dismissed EB-3 Case: Software Consulting

i. 
U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 4, 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 of the 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. 
I. LAW 
Employment-based immigration generally follows 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). By approving the labor certification, DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
offered position and that empioying 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)(I)-(II) of the Act. Second, the employer may file an immigrant visa petition with 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. 
§ 1154. Third, if USCIS approves the petition, the foreign national may 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 of J- T-, Inc. 
II. ANALYSIS 
A. Labor Certification Does Not Support Requested Classification 
For professional classification, the Petitioner must establish that the job offer portion of the labor 
certification requires at least a bachelor's degree or a foreign equivalent degree. 8 C.F.R. 
§ 204.5(1)(3)(i). In this case, the labor certification states that the offered position of 
Middleware/Network Administrator has the following minimum requirements: 
H.4. 
H.5. 
H.6. 
H.7. 
H.8. 
H.9. 
H.lO. 
H. lO-B 
H.14. 
Education: None 
Training: None required. 
Experience in the job offered: 48 months required. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: bachelor's degree 
and two years of experience. 
Foreign educational equivalent: Accepted. 
Experience in an alternate occupation: Accepted. 
Job title of Acceptable Alternate Occupation: Network, Systems, or 
UNIX Administrator or combination 
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. Worksite may 
be in temporary unanticipated locations. Travel/relocation may be 
required. 
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, Parts H.4 and 6 permit an applicant to 
qualify for the proffered job with four 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(l)(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."' However, at Part 2. of the Form 
I-140, the Petitioner selected l.e. indicating that it was filing the petition under the professional 
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 two years training or experience), not of a temporary nature, for which qualified workers 
are not available in the United States. 
2 
Matter of J-T-, Inc. 
classification. There is no provision in statute or regulation that allows USCIS to readjudicate a 
petition under a different visa classification once the decision has been rendered. A petitioner may 
not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Corum 'r 1988). 
Further, on appeal, the Petitioner asserts that the "Dictionary of Occupational Titles has established 
that a Bachelor 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." 2 DOL has determined that a bachelor's degree is equivalent to two 
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.F.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 
Beyond the Director's decision, the record does not demonstrate that the Beneficiary meets the terms 
of the labor certification. A petitioner must establish that a beneficiary meets all of the requirements 
of the offered position set forth on the labor certification by the priority date ofthe petition. 8 C.F.R. 
§ 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 
1977); see also Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
Although the record establishes that the Beneficiary has the education to meet the alternate 
requirements of the labor certification, the record does not establish that the Beneficiary has the 
required minimum of two years of experience. 
2 Dictionary of Occupational Titles, Appendix C (4th rev. ed. 1991 ), https://www.oalj.dol.gov/PUBLIC/DOT/ 
REFERENCES/DOTAPPC.HTM (last visited July 20, 20 17). The DOT has been replaced by O*NET as the 
occupational classification system used by 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). 
3 
.
Matter of J- T-, Inc. 
On the labor certification, the Petitioner claims that more than two years of the Beneficiary's qualifying 
prior employment experience was with in New Jersey, where he worked as a 
middleware/network administrator from December 1, 2010, to April 13, 20 11, and as a websphere 
administrator from September 14, 2011, to March 8, 2013. The Beneficiary lists this same information 
on his resume. Per 8 C.F.R. § 204.5(1)(3), the Petitioner must submit evidence that the Beneficiary has 
the claimed experience. Such evidence must include the name, address, and title of the employer, along 
with a description of the experience gained. ld. 
Here, the record contains a letter from the president of who asserted that the Beneficiary 
was employed at as a websphere administrator from December 2010 to March 2013. This 
information is not consistent with the Beneficiary's attestation on the labor certification that he last 
worked at as a websphere administrator from September 2011 to March 2013. Moreover, 
the letter did not state that the Beneficiary worked for as a middleware/network 
administrator during any period, nor did he discuss the gap in the Beneficiary's employment from April 
2011 to September 2011, even though the Beneficiary made both of these claims on the labor 
certification. Based on these inconsistencies, the letter does not establish the Beneficiary gained any 
qualifying experience at from December 2010 to March 2013. A petitioner must resolve 
inconsistencies in the record such as this with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The Petitioner did not submit letters 
from the Beneficiary's other claimed employers to establish that he has qualifying experience. As such, 
the record does not demonstrate the Beneficiary's possession of the required experience. 
Furthermore, the record does not contain evidence that the Beneficiary has the "specific skills" required 
by the labor certification at Part H.l4. The Petitioner listed the following required specific skills: 
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 ... . 
Although the Beneficiary claimed to have these skills on his resume, independent evidence of his 
specific skills consists of a letter from which includes the following description of the 
Beneficiary's responsibilities: 
• Installed, configured, and maintained Web Sphere Application Service 7.0 , Web sphere 
MQ5x,Deployment Manager and Application Service Profiles 
• Monitoring application log files, Application Service Performance, Servlet Status, Active 
Sessions and DB Pool connections 
• Monitoring of space availability on each file system using the Shell Scripts 
• Setup various user profiles, environment variables, security to ensure smooth operation 
As a Web Sphere Admin, [the Beneficiary] worked with software tools and environments such 
as: Tools used MS Office, Java, Visual cafe, JProbe, Log Analyzer and environment worked in 
UNIX & Linux. 
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.
Ma~ter of J-T-, Inc. 
The letter does not indicate that the Beneficiary's responsibilities at included or 
were otherwise the equivalent of the special skills required by the Petitioner on the labor certification. 
There is no other independent evidence, such as letters from the Beneficiary's prior employers or 
training certificates, to demonstrate that he has the special skills required by the Petitioner for the 
proffered position. 
Consequently, the Petitioner's eviqence is not sufficient to establish that the Beneficiary has the 
qualifying experience or special skills required by the terms of the labor certification. 
C. Ability to Pay the Proffered Wage 
As an additional matter, we note that the Petitioner has not established its continuing ability to pay 
the proffered wage from the priority date. A petitioner must establish that it has the ability to pay the 
beneficiary the proffered wage, as stated on the labor certification, from the priority date onward 
through the submission of annual reports, federal tax returns, or audited financial statements. 
8 C.F.R. § 204.5(g)(2). 
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, 16l&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 
8 C.P.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USCIS requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality 
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 $106,000 per year, and the priority date is November 25, 2013. The record 
contains the Petitioner's 2014 IRS Form 1120, U.S. Corporation Income Tax Return, together with 
IRS Form W-2, Wage and Tax Statement, issued by the Petitioner to the Beneficiary in 2014 
showing it paid him $76,981.27 in yearly wages. The record also contains several paychecks issued 
by the Petitioner to the Beneficiary in 2015.4 However, the record does not contain the Petitioner's 
annual reports, federal tax returns, or audited financial statements for 2013 and 2015, 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 2013 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 and special skills 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. 
4 
As of September 29, 2015, the Petitioner had paid the Beneficiary year-to-date wages of$36,222.40. 
5 
Matter of J- T-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of J-T-, Inc., ID# 591809 (AAO Aug. 4, 2017) 
6