dismissed EB-3 Case: Software Development

MATTER OF 0-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 10, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an advanced software development and consulting business, seeks to employ the 
Beneficiary as a programmer analyst. 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. The Director concluded that the 
Beneficiary did not meet the minimum requirements of the labor certification. Specifically, while 
the labor certification required a bachelor's degree in engineering (any), computer science, 
technology, ·or related, the Beneficiary held a bachelor's degree in elective studies. The Director 
denied a subsequent motion to reopen and motion to reconsider, finding that, despite the 
Beneficiary's BES coursework in electrical and computer engineering, advanced mathematics, 
physics and computer science, the Beneficiary did not meet the minimum requirement of a 
bachelor's degree in engineering (any), computer science, technology, or related. 
The matter is now before us on appeal. The Petitioner asserts that the Director erred in finding that 
the Beneficiary's bachelor's degree is not related to a bachelor's degree in engineering (any), 
computer science, or technology due to a high concentration of electrical engineering, computer 
engineering, advanced mathematics, physics and computer science courses. Upon de novo review, 
we will dismiss the appeal. 
I. LAW AND ANALYSIS 
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, the 
foreign national must 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 0-T-, Inc. 
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), approved by the DOL, accompanies the instant petition. By approving the labor 
certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, 
and available for the offered position. Section 212(a)(5)(A)(i)(l) 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) of the Act. 
In these visa petition proceedings, USCIS determines 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 the immigration 
service has authority to make preference classification decisions). 
The priority date of this petition, which is the date the DOL accepted the labor certification for 
processing, is October 6, 2014.1 See 8 C.F.R. § 204.5(d). 
A. Beneficiary Qualifications 
The beneficiary must meet 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 of Katigbak, 14 
I&N Dec. 45,49 (Reg'l Comm'r 1971). 
In evaluating the beneficiary's qualifications, USC IS must look to the job offer portion of the labor 
certification to determine the required qualifications for the position. USCIS may not ignore a term 
of the labor certification, nor may it impose additional requirements. See Madany v. Smith, 696 F.2d 
1008 (D.C. Cir. 1983); KR.K Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra­
Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). USCIS must 
examine "the language of the labor certification job requirements" in order to determine what the 
petitioner must demonstrate that the beneficiary has to be found qualified for the position. Madany, 
696 F.2d at 1015. USCIS interprets the meaning ofterms used to describe the requirements ofajob 
in a labor certification by "examin[ing] the certified job offer exactly as it is completed by the 
prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984)(emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor 
certification must involve "reading and applying the plain language ofthe [labor certification]" even 
if the employer may have intended different requirements than those stated on the form. !d. at 834 
(emphasis added). 
1 
The priority date is used to calculate when a beneficiary of the visa petition is eligible to adjust his or her status to that 
of a lawful permanent resident. See 8 C.F.R. § 245.1 (g). 
2 
(b)(6)
Matter of 0-T-, Inc. 
Part H of the labor certification states that the offereCl position has the ·following mmtmum 
requirements: 
H.4. 
H.6. 
H.7. 
H.8. 
H.9. 
H.lO. 
Education: Bachelor's degree in engineering (any), computer science, techn?logy, or related. 
Experience in the job offered: 24 months. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: None accepted. 
Foreign educational equivalent: Not accepted. 
Experience in an alternate occupation: 24 months as a software engineer, software analyst, 
or related IT professional. 
H.l4. Specific skills or other requirements: Any suitable· combination of education, training or 
experience is acceptable. Travel to our client locations throughout the USA. 
Part J of the labor certification states that the Beneficiary possesses a bachelor's degree in electrical 
engineering from completed in 2008. The record 
contains a copy of the Beneficiary's bachelor of elective studies (BES) degree and transcripts from 
issued on February 15, 2008. 
On appeal, the Petitioner asserts that the Beneficiary's BES degree is the equivalent of a bachelor's 
degree in electrical engineering in the United States. The Petitioner submits the following 
documentation in support of its assertion: 
• A March 21, 2009, evaluation from on behalf of 
stating that the Beneficiary's BES degree is .the equivalent of a bachelor of 
science degree in electrical engineering based on his analysis of the Beneficiary's 
curriculum. 
• A September 16, 2015, letter from the Director, AA and BES degree programs, and a 
September 17, 2015, letter from the Assistant Registrar, on letterhead, stating that the 
Beneficiary was admitted as an electrical engineering major and he completed 50 credits in 
the Electrical and Computer Engineering Department, as well as coursework in advanced 
mathematics, physics and computer science. 
• A September 24,2015, letter from Associate Professor, on 
letterhead, stating 
that the Beneficiary attained the 
equivalent of a 4-year bachelor of science degree in electrical engineering based on his 
analysis of the Beneficiary's coursework at and another college. 
The evaluation from states that the bachelor of elective studies program 
at requires a specialization in a major field of concentration, but does not provide a citation or 
evidence to support this assertion. We note that the Beneficiary's transcripts do not indicate any 
major field of study or concentration. Further, the University Catalog entry for the bachelor 
of elective studies program states that "a departmental major or minor is not required." See 
University Catalog, 
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(b)(6)
Matter of 0-T-, Inc. 
(accessed November 9, 20l6). As evaluation is 
inconsistent with information from the university about the degree program requirements, the 
evidentiary value of this evaluation is diminished. 
The letters from state that, although the Beneficiary was admitted to as an electrical 
engineering major, the degree conferred was a bachelor of elective studies. The letters further state 
that the Beneficiary's coursework was in the Electrical and Computer Engineering department, as 
well as in other areas. On its website, highlights the elective studies program for students 
"who have started a degree program, but have not finished it;" students "with a large number of 
credits in an area that no longer intereststhem;" students who wish to "take higher level courses in 
more than one subject areas without completing the full requirements of a single major;" and 
students who want to "explore a wide variety of subject areas in depth without committing to one 
specialty." See Bachelor of Elective Studies OVerview, 
(accessed November 9, 
20 16). The letters from do not indicate that the Beneficiary's degree in elective studies was in 
the field of, or with a 
major concentration in, electrical engineering. 
The evaluation states that the nomenclature of the degree title is not determinative of the 
substance of the degree program and that the Beneficiary fulfilled a bachelor's degree equivalent in 
the field of electrical engineering based on the number of credits earned in electrical engineering 
coursework: ' offers an electrical engineering program that would provide an applicant with 
the required education set forth on the labor certification. See Undergraduate Programs , 
(accessed August 17, 2016). An analysis of the 
Beneficiary's coursework indicates that he lacked two electrical engineering core courses and one 
electrical engineering elective to have been issued a bachelor's degree in electrical engineering by 
Therefore, we cannot conclude that the Beneficiary holds a bachelor's degree in electrical 
engmeermg. 
Section H.4 of the labor certification states that a bachelor's degree in engineering (any), computer 
· science, technology, or related is required. The labor certification does not define how the Petitioner 
would determine whether a degree may be related to engineering, computer science or technology. 
We issued a notice of intent to deny and request for evidence (NOID/RFE) on May 16, 2016, and 
requested evidence that the Petitioner considered degrees in fields other than engineering, as well as 
how the education requirement for the proffered position was explained to potential applicants. 
Specifically, we requested a copy of the signed recruitment report required by 20 C.F.R. 
§ 656.17(g)( 1 ), together with copies of the prevailing wage determination (PWD), all online, print and 
additional recruitment conducted for the position, the job order, the posted notice of the filing of the 
labor certification (NO F), and all resumes received in response to the recruitment efforts. 
In response to our NOID/RFE, the Petitioner provided copies of the posted NOF,2 an internal 
employee referral program notice, the recruitment report, and resumes received in response to the 
2 
We note that the NOF lists the rate of pay for the offered position of Programmer Analyst as $91 ,416, which is $22,818 
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Matter of 0-T-, Inc. 
recruitment efforts with interview notes and correspondence regarding the applicants' rejection. The 
Petitioner did not submit all of the requested evidence, including copies of the prevailing wage 
determination, all online and print recruitment conducted for the position, or the job order. 
While we consider the evidence submitted in response to our NOID/RFE, without the additional 
requested evidence, the record does not demonstrate how the Petitioner explained the education 
requirement for the proffered position to the DOL and potential applicants. Therefore, based on the 
evidence in the record of proceedings, the Petitioner has not established that its intent to accept 
degrees in other fields such as the one held by the Beneficiary was expressed during the labor 
certification process to the DOL and to potentially qualified U.S. workers. 
We therefore conclude that the terms of the labor certification require a U.S. bachelor's degree in 
engineering (any), computer science, technology, or related. The Beneficiary does not possess such 
a degree. The Petitioner has therefore not established that the Beneficiary meets the minimum 
educational requirements for the offered position as set forth on the labor certification. 
B. Actual Employer 
Although not addressed by the Director, we find that the Petitioner has not established that it will be 
the Beneficiary's actual employer. The regulation at 8 C.F.R. § 204.5(c) provides that "[a]ny United 
States employer desiring and intending to employ an alien may file a petition for classification of the 
alien under ... section 203(b)(3) of the Act." In addition, the DOL regulation at 20 C.F.R. § 656.3 
states: 
Employer means a person, association, firm, or a corporation which currently has a 
location within the United States to which U.S. workers may be referred for 
e~ployment, and which proposes to employ a full-time worker at a place within the 
United States or the authorized representative of such a person, association, firm, or 
corporation. 
In our NOID/RFE we noted that the Petitioner describes its business as an IT and business staffing 
firm. We therefore requested evidence to establish that there is a bona fide permanent job offer for 
the Beneficiary with the Petitioner as a direct employer. Specifically, we requested evidence to 
demonstrate who will control the Beneficiary's employment and, if the Beneficiary will be contracted to 
perform services to another entity, copies of contracts and/or invoices specifically naming the 
Beneficiary and/or the proffered position. 
In response to our NOID/RFE, the Petitioner asserts that, at all times, it retains the right of control 
over the Beneficiary and that, at the end of the assignment, the Beneficiary will return to its location 
pursuant to the terms of the proffered position. In support of its assertion, the Petitioner submitted a 
more than the offered wage listed on the labor certification. The Petitioner should explain this discrepancy with any 
further filings. 
5 
(b)(6)
Matter of 0- T-, Inc. 
May 31, 2016, letter from CFO, on letterhead, stating that the 
Beneficiary is currently employed at as a programmer analyst on a 
temporary basis and that it has no employment relationship with the Beneficiary. states 
that the Beneficiary is assigned to the project through contract with the Petitioner, which is 
responsible for his terms of employment. The Petitioner also submits a May 26, 2016, letter from 
Director IT, on letterhead, stating it has an agreement with 
Ambient through its subcontractor, the Petitioner, to provide the Beneficiary as a programmer 
analyst. states that the assignment is temporary and that during the entire assignment 
the Beneficiary is a permanent employee of the Petitioner. states that the Petitioner 
will exclusively control all terms and conditions of employment, including but not limited to the 
Beneficiary's work and training, supervision of work, provision of necessary instrumentalities and 
tools to perform the work, work and training schedule, provision of employee benefits and tax 
treatment as an employee, and the right to hire or fire and pay the Beneficiary's wages. 
The letters provided by the Petitioner are insufficient to establish that it will be the actual employer 
of the Beneficiary. We specifically requested copies of contracts and/or invoices specifically naming 
the Beneficiary and/or the proffered position if the Beneficiary was to be contracted to perform services 
to another entity. The Petitioner did not submit the contracts between it and and 
or and Nor did the Petitioner submit any invoices relating to the subcontracting 
of the Beneficiary. Further, there is insufficient evidence that a permanent position with the Petitioner 
would be available after the Beneficiary completed his current temporary assignment. This issue should 
be addressed in any future filings. 
II. CONCLUSION 
In summary, the Petitioner has not established that the Beneficiary meets the minimum requirements 
for the proffered position. The Director's decision denying the petition is affirmed. The record also 
does not establish that the Petitioner will be the Beneficiary's actual employer. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Brantigan , 11 I&N Dec. 493 (BIA 1966); Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofO-T-, Inc., ID# 81606 (AAO Nov. 10, 2016) 
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