dismissed EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC. 
Non·Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 28, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of management consulting services, seeks to employ the Beneficiary as a 
senior software developer. It requests his classification under the third-preference immigrant 
category as a professional. 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 at least 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 Petitioner did not establish the Beneficiary's possession of the experience and skills required 
for the offered position. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary gained all 
required experience and skills with it and a former U.S. employer. It contends that the Director 
disregarded evidence of the unavailability of a letter from the former employer. It also asserts that 
the Beneficiary's possession of a master's degree satisfies the position's primary requirements of a 
bachelor's degree and five years of experience. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker, an employer must first obtain 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). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for a position, and that employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. !d. 
If the DOL approves 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. Among other things, USCIS considers whether a Beneficiary meets the DOL­
certified requirements of a position: If USCIS approves a petition, a foreign national may finally 
Matter ofS-, Inc. 
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. 
II. THE REQUIREMENTS OF THE OFFERED POSITION 
A petitioner must establish a beneficiary's possession of all DOL-certified job requirements by a 
petition's priority date. Ma11er of Wing's Tea House, l6l&N Dec. !58, 160 (Acting Reg'! Comm'r 
1977). 1 When evaluating a beneficiary's qualifi'cations, USCIS must examine the job-offer portion 
of an accompanying labor certification to determine the minimum requirements of the offered 
position. USCIS may neither ignore a certification term, nor impose additional requirements. See, 
e.g., Madany v. Smith, 696 F.2d l 008, l 015 (D.C. Cir. 1983) (holding that the "DOL bears the 
authority for setting the content of the labor certification") (emphasis in original). 
Here, the labor certification states the minimum requirements of the offered position of senior 
software developer as a bachelor's degree in computer science or engineering, and tive years of 
experience in the job offered. Part H.14 of the labor certification also states that experience must 
include three years of proficiency with certain operating systems and tools, and five years of 
software development experience using specified skills and technologies. In addition, the labor 
certification states that the Petitioner will not accept any alternate combination of education and 
expenence. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained 
more than six years of full-time qualifying experience in the United States. He stated that he worked 
for the Petitioner in the offered position for almost three and a half years and that prior to 
employment with the Petitioner, he worked for a software company as an engineer for nearly three 
years. His educational qualifications are not at issue. However, for reasons discussed below, we 
agree with the Director that the Petitioner has not established the Beneticiary's possession of five 
years of experience in the job offered, five years of experience using the specified skills and 
technologies, or three years of experience demonstrating proficiency with the listed operating 
systems and tools. 
A petitioner must generally support a beneficiary's claimed qualifying experience with letters from 
employers. 8 C.F.R. § 204.5(!)(3)(ii)(A). In response to the Director's request for additional 
evidence (RFE), the Petitioner provided letters from two people who stated that they worked with 
the Beneficiary at the software company. The record also contains copies of the Beneficiary's 
payroll records with the company in 2013 and information about the company and its products. 
The letters are not on the software company's. stationery. As the Petitioner argues, however, it 
submitted evidence of the company's acquisition by another tirm thai eventually went out of 
business. The record therefore establishes the· unavailability of a company letter. See 8 C.F.R. 
1 
This petition's priority date is April 4, 2017, Ihe date the DOL accepted the accompanying labor certification 
applicalion for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
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Matter ofS-, Inc. 
§ 204.5(g)(l) (requiring us to consider other documentation if a letter from a former employer is 
unavailable). 
The letters, however, are insufficient to establish the Beneficiary's claimed qualifying experience. 
The record lacks corroborating evidence of the co-workers' claimed affiliations with the software 
company, such as payroll records as submitted on behalf of the Beneficiary. The letters therefore are 
unreliable evidence of the Beneficiary's claimed qualifying experience. Also, neither of the letters 
states the Beneficiary's proficiency or experience with the technologies and skills specified in Part 
H.14 of the labor certification. The Petitioner argues that the information about the company and its 
products details the technologies and skills the Beneficiary used during his employment with the 
company. However, the Petitioner has not offered evidence of the Beneficiary's use of the skills and 
technologies discussed general! y in the company information. Therefore, the record does not 
demonstrate that the Beneficiary gained qualifying experience or proficiency in the required skill set 
with the software company. 
To support the Beneficiary's claimed qualifying experience with it, the Petitioner provided a letter 
on company stationery from its chief executive :officer. The Petitioner's letter, however, also does 
not state the Beneficiary's proficiency or experience with the technologies and skills specified in 
Part H.14 of the labor certification. Thus, as the Director found, the record does not establish the 
Beneficiary's possession of the experience and skills required for the offered position. 
In addition, a labor certification employer cannot rely on experience that a foreign national gained 
with it, unless he or she gained the experience in a position substantially different than the one 
offered or the employer can demonstrate the impracticality of training a U.S. worker for the offered 
position. 20 C.F.R. § 656.17(i)(3). For these purposes, a substantially different position means a job 
that requires performance of the same duties less than 50 percent of the time. 20 C.F.R. 
§ 656.17(i)(5). Here, the Petitioner attempts 'to rely on the Beneficiary's experience with it. 
However, the Petitioner states that the Beneficiary's experience with it was gained in the exact same 
position as offered. The record also lacks evidence of the impracticality of training a U.S. worker 
for the offered position. Thus, the record does not establish that the Petitioner can rely on the 
Beneficiary's qualifying experience with it. 
On appeal, the Petitioner argues that the experience letters from it and the Beneficiary's former co­
workers "incorporate" the job duties of the ofTered position and the skills and technologies specified 
on the labor certification. The letters, however, do not state that purported incorporation. The letters 
must describe the Beneficiary's job duties, 'and specify the skills and technologies with which he 
worked. As they do not, they are not sufficient to demonstrate the Beneficiary's eligibility. 
The Petitioner also notes that the Beneficiary has a master's degree and that a bachelor's degree 
followed by five years of experience can equate to a master's degree. See 8 C.F.R. § 204.5(k)(2) 
(defining the term "advanced degree" for purposes of qualifying as an advanced degree professional 
under section 203(b)(2)(A) of the Act). The Petitioner therefore argues that the Beneficiary's 
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Matter of S-, Inc. 
master's degree equates to a bachelor's degree and five years of experience, qualifying him for the 
offered position. 
The Petitioner's argument, however, is misplaced. The advanced degree equivalency applies only 
for purposes of qualifying a beneficiary for an immigrant visa classification. In addition to 
demonstrating a beneficiary's qualifications for a requested classification, a petitioner must establish 
his or her possession of the minimum requirements stated on an accompanying labor certification. 
See Matter of Wing's Tea House, 16 I&N Dec. at 160. Thus, even if the advanced degree 
equivalency qualified the Beneficiary for classification purposes, the Petitioner would still have to 
establish his possession of at least a bachelor's degree and five years of experience as stated on the 
labor certification. 
The Petitioner argues that Wing's and a prior case with a similar holding, Matter of Katigbak, '14 
I&N Dec. 45 (Corum 'r 1971 ), are distinguishable from this matter. The Petitioner contends that 
Katigbak and Wing's focused on qualifications of beneficiaries for requested classifications, while 
the Beneficiary's eligibility as a professional is not at issue. Contrary to the Petitioner's argument, 
however, Katigbak and Wing's hold that a petitioner must establish a beneficiary's possession of the 
minimum job requirements stated on a labor certification. The precedent cases therefore apply to 
this matter. 
Finally, the Petitioner asserts that the Beneficiary's graduate coursework establishes his possession 
of the skills and technologies required for the offered position. Part H.l4 of the labor certification, 
however, requires three years of "proficiency" with certain skills and technologies, and five years of 
"experience" with other skills and technologies. The record neither establishes the Beneficiary's 
graduate coursework as totaling the requisite three or five years, nor demonstrates that the terms of 
the labor certification allow coursework as constituting "proficiency" or "experience." 
For the forgoing reasons, the record does not establish the Beneficiary's qualifications for the 
offered position .. 
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. 2 A petitioner must demonstrate its continuing ability to pay a proffered 
wage, from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 
C.F.R. § 204.5(g)(2). Evidence of ability to pay must include copies of annual reports, federal 
income tax returns, or audited financial statements. !d. 
Here, the labor certification states the pro.ffered wage of the offered posttton of senior software 
developer as $98,363 a year. As previously noted, the petition's priority date is April4, 2017. 
2 
The Director's· RFE asserted that the record did not establish the Petitioner's ability to pay. But the RFE did not 
describe any deficiencies in the Petitioner's evidence, nor did the Director deny the petition on ability·to·pay grounds. 
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Matter of S-, Inc. 
The Petitioner submitted copies of its federal income tax returns for 2015. Contrary to 8 C.F.R. 
§ 204.5(g)(2), .however, the Petitioner did not submit required evidence of its ability to pay the 
proffered wage in 2017, the year of the petition's priority date. The record therefore does not 
establish the Petitioner's ability to pay the proffered wage. For this additional reason, the petition 
may not be approved. 
IV. CONCLUSION 
The record on appeal does not establish the Beneficiary's possession of the minimum experience and 
skills required for the offered position, nor does it demonstrate the Petitioner's ability to pay the 
proffered wage. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-, Inc., ID# 1442174 (AAO June 28, 2018) 
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