dismissed EB-3 Case: It Project Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 21, 2023 In Re : 27518850 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, an e-commerce business specializing in musical instruments and supplies, seeks to 
employ the Beneficiary as an IT project manager. 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. § l 153(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 of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary is qualified for the offered position because she does not meet the 
experience requirements stated on the labor certification. The matter is now before us on appeal. 8 
C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 203(b)(3)(A)(ii) of the Act grants preference classification to qualified immigrants who hold 
baccalaureate degrees and who are members of the professions. See also 8 C.F.R . § 204.5(i)(2) 
(defining "professional"). Profession is defined as one of the occupations listed in section 101(a)(32) 
of the Act , 8 U .S.C. § 1101(a)(32), as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation . Id. 
Immigration as a professional generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and (2) the employment of a 
noncitizen in the position would not harm wages and working conditions of U.S . workers with similar 
jobs . See section 212(a)(5)(A)(i) of the Act, 8 U.S .C. § l 182(a)(5)(A)(i) . 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). See section 204(a)(l)(F) of the Act, 8 U.S.C. 
§ 1154(a)(l)(F). Among other things, USCIS determines whether a noncitizen beneficiary meets the 
requirements of a DOL-certified position and the requested immigrant visa category. 8 C.F.R. 
§ 204.5(k)(3)(i)(B). Finally, if USCIS approves a petition, a beneficiary may apply for an immigrant 
visa abroad or, if eligible, "adjustment of status" in the United States. See section 245(a)(l) of the 
Act, 8 U.S.C. § 1255(a)(l). 
II. ANALYSIS 
The Director determined that the Beneficiary meets the educational requirements for the offered 
position and the requested immigrant classification. However, the Director concluded that Petitioner 
did not establish, as required, that the Beneficiary satisfies the minimum experience requirements for 
the offered position of IT project manager as specified on the DOL-certified permanent labor 
certification. 
A petitioner must demonstrate a beneficiary's possession of all DOL-certified job requirements of an 
offered position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). 1 In assessing a beneficiary's qualifications, USCIS must examine the 
job-offer portion of an accompanying labor certification to determine a position's minimum 
requirements. USCIS may neither ignore a certification term nor impose unstated requirements. See, 
e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority 
of setting the content of the labor certification") ( emphasis added). 
The Petitioner's labor certification states the primary job requirements for the offered position of IT 
project manager as a U.S. master's degree or a foreign equivalent degree in computer science or a 
"related field," plus two years of experience "in the job offered." The Petitioner indicated "No" at 
section H.10 of the labor certification, where asked to indicate whether experience in an alternate 
occupation is acceptable in lieu of experience in the job offered. 
With respect to the Beneficiary's qualifications, the Petitioner indicated at section J .18 of the labor 
certification that she has the experience required for the job opportunity (i.e, two years of experience 
in the job offered). It stated at section J.21 that she did not gain any of the qualifying experience with 
the Petitioner in a position substantially comparable to the proffered position. The record reflects that 
the Beneficiary, prior to assuming the proffered position ofIT project manager in June 2017, worked 
for the Petitioner as an "intern" for two years, from June 2015 to June 201 7. 2 
If a beneficiary is already employed by the petitioning employer, in considering whether the job 
requirements represent the employer's actual minimums, DOL will review the training and experience 
possessed by the beneficiary at the time of hiring by the employer. The employer cannot require 
domestic worker applicants to possess training and/or experience beyond what the beneficiary 
possessed at the time of hire. Therefore, experience gained while working for the petitioning employer 
1 This petition's priority date is August 26, 2021, the date DOL accepted the Petitioner's labor certification application for 
processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
2 The Beneficiary's only other work experience was a one-year, part-time research associate position which the Petitioner 
does not claim as qualifying experience in the job offered. 
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cannot be used to satisfy the minimum job requirements on the labor certification unless that 
experience was gained in a position not "substantially comparable" to the proffered position, or the 
employer can demonstrate that it is no longer feasible to train a worker to qualify for the position. 20 
C.F.R. § 656.17(i)(3). A "substantially comparable" job or position means a job or position requiring 
performance of the same job duties more than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii). 
As noted, the Director determined that the Beneficiary meets the stated educational requirement for 
the offered position. The record supports this determination based on the Petitioner's submission of 
an official academic record demonstrating the Beneficiary's completion of a U.S. master's degree in 
computer science. See 8 C.F.R. § 204.5(i)(3)(ii)(C). 
The Director also determined that the Beneficiary's two years of prior employment as an intern with 
the petitioning company was not in a substantially comparable position. 3 The Petitioner provided 
position descriptions for the "intern" and "IT project manager" positions with the percentage of time 
spent on the various duties. We agree with the Director's conclusion that the Beneficiary, during her 
two-year tenure as an intern, was not required to spend more than 50 percent of her time performing 
the same duties as the IT project manager position. 
The Director concluded, however, that the Petitioner did not demonstrate that the Beneficiary has two 
years of experience "in the job offered," which is the minimum experience requirement stated on the 
labor certification. The Director emphasized that the Petitioner did not provide evidence that the 
Beneficiary has two years of experience as an IT project manager and emphasized that it did not 
indicate on the labor certification that experience in an alternate occupation is acceptable to meet the 
24-month experience requirement. The Director noted that the Beneficiary's prior position as an intern 
was not substantially comparable to the position ofIT project manager and therefore determined that 
her experience in that position cannot be deemed experience in the job offered. 
For the reasons discussed below, we agree that the Petitioner has not met its burden to establish that 
the Beneficiary meets the experience requirement stated on the labor certification. 
In general, if a Petitioner's answer to section J.21 of the labor certification is "no," then the experience 
with the employer may be used by the beneficiary to qualify for the proffered position, but only if: (1) 
the prior position was not substantially comparable to the offer position, and (2) the terms of the labor 
certification at section H.10 provide that applicants can qualify through an alternate occupation. Here, 
the Petitioner did not indicate that an alternate occupation is acceptable. Rather, it claims that the 
Beneficiary gained two years of experience "in the job offered" based on her employment in a position 
that is not substantially comparable to the job offered. Experience "in the job offered" means 
experience performing an offered position's key duties as stated on a labor certification. E.g., Matter 
ofSymbioun Techs., Inc., 2010-PER-01422, *3 (BALCA Oct. 24, 2011) (citations omitted). 
On appeal, the Petitioner asserts that "DOL has already reviewed the underlying labor certification 
and certified it" and that by doing so "acknowledged that the beneficiary fulfills the requirements of 
the proffered position." The Petitioner notes that there are numerous examples cases in which DOL 
3 Although the Petitioner used the job title "intern" on the labor certification, it also refers to the position as "intern/junior 
business systems analyst" in the submitted documentation. 
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denied a labor certification based on a finding that the beneficiary did not meet the experience 
requirements. It provides a copy of a BALCA decision affirming one such denial. The Petitioner also 
maintains that "previous Forms I-140 containing qualifying experience in the role of 'Intern' have 
been approved by the Texas Service Center" and asserts that such prior petitions are "evidence that 
the instant Labor Certification and Petition were properly filed as per USCIS policy." 
The Petitioner's assertion that USCIS should defer to the DO L's certification of the labor certification 
as evidence that the Beneficiary meets the minimum requirements for the position is not persuasive. 
By approving a 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)(I)-(II) of the Act. 
The regulation at 20 C.F.R. § 656. l 7(i) indicates that DOL should evaluate an employer's actual 
minimum requirements for a given position and review the training and experience possessed by a 
beneficiary at the time of hiring by the employer as part of its authority over the labor certification 
process. Nevertheless, USCIS maintains the authority to determine whether the beneficiary and the 
offered position meet the requirements of the requested employment-based preference category and 
whether the beneficiary meets the minimum requirements of the offered position based on the terms 
of the labor certification. See, e.g., Madany v. Smith, 696 F.2d at 1012 (noting that all matters relating 
to preference classification eligibility not expressly delegated to DOL remain with the authority of the 
former Immigration and Naturalization Service). 
The Petitioner's assertion that USCIS has approved other petitions based on similar facts is also 
unpersuasive. We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See Matter ofChurch 
Scientology Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 
825 F .2d 1084, 1090 ( 6th Cir. 1987). Furthermore, we are not bound to follow a contradictory decision 
of a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. 
La. 2000). Therefore, the Petitioner's unsupported general claim that other beneficiaries of other 
petitions have been able to rely on experience gained as an "intern" to meet the stated job requirements 
on their individual labor certifications is not persuasive. 
The Petitioner also objects to the Directors specific conclusions. The Petitioner contends that a 
position that is not substantially comparable to the offered position may still be within the same 
occupation. The Petitioner further notes that "intern" is not typically used as an occupational title and 
that it therefore would not have been appropriate or correct to enter "intern" as an alternate 
occupational title at section H. l Oof the labor certification. 4 It further maintains that the Beneficiary's 
intern position encompassed all of the duties of the IT project manager, even if it required the 
Beneficiary to perform those duties less than 50% of the time. The Petitioner cites Matter ofBel Air 
Country Club, 1988-INA-233 (BALCA Dec. 23, 1988) in support of its claim that it is appropriate for 
an employer to limit the minimum work experience requirement to experience "in the job offered" in 
4 As noted, the Petitioner has indicated that the Beneficiary's formal job title during her tenure as an intern was "junior 
business analyst." It does not address why it would have been inappropriate or incorrect to indicate "junior business 
systems analyst" as an alternate occupation on the labor certification. 
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cases where only job applicants who have performed the same or similar duties would be able to 
perform the duties of the offered job with minimal training. 
The Petitioner maintains that the duties of the positions are the controlling factors and asserts that, 
while the intern and IT project manager positions are not "substantially comparable" the record reflects 
that the Beneficiary gained the experience with the job duties of the proffered position while employed 
as an intern. 
The Petitioner's claim is not persuasive. Although the labor certification indicates that the Beneficiary 
spent a portion of her time performing the duties of the position offered during her tenure as an 
intern/junior business systems analyst, the Petitioner's initial letter emphasized that all her duties as 
an intern were performed under direct supervision. The Petitioner also stated that "[h ]er position as 
an Intern ... was not substantially comparable to the proffered position of IT Project Manager," and 
that the two positions are "substantially different" in scope. The Petitioner sought to demonstrate that 
an intern within its company does not leave the position with the same experience as an IT project 
manager, even if the intern role provides exposure to similar duties, performed under close 
supervision, for a portion of the time. The Petitioner has not supported its claim that the two positions 
are simultaneously "not substantially comparable," yet similar enough to be within the same 
occupation. 
Based on the foregoing discussion, we agree that the Beneficiary's 24 months of experience as an 
intern does not meet the stated minimum requirement of 24 months of experience in the job offered. 
III. CONCLUSION 
The Petitioner has not demonstrated that the Beneficiary is qualified for the offered position because 
she does not meet the experience requirements stated on the labor certification. Accordingly, we will 
dismiss the appeal. 
ORDER: The appeal is dismissed. 
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