dismissed EB-3 Case: Information Technology

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 
I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an information technology consulting company, seeks to employ the Beneficiary as a 
software quality assurance engineer. It requests classification of the Beneficiary as a skilled worker 
under the third preference immigrant classification. See 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 foreign national for 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. The Director found that the 
Beneficiary did not qualify for the job offered because he did not meet the minimum educational 
requirement of the labor certification. The Director granted a subsequent motion to reconsider, but 
again denied the petition on the same ground. 
On appeal, the Petitioner submits a brief and additional documentation, 1 and asserts that the 
Beneficiary meets the minimum requirements of 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 certification from the U.S. Department of Labor (DOL).2 See section 212(a)(5)(A)(i) 
ofthe Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that 
the entity that filed this appeal, claims to be a successor-in-interest to 
, the entity that filed the petition. The record contains a copy of a merger agreement stating 
that was merged into on July I, 2016, and that took possession of all of assets 
and property and was vested with all its rights, privileges, immunities, powers, franchises, authorities, and obligations. 
Applying the requirements for a successor-in-interest set forth in Matter o.f Dial Auto Repair Shop, Inc., 19 I&N Dec. 
481 (Comm'r 1986), we conclude that the evidence in the record establishes a valid successor relationship for 
immigration purposes. 
2 
The date the labor certification is filed is called the "priority date." A beneficiary must be eligible for the requested 
classification as of that date. 
Matter ofC-A-, Inc. 
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 affect the wages and 
working conditions of domestic workers similarly employed. 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 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. 
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.P.R.§ 204.5(1)(3)(ii)(B). 
II. ANALYSIS 
At issue in this case is whether the Beneficiary possesses the minimum education required by the 
terms of the labor certification. 
The Petitioner's Form I-140, Immigrant Petition for Alien Worker, was accompanied by a certified 
ETA Form 9089, Application for Permanent Employment Certification (labor certification), which 
was filed with the DOL on July 12, 2015. In section H of the labor certification, the Petitioner 
specified the following with respect to the education, training, and experience required to qualify for 
the job of software quality assurance engineer: 
4. 
4,-B. 
5. 
6. 
6-A. 
7. 
7-A. 
8. 
9. 
10. 
10-A. 
10-B. 
14. 
Education: Minimum level required: 
Major Field of Study: 
Is training required in the job opportunity? 
Is experience in the job offered required? 
How long? 
Is an alternate field of study acceptable? 
What field? 
Is an alternate combination of education 
and experience acceptable? 
Is a foreign educational equivalent acceptable? 
Is experience in an alternate occupation acceptable? 
How long? 
Job titles of alternate occupations 
Specific skills or other requirements 
2 
Bachelor's degree 
Engineering 
No 
Yes 
24 months 
Yes 
Computer Science or related 
No 
Yes 
Yes 
24 months 
Software designer, developer, 
tester, or analyst. 
Pursuant to 20 C.P.R. 
§ 656.17(h)( 4)(ii), we will accept 
any suitable combination of 
education, training, or experience 
for this position. 
.
Matter ofC-A-, Inc. 
Section J of the labor certification stated that the Beneficiary's highest level of education was an 
advanced diploma from the 
in India. It claimed that this diploma plus 
work experience was equivalent to a U.S. bachelor's degree in computer science and engineering. 
Section K of the labor certification listed job experience for the Beneficiary in five different software 
engineering and project manager positions between 2003 and 2015. Most of this experience 
preceded the Beneficiary's initial position with the Petitioner, which began in January 2013. 
The Petitioner has submitted copies of the Beneficiary's academic records from 
showing that he was awarded a "4 Year Advanced Diploma in Computer Science & 
Engineering" on October 22, 2002, after completing an eight-semester program of study. The record 
also includes two letters testifying to the Beneficiary's work experience from 2003 to 2014, most of 
which was with in India (2003-2009) and m 
Massachusetts (2009-2012). 4 
The Petitioner asserts that the Beneficiary's advanced diploma in computer science and engineering 
from together with his work experience in software engineering is equivalent 
to a U.S. bachelor's degree in computer science and engineering and meets the minimum educational 
requirements for the offered position as set forth on the labor certification. In support of the 
educational equivalency claim, the Petitioner has submitted two credential evaluations from (1) 
of , and (2) from of 
Both evaluators conclude that the Beneficiary's diploma from 
is equivalent to two years of study toward a bachelor's degree from a U.S. college or 
university, and that combining this education with the Beneficiary's employment.experience m 
computer information systems results in the educational equivalent of a bachelor's degree m 
computer information systems from an accredited college or university in the United States. 
The Petitio11er does not claim, or submit evidence to establish, that the Beneficiary's advanced 
diploma is the foreign equivalent of a four-year U.S. bachelor's degree. 
In his initial decision denying the petition, the Director found that the mm1mum educational 
requirement on the labor certification is a bachelor's degree, and that the Beneficiary did not meet 
this requirement because his diploma from India was not the foreign equivalent of a U.S. bachelor's 
degree. · 
In the motion to reconsider the Petitioner asserted that its minimum educational requirement is not a 
bachelor's degree, the minimum level indicated in box H.4 of the labor certification, but rather "any 
3 The documents identify as an institution approved by the 
4 
Documentation in the record shows that the purchased 
name to in June 2012, and merged this company with 
in May 20 II, changed its 
in December 
2012. 
3 
Matter ofC-A-, Inc. 
suitable combination of education, training, or experience" that is equivalent to a bachelor's degree, 
as indicated in box H.14 of the labor certification. 
In his second denial decision the Director reiterated his finding that the m1mmum educational 
requirement stated on the labor certification is a bachelor's degree, and that no alternate combination 
of education and experience was indicated as acceptable in box H.8 of the labor certification. 
Referring to the language in box H.14 of the labor certification stating that "any suitable 
combination of education, training, or experience" was acceptable, the Director quoted from a non­
precedent decision of this office in 2014 which concluded that the presence of this language in box 
H.14 of a labor certification will not be interpreted as lowering the qualifications needed for the job 
and does not alter the primary and alternative requirements stated on the labor certification. 
Specifically, box H.14 of the labor certification states that the "any suitable combination of 
education, training, or experience" language is "in compliance with" the regulation at 20 C.F.R. 
§ 656.17(h)(4)(ii), which states: 
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. 
This regulation incorporates the Board of Alien Labor Certification Appeals (BALCA) ruling in 
Matter of Francis Kellogg, 1994-INA-465 and 544, 1995-INA 68 (BALCA Feb. 2, 1998) (en bane) 
(if the Beneficiary only qualifies for the offered position based on the alternative job requirements, 
the labor certification must state that "applicants with any suitable combination of education, 
training or experience are acceptable"). This statement is commonly referred to as "Kellogg 
language." 
As noted by the Director, we do not interpret the insertion of Kellogg language on the labor 
certification to mean that the employer would accept lesser qualifications than the stated primary and 
alternative requirements on the labor certification. To do so would make the actual minimum 
requirements of the offered position impossible to discern, it would render largely meaningless the 
stated primary and alternative requirements of the offered position on the labor certification, and it 
would potentially make any labor certification with alternative requirements ineligible for the 
requested classification. 
On appeal the Petitioner claims that the Kellogg language is part of its mm1mum educational 
requirement on the labor certification because it indicates that an applicant may qualify for the job 
offer not only with a bachelor's degree or a foreign equivalent degree in a relevant field of study, but 
also with a combination of education, training, and experience that amounts to the equivalent of such 
a degree. 
4 
.
Matter ofC-A- , Inc. 
According to the Petitioner, the Kellogg language in box H.14 of the labor certification accurately 
reflected its efforts to attract qualified U.S. workers during its recruitment for the position. As 
evidence thereof, the Petitioner submits a copy of the job order posted with the 
in early 2015. The job order stated that applicants should have a 
bachelor's degree and two years of experience. Under the heading "Special Requirements" the job 
order stated that: 
Applicant must possess bachelor's degree or equivalent in Engineering, Computer 
Science, or a related field; and two years' experience in the job offered or as a 
software designer, developer, tester, or analyst. Employer will accept any suitable 
combination of education, training, or experience. 
The Petitioner asserts that this recruitment language, consistent with the Kellogg language in box 
H.14 of the labor certification , was designed to draw the broadest pool of qualified applicants. 
However, neither in box H.14 of the labor certification nor in the job posting with the 
did the Petitioner clearly state that "any suitable combination of education, training, or 
experience" must b e e quivalent to a bachelor 's degree to meet the minimum educational 
requirement stated in box H.4 the labor certification. Furthermore, box H.8 is the proper location on 
the labor certification to identify any acceptable alternate combinations of education and experience. 
The labor certification in this case does not permit an alternate combination of education and 
experience at box H.8. In addition, the Petitioner explicitly states at H.14 that it inserted the "any 
suitable combination of education, training, or experience" language in order to comply with the 
regulatory requirements 20 C.P.R. § 656.17(h)(4)(ii) . 
According to the Petitioner, articulating alternative combinations of education and experience would 
have been confusing, limiting, and discouraging to potential applicants. On the other hand, 
accepting "any suitable combination of education, training, and experience" ensured the widest 
possible applicant field. We are not persuaded that articulating any permissible combinations of 
education and experience in the proper location on the labor certification would be confusing, 
limiting, or discouraging to potential applicants. 
The job posting with the is the only documentation the Petitioner has submitted 
from its recruitment process. While the labor certification indicates that additional \ job 
advertisements were published in a newspaper, on a job search website, in a trade or professional 
journal, and at a campus placement office, no copies of these advertisements have been submitted. 
Therefore, we cannot determine how the Petitioner described the educational requirement of the job 
offered in any of its other job advertisements. The Petitioner has not submitted a copy of its labor 
certification recruitment report. Nor has it submitted copies of the resumes it received in response to 
the job advertisements and its correspondence with those applicants. Thus, we cannot determine 
what educational credentials the applicants had, and the reasons that the Petitioner rejected their 
applications, 
Matter ofC-A-, Inc. 
As such, the Petitioner has not established that the terms of the labor certification are ambiguous and 
that it intended the labor certification to require less than a four-year U.S. bachelor's or foreign 
equivalent degree, as that intent was expressed during the labor certification process to DOL and to 
U.S. workers. 
Therefore, we agree with the Director's determination that the Kellogg language in box H.14 does 
not change the clearly stated requirements in boxes H.4 to H.13 of the labor certification. We find 
that the labor certification requires a four-year U.S. bachelor's degree (or a foreign equivalent 
degree) in engineering, computer science, or a related field. The Beneficiary does not possess such a 
degree. Therefore, the Petitioner has not established that the Beneficiary met the minimum 
educational requirements for the offered position. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary meets the minimum educational requirement 
of the labor certification. Therefore, we find that the Beneficiary does not qualify for employment­
based classification as a skilled worker. 
ORDER: The appeal is dismissed. 
Cite as Matter of C-A -, Inc., ID# 294031 (AAO May 31, 20 17)