dismissed EB-3 Case: Information Technology

MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 27,2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an IT consulting company, seeks to permanently employ the Beneficiary in the United 
States as a programmer analyst under the immigrant classification of professional. See Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment­
based immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate 
degree for lawful permanent resident status. 
The Director, Nebraska Service Center, denied the petition. The Director found that the job opportunity 
requirements on the labor certification are less than a bachelor's degree and do not match the visa 
classification sought in the petition. 
The matter is now before us on appeal. The Petitioner submits a brief and supporting documents, 
asserts that the Beneficiary meets the requirements of the labor certification, and requests that the 
petition be approved for classification of the Beneficiary as a professional. Upon de novo review, we 
will dismiss the appeal. 
I. CASE HISTORY 
The petition, Form 1-140, was filed on November 24, 2015. In Part 2.1.e. the Petitioner specified that 
the petition was being filed for "[a] professional (at a minimum, possessing a bachelor's degree or a 
foreign degree equivalent to a U.S. bachelor's degree)." Section 203(b)(3)(A)(ii) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(ii), provides that preference classification may 
be granted to "[q]ualified immigrants who hold baccalaureate degrees." 
As required by statute, the petition was accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification, which was filed with the U.S. Department of Labor (DOL) on 
July 28, 2014, and certified by the DOL (labor certification) on October 14, 2015. In Part H of the 
labor certification the employer specified the minimum educational and experience requirements for 
the job of programmer analyst. With respect to education, the labor certification requires a 
bachelor's degree in computer science, engineering, CIS (computer information systems), or science, 
or a foreign educational equivalent (boxes H.4, H.4-B, H.7, H.7-A, and H.9 of the ETA Form 9089). 
With respect to experience, the labor certification requires 12 months in an occupation such as 
computer programmer, assistant systems engineer, or any IT related occupation (boxes H.6, H.1 0, 
(b)(6)
Matter of N-, Inc. 
and H. lO-B of the ETA Form 9089). In box H.l4 of the labor certification ("Specific skills or other 
requirements") the educational requirements for the job are modified with the following language: 
As an alternative a three year Bachelors Degree with relevant education, training or 
experience equating it to a 
4 years bachelor degree is acceptable. 
On December 7, 2015, the Director denied the petition on the ground that the minimum educational 
requirements on the labor certification do not match the educational requirement for the 
employment-based immigrant classification of professional. Citing the Petitioner's statement in box 
H.14 of the ETA Form 9089 that it will accept a three-year bachelor's degree with relevant 
education, training or experience 
equating to a four-year bachelor's degree, the Director concluded 
that the job opportunity requires a three-year bachelor's degree and experience, which are not the 
same as the minimum requirement of a bachelor's degree under section 203(b )(3 )(A)(ii) of the Act. 
The Director noted that, in contrast to nonimmigrant petitions, experience may not be substituted for 
education to meet the minimum educational requirements in immigrant petitions. 
On appeal the Petitioner points out that the Beneficiary has a four-year bachelor of technology 
degree in computer science and engineering from in 
India, and more than a year of relevant experience, which qualifies her 
for the job offered under the terms of the labor certification. The Petitioner states that the entry in 
box H.14 of the labor certification - which allows the minimum educational requirement to be 
fulfilled with the equivalent of a four-year bachelor's degree consisting of a three-year bachelor's 
degree plus relevant training or experience- was intended to make the job available to a wider field 
of individuals. According to the Petitioner, its answer of "yes" in box H.9 ("Is a foreign educational 
equivalent acceptable?") manifests its intent to accept a combination of education and experience 
deemed equivalent to a U.S. bachelor's degree, and is consistent with the requirement of a four-year 
U.S. bachelor's degree. · 
II. LAW AND ANALYSIS 
The issue on appeal is not whether the Beneficiary meets the minimum educational and experience 
requirements of the labor certification or qualifies as a professional. The issue on appeal is whether 
a bachelor's degree is the minimum educational requirement for the job offered under the terms of 
the labor certification, ·because that is the degree required to be eligible for classification as a 
professional under section 203(b)(2)(A)(ii) of the Act. The regulation at 8 C.F.R. § 204.5(1)(3)(i) 
provides that "[t]he job offer portion of an individual labor certification ... must demonstrate that 
the job requires the minimum of a baccalaureate degree." Furthermore, the regulation at 8 C.F.R. § 
204.5(1)(3)(ii)(C) states that "[i]f the petition is for a professional, the petition must be accompanied 
by evidence that the alien holds a United States baccalaureate degree or a foreign equivalent 
degree." (Emphasis added.) Thus, the regulations make clear that classification as a professional 
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(b)(6)
Matter of N-, Inc. 
under section 203(b)(2)(A)(ii) of the Act requires either a U.S. baccalaureate degree or a foreign 
equivalent degree. 1 
In determining whether a beneficiary is eligible for a preference immigrant visa, U.S. Citizenship 
and Immigration Services (USCIS) may not ignore a term of the labor certification, nor may it 
impose additional requirements. See Madany v. Smith , 696 F.2d 1008, 1015 (D.C. Cir. 1983). 
USCIS must examine "the language of the labor certification job requirements" in order to determine 
what the job requires. /d. The only rational manner by which USCIS can be expected to interpret 
the meaning of terms used to describe the requirements of a job in a labor certification is to examine 
the certified job offer exactly as it is completed by the prospective employer. See Rosedale Linden 
Park Company v. Smith , 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). Our interpretation 
of the job's requirements, as stated on the labor certification, must involve reading and applying the 
plain language of the alien employment certification application form. !d. at 834. 
In this case, the labor certification plainly states that a candidate may qualify for the job of 
programmer analyst with less than a four-year bachelor's degree, which is the standard duration of a 
bachelor's degree in the United States. See Matter of Shah, 17 I&N Dec. 244 (Reg'l Comm'r 1977). 
Box H.14 of the labor certification sets forth alternative educational requirements whereby an 
applicant may qualify for the job with a three-year bachelor's degree in a relevant field plus relevant 
training or experience, if these qualifications are deemed to be the equivalent of a four-year 
bachelor's degree. While a combination of education and experience may be considered equivalent 
to a bachelor's degree for some purposes, it is not the same as a "United States baccalaureate degree 
or a foreign equivalent degree" standing alone, as the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) 
prescribes . Thus, the "plain language" of the labor certification makes clear that the minimum 
educational requirement for the proffered position is less than a U.S. bachelor's degree or a foreign 
equivalent degree. 
As previously indicated, classification as a professional under section 203(b )(3)(A)(ii) of the Act is 
limited to "[ q]ualified immigrants who hold baccalaureate degrees." The labor certification in this case 
does not support the preference classification sought in the 1-140 petition since it al~ows an applicant to 
qualify for the job with less than a baccalaureate degree. Accordingly, the petition cannot be approved. 
We independently note that the service certificate submitted as evidence that the Beneficiary was 
employed as an assistant systems engineer by in India , 
from May 31, 2007, to September 30, 2009, does not meet the substantive requirements of the 
regulation at 8 C.F.R. § 204.5(g)((l ), which provides as follows: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) 
from current or former employer(s) or trainer(s) and shall include the name, address, and 
title of the writer, and a specific description of the duties performed by the alien or of the 
training received. 
1 The petition, Form I-140 , states the same in Part 2.1.e. 
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(b)(6)
Matter of N-, Inc. 
While the service certificate from bears the signature of its general manager and states the 
Beneficiary's job title and dates of service, it does not provide a specific description of the job duties he 
performed. Lacking this substantive information, the certificate does not represent persuasive evidence 
that the Beneficiary gained any experience as an assistant systems engineer at 
For the Beneficiary to be eligible for the visa classification requested, the Petitioner must establish that 
the Beneficiary possessed all the education, training, and experience specified on the labor certification 
as ofthe priority date (in this case, July 28, 2014). See Matter qfWing's Tea House, 16 I&N Dec. 158, 
159 (Acting Reg'l Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). As 
previously indicated, the ETA Form 9089 requires 12 months of experience as a computer programmer, 
assistant systems engineer, or any IT related occupation (boxes H.6, H.10, and H.10-B), and indicates in 
box 1.21 that the Beneficiary did not gain any qualifYing experience with the Petitioner in a 
substantially comparable position to the job offered. The only qualifYing experience listed on the labor 
certification, therefore, was the job with (ETA Form 9089, box K.b). 
Since the evidence of record does not establish that the Beneficiary gained at least one year of 
experience as an assistant systems engineer with the Beneficiary does not meet the minimum 
experience requirement of the labor certification. For this reason as well, therefore, the petition cannot 
be approved. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibilityfor the immigrant benefit 
sought. See section 291 of the Act 8 U.S. C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 
2013 ). The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-, Inc., ID# 17480 (AAO May 27, 2016) 
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