dismissed EB-3 Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-F-G- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27, 2017 
PETITION: FORMI-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of accounting, financial planning, and consulting services, seeks to 
employ the Beneficiary as a management consultant. It requests classification of the Beneficiary as 
a professional under the third preference immigrant category. See Immigration and Nationality Act 
(the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This category allows a U.S. 
business to sponsor a professional with a bachelor's degree for lawful permanent resident status. 
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The Director, Texas Service Center, denied the petition. The Director concluded that the record did 
not establish the offered position's need for a professional. The matter is now before us on appeal. 
The Petitioner asserts that the position does require a professional. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved ETA Form 9089, Application for Permanent Employment Certification (labor 
certification), from the U.S. Department of Labor (DOL). See section 212(a)(S)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) must approve 
an immigrant visa petition. See section 204 ofthe Act, 8 U.S.C. § 1154. Finally, a foreign national 
must apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See 
section 245 ofthe Act, 8 U.S.C. § 1255. 
By approving the labor certification, in this case, the DOL certified that there are insutlicient U.S. 
workers who are able, willing, qualified, and available for the offered position of management 
consultant. See section 212(a)(5)(A)(i)(I) ofthe 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. See section 212( a)( 5)(A)(i)(Il). 
In visa petition proceedings, USCIS must determine whether the Beneficiary meets the requirements 
of the offered position certified by the DOL. USCIS must also determine whether the Petitioner and 
Matter ofS-F-G- Inc. 
the Beneficiary qualify for the requested immigrant classification. See. e.g.. Tongatapu Woodcrafi 
Haw .. Ltd. v Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984) (holding that the immigration service 
"makes its own determination ofthe alien's entitlement to [the requested] preference status"). 
B. Labor Certification Requirements for Professional Classification 
A petition for a professional must be accompanied by a valid individual labor certification, an 
application for Schedule A designation, or documentation of a beneficiary's qualifications for a 
shortage occupation. 8 C.F.R. § 204.5(1)(3)(i). A labor certification for a professional "must 
demonstrate that the job requires the minimum of a baccalaureate degree." I d. 
In determining a job opportunity's requirements, we must examine the job otTer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position. 
We may neither ignore a term of the labor certification, nor impose additional requirements. See 
K.R.K. Irvine, Inc. v. Landon. 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith. 696 F.2d 
1008, I 012-13 (D.C. Cir. 1983); Stewart ln.fi-a-Red Commissary of Mass .. Inc. v. Coomey. 661 F.2d 
1, 3 (1st Cir. 1981). 
Here, the labor certification states the primary requirements of the offered position of management 
consultant as a U.S. bachelor's degree or a foreign equivalent degree in business administration or 
management, plus 6 months of experience in the job offered. Part H.8 of the labor certification also 
states that the Petitioner will accept an alternate combination of education and experience in the 
form of an associate's degree and 2 years of experience. In addition, Pmi H.l4 of the labor 
certification states that "[a]ny suitable combinations of education, training or experience are 
acceptable." 
The plain language of the labor certification states the Petitioner's acceptance of an "Associate's" 
degree. Thus, contrary to 8 C.F.R. § 204.5(1)(3)(i), the accompanying labor certification does not 
demonstrate that the job requires the minimum of a bachelor's degree. The labor certification is 
therefore does not support the requested classification of professional. 
The Petitioner asserts that we should interpret the immigrant visa requirements for a professional 
consistent with the nonimmigrant visa requirements for an H-1 B worker in 4- specialty occupation. 
To qualify as an H-1 B specialty occupation worker, a beneficiary may possess a combination of 
education, training, or work experience equivalent to a U.S. bachelor's degree. See 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5) (allowing 3 years of training or experience to substitute for each lacking year 
of college or university). The Petitioner asserts: "There is no legitimate[] statutory[] or regulatory 
reason to differentiate" between the requirements for immigrant professionals and H-1 B specialty 
occupation workers. 
We disagree. The Act and its legislative history indicate that an immigrant professional must 
possess a bachelor's degree without combining educational credentials or education with experience. 
In response to complaints that the immigrant visa regulations bar the substitution of experience for 
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Matter ofS-F-G-Inc. 
education, the former Immigration and Naturalization Service (INS) reviewed the Immigration Act 
of 1990. The former INS found that "both the Act and its legislative history make clear that, in order 
to qualify as a professional under the third classification or to have experience equating to an 
advanced degree under the second, an alien must have at least a bachelor's degree." 56 Fed. Reg. 
60897, 60900 (Nov. 29, 1991); see also SnapNames.com v. Cherto.ff, No. CV 06-65-MO, 2006 WL 
3491005, **10-11 (D. Or. Nov. 30, 2006) (holding that USCIS properly concludes that classification 
as a professional or advanced degree professional requires a single degree equivalent to a 
baccalaureate). Thus, contrary to the Petitioner's assertion, an immigrant petition for a professional 
must show that the proffered position requires at least a single-source bachelor's degree. 
The Petitioner also asserts that DOL policy supports classification of the Beneficiary as a 
professional. Citing a March 1993 letter from a DOL official, the Petitioner states that the agency 
interprets the phrase "or equivalent" on labor certifications to include degree equivalencies based on 
experience or combinations of education and experience. The DOL policy asserted by the Petitioner, 
however, no longer appears to apply. In a 1994 memorandum, a DOL official stated that employers 
should not state "or equivalent" on labor certification applications to reference degree equivalencies 
based on experience or combinations of education and experience. The memo states: "When an 
equivalent degree or alternative work experience is acceptable, the employer must specifically state 
on the [labor certification] as well as throughout all phases of recruitment exactly what will be 
considered equivalent or alternative in order to qualify for the job." Memorandum from Anna C. 
Hall, Acting Reg'l Adm'r, DOL, Emp't & Training Admin., Interpretation of ''Equivalent Degree," 
2 (June 13, 1994). 
Moreover, even if the DOL policy asserted by the Petitioner applied, the issue is not whether the 
Beneficiary meets the requirements stated on the labor certification. Rather, the issue is whether the 
labor certification requires a professional worker with a bachelor's degree. On the labor 
certification, the Petitioner specified its acceptance of an associate's degree plus 2 years of 
experience in lieu of a bachelor's degree plus 6 months of experience. The labor certification 
therefore does not demonstrate that the offered position requires the minimum of a bachelor's 
degree. 
The Petitioner also states that its alternate requirement of an associate's degree plus 2 years of 
experience is "substantially equivalent" to its primary requirement of a bachelor's degree plus 6 
months of experience. The Petitioner refers to the DOL regulation at 20 C.F.R. § 656.17(h)( 4 )(i), 
which states that "[ a[lternative experience requirements must be substantially equivalent to the 
primary requirements of the job opportunity"). However, the Petitioner's apparent compliance with 
20 C.F.R. § 656.17(h)(4)(i) does not change its acceptance of a worker in the offered position with 
less than a bachelor's degree. For labor certification purposes, the Petitioner~s primary and alternate 
requirements may be substantially equivalent; but they do not demonstrate that the offered position 
requires at least a bachelor's degree. 
For the foregoing reasons, the labor certification does not demonstrate that a bachelor's degree is a 
minimum, educational requirement of the offered position. Thus, the labor certification does not 
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Matter of S-F-G- Inc. 
support the requested classification of professional. We will therefore affirm the Director's decision 
and dismiss the appeal. 
C. The Petitioner's Ability to Pay the Proffered Wage 
Although unaddressed by the Director, the record also does not establish the Petitioner's ability to 
pay the proffered wage. 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. 8 C.F.R. 
§ 204.5(g)(2). Initial evidence of ability to pay must include copies of annual reports, federal 
income tax returns, or audited financial statements. !d. 
In this case, the labor certification states the proffered wage of the offered position of management 
consultant as $51,022 per year. The petition's priority date is June 24, 2014. This is the date that the 
DOL accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d) (explaining 
how to determine a petition's priority date). 
The record lacks initial, required evidence of the Petitioner's ability to pay the proffered wage from 
the petition's priority date onward. The Petitioner submitted copies of financial statements covering 
the first 11 months of 2014. But, contrary to the regulations, the record does not indicate that the 
financial statements are audited. See 8 C.F.R. § 204.5(g)(2) (stating that evidence of ability to p~y 
"shall be either in the form of copies of annual reports, federal tax returns, or audited financial 
statements"). The financial statements therefore do not constitute required evidence of the 
Petitioner's ability to pay. 
The record lacks regulatory required evidence of the Petitioner's ability to pay the proffered wage. 
For this additional reason, we will dismiss the appeal. 
II. CONCLUSION 
The labor certification does not demonstrate that the offered position requires a minimum of a 
bachelor's degree. Thus, the labor certification does not support the requested classification of 
professional. In addition, the record does not establish the Petitioner's continuing ability to pay the 
proffered wage form the petition's priority date onward. 
In visa petition proceedings, a petitioner bears the burden of establishing eligibility for a requested 
benefit. Section 291 of the Act, 8 U.S.C. § 1361. Here, the Petitioner did not meet that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-F-G- Inc., ID# 145512 (AAO Feb. 27, 2017) 
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