dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-T- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 10,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PET!T!ON FOR ALIEN WORKER 
The Petitioner. an ERP consulting company, seeks to employ the Beneficiary as its vice-president for 
strategy and solutions. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant category: Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 
8 U.S.C. § 1153(13)(3)(A)(i). This employment-based immigrant classification allows a U.S. 
employer to sponsor a foreign national lor lawful permanent resident status to work in a position that 
requires at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did ilot 
establish, as required, that the Beneficiary has the minimum education required for the profTered 
position. 
On appeaL the Petitioner states that the Beneficiary has the foreign equivalent of the mm1mum 
education required lor the occupation, and contends that the classification does not require a degree. 
Upon de noFo review, we will dismiss the appeaL 
L LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
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, the 
DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available 
lor the offered position and that employing a foreign national in the position will not adversely affect 
the wages and working conditions of U.S. workers similarly employed. See section 
212(a)(5)(A)(i)(l)-(ll) of the Act. Second, the employer Iiles an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCJS). See section 204 of the Act, 8 U.S.C. § 1154. Third, 
if USCIS approves the petition, the foreign national applies tor 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. 
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Malter (~fA -T- Corp. 
II. ANALYSIS 
A. Beneficiar y's Qualificatio ns 
The issue is whet her the Beneficiary holds a degree that meets the minim um educational requi rement s 
of the proffered position , as required by the labor certification. To be eligible for approva l, a 
beneficiar y must have all the education, training , a nd experience specitled on the labor certitlc ation as 
of the petition' s priority date. See Matter of Wing's Tea House, 16 l&N 158 (Actin g Reg' l Comm'r 
1977). The Petitioner stated on the labor certitication at Section H that the offered job requires 
candidate s to possess, at a minimum , a U.S. bachelor's degree in engineering, technology , infonnat ion 
systems, commerce, account ing, or a related field, or a three- year undergraduate degree with no 
specitied field of study and one year of experien ce in the com puter science field. 1 The Petiti one r also. 
stated that a foreign education al equivalent was acc eptable. 
The Petitioner provided acade mic transcript s showing that the Benefic iary completed . various 
courses at Univ ers ity in Canada between Sept embe r 1998 and August 2003, but 
did not provid e ev idence that the Beneficiar y has a degree o f any kind. Neve rtheless , the Petitione r 
asserted that the reco rd show s that the Benefi ciary possesses the foreign educ ationa l equ ivalen t of a 
U.S. bachelor's degree in informa tion systems. 
The Petitioner's evidenc e of the Beneficiary's ed ucation includ es eva luations from : (I) 
the Assoc iate Dean fo r Academi c Aml irs at the School of Business at Universi ty of 
, in Con necticut; and (2) Associate Profe ssor of Com puter 
Applic ations and Info rmati on Sys tems, also in the School of Busin ess at University of 2 
Accordin g to , the Beneficiary completed coursewor k in gen eral studies with a 
concentr ation in information systems and strategic management. stated that after a 
review of the Beneficiary's academic history , " it becomes appa rent that [the Beneficiary] has 
satislied requ irements which are substa ntiall y simi lar to those required toward the com pletion of at 
least three years of Bachelor 's leve l studies at an accre dited institution of highe r education in the 
United States. " Similarl y, re v i ewe~ the Beneficiary ' s academic coursewo rk and 
concluded that he had "sa tisfied requirem ents which are substantially s imilar to those required 
toward the comp let ion of three years of cour se work in a f our-yea r Bache lor's Degree program. " 
However , neither evaluator sta ted that the Bene ficiary possesse s any deg ree at all, including the 
equivalent of,a four-year U.S . bachelor's degree , a three-year U.S . bachelor's, or a singl e foreign 
degree equiva lent to a U.S. bac helor's degree , as requi red on the labor certificati on. 
I Some U.S. schools offer three-year baccalaureate degrees. These undergraduate programs, however, renect f our 
academic years of studies condensed into three calendar years. (See, e.g., 3-Year Bachelor's Degree. 
https://www. us fca.edu/acadern ics/undcrgraduate/majors-minors/3-year-bachelors-degree, last accessed on April 30, 
20 18). 
2 
USCIS may treat a credentials evaluation as an advisory opinion. Matter ufCaron !mllnc., 19 1&N Dec. 791 , 795 
(Comm·r 1988). If an evaluation is inconsistent with other evidence or "is in any way questionable," however, USCIS 
may reject it or give it lesser evidentiary weight. ld 
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Maller of A-T- Corp. 
Because the e valuations f rom and do not establish that the 
Benefi c iary has a three- yea r or four-year U.S. degree or a foreign deg ree equi valent, they do not 
establi sh that the Benefi ciary has the minimum ed ucation requir ed on the labo r certificat ion. 
On appea l, the Petitioner asse rts that because it seeks to e mplo y the Beneficiary as a skilled worker , 
the Benefi cia ry is not requi red to have a degr ee, and therefore the Director inappropri ately app lied 
the educ ational r equirement s for a profession al w orker. Howeve r, the Petiti oner misinterprets the 
Direct o r's dec ision. The Directo r did not impose the degree requ irement s o f t he professi onal 
classifica tion, but rather fo und that the t erm s of the labor certi fication req uired a degree. In its role 
to determin e w hether a b eneficiary is qualifi ed to r the certi fied job offer, users must exam ine the 
certifi ed j ob offer exactly as it is co mpleted by the pros pect ive e mploye r. See Rosedale Linden Park 
Company v. Smith, 595 F. Supp . 82 9, 833 (D.D.C. 1984 ). Our interpret ation o f the job's 
requirem ents must involve reading and applying the plain language of the alien emp loyment 
certitic at ion app lication torm. !d. at 834. In thi s case, a reading o f Section H reflects that the 
Petiti one r stated that a U.S. bac helor's degre e is the min imum ed ucation requi red for the proffered 
posi tion, that it w ill acce pt a t hree-year degree plu s o ne year of spe cialized experience in the 
altern ate, and that it will acce pt a fo reign educational equi valent. Although the Peti tio ner claims it 
intended to a ccept the Beneficia ry's own qualitic ations as equiva lent to the requi red d egree, the 
labor certification does not reflect that completi on o f coursew o rk witho ut a deg ree (p lus ex perienc e) 
would meet the a lternate minim um education al requirements of the o ffered posi tion, as required at 
Section H. 
The Petitioner further asserts that the Direc tor misin terpreted the minimum educational requ ireme nt 
o f the labor certification b y not r ecognizing the Petitioner's intent, a s ex press ed in box H.9 of the 
labor certifi cation, to accept a combination of ed ucational credentials, such as the Beneficia ry' s, as 
the equi valent of a U.S. bachelor's degree. Howeve r, a cceptan ce of a fo reign educational equiva lent 
in Part H.9 of a labor certifi cation simply indicates an empl oye r's willin gness to acce pt a foreign 
degre e that is the foreign equivale nt to a U.S . degree and is issued by a fo reign college or university. 
It does not ex press an employer's willin gness to acc ept a comb ination of e ducatio nal prog rams 
and/o r ex perie nce determi ned t o be e qui valent to a degree u nless the emp loyer so indicates 
elsew here on the labor cert ification. The Petitio ner had the o pportunit y in B ox 1-1 .8 of the labor 
certific ation t o indicate whether an alternate co mbination of educa tion and ex perience was 
acceptabl e and, if so, to specify in boxes H.8-A , J-1.8-B, and 1-1.8-C any a lternate level of educati on 
that may be co nsidered acceptab le. Here, the Petitioner did include altern ative requ ireme nts but 
those too requ ire a d egree. As suc h, the langu age of the. labor certificatio n unamb iguous ly req uires a 
U.S . bachelo r's deg ree or a fore ign eq uivalent deg ree. 
The Petitioner also provid es evidence regarding its recruitm ent of U.S. workers in the form of its 
newspap er and online job advertisements tor the position, asserting that the recruitm ent makes clear 
its intent to 
allow candidat es wi thout a degr ee to qualify for the proffered pos ition. However , 
becau se the adve rtisement s state that the Petitio ner "deems [a] 3 year undergraduat e degree plus 1 y r 
of e xperience in compu ter scie nce fiel d to be equivalent to a Bache lor's degree, " they do not show 
that the Petitioner intended to acc ept j ob candid ates who have no degree. Rat her, the 
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Maller 1![ A-T- Corp. 
advertisements, like the labor certification, explicitly require a degree and do not allow for 
completion of coursework deemed equivalent to three years of study to qualify. 3 
For the reasons discussed above, the Petitioner has not established that the Beneficiary has the 
educational qualifications of a U.S. bachelor's degree in computer science·, engineering, business, 
finance, or a related field, a three-year U.S. degree plus one year of specialized experience, or foreign 
equivalent degree, as required on the labor certification. 
13. Bona Fide Job Opportunity 
As an additional matter, the Petitioner has not established that the job opportunity is bonafide. A labor 
certification employer must attest that its job opportunity "has been and is clearly· open to any 
qualified U.S. worker." 20 C.F.R. § 656.20(c)(8). This attestation "infuses the recruitment process 
with the requirement of a bona fide job opportunity: not merely a test of the job market." Matter of 
Modular Container S)s .. Inc., 89-lNA-228, *7 (BALCA July 16, 1991) (en bane). 
To determine the bona fides of a job opportunity for purposes of the labor certification, an agency 
must consider numerous factors including, but not limited to, whether a foreign national beneficiary: 
( 1) is in a position to control or influence hiring decisions regarding an ofTered position; (2) is 
related to a petitioner's directors, officers, or employees; (3) incorporated or founded the business; 
(4) sits on the petitioner's board of directors; (4) has an ownership interest in the petitioner; (5) is 
involved in the petitioner's management; (6) is one of a small group of employees; or (7) has 
qualifications matching specialized or unusual job duties or requirements of an oflered position. !d. 
at *8. USClS must also consider whether a foreign national employee's absence would likely cause 
a petitioner to cease operations, and whether the employer complied with DOL regulations and 
recruited for an offered position in good faith. !d. 
ln this case, the proffered position listed on the labor certification is for the position of vice president 
of strategy and solutions; moreover, on the labor certification 'at Section J, the Petitioner stated that 
the Beneficiary has been working for it in that exact position since January 1, 2015, over one year 
prior to the date that the Petitioner filed the labor certification with DOL on February 20, 2016. The 
labor certification also reports that the Beneficiary is one of only 17 employees. 
On appeal, the Petitioner confirmed that the Beneficiary "serves as a Vice President - Strategy & 
Solutions and operates at a very senior level within our company. His work at our company has led 
to consistent growth for the organization .... " Because the Petitioner's documents and statement on 
·'On appeal. the Petitioner further asserts that the Director inappropriately cited to a Board of Immigration Appeals case 
involving a third preH::rence petition tOr a professional worker \vhen this petition is for a skilled worker. However, the 
Director cited to that case only to e:..:plain the proposition that a U.S. bachelor's degree usually requires four years of 
university studies. Mauer of Shah. 17 I&N Dec. 244.245 (Comm'r 1977). The record therefore does not establish that 
the Director applied an incorrect standard when citing to Shah. · 
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Mauer of A-T- Corp. 
appeal show that the Beneficiary was already employed at a senior level within the relatively small 
company in the same position for which the Petitioner claims to have recruited U.S. workers, the 
record does not contain suflicient evidence to show that the Petitioner recruited for the job in good 
faith. In any additional proceeding, the Petitioner must show that the job opportunity was bonafide 
for purposes of the labor certilication. 
C. Ability to Pay 
The record also does not contain the regulatory required evidence to establish its ability to pay the 
proffered wage. A petitioner must demonstrate its continuing ability to pay a proffered wage, trom a 
petition's priority date until a beneficiary obtains lawful pennanent residence. 8 C.F.R. § 204.5(g)(2)4 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or audited 
financial statements. !d. 
In detcm1ining ability to pay, USC IS examines whether a petitioner paid a beneliciary the full pro tiered 
wage each year from a petition's priority date. If a petitioner did not annually pay the full proffered 
wage, USCIS considers whether it generated sullicient annual amounts of net income or net current 
assets to pay any difference between the proffered wage and the wages paid. If net income and net 
current assets are insutlicient, USCIS may also consider other factors affecting a petitioner's ability to 
pay a prollered wage. See Muller ofSonegawa. 12 I&N Dec. 612, 614- I 5 (Reg 'I Comm'r I 967)5 
Here, the accompanying labor certification with a priority date of February 20, 2016, states the 
protTered wage of$ I 66,608 a year. The record includes some pay stubs for the Beneficiary showing his 
year to date wages as of October I 5, 20 I 6, but docs not contain a fonn of regulatory required evidence. 
Moreover. where a petitioner has filed 1-140 petitions for multiple beneficiaries, it must demonstrate 
that its job otTer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to 
each beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson, 2 F. Supp. 3d I 08, I 24 
(D. Mass. 2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to 
pay multiple beneficiaries). USC IS records show that the Petitioner filed multiple 1- I 40 petitions for 
other beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of 1-140 petitions that were pending or approved as of, or filed after. the priority date of 
the current petition6 We only consider the other beneficiaries tor any year that the Petitioner has not 
-l This petition's priority date is the date the DOL received the accompanying labor certification for processing. See 
8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
5 Federal courts have upheld our method of detcnnining a petitioner's ability to pay a proffered wage. See. e.g., Rh·er St. 
Do11U1s. LLC v. Nopuliwno. 558 F.3d Ill. 118 (1st Cir. 2009): Estrodo-Hernandez v. Holder, 108 F. Supp. 3d 936,942-43 
(S.D. Cal. 20 15): Rizvi v. Dep ·, <!(Home/am/ Sec .. 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 20 14). aff'd, 627 Fed. App'x 
292 (5th Cir. 20 15). 
6 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence: 
• If an 1-140 petition tiled on behalf of the other beneficiary has been withdrawn, revoked. or denied without a 
pending appeal or motion: or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
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Maller ojA-T- Cmp. 
paid the Beneficiary a salary equal to or greater than the proffered wage. 
In any future tiling in this matter, the Petitioner must document the receipt numbers, names of 
beneficiaries, priority dates, and proffered wages of these other 1-140 petitions, and indicate the status of 
each petition and the date of any status change (i.e., pending, approved, withdrawn, revoked, denied, on 
appeal or motion, or beneficiary obtained lawful permanent residence). To otfset the total wage burden, 
the Petitioner may submit documentation showing that it paid wages to other beneficiaries. Absent such 
information, we cannot find that the Petitioner had the ability to pay in 2016. If the Petitioner pursues 
this matter, it must also submit a form of regulatory required evidence of its ability to pay ±rom 2016 
onward and evidence of its ability to pay this Beneficiary and the beneficiaries of its other 1-140 
petitions from 2016 to present. 
III. CONCLUSION ' 
The Petitioner has not established that the Beneficiary has the minimum education for the proffered 
position, as required by the labor certilication. 
ORDER: The appeal is dismissed. 
Cite as Marter ufA-T- Corp., ID# 1264204 (AAO May 10, 2018) 
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