dismissed EB-3 Case: Petroleum Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-H-P (U-), INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN.26,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a petroleum producer, seeks to employ the Beneficiary as a drilling operations 
engineer. It requests his classification as a skilled worker under the third-preference, immigrant 
category. See 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 with at least two years of training or experience for lawful permanent resident 
status. 
The Director of the Texas Service Center denied the petition. Interpreting the position's certification 
by the U.S. Department of Labor (DOL) to require at least a U.S. bachelor's degree or a foreign 
equivalent degree, the Director concluded that the Petitioner did not establish the Beneficiary's 
possession of the minimum education required for the job. 
On appeal, the Petitioner submits additional evidence and asserts the Beneficiary's qualifications for 
the position. The Petitioner contends that either the Beneficiary's three-year, foreign bachelor's 
degree, or a combination of his education and experience equating to a U.S. baccalaureate, satisfies 
the requirement. 
Upon de novo review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer requires 
DOL certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). The DOL 
must determine whether the United States has able, willing, qualified, and available workers for an 
offered position, and whether employment of a foreign national would hurt the wages and working 
conditions of U.S. workers with similar jobs. Jd 
If DOL certifies a foreign national to permanently till an offered position, an employer must next 
submit the certification with an immigrant visa petition to U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. USCIS determines, among other 
things, whether a beneficiary meets the DOL's requirements for a position. If USCIS approves a 
Matter of B-H-P-(U-), Inc. 
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 ofthe Act, 8 U.S.C. § 1255. 
II. THE EDUCATIONAL REQUIREMENTS OF THE OFFERED POSITION 
A petitioner must establish a beneficiary's satisfaction of all DOL-certified job requirements by a 
petition's priority date.' Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'! Comm'r 
1977). In evaluating a beneficiary's qualifications, USCIS must examine the job offer portion of an 
accompanying labor certification to determine the minimum requirements of an otlered position. 
USC IS may neither ignore a certification term, nor impose additional requirements. See, e.g. 
Madany v. Smith, 696 F.2d 1008, I 015 (D.C. Cir. 1983) (holding that the "DOL bears the authority 
for setting the content of the labor certification"). 
Here, the accompanying labor certification states the primary, minimum requirements of the offered 
position of drilling operations engineer as a U.S. master's degree or a foreign equivalent degree in 
petroleum, mechanical, or chemical engineering, and three years of related experience. The 
certification also states the Petitioner's acceptance of a bachelor's degree and five years of 
expenence. 
In addition, Part H.14 of the labor certification ("Specific skills or other requirements") states: 
"Employer will accept any suitable combination of education, experience or training." Like the 
Director and the Petitioner, we will refer to this statement as "Kellogg language." In Matter of 
Kellogg, the Board of Alien Labor Certification Appeals (BALCA) held that a certification 
application must contain the statement where a foreign national already works for the employer. 
does not meet the position's primary requirements, and only potentially qualities for the job based on 
its alternative requirements. 94-INA-465 (BALCA Feb. 2, 1998) (en banc).2 
On the labor certification, the Beneficiary attested that, before the petition's priority date, he earned 
a bachelor's degree in mechanical engineering from a Scottish university. The Petitioner submitted 
copies of the Beneficiary's bachelor of engineering degree in mechanical systems and university 
transcripts, indicating his completion of a three-year program. 
The Petitioner also submitted three, independent evaluations of the Beneficiary's foreign educational 
credentials. The first two evaluations both conclude that the Beneficiary's Scottish degree equates to 
three years of university studies in the United States. The second evaluation, which the Petitioner 
submitted in response to the Director's request for additional evidence, also states that the 
1 
This petition's priority date is August 28, 2015, the date the DOL received the accompanying labor certification for 
processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
2 
The DOL codified Kellogg's holdings at 20 C.F.R. § 656.17(h)(4). The regulation at 20 C.F.R. ~ 656.17(h)(4)(ii) states: 
"If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements 
and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied 
unless the application states that any suitable combination of education, training, or experience is acceptable." 
2 
Matter of B-H-P-(U-), Inc. 
Beneficiary has the equivalent of a U.S. bachelor of science degree in mechanical engineering, based 
on a combination of his bachelor's degree and three years of his related experience. The Petitioner 
submitted the third evaluation in response to the Director's notice of intent to deny. It states that the 
Beneficiary's bachelor's degree equates to four years of U.S. university studies and a U.S. bachelor 
of science degree in mechanical engineering. 
In Part H.4, the labor certification states the primary educational requirement of the offered position 
as a "Master's'' degree. In Part H.8-A, the certification states the position's alternate level of 
education as a "Bachelor's" degree. In Part H.9, the employer indicated its acceptance of"a foreign 
educational equivalent." In Part H.l4 of the certification, the Petitioner stated all of the position's 
requirements, including more detailed experience requirements. The educational requirements in Part 
H.14, however, do not indicate any material changes from those stated in Parts H.4 and H.8-A. The 
educational requirements in H.14 state "Master of Science or foreign equivalent" and "Bachelor of 
Science degree ... or foreign equivalent." The record therefore establishes the minimum educational 
requirement of the offered position as a U.S. bachelor's degree or a foreign equivalent degree. 
The Petitioner has not established the Beneficiary's possession of a U.S. bachelor"s degree or a 
foreign equivalent degree. Two of the three evaluations submitted by the Petitioner state that the 
Beneficiary's foreign degree equates to only three years of U.S. university studies. See Matter of 
Shah, 17 I&N Dec. 244, 245 (Reg'! Comm'r 1977) (finding that a U.S. bachelor's degree usually 
requires four years of university studies). The third evaluation finds the Beneficiary's Scottish degree 
equivalent to a U.S. baccalaureate. But the evaluation does not explain how the Beneficiary's three 
years of university studies in Scotland equate to four years of university in the United States. See 
Matter (Jf Caron lnt 'I, Inc., 19 l&N Dec. 791, 795 (Comm 'r 1988) (allowing the immigration service to 
reject or afford less evidentiary weight to expert testimony that cont1icts with other evidence or "is in 
any way questionable"). The Petitioner also has not explained why the conclusion of the third 
evaluation differs from those of the other two. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) 
(requiring a petitioner to resolve inconsistencies of record by independent, objective evidence pointing 
to where the truth lies). The record therefore does not establish the Beneficiary's possession of a U.S. 
bachelor's degree or a foreign equivalent degree as the labor certification specifies. 
On appeal, the Petitioner concedes that the Beneficiary lacks a four-year degree equivalent to a U.S. 
bachelor's degree. But the Petitioner asserts that the Beneficiary's bachelor's degree meets the 
minimum educational requirement stated on the labor certification. The Petitioner notes that the 
certification does not specifically require a four-year bachelor's degree and indicates acceptance of a 
foreign degree. The Petitioner therefore maintains that the Beneficiary's three-year, foreign degree 
meets the stated minimum educational requirement. 
The Petitioner's argument, however, ignores the instructions and structure of the labor certification 
form. The form at Part H.4 instructed the Petitioner to state the minimum level of education required 
for the offered position and at Part H.8-A, if applicable, an accepted, alternate level of education. Part 
H.9 of the form asked ''Is a foreign educational equivalent acceptable?" Thus, this question info1med 
3 
Mauer ofB-H-P-(U-), Inc. 
the Petitioner that it had to state educational requirements on the form in terms of U.S., not foreign, 
academic credentials. 
So informed, the Petitioner at Part H.8-A indicated "Bachelor's" degree as the alternate educational 
requirement, rather than "Associate's" or some "Other'' lesser U.S. educational level. In Part H.9, it 
indicated its acceptance of "a foreign educational equivalent." (emphasis added). Such a response to 
H.9 simply indicates an employer's willingness to accept a degree that is equivalent to a U.S. degree 
but is issued by a foreign college or university. It does not express, state, or define an employer's 
willingness to accept a combination of educational programs and/or experience determined to be 
equivalent to a degree. Thus, on the labor certification, the Petitioner indicated a minimum 
requirement of a U.S. bachelor's degree or a foreign equivalent degree. 
We acknowledge that the requested classification of skilled worker does not require a bachelor's degree 
and that the Petitioner prepared the labor certification application with the Beneficiary's qualifications 
in mind. But USCIS: 
has an independent role in determining whether the alien meets the labor certification 
requirements, and where the plain language of those requirements does not support the 
petitioner's asserted intent, the agency does not err in applying the requirements as 
written. 
SnapNames.com. Inc. v. Chert off, No. CV 06-65-MO, 2006 WL 3491005, *7 (D. Or. Nov. 30, 2006). 
Moreover, the Petitioner has not established that it intended a three-year, foreign degree to meet the 
requirements of the offered position. The record does not indicate that the Petitioner notified the DOL 
or potential U.S. applicants of its acceptance of less than a U.S. bachelor's degree or a foreign 
equivalent degree. We therefore reject the Petitioner's assertion that the Beneficiary's three-year, 
foreign degree meets the position's minimum educational requirement. 
The Petitioner also contends that, the Beneficiary's combination of education and experience is 
permissible because of the inclusion of Kellogg language in Part H. 14. The Petitioner asserts that the 
Kellogg language in Part H. 14 of the labor certification lessens the position's minimum educational 
requirements and allows the Beneficiary to satisfY the requirement based on "'any suitable combination 
of education, experience or training." We generally do not interpret the standard Kellogg language in 
section H.14 to mean that an employer would accept lesser qualifications than the stated primary and 
alternative requirements on the labor certification. On appeal, the Petitioner cites a 2012 case in which 
we interpreted the Kellogg language to mean ,;any combination [of education, training, or experience] 
that is at least equal to or greater than the specific requirements on the form:· 
The 2012 case cited by the Petitioner is not precedential. It therefore does not bind us in this matter. 
See 8 C.F.R. § 103.10(b) (stating that, in proceedings involving the same issues, USCIS employees 
need only follow precedent decisions). Even if precedential, however, the decision would not support 
the Petitioner's argument. Under the decision's interpretation of fhe Kellogg language, the 
4 
Matter of B-H-P-(U-), Inc. 
Beneficiary's combination of education and experience would not equal or exceed the requirements 
stated on the labor certification. As previously discussed, the certification in this case requires at least a 
U.S. bachelor's degree or a foreign equivalent degree. The record here does not establish the 
Beneficiary's foreign degree as equivalent to a U.S. bachelor's degree. As such, the Beneficiary does 
not possess education equal to or greater than the education required by the labor certification. Rather, a 
preponderance of evidence indicates that his degree equates to only three years of U.S. university 
studies. Our 2012 decision therefore does not support the Petitioner's argument that the Beneficiary's 
combination of education and experience satisfies the minimum educational requirement. 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the minimum 
education required for the offered position. 
III. THE EXPERIENCE REQUIREMENTS OF THE OFFERED POSITION 
Although unaddressed by the Director, the record also does not establish the Beneficiary's 
possession of the minimum experience required for the offered position. 
As previously indicated, the Petitioner asserts the Beneficiary's satisfaction of the offered position's 
alternative requirements of a bachelor's degree and five years of related experience. The Petitioner 
must therefore establish the Beneficiary's possession of at least five years of qualifying experience 
by the petition's priority date of August 28,2015. See Matter of Wing's Tea House, 16 I&N Dec. at 
160. 
On the labor certification, the Beneficiary attested that, before starting employment with the 
Petitioner in the United States in June 2012, he gained more than six years of full-time, qualifying 
experience in Trinidad and Tobago.3 He stated the following experience: 
• One year as a drilling engineer with an afliliate of the Petitioner's from June 2011 to June 
2012; 
• About two years and 10 months as a directional driller with another company from August 
2008 to May 2011; and 
• About two years and eight months as a MWD/L WD4 engineer with that same company from 
August 2005 to March 2008. 
3 
A labor certification employer cannot rely on experience that a foreign national gained with it, unless the experience 
was gained in a substantially different position or the employer can demonstrate the impracticality of training a U.S. 
worker for the position. 20 C.F.R. § 656.17(i)(3). The Petitioner here has not claimed that the Beneficiary gained 
qualifying experience with it. Nor does the record establish that the Beneficiary gained experience with the Petitioner in 
a substantially different position or the impracticality of training a U.S. worker for the offered position. 
4 
The acronyms "MWD" and "LWD" appear to stand for "measurements while drilling" and ''logging while drilling,'' 
respectively. The terms appear to describe measurements regarding oil or gas drilling directions and geologic 
formations. 
5 
Matter of B-H-P-(U-), Inc. 
The Petitioner submitted letters from the Beneficiary's purported former employers. See 8 C.F.R. 
§ 204.5(1)(3)(ii)(A) (requiring a petitioner to support a beneficiary's claimed qualifying experience 
with letters from employers). Consistent with the information on the labor certification, letters from 
the Petitioner's affiliate state the Beneficiary's employment as a drilling engineer from June 20 II to 
June 2012. 
Letters from the other, purported former employer, however, do not establish the remainder of the 
Beneficiary's claimed qualifying experience. An initial letter states his employment only for about 
two years, from August 2005 to July 2006 and from January 2010 to March 2011. A later letter 
states the Beneficiary's term of employment as more than five years: from August 2005 to June 
2009 and from January 20 I 0 to May 2011, with an assignment in Mexico in between, from August 
2009 to January 2010. The record, however, does not explain why the initial letter stated a shorter 
period of employment. See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve 
inconsistencies of record by independent, objective evidence). The letters also contain discrepancies 
in the Beneficiary's purported job titles, casting further doubt on his claimed, qualifying experience. 
In addition, Part H.14 of the labor certification states that experience must include "one year in a 
supervisory role.'' None of the letters from the Beneficiary's former employers state his 
employment in a supervisory role. The record therefore does not establish the Beneficiary's 
possession of the minimum experience required for the offered position. 
IV. CONCLUSION 
The record on appeal does not establish the Beneficiary's possession of the minimum education 
required for the offered position. We will therefore affirm the Director's decision. The record also 
does not demonstrate that the Beneficiary had the minimum experience required for the position. 
ORDER: The appeal is dismissed. 
Cite as Matter o(B-H-P-(U-), Inc., ID# 907954 (AAO Jan. 26, 2018)