dismissed EB-3 Case: Software

MATTER OF X- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 23, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of software products and services, seeks to permanently employ the 
Beneficiary as a systems analyst. It requests classification of the Beneficiary 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 classification allows a U.S. employer to sponsor 
a foreign national with at least 2 years of training or experience for lawful permanent resident status. 
On January 7, 2016, the Director, Nebraska Service Center, denied the petition. The Director 
concluded that the record did not establish the Beneficiary's possession of the required educational 
credentials for the offered position. 
The matter is now before us on appeal. The Petitioner asserts that we should approve the petition 
because the job opportunity and the Beneficiary qualify for the requested classification. l 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
A. USCIS' Role 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 U.S. Department of Labor (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 of the 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 accompanying ETA Form 9089, Application for Permanent Employment 
Certification (labor certification) in the instant case, the DOL certified that there are insufficient U.S. 
workers who are able, willing, qualified, and available for the offered position of systems analyst. See 
section 212(a)(5)(A)(i)(I) of the 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)(II). 
Matter of X- Corp. 
The issues before us are whether the Beneficiary meets the requirements of the offered position 
certified by the DOL and whether the Petitioner, Beneficiary, and offered position otherwise qualify 
for the requested classification. See, e.g., Tongatapu Woodcraft Haw., Ltd v Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984) (holding that the immigration service "makes its own determination of 
the alien's entitlement to [the requested] preference status"). 
B. The Beneficiary's Educational Qualifications 
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. 8 C.F.R. §§ 
103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l 
Comm'r 1977); Matter ofKatigbak. 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
In evaluating a beneficiary's qualifications, we must examine the job offer 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 Eir. 1983); Madany v. Smith, 696 F.2d 
1008, 1015 (D.C. Cir. 1983); Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1, 3 
(1st Cir. 1981). 
A petitioner may submit an expert advisory opinion regarding a beneficiary's qualifications. But we 
may reject or afford less evidentiary weight to an expert opinion that conflicts with other evidence of 
record or "is in any way questionable." Matter a_[ Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988); see also Matter o.f D-R-, 25 I&N Dec. 445, 460 n.l3 (BIA 2011) (noting that evidentiary 
weight given to expert testimony may differ depending on the extent of an expert's qualifications or 
_the relevance, reliability, and probative value of the testimony). 
II. ANALYSIS 
In the instant case, the petition's priority date is January 26, 2015, the date the DOL accepted the 
accompanying labor certification application for processing. See 8 C.F.R. § 204.5(d). 
The labor certification states the minimum requirements of the offered position of systems analyst as 
a U.S. bachelor's degree or a foreign equivalent degree in information technology, engineering (any 
field), computer information systems, or a related field. The position also requires at least 60 
months of experience in the job offered or as a software consultant, engineer, or a related 
occupation. Further, Part H.l4 of the ETA Form 9089 states: "Required proficiency in any two of 
the following: Oracle, Business Objects, SQL, PLISQL, Informatica. Requires travel/relocation to 
unanticipated client sites throughout the U.S." 
The labor certification indicates that the offered position requires a single U.S. bachelor's degree or 
a single foreign equivalent degree, uncombined with other educational credentials or with 
employment experience. Rather than "Other," Part H.4 of the ETA Form 9089 states the minimum 
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(b)(6)
Matter of X- Corp. 
level of education as "Bachelor's" degree. Part H.8 of the form also states that there is "No" 
alternate, acceptable combination of education and experience. 
The Beneficiary attested on the accompanying labor certification to his receipt m 2004 of a 
bachelor's degree in information technology from the in 
India. The record contains copies of a diploma and marks statements from the academy indicating 
the Beneficiary's receipt in 2004 of a bachelor of information technology degree. 
The Petitioner also submitted an evaluation of the Beneficiary's foreign educational credentials by a 
U.S. professor of computer science. The evaluation concludes that the Beneficiary's foreign degree 
equates to a U.S. bachelor of science degree in information technology. 
The evaluator based his conclusion, in part, on the Beneficiary's number of years of education at 
The evaluation states that the Beneficiary entered the academy in 2000 and in 
2004 completed 4 years of studies. 
As indicated in the Director's request for evidence of October 22, 2015, however, the marks 
statements from state the Beneficiary's completion of six semesters of studies. 
Because colleges and universities typically divide academic years into two semesters, the marks 
statements indicate that the Beneficiary completed only 3 years of baccalaureate studies, not 4 as 
indicated in the evaluation. 
The discrepancy in the Beneficiary's number of years of study casts doubt on the evaluation's 
conclusion. A U.S. bachelor's degree typically requires 4 years of university-level studies. Matter 
of Shah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977). The record, therefore, does not establish the 
Beneficiary's possession of the foreign equivalent of a U.S. bachelor's degree as specified on the 
accompanying labor certification. 
A petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the 
Act, 8 U.S.C. § 1361. Therefore, the Petitioner must explain the discrepancy in the Beneficiary's 
number of years of study. 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). 
On appeal, the Petitioner does not deny the 3-year length of the Beneficiary's baccalaureate studies, 
nor does it submit additional evidence in support of the Beneficiary's claimed educational 
qualifications. Rather, the Petitioner asserts that we must approve the petition because the offered 
position and the Beneficiary qualify for the requested skilled worker classification. The Petitioner 
asserts that USCIS reg~lations allow the denial of a skilled worker petition "only if the underlying 
Labor Cert requires less than 2 years of training or experience." 
The Petitioner misreads the regulations'. As the Petitioner asserts, an offered pos1t10n and a 
beneficiary must qualify for skilled worker classification. See section 203(b )(3 )(A)(i) of the Act; 8 
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Matter of X- Corp. 
C.F.R. § 205.4(1)(2) (defining the term "skilled workers" to mean immigrants "who are capable ... 
of performing skilled labor (requiring at least 2 years training or experience)"). But a beneficiary 
must also meet the minimum requirements of an offered position as specified on an accompanying 
labor certification. The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states: "If the petition is for a 
skilled worker, the petition must be accompanied by evidence that the alien meets the educational, 
training or experience, and any other requirements of the individual labor certification." 
In the instant case, the record establishes the eligibility of the offered position and the Beneficiary 
for the requested classification. But the record does not establish the Beneficiary's educational 
qualifications for the offered position as specified on the accompanying labor certification. 
The Petitioner cites a 2007 non-precedent case of ours in which we reversed the denial of a skilled 
worker petition. As in the instant case, the record there did not establish the beneficiary's possession 
of a single foreign degree equivalent to a U.S. bachelor's degree. But because the language of the 
accompanying labor certification and tlte petitioner's recruitment documentation indicated the 
petitioner's acceptance of less than a foreign equivalent degree, we approved the petition. 
Our non-precedent decisions do not bind us. See 8 C.F.R. § 103.10(b) (stating that only precedent 
decisions bind USC IS officers and employees). Moreover, the facts of that case distinguish it from 
the instant case. In the 2007 C\lse, we interpreted a precursor of ETA Form 9089 on which the 
petitioner did not clearly state the minimum educational requirements of the offered position. The 
petitioner's recruitment documentation was similarly vague, not specifying a requirement for a U.S. 
bachelor's degree or a foreign equivalent degree. 
In the instant case, the job requirements of the offered position on the ETA Form 9089 are clearer. 
As previously indicated, the Petitioner did not opt to indicate its acceptance of less than a single 
bachelor's degree on the form. Also, unlike the petitioner in the 2007 case, the instant Petitioner has 
not submitted recruitment documentation supporting its acceptance of less than a U.S. bachelor's 
degree or a foreign equivalent degree. Therefore, we decline to follow our prior non-precedent 
decision. 
III. CONCLUSION 
The record does not establish the Beneficiary's possession of the educational qualifications specified 
on the accompanying labor certification by the petition's priority date. In visa petition proceedings, 
a petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the 
Act; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner did not meet that 
burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of X- Corp., ID# 12373 (AAO Nov. 23, 2016) 
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