 (Reg'! Comm'r 1971). 
Here, the priority date of the petition is June 17, 2015. The required education, training, experience, 
and skills for the proffered position of systems analyst are set forth at Part H of the labor 
certification, and states that the position has the following minimum requirements: 
H.4. 
H.4-B. 
H.6. 
H.6-A. 
H.7. 
H.7-A. 
H.8. 
H.9. 
H.10. 
H.10-A. 
H-10-B. 
H.14. 
Education: minimum level required: Bachelor's. 
Major field of study: Engineering. 
Is experience in the job offered required tor the job? Yes. 
If Yes, number of months experience required: 24. 
Is there an alternate field of study that is acceptable? Yes. 
If Yes, specify the major field of study: Computer Science or related. 
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 occupations 
required? 24. 
Identify the job title of the acceptable alternate occupation: Software 
designer, developer, tester, or analyst. 
Specific skills or other requirements: Pursuant to 20 CFR § 
656.17(h)( 4)(ii), we will accept any suitable combination of education, 
training, or experience tor this position. 
As noted above, a petition for a skilled worker must establish that, among other things, the 
beneficiary possesses the education, training, or experience required by the labor cetiification, as of 
the priority date. Jd. Here, the labor certification plainly requires at least a bachelor's degree in 
engineering, computer science or a related field as the minimum level of education. At issue is 
whether the Beneficiary possesses the required education for the proffered position. 
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Matter of 1-T- Inc. 
In the instant case, the labor certification states that the Beneficiary possesses a bachelor's degree in 
computer applications from in India completed in 2011. The labor 
certification also states that the Beneficiary possesses a diploma in "electrical and electronics." 
The record contains a copy of the Beneficiary's bachelor's degree in computer applications and 
transcripts from in India completed in 2011, along with a copy of the 
Beneficiary's postsecondary diploma in electrical and electronics engineering and transcripts from 
India completed in 1998. 
The record also contains a credentials evaluation prepared by from 
The evaluation states that the Beneficiary's three-year bachelor's degree in computer 
applications is equivalent to "three years of academic studies leading to a Bachelor of Science 
Degree in Information Technology, Computer Science or related field from an accredited institution 
of higher education in the United States." The evaluation concludes that the Beneficiary's academic 
study, combined with four years 
and eight months of professional training and experience, is "the 
equivalent of a Bachelor of Science Degree in Information Technology from an accredited 
· institution of higher education in the United States." 
Professor evaluation of the Beneficiary's three-year bachelor's degree accords with the 
information provided by the Electronic Database for Global Education (EDGE) created by the 
American Association of Collegiate Registrars and Admissions Officers (AACRA0), 3 which we 
have reviewed. According to EDGE, a three-year bachelor's degree in computer applications from 
India is comparable to "three years of university study in the United States." We also note that 
although not mentioned in the evaluation, the Beneficiary also possesses a postsecondary diploma in 
electrical and electronics engineering. EDGE discusses postsecondary diplomas, for which the 
entrance requirement is completion of secondary education. EDGE provides that a postsecondary 
diploma is comparable to one year of university study in the United States, but does not suggest that, 
if combined with a three-year degree, it may be deemed a foreign equivalent degree to a U.S. 
bachelor's degree. 
In this case, the Petitioner attempts to establish that the Beneficiary is qualified for the proffered 
position by relying on the Beneficiary's three-year bachelor's degree combined with work 
experience as being equivalent to a U.S. bachelor's degree. However, a three-year bachelor's degree 
will generally not be considered to be a "foreign equivalent degree" to a U.S. baccalaureate. See 
Matter of Shah, 17 I&N Dec. 244 (Reg'! Comm'r 1977). Where the analysis of the beneficiary's 
credentials relies on a combination of lesser degrees and work experience, the result is the 
3 
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. 
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Matter of 1-T- Inc. 
"equivalent" of a bachelor's degree rather than a full U.S. baccalaureate or foreign equivalent 
degree. 
As noted above, the labor certification's primary requirements in H.4. do not permit a lesser degree, 
a combination of lesser degrees, or a quantifiable amount of work experience, such as that possessed 
by the Beneficiary. 4 Rather, the labor certification requires a bachelor's degree in engineering, 
computer science or a related field. Further, the labor certification does not state in H.8. that any 
alternate combination of education and experience is acceptable. 
On appeal, the Petitioner asserts that the inclusion of "Kellogg language" in H.14. is sufficient to 
establish that the minimum requirements of the position are actually any suitable combination of 
education, training, and experience, and that as such, the Beneficiary would qualify for the position 
based on his work experience combined with his three-year bachelor's degree. The Petitioner goes 
on to state: 
[I]t is clear that the Service does not acknowledge or understand that "the Kellogg 
language and the petitioner's minimum requirements are one in the same. The 
Petitioner does not seek to use Kellogg to "change" it requirements because Kellogg 
language is the minimum requirement of the labor certification. 
However, the regulation at 20 C.F.R. § 656.17(h)(4)(ii) discusses the inclusion of Kellogg language, 
providing: 
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 above regulation was intended to incorporate the ruling in Matter r~f Francis Kellogg, 1994-
INA-465 and 544, 1995-INA-68 (BALCA Feb. 2, 1998) (en bane), that "where the alien does not 
meet the primary job requirements, but only potentially qualities for the job because the employer 
4 
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 Regl. Adminstr., 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 \3, 
1994). The DOL's certification of job requirements stating that "a cet1ain amount and kind of experience is the 
equivalent of a college degree does in no way bind [USC IS] to accept the employer's definition.'' See Ltr. From Paul R. 
Nelson, Certifying Officer, U.S. Dept. of Labor's Empl. & Training Administration, to Lynda Won-Chung, Esq., 
Jackson & Hertogs (March 9, 1993). 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). To our knowledge, these field &uidance memoranda have not been rescinded. 
5 
Matter of 1-T- Inc. 
has chosen to list alternative requirements, the employer's alternative requirements are unlawfully 
tailored to the alien's qualifications ... unless the employer has indicated that applicants with any 
suitable combination of education, training or experience are acceptable." The statement that an 
employer will accept applicants with "any suitable combination of education, training, or 
experience" is commonly referred to as "Kellogg language." 
We do not consider the presence of Kellogg language in Part H.14. of a labor certification to have 
any material effect on the interpretation of the minimum requirements of the job opportunity. 
Additionally, the Petitioner did not state any acceptable alternate combination of education and 
experience in part H.8. of the labor certification, and indicated in part 1. that the Beneficiary met the 
primary requirements of the position and claimed that the Beneficiary had a bachelor's degree. 
On appeal, the Petitioner also urges the consideration of its intent as shown throughout the labor 
certification process, stating, "[A] s drafted, H.14 accurate! y portrays the petitioner's actual efforts to 
attract qualified U.S. workers during its recruitment for the job offer." The Petitioner continues, 
"Thus it \Vould have been erroneous for the petitioner to exclude Kellogg language - the very 
language used in its recruitment - from H.l4; and it is erroneous for the Service not to consider it in 
assessing the beneficiary's eligibility for the job offer." 
Although the Petitioner focuses on its intent on appeal, the Petitioner did not submit its recruitment 
materials to potentially establish that it intended, and expressed to U.S. workers, that it would accept 
less than a four-year bachelor's degree as the minimum requirements for the proffered position. The 
Petitioner could have submitted such documentation in response to the Director's RFE, \Vith its 
motion or on appeal, but it did not. As such, the Petitioner has not established that that the terms of 
-the labor certification are ambiguous and that the Petitioner intended the labor certification to require 
less than a four-year U.S. bachelor's or foreign equivalent degree, as that intent was expr~ssed during 
the labor certification process to the DOL and potentially qualified U.S. workers. 
Therefore, we find that the terms of the labor certification require a four-year U.S. bachelor's degree 
in engineering, computer science or related or a foreign equivalent degree. The Beneficiary does not 
possess such a degree. As such, the Petitioner has not established that the Beneficiary met the labor 
certification's minimum educational requirements of the offered position by the priority date. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reason. In visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 ofthe Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of I-T- Inc., ID# 134856 (AAO Mar. 22, 2017) 
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