dismissed EB-3 Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-R- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27.2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an owner and manager of restaurants, seeks to employ the Beneliciary as a business 
training specialist. It requests his classification as a professional under the third-preference. 
immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. 
~ 1153(b)(3)(A)(ii). This employment-based. ''EB-3" category allows a U.S. business to sponsor a 
foreign national with a bachelor's degree for lawful permanent resident status. 
The Acting Director of the Nebraska Service Center denied the petition. The Director concluded 
that the accompanying certilication from the U.S. Depmiment of Labor (DOL) does not establish the 
job's requirement of at least a bachelor's degree. 
On appeal, the Petitioner asserts that the Director misinterpreted the position· s mm1mum 
requirements. 
Upon de novo review, we will dismiss the appeal. 
I. TilE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First. an employer seeking 
to permanently employ a foreign national in the United States must obtain DOL certification of the 
job opportunity. 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 country has able, willing. qualified. and available workers lor an offered 
position. and whether employment of a foreign national would hurt the wages and working conditions 
of U.S. workers with similar jobs. /d. 
If the DOL certifies a 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. If USCIS approves a 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 of 
the Act. 8 U.S.C. ~ 1255. 
Matter olS-R- Inc. 
II. VALIDITY OF THE LABOR CERTIFJCA TION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a petition for a professional worker must 
include a valid, individual labor certification. 8 C.F.R. ~ 204.5(1)(3)(i). The certification must 
"demonstrate that the job requires the minimum of a baccalaureate degree."' !d. 
To determine the minimum requirements of an offered position, USCIS must examine the plain 
language of the job offer portion of a labor certification. USC IS may neither ignore a certification 
term, nor impose additional requirements. See. e.g. lvfadany 1'. Smith. 696 F.2d 1008, 1015 (D.C. 
Cir. 1983) (holding that the "DOL bears the authority for setting the content of the labor 
certification") (emphasis in original). 
Here, the accompanying labor certification states the requirements of the offered position of business 
training specialist as a U.S. bachelor's degree or a foreign equivalent degree in human resource 
development. On the labor certification, the Petitioner stated that the position requires no training or 
experience. The labor certification also indicates that "No'' alternate combination of education and 
experience is acceptable. In Part H.l4 of the labor certification ("Specific skills and other 
requirements"). ho>vever, the Petitioner stated: "Employer will accept educational equivalency 
evaluation prepared by qualified evaluation service or in accordance with 8 CFR Section 
214.2(h)( 4 )(iii)(D)."' 
The regulation cited in Part H.l4 of the labor certification. which normally applies to petitions for H­
I B nonimmigrant workers. contains a provision allowing U.S. baccalaureate equivalencies based on 
combinations of training, education. and/or experience. See 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) 
(allowing three years of training and/or experience for each year of U.S. college that a foreign 
national lacks towards a degree). Interpreting the regulatory reference to include that provision. the 
Director found that a worker without a bachelor's degree can meet the job's requirements based on a 
combination of lesser education. training, and/or experience. The Director therefore concluded that. 
contrary to 8 C. F .R. § 204.5(1)( 3 )(i), the labor certification does not demonstrate that the offered 
position requires at least a bachelor's degree. 
On appeal, the Petitioner asserts the Director" s m1smterpretation of the position· s minimum 
requirements. It notes that Parts H.4 and 11.9 of the labor certification state the job's educational 
requirement as a U.S. bachelor's degree or a foreign equivalent degree. The Petitioner also notes 
that. in Part H.8. it indicated that it would not accept any alternate combination of education and 
experience. The Petitioner argues that USCIS should read Part H.l4 consistent with the 
requirements in Parts H.4, H.8. and H.9 to find that the job requires at least a bachelor's degree. The 
Petitioner contends that Part I-1.14 · s regulatory reference merely indicates the company· s acceptance 
of an evaluation equating a foreign degree to a U.S. baccalaureate. See 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(D)(J) (stating USC IS· acceptance of "[a]n evaluation of education by a reliable 
credentials evaluation service which specializes in evaluating foreign educational credentials''). 
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Muller ofS-R- Inc. 
The plain language of the labor certification, however, does not support the Petitioner's argument. 
Part H.l4 states the Petitioner's acceptance of an evaluation prepared by a qualified service "or in 
accordance with 8 CFR Section 214.2(h)(iii)(D)." (emphasis added). The use of the disjunctive "'or .. 
indicates the Petitioner's acceptance of an evaluation from a qualified service. or an evaluation 
otherwise prepared in accordance with 8 C.F.R. ~ 214.2(h)( 4 )(iii)(D). which includes an evaluation 
with a U.S. baccalaureate equivalency based on a combination of training. education. and/or 
experience. See 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). As this indicates the Petitioner's acceptance of a 
combination of education, training, and/or experience rather than requiring a single U.S. bachelor's 
degree or single foreign equivalent degree. the labor certification does not support the requested 
classification. 
Counsel asserts that the Petitioner intended the regulatory reference in Part H.l4 to indicate only its 
acceptance of an evaluation equating a foreign degree to a U.S. baccalaureate. But the record lacks 
evidence of that intention. Assertions of counsel do not constitute evidence. Marter of Obaighena. 
19 1&N Dec. 533. 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez. 17 1&N Dec. 503. 506 
(BlA 1980)). The Petitioner has not provided evidence to support its claimed minimum requirements. 
The Petitioner did not submit its recruitment or otherwise establish that its alleged intent was made 
know to U.S. workers and DOL during the labor certification process. 
For the foregoing reasons, we find the labor certification docs not demonstrate that the offered 
position requires the minimum of a bachelor's degree. We v.ill therefore affirm the Director's 
decision. 
III. 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 pro!Tered 
wage. from a petition· s priority date until a beneficiary obtains lawful permanent residence status.
1 
8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must include copies of annual rcpotis. federal 
income tax returns. or audited financial statements. !d. 
Here, the labor certification states the proffered wage of the offered position of business training 
specialist as $50,900 a year. The Petitioner submitted copies of IRS Forms W-2. Wage and Tax 
Statements. indicating that it paid the Beneficiary in 2014 and 2015. Contrary to 8 C.F.R. 
~ 204.5(g)(2). however. the Petitioner. did not submit required evidence of its ability to pay in those 
years. Also. the Form W-2 for 2014 does not support the Petitioner's ability to pay. as the form·s 
wage total falls short of the annual proffered wage amount. 
Absent the regulatory required evidence. the record does not demonstrate the Petitioner's ability to 
pay the proffered wage. In any future tiling in this matter, the Petitioner must submit copies of its 
1 
This petition ·s priority date is August 27, 2014. the date the DOL accepted the accompanying certification application 
for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
Matter o(S-R- Inc. 
annual reports. federal income tax returns. or audited financial statements for 2014. 2015. and. if 
available. 2016. and 2017. The Petitioner may also submit additional evidence of its ability to pay 
the proffered wage, including evidence in support of the factors stated in lvfal/er ol Sonegawa. 12 
I&N Dec. 612.614-15 (Reg'! Comm'r 1967). 
IV. CONCLUSION 
The accompanying labor certification does not demonstrate that the offered position requires at least 
a bachelor's degree: as such. the labor certification docs not support the requested classification of 
professional. The record also does not establish the Petitioner's ability to pay the proffered wage 
from the priority date onward. 
ORDER: The appeal is dismissed. 
Cite as Matter o{S-R- Inc .. ID# 989331 (AAO Feb. 27. 2018) 
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