dismissed EB-3 Case: Mechanical Engineering

MATTER OF Q-M-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a machine shop, seeks to permanently employ the Beneficiary as a tool designer. It 
requests classification of the Beneficiary as a professional worker 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 classification allows a U.S. employer to sponsor a member of the 
professions holding a bachelor's degree for lawful permanent resident status. 
The Director, Texas Service Center, denied the petition on September 11. 2015. The Director 
concluded that the record did not establish the Beneficiary's qualifications for the offered position or 
the requested classification. 
The matter is now before us on appeal. The Petitioner asserts that the Director incorrectly cited case 
law and did not follow guidance from the U.S. Department of Labor (DOL). Upon de novo review, 
we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. The Roles of DOL and USC IS in the Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First. an employer must obtain an 
approved labor certification from the DOL. See section 212(a)(5)(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, the f()reign 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 accompanying labor certification in the instant case. the DOL certified that there are 
insut1icient U.S. workers who arc able, willing, qualified, and available f()r the otTered position. Section 
212(a)(5)(A)(i)(l) 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. Section 212(a)(5)(A)(i)(II). 
(b)(6)
Matter <?l Q-M-. Inc. 
In these visa petition proceedings. we must decide whether the Beneficiary meets the requirements 
of the offered position certified by the DOL, and whether the Petitioner and the Beneficiary are 
otherwise qualified for the requested classification. See section 203(b)(3)(A)(ii) of the Act; 8 C.F.R. 
§ 204.5. 
B. The Beneficiary's Qualifications for the Offered Position 
A petitioner must establish a beneficiary's possession of all the education. training. and experience 
specified on an accompanying labor certification by a petition's priority date. See 8 C.F.R. ~~ 
103.2(b)(l). (12); see also Alatter ql WinK's Tea House. 16 I&N Dec. 158. 159 (Acting Reg'l 
Comm·r 1977); Matter l?f'KaliKhak. 14 I&N Dec. 45.49 (Reg'l Comm'r 1971). 
In evaluating a beneficiary's qualifications, we must examine the job otTer portion of an 
accompanying labor certification to determine the minimum requirements of an oiTered position. 
We may neither ignore a term of the labor certification, nor impose additional requirements. K.R.K. 
Irvine. Inc. v. Landon. 699 F .2d 1006, 1009 (9th Cir. 1983 ); Madany v. Smith. 696 F .2d 1008. 1012-
13; S'tewart Infi·a-Red Commisswy l?lAlass .. Inc. v. Coomey. 661 F.2d 1, 3 (1st Cir. 1981 ). 
In the instant case, an ETA Form 9089, Application for Permanent Employment Certification (labor 
certification). approved by the DOL, accompanies the petition. 1 The petition's priority date is 
December 30. 2013. the date the DOL accepted the labor certification application f()r processing. 
See 8 C.F.R. § 204.5(d). 
The accompanying labor certification states the minimum requirements of the otTered position of 
tool designer as a U.S. bachelor's degree or a foreign equivalent degree in mechanical engineering. 
and 24 months of experience in the job offered. Part 11.8 of ETA Fom1 9089 states that an alternate 
combination of education and experience is not accepted. 
The Beneficiary attested on the accompanying labor certification to his receipt of a bachelor's degree 
in mechanical engineering in 1997 from in South Korea. He also stated that 
he obtained about 27 months of full-time, qualifying experience in South Korea before the petition's 
priority date. 
The record contains copies of documentation from indicating the school's 
issuance of an associate's degree in mechanical engineering to the Beneficiary on January 28. 1997. 
An expert evaluation of the degree concludes that it equates to a U.S. associate of science degree in 
mechanical engineering. 
1 The accompanying ETA Form 9089 indicates its preparation by counsel. But counsel did not sign the form as the 
form's instructions require. See also 20 C.F.R. § 656.17(a)(l) (stating that the Department of Homeland Security ··will 
not process petitions unless they are supported by an original certified ETA Fonn 9089 that has been signed by the 
employer, alien. attomey and/or agent"'). In any future proceedings involving the labor certification, we will return the 
original certified ETA Form 9089 to the Petitioner for counsel's signature. 
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Jtfatter (?f Q-JV!-. Inc. 
The record also contains two August 16, 201 L evaluations from U.S. university professors stating 
the Beneficiary's possession of more than 11 years ofrelated experience. Both evaluations conclude 
that a combination of the Beneficiary's education and experience equates to a U.S. bachelor of 
science degree in mechanical engineering. 
The accompanying labor certification clearly indicates that the offered position requires at least a 
bachelor's degree. In Part H.4 of the ETA Form 9089. the Petitioner stated the minimum level of 
required education as a bachelor's degree, rather than .. None:· "High School." .. Associate·s:· 
.. Master·s:· ··Doctorate," or .. Other." Part H.8 of the form also states that an alternate combination 
of education and experience is not accepted. 
The record docs not establish that the Beneficiary has a bachelor's degree as specified on the 
accompanying labor certification. The evidence submitted by the Petitioner indicates the 
Beneficiary's possession of an associate's degree. which in combination with his claimed experience 
equates to a U.S. bachelor's degree. Because the labor certification did not indicate the acceptance 
of a combination of education and experience, the record does not establish the Beneficiary's 
qualifications for the offered position. 
The Petitioner notes that the Director's decision incorrectly cited Wing's Tea House for the 
proposition that "[a] beneficiary may not substitute experience in lieu of a required degree unless the 
labor certification expressly allows this." Wing's Tea House held that experience gained after a 
petition's priority date did not qualify a beneficiary for an offered position. 16 l&N Dec. at 160. As 
the Petitioner argues, it does not similarly rely on qualifications gained by the Beneficiary after the 
petition· s priority date. 
But this citation does not invalidate the Director's decision. Because the Beneficiary lacks a 
bachelor's degree based solely on education as specified on the accompanying labor certification. the 
Director correctly found that the record does not establish the Beneficiary's qualifications for the 
offered position. 
The Petitioner also asserts that the Director did not follow DOL guidelines in interpreting the 
minimum requirements of the offered position stated on the ETA Form 9089. The Director's 
decision noted that neither Part I 1.8 nor Part H.14 of the form indicated that a combination of 
education and experience would satisfy the bachelor's degree requirement. The Petitioner asserts 
that the fmm's instructions do not contemplate statements of acceptable combinations of education 
and experience in those parts of the form. 
The instructions to Part H.8 of ETA Form 9089 advise an employer to indicate whether it will accept 
an alternate combination of education and experience in lieu of the minimum educational 
requirement indicated in Part H.4 of the fonn. See U.S. Dep't of Labor. "Instructions to ETA Form 
9089." at https:/ /www.foreignlaborcert.doleta.gov/pdf/9089inst.pdf (accessed May 23. 2016 ). The 
instructions further state: "For example. if the requirement is bachelor's + 2 years experience but the 
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Matter of Q-M-. Inc. 
employer will accept a masters + 1 year experience, an alternate combination of education and 
experience exists.'' !d. 
The Petitioner states that it will not accept a master's degree plus I year of experience in lieu of its 
minimum requirements of a bachelor's degree plus 2 years of experience. as indicated in the 
instructions to ETA Form 9089. It therefore asserts that it correctly completed Part H.8 by 
indicating that an alternate combination of education and experience was not accepted. 
But the alternate combination of a master's degree plus 1 year of experience referenced in the DOL's 
instructions to ETA Form 9089 was merely an example. The instructions did not state that example 
as the only possible alternate combination of education and experience. In the instant case. the 
Beneficiary has a combination of an associate's degree and experience. another possible alternate 
combination tor a bachelor's degree. If the Petitioner was willing to accept an associate's degree 
and education in lieu of a bachelor's degree. Part H.8 required the Petitioner to state that alternate 
combination. 
The instructions to ETA Form 9089 also indicate that in Part 11.14, employers should state 
··[s]pecitic skills or other requirements," such as ··shorthand and typing speeds. specific foreign 
language proficiency. and test results." See U.S. Dep't of Labor. '·Instructions to ETA Form 9089:· 
at https://www.foreignlaborcert.doleta.gov/pdt/9089inst.pdf (accessed May 23. 2016). Because the 
offered position does not require skills or requirements similar to those stated in the instn,1ctions. the 
Petitioner asserts that Part H.14 was an improper place to indicate its acceptance of a combination of 
an associate· s degree and education. 
But the Board of Alien Labor Certification Appeals (BALCA) has allowed employers to state job 
requirements beyond the examples stated in the instructions to Part H.14 of ETA Form 9089. For 
example. BALC A. which administratively reviews the DOL's labor certification decisions. has 
found it .. appropriate" for an employer ''to elaborate its minimum requirements" in Part H.14. 
Afaller (~j' Symhioun Techs .. Inc .. 2010-PER-001422. 2011 WL 5126284. *2 (BALCA Oct. 24. 
2011 ). The Director therefore correctly considered whether Part H.14 indicated the Petitioner's 
acceptance of a combination of an associate· s degree and education. 
If the Petitioner would accept a combination of an associate's degree and education in lieu of a 
bachelor's degree. it had to state that acceptance on the accompanying labor certification. See 20 
C.F.R. § 656.17(i)(l) (requiring an employer to state its .. actual minimum requirements" for an 
offered position on an ETA Form 9089). We cannot consider an alternate combination of education 
and experience because the plain language of the labor certification states that such a combination is 
unacceptable. See. e.g. Madany, 696 F.2d at 1015 (stating that .. DOL bears the authority tor setting 
the content of the labor certification and that [the immigration service] cannot impose job 
qualifications beyond those contemplated therein"). 
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Matter of Q-M-. Inc. 
For the foregoing reasons. the record does not establish the Beneficiary's qualifications for the 
offered position as specified on the accompanying labor certification. We will therefore affirm the 
Director's decision and dismiss the appeal. 
C. The Beneficiary's Qualifications for the Requested Classification 
A petitioner must also establish a beneficiary's qualifications for the requested classification. 
The Act makes visas available to "'[ q]ualifying immigrants who hold baccalaureate degrees and who 
are member of the professions." Section 203(b)(3)(A)(ii) of the Act. A petition for a professional 
"must be accompanied by evidence that the alien holds a United States baccalaureate degree or a 
foreign equivalent degree:· 8 C.F.R. § 204.5(1)(3)(ii)(C). ··Evidence of a baccalaureate degree shall 
be in the form of an official college or university record showing the date the baccalaureate was 
awarded and the area of concentration of study.'' !d. 
The Petitioner asserts that the Beneficiary qualities as a professional because the record 
demonstrates that the combination of his education and experience equates to a U.S. bachelor of 
science degree. But the regulations and the legislative history of the Immigration and Nationality Act 
of 1990. Pub. L. 101-649. indicate that a professional must possess a single U.S. bachelor's degree or 
foreign equivalent degree. rather than a a combination of education and experience. or a combination 
of lesser degrees. 
In response to criticism that its regulations barred professionals from substituting experience for 
education. the former Immigration and Nationality Service (INS) reviewed the 1990 Act and its 
history. The INS concluded 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. Inc. v. Cherf<?tf: No. CV 06-65-MO. 2006 WL 
3491005, ** 10-11 (D. Or. Nov. 30. 2006) (holding that USCIS properly requires a professional or an 
advanced degree professional to hold at least a single. uncombined baccalaureate degree). 
As previously discussed. the instant record does not establish the Beneficiary's possession of a 
bachelor's degree. The evidence submitted by the Petitioner indicates his possession of an 
associate's degree, which in combination with his claimed experience equates to a U.S. bachelor's 
degree. Because a professional must hold a single bachelor's degree rather than merely an 
equivalency based on a combination of education and experience. the record does not establish the 
Beneficiary· s qualifications for the requested classification. 
If the Beneficiary is not a professionaL the Petitioner asks us to consider his classification as a 
"skilled worker." See section 203(b )(3 )(A)(i) of the Act (providing visas to qualified immigrants 
who can perform skilled labor. requiring at least 2 years of training or experience). The petitioner 
notes that a federal court found that USCIS abused its discretion in denying a professional petition 
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Matter c?f Q-M-. Inc. 
without first considering a beneficiary's qualifications as a skilled worker. See Grace Korean 
United Alethodist Church v. Chem~jj; 437 F. Supp. 2d 1174. 1178 (D. Or. 2005). 
But the facts in Grace Korean distinguish it from the instant case. In Grace Korean. the petitioner 
requested a beneficiary's classification as a professional or skilled worker. 437 F. Supp. 2d at 1178. 
In contrast the instant Petitioner requested the Beneficiary's classification only as a professional 
worker. The Petitioner marked Part l.e of the Form I-140. Immigrant Petition for Alien Worker. 
indicating the petition's tiling for a .. professional (at a minimum. possessing a bachelor's degree or a 
foreign degree equivalent to a U.S. bachelor's degree)." 
We cannot consider the Beneficiary's classification for any category but the one indicated on the 
Form I-140. See Matter l~{Izummi. 22 l&N Dec. 169, 176 (Assoc. Comm'r 1988) (holding that a 
petitioner may not materially change a petition in an effort to make it conform to requirements). We 
therefore cannot consider the Beneficiary's eligibility as a skilled worker as the Petitioner requests. 
The record does not establish the Beneficiary's qualifications for the requested classification of 
professional worker. For this additional reason, we will affirm the Director's decision and dismiss 
the appeal. 
II. CONCLUSION 
The record does not establish the Beneficiary's qualifications for the offered position or the 
requested classitication. We will therefore affirm the Director's decision and dismiss the appeal. 
The petition will be denied for the reasons stated above. with each considered an independent and 
alternate ground of denial. In visa petition proceedings, a petitioner bears the burden of establishing 
eligibility for the requested benefit. Section 291 of the Act 8 U.S.C. § 1361: Matter l?{Otiende. 26 
l&N Dec. 127, 128 (BIA 2013). Here. the instant Petitioner did not meet that burden. 
ORDER: The appeal is dismissed. 
Cite as A-fatter (?lQ-M- Inc .. ID# 17654 (AAO June 13, 2016)