dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 12331989 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 19, 2021 
The Petitioner seeks to employ the Beneficiary as a vice president. It requests classification of the 
Beneficiary under the third-preference, immigrant category as a skilled worker. 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" category allows a U.S. business to sponsor a foreign national for lawful permanent 
resident status based on a job offer requiring at least two years of training or experience . 
The Director of the Texas Service Center denied the petition , concluding that the Petitioner did not 
establish that the Beneficiary met the minimum requirements of the labor certification and is qualified 
for the offered position. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker , a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing , qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S . workers with similar jobs. Id. 
If DOL approves a position , an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things , USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification . If USCIS approves 
the petition , a foreign national may finally 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 
The Petitioner requests classification of the Beneficiary as a skilled worker. The regulation at 8 C.F.R. 
§ 204.5(1)(3)(ii)(B) states that to qualify for skilled worker classification: 
. . . the petition must be accompanied by evidence that the [beneficiary] meets the 
educational, training or experience, and any other requirements of the individual labor 
certification . . . The minimum requirements for this classification are at least two years 
of training or experience. 
To be eligible for skilled worker classification, therefore, the Beneficiary must meet all specific 
requirements of the labor certification and have at least two years ofrelevant experience (or training). 
All requirements must be met by the petition's priority date, which in this case is November 9, 
2017. See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
In this case, section Hof the labor certification (Job Opportunity Information) specifies the following 
with respect to the requirements for the job of vice president: 
H.4 Education: minimum level 
H.4-B Major field of study 
H.5 Training required? 
H.6 Experience in the job offered required? 
H. 7 Alternate field of study acceptable? 
H.7-A Specify the major field of study: 
H.8 Alternate combination of education and 
experience acceptable? 
H.9 Foreign educational equivalent acceptable? 
H.10 Experience in an alternate occupation 
acceptable? 
H.10-A Number of months experience required 
H.10-B Job title of alternate occupation 
H.14 *H4 or Equivalent 
Bachelor's 
Computer Science, 
Infonnation 
Systems or related 
No 
No 
Yes 
related 
No 
Yes 
Yes 
120 
* 
* 10-B - experience delivering technology solutions; 5 year experience as a 
technical manager; 3 year principles and processes. Must be well-versed in 
all aspects of Information and Data Management. 
* Any suitable combination of relevant work experience & education may 
be substituted. 
Section J of the labor certification states that the Beneficiary's highest level of education relevant to 
the job offered is "other," specified as a "diploma and experience evaluated as [bachelor's degree] in 
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comp info systems, Microsoft Certified Systems Engineering," earned in 1999 at thel.__ ____ _. 
of Business and Technology , in Canada. As evidence of this credential the Petitioner submitted copies 
of a certificate of completion of a Microsoft Certified Systems Engineer Diploma Programme, issued 
byl bf Business and Technology on May 13, 1999; and an official transcript of marks 
listing a period of study of January 19, 1998 to January 15, 1999, and showing successful completion 
of the Microsoft Certified Systems Engineer Programme Diploma. 
Section J of the labor certification also lists the following employment experience for the Beneficiary: 
• With the Petitioner, in the offered position, from February 2, 2017; 
• 31 months withl I as Director of Enterprise Information, from July 2, 
2014 to February 1. 2017· 
• Four months withl las BI Solutions Architect, from March 1, 2014 to 
July 1, 2014; 
• 45 months withl , , I as IT Manager - Business Intelligence, 
from June 1, 2010 to February 28, 2014; 
• 24 months wit~ I as Senior Database Administrator, from 
June 1,2008toJune 1~,_2_0_10_. __________________ _ 
• 62 months with the.__--.-______ ......, _____________ ___. 
(Canadian Government), as Senior Systems Analyst, from April 1, 2003 to May 31, 
2008; and 
• 33 months wit ._ ________________ __. as Senior Network 
Engineer, from November 1, 1999 to July 31, 2002. 
The Director issued a request for evidence (RFE), and later a notice of intent to deny (NOID) the 
petition, informing the Petitioner that it did not establish that the Beneficiary met the minimum 
requirements of the labor certification. The Director noted that "the labor certification requires a 
bachelor's degree plus 120 [months] of experience" and the submitted evidence was insufficient 
because a U.S. baccalaureate degree is generally found to require four years of education. See Matter 
of Shah, 17 I&N Dec. 244,245 (Reg'l Comm'r 1977). 
After reviewing the Petitioner's response to the NOID, the Director denied the petition, concluding 
that the Beneficiary did not meet the minimum requirements for the offered position as stated on the 
labor certification. 
On appeal, the Petitioner asserts that the Director misinterpreted the terms of the labor certification, 
and that the Director disregarded the evaluations of the Beneficiary's credentials which found his 
diploma and work experience to be equivalent to a U.S. bachelor's degree . 
A. The Minimum Requirements of the Labor Certification 
In order to determine what a job opportunity requires, we must examine "the language of the labor 
certification job requirements." Madany v. Smith, 696 F.2d at 1015. USCIS must 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 
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must involve reading and applying the plain language of the labor certification application form. Id. 
at 834. 
Here, the labor certification states that the offered position requires a U.S. bachelor's, or foreign 
equivalent, degree, and 120 months of experience delivering technology solutions, including five years 
as a technical manager, and three years principles and processes. No alternate combination of 
education and experience is accepted. 
On appeal, the Petitioner's counsel asserts that the minimum education requirement is further defined 
in section H.14 where it stated "H4 or equivalent," and that, in accepting a foreign educational 
equivalent in H.9, "the only natural reading of the degree requirement question is 'Bachelor's or 
Equivalent' where 'Equivalent' refers to anything other than a foreign degree, such as training and 
experience." 
However, in this case, the accompanying labor certification states that no alternate combination of 
education and experience is acceptable to qualify for the offered position. If H.4 and H.8 are read 
together, both parts require a bachelor's degree, or foreign equivalent degree, based on education 
alone. The Petitioner could have indicated on the labor certification in section H.8 that a combination 
of education and experience was acceptable, but it did not. The Petitioner does not address its response 
to H.8 or explain how the labor certification can be read excluding the response to H.8. Nor does the 
Petitioner define in H.14 what constitutes an "equivalent" to a bachelor's degree. The record does not 
include recruiting materials to support counsel's claimed intention to accept foreign degrees based on 
training or experience, or to demonstrate that the minimum requirements were accurately described to 
potentially qualified U.S. workers. Unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 T&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of Ramirez-Sanchez, 17 
I&N Dec. 503, 506 (BIA 1980)). The Petitioner has not demonstrated by a preponderance of the 
evidence its claimed intent to accept less than a U.S. bachelor's or foreign equivalent degree to meet 
the minimum educational requirement for the proffered position. 
Thus, based on the plain language of the labor certification, the offered position requires a bachelor's 
or foreign equivalent degree based on academic study, and 120 months of experience. See, 
e.g., Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 947 (S.D. Cal. 2015) (holding that we 
reasonably interpret a job's requirements based on the plain language of a labor certification) 
( citations omitted). 
B. The Beneficiary's Qualifications 
The Petitioner asserts that the Beneficiary's combination of a one-year diploma and approximately 
250 months of work experience are the equivalent of a U.S. bachelor's degree. The Petitioner 
submitted three academic equivalency evaluations in support of the Beneficiary's qualifications. 
The first evaluation is from The Trustforte Corporation, prepared in 2013. The evaluation asserts that 
the Beneficiary's diploma is equivalent to one year of academic study, and that this diploma, combined 
with approximately 17 years (between 1995 and 2013) of progressively responsible work experience 
and training in computer information systems and related areas, is equivalent to a four-year bachelor 
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of science degree in computer information systems from an accredited U.S. college or university. The 
evaluation relies on the following work experience: 
• WitH.__~ ______ __._I fi.._.r .... o .... ru ......... D .... m .... e ..... 2 .... 0 ..... 0 .... 8 .......... to ..... o ..... r .... e ..... s ... euu.Jt..._· _1 --~ 
• With the I I from April 2003 
to May 2008; 
• Withl~-----------------~I from November 1999 to 
July 2002 · and 
• With.__--.-------..----------'from August 1995 to November 
1999. 
A second evaluation from The Trustforte Corporation was prepared in 2020. This evaluation asserts 
that the Beneficiary's 16 years and 10 months of progressively responsible work experience is 
equivalent to a four-year bachelor of science degree in management information systems and related 
areas from an accredited U.S. college or university. The evaluation relies on the following work 
expenence: 
• Withl=I =======r_.lfrom July 2014 to present; 2 
• Wit from March 2014 to July 2014; 
• With from une 2008 to Februar 2014· and 
• With the from April 2003 
to May 2008. 
A third evaluation was prepared by Pace University in 2019. This evaluation asserts that the 
Beneficiary's diploma is equivalent to one year of academic study toward a bachelor of science degree 
at an accredited institution of higher education in the United States, and that this, combined with 
approximately 10 years and nine months of progressively responsible bachelor's-level employment 
experience in the field of computer information systems, is equivalent to a four-year bachelor of 
science degree in computer information systems from an accredited U.S. college or university. The 
evaluation relies on the following work experience: 
• Withl I from June 2008 to February 2014: and 
• With the._l _________________ ____.I from April 2003 
to May 2008. 
The record includes a statement from the Beneficiary, describing his experience as follows: 
• With I I as Director of Enterprise Information Management, from 
March 2016 to February 2017; 
• Withl I as BI Solutions Architect, from March 3, 2014 to July 1, 2014; 
• With_ [ as IT Manager in Business Intelligence, from June 
2010 to February 2014; 
1 The evaluation is dated April 4, 2013. 
2 The evaluation is dated February 27, 2020. 
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• With ._I------------' as Senior Database Administrator, from June 2008 to 
June 2010 . .-----------------------, • With the.__ __________________ __,, as Senior Systems 
Analyst, from April 2003 to May 2008; and 
• With! I as Senior Network Engineer, from November 1999 to 
July 2002. 
The record also includes multiple letters attesting to the Beneficiary 's experience, as follows: 
• With,__ ___ -r--'from July 2014 to February 2017; 
• With from A ril 7, 2014 to July 3, 2014; 
• With from June 16 2008 to Februa 10 2014; and L.,___,..----------.__ ____ ...._ __________ ...., 
• With the ___________________ ~from April 25, 
2003 to May 2008. 
At the outset, we note several inconsistencies in the record regarding the Beneficiary's claimed work 
experience. The labor certification, the Beneficiary's statement, and the experience letter provide the 
Beneficiary's end date withl las February 2017; however, the Pace University evaluation 
states that he was continuing his employment through February 2020. The Beneficiary lists his start 
date wit~------~s March 2016; however, the labor certification and the supporting experience 
letter list the Beneficiary's start date as July 2014. The labor certification, the Beneficiary's statement, 
and the evaluations list the Beneficiary's start date withl las March 1, 2014; however, the 
supporting experience letter states that his employment began April 7, 2014. As the calculation of the 
Beneficiary's total experience relies upon the accuracy of these dates, the information is critical to the 
Beneficiary's eligibility for the offered position. The Petitioner must resolve inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
We also note that the record does not include supporting documentation of the Beneficiary's claimed 
experience from 1995 to 2002. The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(A) provides that "any 
requirements of training or experience for skilled workers, professionals, or other workers must be 
supported by letters from trainers or employers giving the name, address, and title of the trainer or 
employer, and a description of the training received or the experience of the alien." The record does not 
include letters from the Beneficiary's claimed employers during this time period. 
Evaluations of academic credentials by evaluation services or individual experts are utilized by USCIS 
as advisory opinions only. Where an opinion is not in accord with other information or is in any way 
questionable, USCIS is not required to accept it or may give it less weight. See Matter of Sea, Inc., 
19 I&N Dec. 817 (Comm'r 1988). Based on the inconsistencies discussed above, we cannot conclude 
that the evaluations establish that the Beneficiary's diploma and work experience result in a foreign 
equivalent degree to a U.S. bachelor's degree. Rather, the record demonstrates that the Beneficiary 
has one year of academic study and approximately 166 months of experience. 
Each evaluation reaches the general conclusion that the combination of the Beneficiary's diploma and 
work experience are equivalent to a U.S. bachelor's degree. However, each evaluation uses a different 
total amount of experience to reach this conclusion - 17 years, 16 years and 10 months, and 10 years and 
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nine months. None of the evaluations in the record specifically details how much of the Beneficiary's 
work experience must be considered in combination with his one-year diploma to reach the equivalent of 
a U.S. bachelor's degree. Based on the terms of the labor certification, the offered position requires 120 
months of experience in addition to a bachelor's or foreign equivalent degree. Even if the labor 
certification allowed for a combination of education and experience, the record does not demonstrate that 
the Beneficiary has both a bachelor 's degree equivalent and 120 months of experience. 
Therefore, the Petitioner has not established that the Beneficiary meets the minimum requirements for the 
offered position as stated on the labor certification and the appeal will be dismissed. 
III. THE ABILITY TO PAY THE PROFFERED WAGE 
Also raised by the Director in the NOID, but not addressed in the decision, the record does not establish 
the Petitioner's ability to pay the proffered wage of the offered position. A petitioner must demonstrate 
its continuing ability to pay a proffered wage, from a petition's priority date until a beneficiary obtains 
lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). If a petitioner employs less than 100 people, 
as in this case, evidence of ability to pay must include copies of annual rep01ts, federal tax returns, or 
audited financial statements . Id. 
Here, the labor certification states the proffered wage of the offered position of vice president as 
$200,000 annually . As previously noted, the petition's priority date is November 9, 2017 . The record 
includes the 2016 and 2018 Form 1120S, U.S Income Tax Return for an S Corporation , for l I 
.__ ________ __. which includes the Petitioner's tax identification number in its list of 
subsidiaries. 3 
The record lacks the evidence required by the regulations of the Petitioner ' s ability to pay the proffered 
wage from the petition's priority date in 2017. In any future filings in this matter, the Petitioner must 
submit copies of its annual reports, federal tax returns, or audited financial statements from 2017, the 
year of the petition's priority date, through the present. 
IV. CONCLUSION 
The Petitioner has not established that the Beneficiary meets the minimum requirements as set forth 
on the accompanying labor certification. It is the Petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 
25 I&N Dec . 799, 806 (AAO 2012) . The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
3 The record also includes paystubs issyd to the Reneficjarv from August 2018 to January 2019. ln the NOID, the Director 
noted that the paystubs were issued b J which appears to be a different entity than the Petitioner. 
The Petitioner does not provide any explanation for this discrepancy. Unresolved material inconsistencies may lead us to 
reevaluate the reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. See 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
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