dismissed EB-3 Case: Kitchen And Bath Sales

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-L.A., LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 7, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a company specializing in the design, sale and installation of kitchen and bath 
equipment, seeks to permanently employ the Beneficiary as a showroom manager. It requests 
classification of the Beneficiary as a professional under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act), § 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, concluding that the Beneficiary does not 
possess a U.S. bachelor's degree or the foreign equivalent thereof. The Director found that the 
Beneficiary's combination of education and experience equating to a bachelor's degree did not 
qualify him for the requested professional immigrant classification. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that U.S. Citizenship and 
Immigration Services (USCIS) does not have the authority to question or substitute its interpretation of the 
Beneficiary's credentials once the U.S. Departme_nt of Lavor (DOL) has certified the ETA Form 9089 (labor 
certification). The Petitioner asserts that a USCIS Memorandum 1 from the year 2000 recognized an 
employer's absolute right to define the requirements for a position and that these requirements may be defined 
in a variety of ways. The Petitioner asserts that the Beneficiary qualifies as a professional under section 
203(b)(3)(A)(ii) of the Act and that, in the alternative, should USCIS find otherwise, the Beneficiary qualifies 
as a skilled worker under section 203(b)(3)(A)(i). Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
Section 203(b )(3)(A)(ii) of the Act, 8 U.S.C. § 1153(b )(3)(A)(ii), provides for the granting of 
preference classification to qualified immigrants who hold baccalaureate degrees and are members 
of the professions. 
1 The Petitioner cites a memorandum, discussed further below, from Michael D. Cronin, Acting Associate 
Commissioner, Office of Programs, and William R. Yates, Deputy Executive Associate Commissions, Office of Field 
Operations, Educational and Experience Requirements for Employment-Based Second Preference (EB-2) immigrants, 
AD00-08, March 20, 2000. 
Matter of B-L.A., LLC 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states the following: 
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. To show that the alien is a member of the professions, 
the petitioner must submit evidence that the minimum of a baccalaureate degree 
is required for entry into the occupation. 
Section 101(a)(32) of the Act defines the term "profession" to include, but is 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 for 
entry into the occupation." 8 C.F.R. § 204.5(1)(3)(ii)(C). 
In addition, the job offer portion of the labor certification underlying a petition for a professional "must 
demonstrate that the job requires the minimum of a baccalaureate degree." 8 C.F.R. § 204.5(1)(3)(i) 
Therefore, a petition for a professional must establish that the occupation of the offered position is listed 
as a profession at section 101(a)(32) of the Act or requires a bachelor's degree as a minimum for entry; 
the beneficiary possesses at least a U.S. bachelor's degree or a foreign equivalent degree from a college 
or university; and the job offer portion of the labor certification requires at least a bachelor's degree or a 
foreign equivalent degree. 
The issues in this case are: (A) whether USCIS has the authority to interpret the terms of the labor 
certification as defmed by the employer and as certified by the DOL; (B) whether the Beneficiary 
possesses a U.S. bachelor's degree or a foreign equivalent degree for qualification as a professional; and 
(C) whether the Beneficiary meets the requirements of the labor certification. 
A. The Roles of the DOL and USCIS in the Immigrant Visa Process 
At the outset, it is important to discuss the respective roles of the DOL and USCIS in the 
employment-based immigrant visa process. As noted above, the labor certification in this matter is 
certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, 
which provides: 
Any alien who seeks to enter the United States for the purpose of performing skilled or 
unskilled labor is inadmissible, unless the Secretary of Labor has determined and 
certified to the Secretary of State and the Attorney General that-
(I) there are not sufficient workers who are able, willing, qualified (or equally 
qualified in the case of an alien described in clause (ii)) and available at the time 
2 
Matter of B-L.A., LLC 
of application for a visa and admission to the United States and at the place 
where the alien is to perform such skilled or unskilled labor, and 
(II) the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing 
these duties under 20 C.F .R. § 656, involve a determination as to whether the position and the 
beneficiary are qualified for a specific immigrant classification. This fact has not gone unnoticed by 
federal circuit courts: 
There is no doubt that the authority to make preference classification 
decisions rests with INS. The language of section 204 cannot be read otherwise. See 
Castaneda-Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has 
the authority to make the two determinations listed in section 212(a)(14)_2 Id. at 423. 
The necessary result of these two grants of authority is that section 212(a)(14) 
determinations are not subject to review by INS absent fraud or willful 
misrepresentation, but all matters relating to preference classification eligibility not 
expressly delegated to DOL remain within INS' authority. 
Given the language of the Act, the totality of the legislative history, and the 
agencies' own interpretations of their duties under the Act, we must conclude that 
Congress did not intend DOL to have primary authority to make any determinations 
other than the two stated in section 212(a)(14). If DOL is to analyze alien 
qualifications, it is for the purpose of "matching" them with those of corresponding 
United States workers so that it will then be "in a position to meet the requirement of 
the law," namely the section 212(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d 
at 1008, the Ninth Circuit stated: 
[I]t appears that the DOL is responsible only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domestic labor market. It does not appear that the DOL's role extends to determining 
if the alien is qualified for the job for which he seeks sixth preference status. That 
determination appears to be delegated to the INS under section 204(b ), 8 U.S.C. 
§ 1154(b ), as one of the determinations incident to the INS's decision whether the 
alien is entitled to sixth preference status. 
2 Based on revisions to the Act, the current citation is section 212(a)(5)(A). 
3 
Matter of B-L.A., LLC 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
from the DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing, 
qualified, and available United States workers for the job offered to the alien, and 
whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor cert(fication in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) !d. at 1009. Citing K.R.K. Irvine, Inc., the Ninth Circuit revisited this issue, stating: 
[T]he Department of Labor (DOL) must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not 
adversely affect the wages and working conditions of similarly employed domestic 
workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own 
determination of the alien's entitlement to sixth preference status. !d. § 204(b), 
8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 
9th Cir.1983). 
The INS, therefore, may make a de novo determination of whether the alien is 
in fact qualified to fill the certified job offer. 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). 
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers 
available to perform the offered position, and whether the employment of the beneficiary will 
adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if 
the beneficiary qualifies for the offered position, and whether the offered position and beneficiary 
are eligible for the requested employment-based immigrant visa classification. 
The Petitioner cites a Memorandum from Michael D. Cronin, Acting Associate Commissioner, 
Office of Programs, and William R. Yates, Deputy Executive Associate Commissions, Office of 
Field Operations, Educational and Experience Requirements for Employment-Based Second 
Preference (EB-2) Immigrants, AD00-08, March 20, 2000.3 The Petitioner asserts that this 
memorandum recognized an employer's absolute right to define the requirements for a position and 
3 We note that this memorandum pertains solely to petitions filed under the Advanced Degree Professional category of 
the Act. While the Director erred in citing the statute for advanced degree professionals in the decision in this case, the 
analysis in the Director's decision focused on the fact that the Beneficiary does not have the foreign equivalent to a U.S. 
bachelor's degree, which is the addressed below. 
4 
Matter of B-L.A., LLC 
that these requirements may be defined in a variety of ways. While we acknowledge that it is the 
employer's responsibility to define the requirements for a position offered, DOL bears the 
responsibility for determining whether there are qualified U.S. workers for the position offered and 
not whether the Beneficiary is qualified under the immigrant classification requested. As indicated 
above, USCIS has the authority, independent of DOL, to determine whether the Beneficiary qualifies 
for the employment-based classification requested under the Act. 
B. The Beneficiary Must Possess a U.S. Bachelor's Degree or Foreign Equivalent Degree for 
Qualification as a Professional. 
As noted above, in order to be classified as a professional, the Beneficiary must possess at least a 
U.S. bachelor's degree or a foreign equivalent degree from a college or university. The regulation at 8 
C.P.R. § 204.5(1)(3)(ii)(C) uses a singular description of the degree required for classification as a 
professional. In 1991, when the final rule for 8 C.P.R. § 204.5 was published in the Federal Register, 
the Immigration and Naturalization Service (now USCIS or the Service), responded to criticism that 
the regulation required a beneficiary 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 ofthe 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 indicate that a beneficiary must have at least a bachelor's degree: "[B]oth the Act and its 
legislative history make 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) 
(emphasis added). 
It is significant that both section 203(b)(3)(A)(ii) of the Act and the relevant regulations use the word 
"degree" in relation to professionals. A statute should be construed under the assumption that 
Congress intended it to have purpose and meaningful effect. Mountain States Tel. & Tel. v. Pueblo 
of Santa Ana, 472 U.S. 237, 249 (1985); Sutton v. United States, 819 F.2d. 1289, 1295 (5th Cir. 
1987). It can be presumed that Congress' requirement of a single "degree" for members of the 
professions is deliberate. 
The regulation also requires the submission of "an official college or university record showing the 
date the baccalaureate degree was awarded and the area of concentration of study." 8 C.P.R. § 
204.5(1)(3)(ii)(C) (emphasis added). In another context, Congress has broadly referenced "the 
possession of a degree, diploma, certificate, or similar award from a college, university, school, or 
other institution of learning." Section 203(b )(2)(C) of the Act (relating to aliens of exceptional 
ability). However, for the professional category, it is clear that the degree must be from a college or 
university. 
In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court 
held that, in professional and advanced degree professional cases, where the beneficiary is statutorily 
required to hold a baccalaureate degree, users properly concluded that a single foreign degree or its 
equivalent is required. See also Maramjaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008) 
5 
(b)(6)
Matter of B-L.A., LLC 
(for professional classification, USCIS regulations require the beneficiary to possess a single four-year 
U.S. bachelor's degree or foreign equivalent degree). 
Thus, the plain meaning of the Act and the regulations is that the beneficiary of a petition for a 
professional must possess a degree from a college or university that is at least a U.S. baccalaureate 
degree or a foreign equivalent degree. 
In the instant case, the labor certification states that the offered position has the following minimum 
requirements: 
H.4. Education: Bachelor's 
degree in Interior Design or Architecture. 
H.5. Training: None required. 
H.6. Experience in the job offered: 24 months. 
H. 7. Alternate field of study: None accepted. 
H.8. Alternate combination of education and experience: Accepted. 
H.9. Foreign educational equivalent: Accepted. 
H.l 0. Experience in an alternate occupation: 24 months of experience as a designer or architect. 
H.14. Specific skills or other requirements: Bachelor's degree in Architecture or Interior Design 
plus two years of experience in the job offered or as a designer or any suitable combination of 
education, training, or experience. 
In Part J .11 of the labor certification, the Beneficiary's highest level of education achieved relevant 
to the offered position is listed as "Other." Part 1.11-A states "academics and experience has been 
evaluated to be equivalent to a U.S. bachelor's." 
The record includes a letter from the in 
confirming the Beneficiary's attendance as a full-time student from September 1982 to July 1987. 
The record also includes the Beneficiary's resume. 
The record contains an evaluation of the Beneficiary's academics and experience prepared by 
for on September 9, 2005. The evaluation states that the 
Beneficiary's 17 years of work experience in progressively responsible positions in the field of 
Interior Design is equivalent to a Bachelor of Science degree in Interior Design. The evaluation 
does not discuss the Beneficiary's education. 
The record also contains an evaluation by for on 
October 12, 2004. states that the Beneficiary has more than 15 years of work experience 
and professional training in Interior Design, which she asserts is equivalent to a Bachelor of Arts 
degree in Interior Design from an accredited institution of higher learning in the United States. The 
evaluation does not discuss the Beneficiary's education. 
The evaluations in the record used the rule to equate three years of experience for one year of 
education, but that equivalence applies to non-immigrant HlB petitions, not to immigrant petitions. 
See 8 CFR § 214.2(h)(4)(iii)(D)(5). 
Matter of B-L.A., LLC 
The Petitioner relies on the Beneficiary's work experience as being equivalent to a U.S. bachelor's 
degree. Where the analysis of the beneficiary's credentials relies on a combination of lesser degrees 
and/or work experience, the result is the "equivalent" of a bachelor's degree rather than a full U.S. 
baccalaureate or foreign equivalent degree required for classification as a professional. 
As stated above, Part H.14 of the labor certification indicates that the position requires a Bachelor's 
degree in Architecture or Interior Design plus two years of experience in the job offered or as a 
designer or "any suitable combination of education, training, or experience." However, as explained 
above, a combination of education and experience will not qualify the Beneficiary as a professional 
under section 203(b)(3)(A)(ii) of the Act. 
Therefore, the evidence in the record on appeal is not sufficient to establish that the Beneficiary 
possesses the foreign equivalent of a U.S. Bachelor's degree in Architecture or Interior Design. 
After reviewing all of the evidence in the record, it is concluded that the Petitioner has not 
established that the Beneficiary has a U.S. baccalaureate degree or a foreign equivalent degree from 
a college or university. Therefore, the Beneficiary does not qualify for classification as a 
professional under section 203(b )(3)(A)(ii) of the Act. 
C. The Beneficiary Must Meet the Minimum Requirements of the Offered Position 
The Beneficiary must also meet all of the minimum requirements of the offered position as set forth 
on the labor certification by the priority date. In evaluating the Beneficiary's qualifications, USCIS 
must look to the job offer portion of the labor certification to determine the required qualifications 
for the position. USCIS may not ignore a term of the labor certification, nor may it impose 
additional requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; 
Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
USCIS must examine "the language of the labor certification job requirements" in order to determine 
what the petitioner must demonstrate that the beneficiary has to be found qualified for the position. 
Madany, 696 F.2d at 1015. USCIS interprets the meaning of terms used to describe the 
requirements of a job in a labor certification by "examin[ing] the certified job offer exactly as it is 
completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 
829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements, as 
stated on the labor certification must involve "reading and applying the plain language of the [labor 
certification]" even if the employer may have intended different requirements than those stated on 
the form. I d. at 834 (emphasis added). 
As stated above, the terms of the labor certification require a four-year U.S. bachelor's degree in 
Interior Design or Architecture or a foreign equivalent degree. The labor certification does not permit 
a lesser degree, a combination of lesser degrees, and/or a quantifiable amount of work experience, such 
as that possessed by the Beneficiary. The Beneficiary does not possess a four-year U.S. bachelor's 
degree or a foreign equivalent degree. Therefore, the Petitioner has not established that the 
Beneficiary met the minimum educational requirements of the offered position set forth on the labor 
certification by the priority date. 
Matter of B-L.A., LLC 
On appeal, the Petitioner requests consideration of the petltwn under the skilled worker 
classification. 4 We will not consider a petition in a different visa classification once the Director has 
rendered a decision. Further, even if the petition were considered under the skilled worker 
classification, the Petitioner has not demonstrated that the Beneficiary meets the minimum 
requirements for the offered position as stated on the labor certification. A petitioner may not make 
material changes to a petition in an effort to conform a deficient filing to USCIS requirements. See 
Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988). Therefore, we will not consider 
the instant petition in the skilled worker category. 
II. CONCLUSION 
In summary, USCIS has the authority to interpret the terms of the labor certification as defined by the 
employer and as certified by the DOL. We conclude that the Petitioner has not established that the 
Beneficiary possessed a U.S. bachelor's degree or a foreign equivalent degree from a college or 
university. The Petitioner also not established that the Beneficiary met the minimum educational 
requirements of the offered position set forth on the labor certification. Therefore, the Beneficiary 
does not qualify for classification as a professional under section 203(b )(3)(A)(ii) of the Act. 
In visa petition 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; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofB-L.A., LLC, ID# 15683 (AAO Mar. 7, 2016) 
4 Section 203(b)(3)(A)(i) ofthe Act, 8 U.S.C. § 1153(b)(3)(A)(i), grants preference classification to qualified immigrants 
who are capable of performing skilled labor (requiring at least two years training or experience), not of a temporary 
nature, for which qualified workers are not available in the United States. 
8