dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 16249641 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 2, 2021 
The Petitioner, an IT consulting business, seeks to employ the Beneficiary a programmer analyst. It 
requests skilled worker classification for the Beneficiary 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 employment-based "EB-3" 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 Texas Service Center denied the petition on the ground that the Petitioner did not 
establish its intent to employ the Beneficiary in the job offered, and therefore did not establish that the 
proffered position was, or is, a bona fide offer of employment. 
On appeal, the Petitioner asserts that the evidence of record establishes its intent to employment the 
Beneficiary in the job offered, and thus the bona fides of the employment offer. 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the requested benefit. 
See section 291 of the Act, 8 U.S.C § 1361. Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 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 foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(l)-(11) of the 
Act. Second, the employer files an immigrant visa petition (Form 1-140) 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 of the Act, 8 U.S.C. § 1255. 
II. ANALYSIS 
A. Procedural History 
The instant petition was filed with USCIS on November 29, 2019, accompanied by a labor certification 
that was filed with the DOL on June 27, 2019, and approved on September 6, 2019. The labor 
certification states that the proffered position is a programmer analyst and describes the job duties as 
follows: 
Convert project specifications and statements of problems and procedures to detailed 
logical flowcharts for coding into computer language. Develop and write computer 
programs to store, locate, and retrieve specific documents, data, and information. 
Research, analyze, and determine information needs and dataflow requirements. 
The job title and duties were described in identical language in a letter from the Petitioner's president 
submitted with the petition. 
The Director issued a request for evidence (RFE) addressing the issues of whether the Petitioner made 
a bona fide offer of employment to the Beneficiary for a position as programmer analyst, and whether 
the Petitioner had the ability to pay the proffered wage. Following the Petitioner's response to the 
RFE, the Director issued a notice of intent to deny (NOID) the petition based on the bona fide job 
offer issue alone. After receiving the Petitioner's response to the NOID, the Director denied the 
petition on May 5, 2020, concluding that the Petitioner did not make a bona fide offer of employment 
to the Beneficiary in the proffered position of programmer analyst. 
The matter is now before us on appeal. 
B. The Petitioner's Intent to Employ the Beneficiary 
A petitioner must establish its intent to employ the beneficiary in accordance with the terms and 
conditions of the labor certification. See Matter of Izdebska, 12 I&N Dec. 54 (Reg. Comm'r 1966) 
(upholding the denial of an employment-based immigrant visa where the evidence did not establish 
that the petitioner actually desired and intended to employ the beneficiary pursuant to the terms of the 
labor certification). A labor certification is valid only for the particular job opportunity, beneficiary, 
and area of intended employment identified on the labor certification. See Matter of Sunoco Energy 
Development Co., 17 T&N Dec. 283 (Reg'! Comm'r 1979) and 20 C.F.R. § 656.30(c)(l). 
In this case the labor certification identifies the job opportunity (in section H.3) as programmer analyst 
and the area of intended employment (in sections H. l and H.2) as the Petitioner's home address in 
I !Pennsylvania, and "various unanticipated locations throughout the U.S." The area of intended 
employment is further described in section H.14 of the labor certification as "various unanticipated 
locations throughout the U.S. for long and short term assignments at client sites." Thus, the Petitioner 
in this case must establish that when it filed the labor certification with the DOL it intended to employ 
the Beneficiary, upon approval of its subsequently filed petition with USCIS, as a programmer analyst 
itj I Pennsylvania, or at a client site elsewhere in the United States. 
2 
In his decision the Director discussed the documentation submitted from several companies indicating 
a chain of contracts involving the Petitioner, various third parties, and an end client whereby the 
Beneficiary was placed with a company called! I i~ !Wisconsin, 
to work as a system analyst for it~ lbattery management system, starting in September 2018. 
The job duties of the Beneficiary's system analyst position are quite different from those of the 
programmer analyst position described in the labor certification. 1 As discussed b the Director 
documentation in the record indicates thatO sold its battery divi;::.;.si:;.:;o;,:;;n:;_;t:..:::o_.__ _____ -,-____ _. 
in 2019, which intended to operate it under the new name of.__ ____ ____,, __ ----,,, though the 
evidence did not fully document the change of ownership. Most importantly, however, the Director 
stated that there was no evidence the end client i~ I needed the services of a programmer 
analyst, and that the preponderance of the evidence suggested the Beneficiary will continue to work 
for that end client as a system analyst. The Director pointed out that the various agreements and work 
orders submitted by the Petitioner did not include any involving the services of a programmer analyst 
to an end client. The Director concluded that the Petitioner failed to establish that it had real work for 
the Beneficiary to perform as a programmer analyst. Thus, the proffered position as identified and 
described in the labor certification was not a bona fide offer of employment. 
On appeal the Petitioner points out that the I-140 petition is a promise of future employment as a 
programmer analyst, and asserts that it intends to employ the Beneficiary in that capacity once the 
petition is approved. The Petitioner contends that the Director wrongly focused on the Beneficiary's 
current employment as a system analyst with the end clientJ ), and drew an unwarranted 
conclusion that the Beneficiary would not be employed as a programmer analyst in the future. 
According to the Petitioner, it submitted evidence of its contracts for programmer analyst positions at 
the time the labor certification was filed, and in response to the NOID submitted evidence of two 
specific contracts for a ro rammer anal st - one with for a 
project at dated March 30 2016 and the other 
with.__ ____________ ~ for a project with.__ ___________ ......, date 
unspecified. 
1 As set forth in the labor ce1iification and confirmed in company letters, the job duties of the system analyst position were 
described as follows: 
Design and code embedded software modules following SW design and construction processes. Design 
and create Matlab and Targetlink models, and generate autocode. Perform and participate in software 
design and code reviews. Perform and support the integration of software modules including application 
and low-level software. Test software functions, components and features/applications. Release 
complete work products. Manage work through use of Configuration Management and Issue Tracking 
tools. Support systems team in algorithm definitions. Support customer events including vehicle 
integration and tests. Participate in software team establishing software architecture. Participate in 
software team establishing standard/common software modules and integration process. Support 
creation and review of Software Requirement Specifications. Execute the Software Development 
Process. Direct and lead junior-level engineers. Participate in meetings and reviews, as directed. 
Communicate with extended software team in otherO locations. 
3 
We agree with the Petitioner insofar as the Beneficiary's work as a system analyst with an end client 
i~ I since 2018 does not, ipso facto, warrant a conclusion that the Beneficiary will continue 
to work for the end client in the same position indefinitely, or that the Petitioner has no intent to employ 
the Beneficiary in the proffered position of programmer analyst. However, we also agree with the 
Director that the Petitioner must submit credible evidence of its professed intent to employ the 
Beneficiary as a programmer analyst if and when the instant petition is approved. The record is 
deficient in this regard. 
No documentation has been submitted in support of the Petitioner's claim that evidence of its alleged 
contracts for programmer analyst positions was submitted at the time the labor certification was filed 
(in June 2019). In response to the NOID on April 22, 2020, the Petitioner submitted a chart listing 
21 current projects to provide IT consultants to end clients along with the names of the employees 
currently working on them (including the Beneficiary with I I' inl I). Only two 
of the 2. l projects, however, identif} the job title of the IT con. sultant as a programmer analyst ~ 
namely, for the end cliend.___ __ _. inl._ __ _.l North Carolina, andl I in I I Illinois. 
Moreover, the documentation submitted by the Petitioner does not support the claim that a frogrammer 
analyst is actually provided to either of those companies. With respect to the I project, the 
record includes a "Prime Provider Agreement" between the Petitioner anJ I l<iated March 30, 
2016, whereby the Petitioner agreed to provide a "consultant" throug I to its end client. 
However, neither the agreement itself nor any assow1ments identify the "consultant" provided 
tol las a programmer analyst. As for the project, there is no evidence in the record 
of the alleged contract between the Petitioner an to furnish a programmer analyst ( or any other 
type of consultant) tol I Thus, Petitioner has not submitted documentary evidence of any 
contract to furnish a programmer analyst to any end client. 
Given the lack of evidence that any of the Petitioner's contracts to furnish IT consultants in recent 
years has involved a programmer analyst, we agree with the Director that the Petitioner has not met 
its burden of proof that it actually intends to employ the Beneficiary as a programmer analyst. It is 
especially noteworthy that in the only two c·~itioner claims to be~· ·ng programmer 
analysts to end clients ~I I through and I I throu h ~ the evidence 
either does not support the Petitioner's claim or is non-existent . Therefore, 
the Petitioner has not established by a preponderance of the evidence that it intends to employ the 
Beneficiary as a programmer analyst, in accordance with the terms of the labor certification. 
III. CONCLUSION 
The Petitioner has not established its intent to employ the Beneficiary as a programmer analyst. 
Accordingly, it has not established that the proffered position in the labor certification is, or was, a 
bona fide offer of employment. 
ORDER: The appeal is dismissed. 
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