dismissed EB-3 Case: Software Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 13, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software consulting business, seeks to employ the Beneficiary as a 
middleware/network administrator. It requests classification of the Beneficiary as a professional under 
the third preference immigrant classification. See Immigration and Nationality Act (the Act), 
section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director, Nebraska Service Center, denied the petition, concluding that the labor certification 
does not support the requested professional classification. 
On appeal, the Petitioner submits a brief and asserts that 'the Beneficiary meets the minimum 
requirements for the proffered position and the requested classification. 
Upon de novo review, we will dismiss the appeal. 
1. LAW 
A. Employment-Based Immigration 
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)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL certified that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the om~red position. 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. Section 212(a)(5)(A)(i)(II) ofthe Act. 
Next, the employer may file a Form I-140, Immigrant Petition for Alien Worker, with U.S. 
Citizenship and Immigration Services (USCJS). See section 204 of the Act, 8 U.S.C. 
§ 1154. Finally, if the Form I-140 petition is approved, the foreign national may apply for an 
Matter (?f J- T-. Inc. 
immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of 
the Act, 8 U.S.C. § 1255. 
In visa petition proceedings, USCIS detem1ines whether a foreign national meets the job requirements 
specified on a labor certification and the requirements of the requested immigrant classification. See 
section 204(b) of the Act (stating that USCIS must approve a petition if the facts stated in it are true and 
the foreign national is eligible for the requested preference classification); see also. e.g. Tongatapu 
Woodcraft Haw., Ltd. v. Feldman. 736 F. 2d 1305, 1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 
1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has authority to make preference 
classification decisions). 
B.· Professional Classification 
In this case, the Petitioner requests classification of the Beneficiary as a professional. The regulation at 
8 C.F.R. § 204.5(1)(3)(ii)(C) states, in part: 
If the petition is for a professional, the petition must be accompanied by evidence 
that the alien holds a United States baccalaureate degree or a foreign equivalent 
degree and by evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the fom1 of an official college or university record 
showing the date the baccalaureate degree was · awarded and the area of 
concentration of study. 
Section 101 ( a)(32) of the Act defines the term "profession" to include, but is not limited to, "architects, 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academies, or seminaries." If the offered position is not statutorily defined as a profession, "the 
petitioner must submit evidence showing that the minimum of a baccalaureate degree is required for 
entry into the occupation." 8 C.F.R. § 204.5(1)(3)(ii)(C). 
In addition, the job offer portion of the labor certification underlying a petition for a professional "must 
demonstrate that the job requires the minimum of a baccalaureate degree." 8 C.F.R. § 204.5(1)(3)(i). A 
U.S. baccalaureate degree is generally found to require 4 years of education. Matter (?l Shah, 
17 I&N Dec. 244 (Reg'l Comm'r 1977). 
Therefore, a petition for a professional must establish that the occupation of the oftered position is listed 
as a profession at section 101(a)(32) ofthe Act or requires a bachelor's degree as a minimum for entry; 
the beneficiary possesses at least a U.S. bachelor's degree or a foreign equivalent degree from a college 
or university; and the job offer portion of the labor certification requires at least a bachelor's degree or a 
foreign equivalent degree. 
2 
Matter of J- T-, Inc. 
II. ANALYSIS 
A. Labor Certification Does Not Support Requested Classification 
As noted, a petition for a professional must establish that the job offer portion of the labor 
certification requires at least a bachelor's degree or a foreign equivalent degree. In this case, the 
labor certification states that the offered position has the following minimum requirements: 
H.4. Education: Bachelor's degree in electronics and communication engineering. 
H.5. Training: None required. 
H.6. Experience in the job offered: 24 months required. 
H. 7. Alternate field of study: None accepted. 
H.8. Alternate combination of education and experience: 4 years of experience in 
the job offered. 
H.9. Foreign educational equivalent: Accepted. 
H.l 0. Experience in an alternate occupation: None accepted. 
H.l4. Specific skills or other requirements: DNS, LDAP. FTP, Remote Access, 
Security Management and System Troubleshooting skills. Installed and 
Configured Load Balancer to remove SPOF on WebServers using XML 
Config tool. WSAdmin, Shell, JACL and Jython scripting. Four years 
experience required. Will accept two years with BS. May be assigned to 
temporary undetermined locations. 
The terms of the labor certification allow an applicant to qualify for the job with less than a U.S. 
bachelor's degree or a foreign equivalent degree. Specifically, Part H.8. pem1its an applicant to qualifY 
for the proffered job with 4 years of experience in lieu of a bachelor's degree. Because the labor 
certification does not require at least a U.S. bachelor's degree or a foreign equivalent degree, the 
petition cannot be approved under the professional classification. See 8 C.F.R. § 204.5(1)(3)(i) (the 
labor certification underlying a petition for a professional must require at least a U.S. bachelor's degree 
or a foreign equivalent degree). 
On appeal, the Petitioner asserts that "there is no provision that precludes a 'professional' from 
qualifying for 'skilled worker' under 203(b)(3)(A)(i) of the Act if a comparable level of experience, 
without a degree, would make them eligible for the occupation." 1 However, at Part 2. of the Form 
I -140, the Petitioner selected I.e. indicating that it was filing the petition under the professional 
classification. There is no provision in statute or regulation that compels USCIS to readjudicate a 
petition under a different visa classification once the decision has been rendered. A petitioner may 
1 
Section 203(b )(3)(A)(i) of the Act, 8 U .S.C. § 1153(b )(3)(A)(i), provides for the granting of preference classification to 
qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing 
skilled labor (requiring at least 2 years training or experience), not of a temporary nature, for which qualified workers are 
not available in the United States. 
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Matter of J- T-, Inc. 
not make material changes to a petition in an efiort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm 'r 1988). 
Further, on appeal, the Petitioner asserts that the "Dictionary of Occupational Titles has established 
that a Bachelor's degree is equivalent to 2 years for SVP purposes" and that because of this, "both 
categories have SVP level time of 7- 'Over 2 years up to and including 4 years."' Thus, the 
Petitioner asserts that the alternative requirements are equivalent. Specific vocational preparation 
(SVP) is a component of the occupational classification, and is defined in the Dictionary of 
Occupational Titles (DOT) as "the amount of lapsed time required by a typical worker to learn the 
techniques, acquire the information, and develop the facility needed for average performance in a 
specific job-worker situation." Dictionary of Occupational Titles, Appendix C, (4th rev. ed. 1991) 
http://www.oalj.dol.gov/libdot.htm (accessed Feb. 21, 2017). 2 The DOL has determined that a 
bachelor's degree is equivalent to 2 years of experience for purposes of determining lapsed years. 3 
However, the SVP determination does not indicate that a bachelor's degree is required for any 
particular job, nor does it speak to the actual minimum requirements of the proffered position in this 
case. A labor certification underlying a petition for a professional must require at least a U.S. 
bachelor's degree or a foreign equivalent degree. See 8 C.P.R. § 204.5(1)(3)(i). Experience cannot 
serve as a substitute for a U.S. bachelor's degree or a foreign equivalent degree in the professional 
classification. 
The evidence submitted does not establish that the offered position requires at least a U.S. bachelor's 
degree or a foreign equivalent degree. As such, the labor certification does not support the requested 
professional classification and, therefore, the petition cannot be approved under the professional 
classification. 
B. Beneficiary Does Not Meet the Terms of the Labor Certification 
The Petitioner asserts on/appeal that the Beneficiary qualities as a member of the professions 4 under 
203(b)(3)(A)(ii) of the Act because he meets the primary requirement of the labor certification- a 
bachelor's degree in electronics and communication enf;!,ineering plus 2 years of experience in the 
job offered. Although the record establishes that the Beneficiary has the required education, the 
record does not establish that the Beneficiary has the required 2 years of experience in the profTered 
job. 
2 The DOT has been replaced by O*NET as the occupational classification system used by the DOL. 
3 
Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 
Final Rule, 69 Fed. Reg. 77326, 77332 (Dec. 27, 2004). 
4 
In order to be classified as a professional, the Beneficiary must possess at least a U.S. bachelor's degree or a foreign 
equivalent degree from a college or university. The Petitioner has established that the Beneficiary has the required foreign 
equivalent bachelor's degree in electronics and communication engineering. 
4 
(b)(6)
Matter of J-T-, Inc. 
The regulation at 8 C.F.R, § 204.5(1)(3) provides: 
(ii) Other documentation--
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
The record contains a letter dated July 23, 2009, signed by the human resources (HR) manager of 
in India. The name of the HR Manager is not typed on the letter, and the 
signature on the letter is partially covered by a stamp, causing the name to be illegible. See id. The 
letter initially states that the Beneficiary was employed as a middleware administrator from May 27, 
2007, until July 23, 2009. However, the letter subsequently states that the Beneficiary "held the 
position [sic] Software Engineer during his employment with us" and lists his job duties. It is 
incumbent upon the Petitioner to resolve any inconsistencies in the record by independent, objective 
evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Here, the Petiitoner has not done so. 
Due to the lack of a legible name of the letter's signatory, and the listing of two different job titles on 
the letter, the letter from does not establish that the Beneficiary had the 
required 2 years of experience in the job offered. As such, the Petitioner has not established that the 
Beneficiary met the minimum requirements for the proffered position. 
C. Ability to Pay the Proffered Wage 
Although not addressed by the Director, we note that the Petitioner has not established its continuing 
ability to pay the proffered wage from the priority date. The regulation at 8 C.F.R. § 204.5(g)(2). 
states in pertinent part: 
Ability of prospective employer to pay wage. Any petitiOn filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. In a case where 
the prospective United States employer employs 100 or more workers, the director · 
may accept a statement from a financial officer of the organization \Vhich establishes 
the prospective employer's ability to pay the proffered wage. 
A petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer 
is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 
8 C.F.R, § 204.5(g)(2). In evaluating whether a job offer is realistic, USC IS requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality 
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Matter of J- T-, Inc. 
of the circumstances affecting the petitioning business will be considered if the evidence warrants such 
consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
The proffered wage is $79,019 per year, and the priority date is March 15, 2016. The record 
contains the Petitioner's 2014 IRS Form 1120, U.S. Corporation Income Tax Return, together with 
IRS Forms W-2, Wage and Tax Statements, issued by the Petitioner to the Beneficiary in 2014 and 
2015. The record also contains several paychecks issued by the Petitioner to the Beneficiary in the 
first half of2016. 5 The record does not contain the Petitioner's annual reports, federal tax returns, or 
audited financial statements for 2016 as required by 8 C.F.R. § 204.5(g)(2). If the Petitioner pursues 
this matter further, it must submit regulatory-prescribed evidence of its ability to pay the proffered 
wage from 2016 onward. 
III. CONCLUSION 
The Petitioner has not established that the labor certification supports the requested professional 
classification, or that the Beneficiary met the minimum experience requirements for the proffered 
position. Further, the Petitioner has not established that it had the continuing ability to pay the 
proffered wage from the priority date onward. 
ORDER: The appeal is dismissed. 
Cite as Matter of J-T-, Inc., ID# 311728 (AAO Mar. 13, 2017) 
5 
As of June 30, 20 I 6, the Petitioner had paid the Beneficiary year-to-date wages of $42,46 I .60. The Petitioner indicated 
that it had 85 employees on the Form 1- I 40. 
6