dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF I- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 8, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a company providing IT business solutions, seeks to employ the Beneficiary as a 
software developer, applications. It requests classification of the Beneficiary as a professional under the 
third preference immigrant classification. 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, finding that the record did not establish 
that the Beneficiary qualified for the requested classification or for the proffered position. He further 
determined that the labor certification, as it indicated the Petitioner would accept a combination of 
education and experience as equivalent to a U.S. baccalaureate, did not support the requested visa 
classification. 
The matter is before us on appeal. The Petitioner asserts that the Beneficiary qualifies for the 
offered position under the alternative requirements stated in the labor certification and that these 
requirements were not considered by the Director in reaching his decision. It further asserts that the 
labor certification's language indicating its willingness to accept a combination of education and 
experience as equivalent to a U.S. bachelor's degree is simply a restatement of the Kellogg language 
required by U.S. Department of Labor (DOL) regulation. 
Upon de novo review,, we will dismiss the appeal. 
I. LAW 
Employment-based immigration is generally a three-step process. First, a U.S. employer obtains an 
approved ETA Form 9089, Application for Permanent Employment Certification (labor 
certification) from DOL. See section 212(a)(5)(A)(i) ofthe Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, a 
U.S. 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. Finally, if the immigrant visa petition is 
approved, 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. 
Matter of 1- Inc. 
By approving the labor certification, DOL certified that there are insufficient U.S. workers who are 
able, willing, qualified, and available for the offered position. Section 212(a)(5)(A)(i)(l) of the 
Act. The DOL also certified that the employment of a foreign national in the position will not adversely 
affect the wages and working conditions of domestic workers similarly employed. Section 
212(a)(5)(A)(i)(II) ofthe Act. 
In visa petition proceedings, USCIS determines whether a foreign national meets the job requirements 
specified in the underlying labor certification and the requirements of the requested immigrant 
classification~ See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcrafi Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has the 
authority to make preference classification decisions). 
In order to establish eligibility, a petitioner must also demonstrate the elements for the approval of 
the petition at the time the priority date is established and continuing until the beneficiary obtains 
lawful permanent residence. See 8 C.F.R. §§ 204.5(g)(2), 1 03.2(b )(1), (12); see also Matter of 
Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm 'r 1977); Matter ol Katigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). The priority date of a petition is the date that DOL 
accepts the labor certification for processing. See 8 C.F.R. § 204.5(d). 
II. ANALYSIS 
The issues before us in this matter are whether the labor certification supports the requested visa 
classification, whether the record establishes that the Beneficiary is eligible for classilication as a 
professional under section 203(b )(3)(A)(ii) of the Act, and whether the Beneficiary meets the 
requirements ofthe labor certification. 
A. Labor Certification Does Not Support the Requested Visa Classification 
The first issue is whether the proffered position, as it is described on the labor cetiification, supports 
classification as a professional. Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), de(ines the 
term "profession" as including, but not limited to, "architects, engineers, lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies or seminaries." If 
the offered position is not statutorily defined as a profession, "the petitioner must submit evidence 
showing that the minimum of a baccalaureate degree is required tor entry into the occupation." 
8 C.F.R. § 204.5(1)(3)(ii)(C). 
Here, the offered position of software developer, applications, is not statutorily defined as a 
profession. Therefore, to be classified as a professional position, the job offer portion of the labor 
certification "must demonstrate that the job requires the minimum of a baccalaureate degree." 
8 C.F.R. § 204.5(1)(3)(i). 
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Matter of 1- Inc. 
In this case, Part H of the labor certification submitted states that the offered position has the 
following minimum requirements: 
H.4. Education: Bachelor's degree in Computer Science. 
H.5. Training: None required. 
H.6. Experience in the job offered: Yes. 12 months. 
H. 7. Alternate field of study: Yes. Software developer, applications, physics, or IT related. 
H.8. Alternate combination of education and experience: None accepted. 
H.9. Foreign educational equivalent: Not Accepted. 
H.1 0. Experience in an alternate occupation: Yes. Software developer, programmer, or IT related. 
H.14. Specific skills or other requirements: "Working knowledge ofMS SQL Server, ASP.NET, 
NET, VB, C#, C/C++, Orbus Systems iServer, Sparx Systems Enterprise Architect using UML 
Standards; Cascading Style Sheets. Will accept a combination of education and experience that is 
equivalent to completion of a U.S. Bachelor degree plus 12 months IT experience. May be required 
to travel to unanticipated U.S. jobsites." 
In the present case, the Director found the Petitioner's language in Part H.14. of the labor 
certification, "[w]ill accept a combination of education and experience that is equivalent to 
completion of a U.S. Bachelor degree" to indicate that the minimum educational requirement for the 
offered position was less than a bachelor's degree, and, therefore, that the offered position did not 
qualify as a profession. Accordingly, he found that the labor certification did not support the 
requested visa classification, and denied the visa petition on this basis. 
On appeal, the Petitioner asserts that the above language is Kellogg language, placed in Part H.14. of 
the labor certification in compliance with DOL's Permanent Labor Certification Program (PERM) 
regulations, which "expressly require that the employer state on its application its willingness to 
accept applicants who possess any suitable combination of education, training or experience." The 
Petitioner contends that its language, while not identical to that routinely used by employers, meets 
the requirements at 20 C.F.R. § 656.17(h)( 4 )(ii) and allows the Beneficiary to satisfy the labor 
certification's requirement for a baccalaureate degree with a degree equivalency based on education 
and experience. However, for the reasons that follow, the Petitioner's assertions are not persuasive. 
/ 
The Board of Alien Labor Certification Appeals (BALCA) ruled in Matter of Francis Kellogg, 
1994-INA-465 and ?44, 1995-INA 68 (Feb. 2, 1998) (en bane), that "where the alien does not meet 
the primary job requirements, but only potentially qualifies for the job because the employer has 
chosen to list alternative requirements, the employer's alternative requirements are unlawfully 
tailored to the alien's qualifications ... unless the employer has indicated that applicants with any 
suitable combination of education, training or experience are acceptable." The statement that an 
employer will accept applicants with "any suitable combination of education, training or experience" 
is commonly referred to as Kellogg language. 
We 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 
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Matter of I- Inc. 
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). Our interpretation of the job's 
requirements must involve reading and applying the plain language of the alien employment 
certification application form. ld. at 834. 
Contrary to the assertions on appeal, the Petitioner's acceptance of "a combination of education and 
experience that is equivalent to a U.S. bachelor's degree" to satisfy the labor certification's 
requirement for a U.S. baccalaureate degree is not a restatement of Kellogg language. Here, the 
phrase "[ w ]ill accept a combination of education and experience that is equivalent to completion of a 
U.S. Bachelor degree" goes beyond the standard Kellogg language and indicates the Petitioner's 
willingness to allow its requirement for a bachelor's degree in Part H.4. of the labor certification to 
be satisfied by a combination of education and experience, i.e., a degree equivalency. Moreover, on 
appeal, the Petitioner explicitly identifies the language in H.14 as creating an alternate requirement, 
which would allow the Beneficiary to qualify for the position with a combination of education and 
experience, rather than a bachelor's degree. 
Accordingly, as ,the labor certification in this matter does not, at a 1mmmum, require a U.S. 
bachelor's or foreign equivalent degree, it does not support the visa classification requested by the 
visa petition. Therefore, the petition cannot be approved and we will dismiss the appeal on this 
basis. 
B. Beneficiary Does Not Qualify as a Professional 
The second issue on appeal is whether the Beneficiary qualifies for professional classitl.cation. In 
order for the Beneficiary to be classified as a professional, the Petitioner must submit evidence that 
the Beneficiary has at least a U.S. baccalaureate or foreign equivalent degree. The regulation at 
8 C.F.R. § 204.5(1)(3)(ii)(C) states: 
If 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 
and by evidence that the alien is a member of the professions. Evidence of a 
baccalaureate 'degree shall be in the form of an official college or university record 
showing the date the baccalaureate degree was awarded and the area of concentration 
of study. 
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the former 
U.S. Immigration and Naturalization Service (now USCIS), responded to criticism that the 
regulation required an alien to have a bachelor's degree as a minimum and that the regulation did not 
allow for the substitution of experience for education. After reviewing section 121 of the 
Immigration Act of 1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of the 
Committee of Conference, the Service specifically noted that both the Act and the legislative history 
indicated that an alien must have at least a bachelor's degree: "[B]oth the Act and its legislative 
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(b)(6)
Matter of I- Inc. 
history mak~ clear that, in order to qualify as a professional under the third classification ... an alien 
must have at least a bachelor's degree." 56 Fed. Reg. 60897,60900 (November 29, 1991). 
Furthermore, in Sriapnames.com, Inc. v. Michael Chertof(, 2006 WL 3491005 (D. Or. Nov. 30, 
2006), the federal district court determined that the requirement of a bachelor's or foreign equivalent 
degree related solely to the beneficiary's educational background , precluding consideration of the 
alien's combined education and work experience. !d. at * 11-13. Additionally, the court found that 
in professional and advanced degree professional cases, where a foreign national is statutorily 
required to hold a bachelor's degree, a single foreign degree or its equivalent is required. !d. at * 17, 
19. 
In the present case, the record reflects that the Beneficiary holds a 3-year degree in physics from 
(India). To establish the Beneficiary's qualifications for the offered position, the Petitioner 
submitted two credentials evaluations. An evaluation prepared by , Ph.D., 
finds the Beneficiary's education to be equivalent 
to a 3-year program of post-secondary academic studies. The evaluation further states that when the 
Beneficiary ' s education is considered with more than 4 years of professional experience in the field of 
computer science, it is equivalent to a U.S. bachelor's degree in science and computer science. An 
evaluation, from does not evaluate the Beneficiary's education 
alone, but instead relies on the education and 5 years of work experience and professional training in 
computer information systems to provide him with the equivalent of "at least a" U.S. bachelor of 
science in computer information systems. Neither evaluation asserts that the Beneficiary has a U.S. 
bachelor's degree or foreign equivalent degree. Rather, the evaluations both depend on a combination 
of education and experience to establish an equivalency to aU .S. bachelor's degree. However, a degree 
equivalency is not the single U.S. baccalaureate or foreign equivalent degree required for classification 
as a professional under section 203(b )(3)(A)(ii) of the Act. 
Therefore, the record does not establish that the Beneficiary has a U.S. bachelor's degree or foreign 
equivalent degree in computer science, software development, applications, physics, or an IT related 
field (Parts H.4, H.4-B., H.7-A. of the labor certification). Accordingly, the record does not establish 
that the Beneficiary is eligible for classification as a professional under section 203(b )(3)(A)(ii) of the 
Act and we will also dismiss the appeal on this basis. 
Additionally, we note, that even if the Beneficiary held a 4-year baccalaureate degree in computer 
science from an Indian university, it would not satisfy the requirements of the labor certification, which, 
at Part H.9., indicate that the Petitioner will not accept a foreign educational equivalent.
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Although the Petitioner in response to the NOlO indicated that its response in Part H.9. was incorrect and submitted an 
amended page 3 of the labor certification, there is no mechanism under PERM for correcting or altering infonnation on an 
ETA Fonn 9089 after its submission to DOL. As stated by DOL in Permanent Labor Certification Program, Final 
Regulation, FAQs, August 8, 2005 (http ://www. foreignlaborcert.doleta.gov): 
Once an application has been electronically submitted or mailed , it is consider ed final and no changes 
to the application will be permitted. This applies to typographical errors as well. If the employer 
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Matter of 1- Inc. 
C. Beneficiary Does Not Meet Labor Certification Requirements 
The next issue is whether the Beneficiary has experience with the specific skills required by the 
terms of the labor certification. A petitioner must establish a beneficiary's possession of all the 
education, training, or experience stated on an accompanying labor certification by a petition's 
priority date. 8 C.F.R. § 103.2(b)(l), (12); see also Wing's Tea House, 16 I&N Dec. at 159; 
Katigbak, 14 I&N Dec. at 49. 
Part H.l4. of the labor certification requires the Beneficiary to have a working knowledge of the 
following: MS SQL Server, ASP.NET, NET, VB, C#, C/C++, Orbus Systems iServer, Sparx 
Systems Enterprise Architect using UML Standards; and Cascading Style Sheets. 
In his decision, the Director indicated that he found none of the experience letters, trammg 
certificates or transcripts submitted for the record to ret1ect that the Beneficiary had experience with 
Orbus Systems iServer or Sparx Systems Enterprise Architect using UML Standards. Accordingly, 
he concluded that the Beneficiary did not possess all of the technical skills required by the labor . 
certification and he denied the petition on this basis as well. 
On appeal, the Petitioner claims that the Beneficiary's Microsoft Certified Solutions Expert (MCSE) 
training (October 4, 2005, to January 4, 2006) covered Orbus Systems iServer and Sparx Systems 
Enterprise Architect using UML Standards. The Petitioner provided the syllabus for the MCSE · 
training, but did not identify ~hat courses in the syllabus provided training in these specific skills 
and we find no syllabus listing that specifically identifies such training. While we note that in 
describing his employment with the Petitioner in Part K. of the labor certification, the Beneficiary 
indicates that he has worked with both Orbus Systems iServer and Sparx Systems Enterprise 
Architect using UML Standards, no experience letters in the record support the Beneficiary's claim. 
Therefore, like the Director, we do not find the record to demonstrate that the Beneficiary possesses 
all of the technical skills required by the labor certification. Accordingly, we will dismiss the appeal 
for this reason as well. 
D. Ability to Pay 
Although not a reason for our dismissal of the appeal, our review of the record in this matter has also 
found insufficient evidence of the Petitioner's ability to pay the Beneficiary the proffered wage. The 
Petitioner must resolve this issue in any future filings. 
believes changes and/or corrections are necessary for the accuracy or certifiability of the application, 
the employer should withdraw the application and file a new application with the changes and/or 
corrections .... 
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Matter of I- Inc. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petitiOn filed by or for an 
employment-based immigrant which requires an otTer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
A petitioner must establish that its job offer to a beneficiary is a realistic one. Because the filing of a 
labor certification application establishes a priority date for any immigrant petition later based on the 
labor certification, a petitioner must establish that the job offer was realistic as of the priority date 
and that the offer remains realistic for each year thereafter, until the beneficiary obtains lawful 
permanent residence. A petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See j\1atter of Great Wall, 16 I&N Dec. 142 (Acting Reg'! 
Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USeiS 
requires a petitioner to demonstrate financial resources sufficient to pay a beneficiary's proffered 
wage, although the totality of the circumstances affecting the petitioning business will be considered 
if the evidence warrants such consideration. See Afatter of Sonegawa, 12 I&N Dec. 612 (Reg' 1 
eomm'r 1967). 
In the present case, the priority date of the visa petition is March 9, 2015. Part G .1. of the labor 
certification reflects that the proffered wage in this matter is $42,890 per year. Therefore, the 
Petitioner must demonstrate its ability to pay the Beneficiary the annual wage of $42,890 from 
March 9, 2015, onward. 
To determine a petitioner's ability to pay the proffered wage, USeiS first examines whether a 
petitioner \Vas employing the beneficiary as of the date on which the labor certification was accepted 
for processing by DOL and whether it continues to do so. If a petitioner documents that it has 
employed the beneficiary at a salary equal to or greater than the proffered wage, that evidence may 
be considered proof of its ability to pay. If a petitioner does not demonstrate that it employed and 
paid the beneficiary at an amount at least equal to the proffered \vage during the required period, 
users then examines the net income figure reflected on the petitioner's federal income tax returns, 
without consideration of depreciation or other expenses. River Street Donuts. LLC v. Napolitano, 
558 F.3d 111 (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), 
aff'd, No. 10-1517 (6th Cir. Filed Nov. 10, 2011). If a petitioner's net income during the required 
time period does not equal or exceed the proffered wage, or when added to any wages paid to the 
beneficiary does not equal or exceed the proffered wage, users reviews its net current assets. 
In cases where neither a petitioner's net income nor its net current assets establish its ability to pay 
the proffered wage during the required period, USeiS may also consider the overall magnitude of its 
business activities. Sonegawa, 12 l&N Dec. at 612. In assessing the totality of a petitioner's 
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(b)(6)
Matter of I- Inc. 
circumstances, USCIS may look at such factors as the number of years it has been in business, its 
record of growth, the number of individuals it employs, abnormal business expenditures or losses, its 
reputation within its industry, whether the beneficiary is replacing a former employee or an 
outsourced service, or any other evidence it deems relevant. 
Where a petitioner has filed Forms 1-140, Immigrant Petition for Alien Worker, for multiple 
beneficiaries, it must also demonstrate that its job offer to each beneficiary is realistic, and that it has 
the ability to pay the proffered wage to each . 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). In determining whether a petitioner has 
established its ability to pay the proffered wage to multiple beneficiaries, USCIS adds together the 
proffered wages for each beneficiary for each year starting from the priority date of the petition 
being adjudicated, and analyzes the petitioner's ability to pay the combined wages. However, the . 
wages offered to the other beneficiaries are not considered after the dates any beneficiary obtained 
lawful permanent residence, or after the date a Form I-140 petition was withdrawn, revoked, or 
denied without a pending appeal. In addition , USCIS will not require a petitioner to establish the 
ability to pay additional beneficiaries for any year that the beneficiary of the petition under 
consideration was paid the full proffered wage. 
The record in the present matter does not demonstrate that the Petitioner paid the Beneficiary the 
proffered wage of $42,890 in 2015, the time period considered by the Director. The Beneficiary's 
Form W-2, Wage and Tax Statement, for 2015 reflects wages of $40,300, or $2590 less than the 
proffered wage. However, due to the timeframe in which the petition was filed, the record does not 
contain a regulatory prescribed document (tax return, annual report, or audited financial statement) 
for the year in question. Therefore, in any future filing the Petitioner must submit such evidence in 
order to establish its ability to pay the Beneficiary the proffered wage from the priority date onward. 
Moreover, relevant USCIS databases reflect that, as of the this petition's priority date, the Petitioner 
had previously filed for at least three beneficiaries whose Form I-140 petitions had been approved 
and ), and that in September and October 
2015, it filed Forms 1-140 for two additional beneficiaries ( and 
== 1. None of these beneficiaries obtained lawful permanent resident status in 2015 and only one 
adjusted status in 2016. Therefore, to demonstrate its ability to pay during the 
relevant period, the Petitioner must establish its ability to cover the proffered wage of the instant 
Beneficiary, as well as the proffered wages of these five additional Form I-140 beneficiaries. 
However, no evidence relating to the proffered or actual wages of these additional beneficiaries is 
found in the record. In future filings, the Petitioner must provide information on the proffered wage 
of all its sponsored beneficiaries as well as information on their status, in order to demonstrate that it 
has the ability to pay the Beneficiary in this case. 
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Matter of I- Inc. 
III. CONCLUSION 
In the present case, the labor certification does not, at a minimum, require a U.S. baccalaureate or 
foreign equivalent degree, and, therefore, does not support the visa petition, which requests 
classification of th~ Beneficiary as a professional under section 203(b)(3)(A)(ii) of the Act. 
Moreover, the Petitioner has also not established that the Beneficiary has the U.S. bachelor's or 
foreign equivalent degree required for classification as a professional. Nor has it demonstrated that 
the Beneficiary has all of the requisite technical skills listed in the job offer portion of the labor 
certification. 
The appeal will be dismissed for the above stated reasons. In visa 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. Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of I- Inc., ID# 80873 (AAO Feb. 8, 2017) 
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