dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-H-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 5. 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a hospital, seeks to employ the Beneticiary as a report developer II. It requests his 
classification as a professional under the third preference immigrant category. ,)'ee Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(ii). 8 U.S.C. § 1153(b)(3)(A)(ii). This category 
allows a U.S. business to sponsor a foreign worker with a bachelor's degree or its foreign equivalent 
for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition. concluding that record did not 
establish, as required, that the labor certification supports the requested professional classification. 
and that the Beneficiary possesses the minimum experience required for the otTered position. 
On appeal, the Petitioner submits additional evidence and asserts that the protTered position is for a 
professional and that the Beneficiary has the required experience. 
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 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. DOL 
certifies that there are insufficient U.S. workers who are able. willing. qualified. and available for the 
offered position and that employing a foreign national in the position will not adversely atTect the 
wages and working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(I)­
(II) of the Act. Second, the employer tiles 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 USCIS 
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 ofthe Act 8 U.S.C. § 1255. 
1 The date the labor certification is filed is called the ''priority date." 8 C.F.R. ~ 204.5(d). 
Matter of C-H-C-
II. ANALYSIS 
A. Labor Certification Does Not Support Requested Classification 
For professional classification, the Petitioner must establish that the job offer portion of the labor 
certification requires at least a bachelor's degree or a foreign equivalent degree. 8 C.F.R. 
§ 204.5(1)(3)(i). The regulation uses a singular description of degree. Thus, the plain meaning of the 
regulatory language concerning the professional classification sets forth the requirement that the 
position must require one degree that is a U.S. bachelor's degree or determined to be the foreign 
equivalent of a U.S. baccalaureate degree in order to be qualified as a professional position. 
In this case, the labor certification states that the offered position of report developer has the 
following minimum educational and experience requirements: 
H.4. 
H.6. 
H.6-A. 
H.8. 
H.8-A. 
H.8-B. 
H.8-C. 
H.9. 
H.10 
H.10-A 
H.10-B 
Education: Bachelor's degree in '·Technical'' major field of study 
Is experience in the job offered: yes 
Number of months of experience required: 36 months 
Is there an alternate combination of education and experience that is 
acceptable? Yes. 
Alternate level of education required: Other 
If other is indicated in H.8-A. indicate alternate level of education 
required: "Any suitable combination of education. training, or 
experience is accep[table r 
Number of years of experience acceptable: 5 
Is a foreign educational equivalent acceptable? Yes. 
Is experience in an alternate occupation acceptable? Yes 
Number of months of experience in alternate occupation required: 36 
Job title of alternate occupation: Report Development 
users may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine. Inc v. Landon., 699 F.2d 1006 
(9th Cir. 1983); Stewart Infra-Red Commissary r?f Massachusetts. Inc. v. Coomey, 661 F.2d 1 (1st 
Cir. 1981 ). USC IS 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' 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). 
2 
Matter ofC-H-C-
Here, the Petitioner's acceptance of "other"' as an alternate level of education defined as "any suitable 
combination of education, training, or experience" allows for less than a bachelor's degree. In response 
to the Director's request for evidence (RFE) regarding the requirements for the position, the Petitioner 
submitted advertisements regarding the proffered position stating that a bachelor's degree was required 
but that "[a]pplicable experience may be accepted in lieu of degree.'' The plain language of the labor 
certification and the explicit language in the advertisements demonstrate the Petitioner's acceptance of 
experience alone in lieu of a bachelor's degree. Because the position does not require at least a U.S. 
bachelor's degree or a foreign equivalent degree. the petition cannot be approved under the professional 
classification. See 8 C.F.R. § 204.5(1)(3)(i) (the labor certification underlying a petition for a 
professional must require at least a U.S. bachelor's degree or a foreign equivalent degree). 
On appeal, the Petitioner states that it was required to include the language '·any suitable 
combination of education, training, or experience which is substantially equivalent to the minimum 
requirement for a bachelor's degree" based on the DOL regulation at 20 C.F.R. § 656.17(h)(4)(ii). 
and relevant DOL case law. The statement that an employer will accept applicants with "any 
suitable combination of education, training or experience'' is commonly referred to as Kel!ORK 
language and was incorporated into the DOL ·s regulation at 20 C.F.R. § 656.17(h)(4)(ii). The 
Petitioner asserts that its inclusion of "Kellogg language'' on the labor certification is a restatement 
of the bachelor's degree requirement, that its intent was only to accept any suitable combination of 
education, training, or experience that is substantially equivalent to the minimum requirement of a 
bachelor's degree, and that the Director erroneously found that the Petitioner would accept less than 
a bachelor's degree from an applicant for the profTered position. 
However, the Petitioner used the Kellogg language as the alternative education requirement 
indicating its acceptance of a combination of education. training, or experience in place of the 
required degree, rather than its acceptance of either the primary or alternate requirements. The 
Petitioner also included internal and external advertisements regarding the proffered position that 
confirm it advertised the position as accepting experience alone "in lieu of [a bachelor's] degree." 
The Petitioner does not explain how its acceptance of any ''combination of education, work 
experience, or training," or even just experience, in lieu of a bachelor's degree can establish that the 
proffered position requires a bachelor's degree. Based on the plain language on the labor 
certification and its recruitment information, the Petitioner has not established that the proffered 
position requires at least a bachelor's degree 
The evidence submitted does not establish that the offered position requires at least a U.S. bachelor's 
degree or a foreign equivalent degree. As such, the labor certification does not suppm1 the requested 
professional classification and, therefore, the petition cannot be approved under the professional 
classification. 
B. Beneficiary's Experience 
The Petitioner also has not established that the Beneficiary has all of the experience required on the 
labor certification for the proffered position. A petitioner must establish that a beneficiary meets all of 
3 
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Matter ofC-H-C-
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 of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting 
Reg'l Comm'r 1977); see also Maller ofKatigbak. 14 I&N Dec. 45. 49 (Reg'l Comm 'r 1971 ). 
As discussed, the Petitioner stated on the labor certification that the proffered position requires a 
minimum of 36 months of experience in the job offered or 36 months of experience in report 
development. The regulation at 8 C.F.R. § 204.5(1)(3) requires evidence that the Beneficiary has the 
claimed experience, and the evidence must include the name, address. and title of the employer, along 
with a description of the experience gained. The Petitioner and Beneficiary stated on the labor 
certification that the Beneficiary has eight months of qualifying experience as a software engineer with 
in TX and six months of experience as a reporting analyst with 
in CA, and the Petitioner submitted letters from the Beneficiary's prior employers. 
However, the labor 
certification and letters show that the Beneficiary has work experience totaling only 
14 of the 36 months required on the labor certification. 
In response to the Director's RFE, the Petitioner noted that the Beneficiary received a master's degree 
in computer engineering from m CAin 2010, 
and claimed that the degree from is equal to two years of qualifying experience under relevant 
DOL guidance and regulations. See DOL Field Memorandum No. 48-94, Policy Guidance on Alien 
Labor Cert[ficationl\·sues (FM) 2 (May 16, 1994); see also 69 Fed. Reg. 77326.77332 (Dec. 27, 2004). 
The Petitioner also stated that in some circumstances, DOL and USCIS have used set calculations to 
allow experience to substitute for education. The Petitioner contends that education should also be 
allowed to substitute for experience using the same calculations, thereby allowing the Beneficiary to use 
his education to meet experience requirements. However, in this case the issue is not how DOL and 
US CIS have calculated equivalency between education and experience,. but rather whether or not the 
labor certification allows such an equivalency. The Petitioner explicitly required a minimum of 36 
months of experience on the labor certification and did not indicate that education could be used to 
substitute for that required experience. 2 Moreover, the Petitioner submitted its advertisements regarding 
the proffered position, which state that applicants must have a"[ m ]inimum [of] 3-5 years clinical and/or 
IT experience," or a "[m]inimum [of] 3 years' experience in a report developer role." Because the 
Petitioner did not describe 
the offered position on the labor certification or its own advertisements as 
one for which a master's degree or any other amount of education was acceptable in lieu of the required 
experience, we find that the terms of the labor certification require at a minimum, 36 months of 
experience. As the Beneficiary does not have the required experience, he does not meet the terms of the 
labor certification. 
As an additional matter, the Director noted even if we were to consider the Beneficiary's master's 
degree toward experience, the school from which he earned the degree was not accredited at the time 
1 As noted earlier, the Petitioner stated its acceptance of a combination of education, experience, and training as the 
alternate education requirement, but did not indicate its acceptance of education in place of the required minimum three 
years of experience. 
4 
.
Matter ofC-H-C-
the degree was conferred in 2010. Consequently, the Director advised that the Beneficiary could not be 
credited with an additional two years of the required work experience based on this degree. 
On appeal, the Petitioner contends that the accreditation status of at the time the Beneficiary gained 
his degree is immaterial to the requested classification. We do not agree. While the regulatory 
language of 8 C.F.R. § 204.5(1)(3) does not specifically state that a degree must come from an 
accredited college or university , that requirement is implicit in the regulations. For purposes of this 
classification, "professional " is defined in 8 C.F.R. § 204.5(1)(2) as "a qualified alien who holds at least 
a United States baccalaureate degree" (or a foreign equivalent degree) . (Emphasis added.) Similarly, 
as defined in 8 C.F.R. § 204.5(k)(2), an "advanced degree" includes "any United States academic or 
professional degree ... above that of baccalaureate" (or a foreign equivalent degree), ''[a] United States 
baccalaureate degree" (or a foreign equivalent degree) and five years of specialized experience 
(considered equivalent to a master's degree), and "a United S'tates doctorate" (or a foreign equivalent 
degree). (Emphases added.) The repeated usage of the modifier '·United States'' to describe the 
different levels of(non-foreign) degrees makes clear that the regulations apply to degrees issued by U.S. 
educational institutions that are recognized and honored on a nationwide basis. However , the U.S. 
Department of Education (DoEd) cautions that degrees from unaccredited state institutions are not 
always recognized outside the degree-granting state. See DoEd, Diploma Mills and Accreditation. 
https://www2.ed.gov /students/landing.jhtml?src=ln (last visited on Sept. 28. 2017) (advising that in 
certain circumstances it may be illegal to use a degree from an institution not accredited by a nationally 
recognized accrediting agency). Thus, the only way to assure nationwide recognition tor its degrees is 
tor the educational institution to secure accreditation by a regional accrediting agency recognized hy the 
DoEd and the Council for Higher Education Accreditation , the two entities responsible for the 
recognition of accrediting bodies in the United States. 
Although the Beneficiary has separately met the educational requirements of the labor cet1ification 
based on his bachelor ' s degree, the Petitioner does not establish a statutory or regulatory provision that 
permits us to credit the Beneficiary with experience based on a master's degree that could not otherwise 
qualify as a professional degree for this classification. 
On appeal, the Petitioner cites to a district court decision to support its claim that the Director took a 
mechanical approach to adjudication of the petition and failed to consider whether all of the 
Beneficiary's education , training, and experience is substantially equivalent to the employer's minimum 
requirements. Denver Tofu Company v. District Director , 525 F.Supp. 254 (D.Colo. 1981 ). In Den Fer 
Tofu, the court found that the Director acted arbitrarily and capriciously in focusing on a technical 
requirement of "management training" for the position of product development manager where the 
labor certification required two years of "on-the-job training" and the job involved the supervision of 
only three employees. However, in this case, the Director properly considered all of the 
Beneficiary's relevant education and experience before concluding that he does not possess the 
minimum three years of experience required on the labor certification. Consequently, the Petitioner 
has not established that the Beneficiary has the minimum experience required by the terms of the labor 
certification. 
5 
Matter ofC-H-C-
III. CONCLUSION 
The record does not establish that the labor certification supports the requested classification. and 
that the Beneficiary possesses the minimum experience required on the labor certification for the 
offered position. 
ORDER: The appeal is dismissed. 
Cite as Matter <~(C-H-C-, ID# 705669 (AAO Dec. 5. 2017)