dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 19882274 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 5, 2022 
The Petitioner , an information technology (IT) consulting company , seeks to employ the Beneficiary 
as an IT consultant. 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(B)(3)(A)(i) . This employment-based immigrant classification allows a U.S. employer 
to sponsor a noncitizen for lawful permanent resident status to work in a position that requires at least 
two years of training or experience . 
The Director of the Texas Service Center denied the petition, finding that the Beneficiary did not 
qualify for the job offered because he did not meet the minimum requirements of the labor 
certification. On appeal, the Petitioner asserts that the Beneficiary meets the minimum requirements 
of the labor certification and the Director 's decision to the contrary was erroneous. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
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) .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, the DOL certifies that there 
are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a noncitizen in the position will not adversely affect the wages and working conditions of 
domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the 
employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS) 
with the certified labor certification. See section 204 of the Act, 8 U.S .C. § 1154. Third, if USCIS 
approves the petition, the noncitizen applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for proc essing, which in this case is 
April 27, 2020. See 8 C.F.R. § 204.S(d). 
II. ANALYSIS 
A beneficiary must 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 )(1), (12); Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
The Petitioner requests classification of the Beneficiary as a skilled worker. In order to qualify as a 
skilled worker, the Beneficiary must possess at least two years of training or experience and meet the 
"educational, training or experience, and any other requirements of the individual labor certification." 
8 C.F.R. § 204.5(1)(3)(ii)(B). Here, the accompanying labor certification states the primary minimum 
requirements of the offered position ofIT consultant are a U.S. master's degree or a foreign equivalent 
degree in computer science, engineering, or a closely related field, and 24 months of experience in the 
alternate occupation of computer software developing or consulting. 2 The alternate minimum 
requirements of the offered position are a U.S. bachelor's degree or a foreign equivalent degree and 
five years of experience in computer science, engineering, or a closely related field. 
Part H.14 of the labor certification ("Specific skills or other requirements") states: "Will accept U.S. 
equivalent of the degrees. Will work at unanticipated client locations throughout the U.S." Part H.14 
of the labor certification further states: "Will accept any suitable combination of education, training, 
and/or experience." Like the Director, we will refer to this statement as "Kellogg language." In Matter 
of Kellogg, 94-INA-465 (BALCA Feb. 2, 1998) (en bane), the Board of Alien Labor Certification 
Appeals held that a labor certification application must contain the statement where a noncitizen 
already works for the employer, does not meet the position's primary requirements, and only 
potentially qualifies for the job based on its alternative requirements. 3 
Part J of the labor certification states that the Beneficiary's highest level of education relevant to the 
job opportunity is a bachelor's degree in computer science from 
in India, completed in 2001. The record contains the Beneficiary's diploma and transcripts, 
as well as an educational evaluation from I Head Evaluator forl I 
I I who states that the Beneficiary's foreign degree, entitled "Engineering Bachelor, 
Computer Engineering," is equivalent to a U.S. high school diploma plus a U.S. associate's degree in 
information technologies. The Petitioner does not dispute this educational equivalency. 
Part K of the labor certification states that the Beneficiary has been employed as an IT consultant with 
the Petitioner inl INew Jersey since October 15, 2015. The labor certification also states that 
the Beneficiary was employed as a senior consultant by I 
from May 22, 2006, through October 13, 2015. The record contains letters from both the Petitioner 
and !confirming the Beneficiary's employment and associated job duties. 
In his decision denying the petition, the Director interpreted the job offer portion of the labor 
certification as requiring either a master's degree and 24 months of experience in an alternate 
occupation, or a bachelor's degree plus five years of experience, and found that the Beneficiary did 
2 The Petitioner does not state a requirement for experience in the job offered in Part 6 of the labor certification. 
3 The regulation at 20 C.F.R. § 656.17(h)(4)(ii) identifies the Kellogg language as "any suitable combination of education, 
training, or experience." Here, we note that the Petitioner's statement in Part H.14 modifies this language slightly by 
replacing the word "'or" with the phrase "and/or." 
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not meet these primary or alternate educational requirements because he did not have the foreign 
equivalent of either a U.S. master's or U.S. bachelor's degree. The Director determined that the 
modified version of the Kellogg language in Part H.14 of the labor certification did not alter the 
minimum requirements stated on the labor certification. 
On appeal, the Petitioner asserts that the language at Part. H.14 indicates that it is willing to accept 
any suitable combination of education, training and/or experience, and because the Beneficiary has an 
associate's degree and more than 12 years of experience in the field, he meets the minimum 
requirements of the labor certification. The Petitioner further asserts that the Director's finding to the 
contrary "is completely contrary to the rationale of the Kellogg decision." In support of this assertion, 
the Petitioner refers to our non-precedent decision in which we determined that the Petitioner's 
modification of the standard Kellogg language altered the minimum requirements of the labor 
certification, and asserts that the same treatment should be afforded here. However, that decision was 
not published as a precedent and therefore does not bind USCIS officers in future adjudications. See 
8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts of the 
individual case, and may be distinguishable based on the evidence in the record of proceedings, the 
issues considered, and applicable law and policy. Additionally, that case is distinguishable from the 
instant case. In that case, the Petitioner added the phrase "in lieu of the above stated education and 
experience requirements" to the standard Kellogg language, which therefore indicated the Petitioner's 
acceptance of a combination of education and experience not in accord with the minimum 
requirements outlined in sections H.4 and H. l O of the labor certification. Here, however, the Petitioner 
stated in section H.14 that it "will accept any suitable combination of education, training, and/or 
experience," which does not meaningfully modify the standard, regulatory-required language. We do 
not interpret this sentence to mean that the employer would accept lesser qualifications than the 
primary and alternative requirements stated on the labor certification. 
The Petitioner does not claim that the Beneficiary's education alone is the foreign equivalent of a U.S. 
master's or U.S. bachelor's degree, nor does it submit evidence to establish that the Beneficiary's 
degree from India is the foreign equivalent of a U.S. master's or U.S. bachelor's degree. Rather, the 
Petitioner asserts that the labor certification allows the Beneficiary to qualify for the offered position 
with a combination of his associate's degree and over 12 years of experience. 
In order to determine the minimum requirements of a proffered position, we must examine "the 
language of the labor certification job requirements." Madany v. Smith, 696 F.2d 1008, 1015 (D.C. 
Cir. 1983). USCIS must examine the certified job offer exactly as it is completed by the prospective 
employer. See Rosedale Linden Park Co. v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984). Our 
interpretation of the job's requirements must involve reading and applying the plain language of the 
labor certification application form. Id. at 834. 
The Director interpreted the job offer portion of the labor certification as requiring a U.S. master's 
degree or a foreign equivalent degree in computer science, engineering, or a closely related field 
(sections H.4, H.4-B, H.7, H.7-A, and H.9) and 24 months of experience in an alternate occupation 
(sections H.10, H.10-A, and H.10-B), or a bachelor's degree or a foreign equivalent degree and five 
years of experience (sections H.8, H.8-A and H.8-C). The Director found that the Beneficiary did not 
meet either the primary or alternate educational requirements because his degree from India was not 
the foreign equivalent of either a U.S. master's or U.S. bachelor's degree, and also found that the 
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Kellogg language was not qualified by the Petitioner in such a way so as to lower the educational and 
experience requirements stated on the labor certification - namely, a master's or foreign equivalent 
degree and 24 months of experience in an alternate occupation, or a bachelor's degree or foreign 
equivalent degree and five years of experience. The Director concluded that the minimum education 
and experience required by the labor certification was unchanged by the language in Part H.14. 
On appeal, the Petitioner implies that its use of the phrase "and/or" in place of the conjunction "or" in 
Part H.14 goes beyond the standard Kellogg language and therefore has sufficiently lowered the 
minimum educational requirements set forth on the labor certification. The Petitioner's argument, 
however, ignores the instructions and structure of the labor certification form. The form at Part H.4 
instructed the Petitioner to state the minimum level of education required for the offered position and 
at Part H.8-A, if applicable, an accepted, alternate level of education. 
So informed, the Petitioner at Part H.8-A indicated "bachelor's degree" as the alternate educational 
requirement, rather than "associate's degree" or another lesser U.S. educational level. Thus, on the 
labor certification, the Petitioner indicated a minimum requirement of a U.S. master's degree, a U.S. 
bachelor's degree, or a foreign equivalent degree. The Beneficiary does not possess such a degree, 
and the plain language of the labor certification does not support the Petitioner's claimed intent to 
accept less than a U.S. master's or U.S. bachelor's degree, or foreign equivalent degree, to meet the 
minimum educational requirement for the proffered position. While we note that the skilled worker 
category does not require a degree, the labor certification in this case requires a U.S. master's degree, 
a U.S. bachelor's degree, or a foreign equivalent degree. 
We acknowledge the Petitioner's claim that the specific vocational preparation (SVP) level of the 
Beneficiary's foreign equivalent of a U.S. associate's degree, combined with his 12 years of 
experience in the field, exceeds the SVP level of its stated primary requirements on the labor 
certification. However, this does not demonstrate the labor certification's acceptance of these alternate 
qualifications, or the Petitioner's intention to allow an associate's degree and 12 years of experience 
in lieu of the required education and experience. As such, we agree with the Director's determination 
that the modified Kellogg language in Part H.14 of the labor certification does not change the 
minimum educational and experience requirements stated in Parts H.4 to H.10 of the labor 
certification. 4 
Thus, the Beneficiary does not qualify for the job offered because he does not meet the minimum 
requirements of the labor certification. 
III. ABILITY TO PAY 
Although not addressed by the Director in his decision, the record does not contain regulatory-required 
evidence of the Petitioner's ability to pay the proffered wage from the priority date on April 27, 2020, 
and continuing until the Beneficiary obtains lawful permanent residence. The regulation at 8 C.F .R. 
4 We generally do not interpret the insertion of Kellogg language in part H.14 to mean that an employer would accept 
lesser qualifications than the primary and alternate requirements stated in the labor certification. If we were to read the 
Kellogg language as an alternate requirement, the actual minimum requirements of the offered position would be 
impossible to discern, the primary and alternate requirements would be made meaningless, and any labor certification 
using Kellogg language would be potentially ineligible for the requested classification. 
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§ 204.5(g)(2) requires that "[e ]vidence of this ability shall be either in the form of copies of annual 
reports, federal tax returns, or audited financial statements." The annual proffered wage in this case 
is $ll 7,021. 
The Petitioner submitted its federal tax return for 2019, a copy of the Beneficiary's IRS Form W-2, 
Wage and Tax Statement, for 2020, and copies of the Beneficiary's paystubs for the period from 
December 16, 2020, to May 15, 2020. However, the record does not contain an annual report, federal 
tax return, or audited financial statements for the Petitioner for 2020 as required by 8 C.F.R. § 
204.5(g)(2). Without this regulatory-required evidence, we cannot affirmatively find that the 
Petitioner has the continuing ability to pay the proffered wage from the priority date. 
Further, USCIS records show that the Petitioner has filed 13 other Form I-140 petitions for other 
beneficiaries. Where a petitioner has filed Form I-140 petitions for multiple beneficiaries, it must 
demonstrate that its job offer 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 108, 124 
(D. Mass. 2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to 
pay multiple beneficiaries). Thus, the Petitioner must establish its ability to pay this Beneficiary as 
well as the beneficiaries of the other Form I-140 petitions that were pending or approved as of, or filed 
after, the priority date of the current petition. The record does not establish the Petitioner's ability to 
pay all of the relevant beneficiaries in this case. 
As detailed above, in any future filings, the Petitioner must submit additional evidence to establish its 
continuing ability to pay the proffered wage from the priority date onward. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
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