dismissed EB-3 Case: Software Development

MATTER OF S-S-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 21,2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a custom software development business, seeks to employ the Beneficiary as a senior 
systems administrator. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act), section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant classification 
allows a U.S. employer to sponsor a foreign national for lawful permanent resident status to work in 
a position that requires at least 2 years of training or experience. 
The Director, Nebraska Service Center, denied the visa petition, determining that the record did not 
establish that the Beneficiary had the education required by the labor certification. He also 
dismissed the Petitioner's subsequent motion to reconsider (MTR) as he found it did not meet 
regulatory requirements. 
The matter is now before us on appeal. The Petitioner contends that the Director wrongly dismissed 
its motion. It asserts that it appropriately indicated alternative requirements for the job opportunity 
on the labor certification and that the Beneficiary is, therefore, qualified for the offered position. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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. 
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification, 
approved by DOL, accompanies the instant petition. 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. Section 212(a)(5)(A)(i)(l) of the Act. The DOL also certifies that the employment of 
Matter of S-S-, LLC 
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 visa petition proceedings, USCIS determines whether a foreign national meets the job requirements 
specified in the underlying 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 the 
authority to make preference classification decisions). 
The priority date of a petition is the date that DOL accepts the labor certification for processing. See 
8 C.P.R. § 204.5(d). The priority date is used to calculate when the beneficiary of a 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). A 
petitioner must establish the elements for the approval of the petition at the time the priority date is 
established and continuing until the beneficiary obtains lawful permanent residence. See 8 C.P.R. 
§§ 204.5(g)(2), 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 of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
In the present proceedings, the issue before us is whether the Director properly dismissed the 
Petitioner's MTR, which sought to overcome his determination that the Beneficiary in this matter is 
not qualified for the job opportunity. 
The requirements for an MTR are found in the regulation at 8 C.P.R. § 1 03.5(a)(3), which states: 
(3) Requirements for motion to reconsider. A motion to reconsider must state the 
reasons for reconsideration and be supported by any pertinent precedent decisions to 
establish that the decision was based on an incorrect application of law or Service 
policy. A motion to reconsider a decision on an application or petition must, when 
filed, also establi.sh that the decision was incorrect based on the evidence of record at 
the time of the initial decision. 
Therefore, to show that the Director wrongly dismissed its MTR, the Petitioner must not only 
establish that the motion offered reasons for reconsideration, but that it demonstrated that the 
dismissal resulted from an error in law or policy on the part of the Director, as supported by relevant 
precedent decisions. 1 It must also establish that its MTR demonstrated that, at the time of the 
Director's decision, the record established the Beneficiary's eligibility for the job opportunity. 
1 In immigrant visa proceedings, precedent decisions are the administrative decisions reached by this office, the Board of 
Immigration Appeals (BIA), and the Attorney General, which are selected and designated as precedent decisions by the 
Secretary of Homeland Security, the BIA, and the Attorney General, respectively. Precedent decisions must be 
designated and published in bound volumes or as interim decisions. 8 C.F.R. § 103.9(a). 
2 
(b)(6)
Matter of S-S-, LLC 
II. PROCEDURAL HISTORY AND EVIDENCE OF RECORD 
On October 1, 2015, the Petitioner filed the instant Form I-140, Immigrant Petition for Alien 
Worker. On October 13, 2015, the Director issued a Request for Evidence (RFE) to the Petitioner, 
indicating that he did not find the record to establish that the Beneficiary held a U.S. bachelor's or 
foreign equivalent degree in one of the fields required by the labor certification. He noted that the 
record established that the Beneficiary, following 3 years of study in India, had been awarded a 
diploma in computer technology, but found that the diploma did not reflect that the Beneficiary held 
a foreign degree equivalent to a U.S. bachelor's degree. The Director further observed that the 
credentials evaluation of the Beneficiary's education and experience submitted for the record did not 
find the Beneficiary to hold a foreign equivalent degree to a U.S. baccalaureate degree, but rather, 
based on a combination of education and experience, to have the equivalent of a U.S. baccalaureate 
degree. The Director's RFE also notified the Petitioner that the equivalency ratio of "3 years of 
experience = I year of university-level credit" used in the submitted evaluation was not applicable to 
immigrant visa petitions. 
In response, the Petitioner asserted that the "Kellogg language"2 it had placed in Part H.l4. of the labor 
certification had established alternative requirements for the offered position, allowing the Beneficiary 
to qualify for the job opportunity with the equivalent of a U.S. baccalaureate. It maintained that its 
submission of a February 17, 2008, evaluation prepared by of 
established this equivalency. The Petitioner further contended that the Beneficiary's 
approximately 17 years of relevant work experience was sufficient to demonstrate the 24 months of 
employment experience required by the labor certification. 
On November 17, 2015, the Director denied the visa petition. He found that the Beneficiary did not 
have the U.S. bachelor's degree in computer science, IT or a related field required by the labor 
certification or a foreign equivalent degree, which, he stated, was "a degree awarded by an institution 
outside the U.S. for a course that is similar in complexity and length (4 years) to a course of study for 
which an institution in the U.S. would grant a baccalaureate degree." In response to the Petitioner's 
claim that its placement of Kellogg language in Part H.l4. of the labor certification established 
alternative requirements for the offered position, the Director noted that Kellogg language did not alter a 
labor certification's minimum requirements and that an employer wishing to indicate alternate 
requirements for a job opportunity would do so in Parts H. through H-C. of the labor certification. 
The Petitioner filed a MTR on December 18, 2015, stating its reasons for reconsideration. It contended 
that the Director had considered the Beneficiary as a professional under section 203(b )(3)(A)(ii) of the 
Act, rather than as a skilled worker under section 203(b)(3)(A)(i) of the Act. The Petitioner also 
2 The statement that an employer will accept applicants with "any suitable combination of education, training, or 
experience" is commonly referred to as Kellogg language. Matter of Francis Kellogg, 1994-INA-465 and 544, 1995-
INA 68 (Feb.2, 1998) (en bane). 
3 
Matter of S-S-, LLC 
asserted that the Director's statement regarding the placement of alternative requirements in Part H.8. 
of the labor certification was inconsistent with guidance provided by DOL. It further maintained that by 
not applying its Kellogg language in this matter, the Director had allowed for "the impermissible 
exclusion of potentially qualified US workers" from the job opportunity. 
On February 29, 2016, the Director dismissed the Petitioner's MTR, finding that it did not meet the 
requirements at 8 C.F.R. § 1 03.5(a)(3). The Director notified the Petitioner of its right to appeal his 
decision to this office. On March 31, 2016, the Petitioner filed the instant Form I-290B, Notice of 
Appeal or Motion. 
III. ANALYSIS 
On appeal, the Petitioner asserts that in denying its MTR, the Director ignored the substantive legal 
issues it had raised and that his decision referred to private discussions and correspondence with 
USCIS that had not occurred. It also contends that the Director erred in denying the visa petition as 
the Beneficiary is qualified for the offered position based on the alternative requirements or Kellogg 
language, reflected in Part H.14. of the labor certification. The Petitioner further maintains that, by 
insisting that the Beneficiary is required to possess a foreign equivalent degree, the Director ignored 
the fact that it filed the visa petition for the Beneficiary under section 203(b)(3)(A)(i) of the Act for a 
skilled worker, an immigrant classification requiring only 2 years of training or experience. 
To determine whether the Director properly denied the Petitioner's MTR, we will consider the extent 
to which the December 18, 2015, motion satisfied the two evidentiary prongs of the regulation at 
8 C.F.R. § 103.5(a)(3): (1) that the Director's decision was based on an incorrect application of law 
or USCIS policy, as supported by precedent decision, and (2) that his decision was incorrect based 
on the evidence of record at the time of that decision. 
A. Whether Director's decision was based on an incorrect application of law or US CIS policy 
The Director dismissed the Petitioner's motion after finding that it was "not accompanied by new 
evidence . . . . [did] not provide precedent decisions to consider ... [or] establish that [his] decision 
was incorrect based upon the evidence of record at the time." However, on appeal, the Petitioner 
asserts that its MTR was accompanied by new evidence, a precedent decision, and public guidance 
issued by DOL. It maintains that, as it did provide additional evidence and cite to substantive legal 
matters, the Director erred in denying the MTR. 3 Specifically, the Petitioner contends that its MTR 
addressed the following: Matter of Francis Kellogg, 1994-INA-465 and 544, 1995-INA 68 (Feb. 2, 
1998) (en bane); the minutes of a March 23, 2006, AILA-DOLETA liaison meeting; a comparison 
between the requirements for a skilled worker versus a professional worker under the Act; the 
application of 20 C.F.R. § 656.17(h)( 4)(ii) and 8 C.F.R. § 204.5(3)(l)(ii)(B) to the Beneficiary's 
3 We note that the Director misstated the requirements for a motion to reconsider when he indicated that the Petitioner 
had submitted no new evidence in support of its MTR. The regulation at 8 C.F.R. § I 03.5(a)(3) does not require the 
submission of new evidence. 
4 
Matter of S-S-, LLC 
qualifications as a skilled worker; and an examination of the Beneficiary's qualifications as they 
relate to the relevant Specific Vocational Preparation (SVP) level (7.0 < 8.0). 
As noted above, the Petitioner's MTR stated the reasons for reconsideration, asserting that the 
Director's decision was based on an incorrect application of both law and policy. The Petitioner 
stated on motion that the Director had wrongly applied the baccalaureate degree requirement for a 
professional worker in section 203(b)(3)(A)(ii) of the Act to the Beneficiary, thereby ignoring the 
fact that the Beneficiary was qualified for the job opportunity as a skilled worker under section 
203(b)(3)(A)(i) of the Act. It also asserted that the Director's determination that the Kellogg 
language it had placed in Part H.14. of the labor certification did not alter that document's 
requirement for a baccalaureate degree and conflicted with DOL guidance regarding the placement 
of Kellogg language on the ETA Form 9089. In support ofthis claim, the Petitioner submitted copies 
of"MINUTES OF AILA-DOLETA LIAISON MEETING HELD ON MARCH 23,2006, PREPARED 
BY THE AILA-DOLETA LIAISON COMMITTEE," and "Permanent Labor Certification Program, 
Final Regulation, Frequently Asked Questions, April 7, 2005." Finally, the Petitioner maintained that 
the Director's decision was inconsistent with the intent of DOL's PERM regulations, and that its 
practical effect would be to "essentially exclude potentially qualified U.S. applicants [from] this 
offer of employment ... in direct opposition to the intent of the PERM program." 
However, the reasons for reconsideration stated in the Petitioner's MTR are not supported by the 
evidence necessary to demonstrate that the Director's dismissal of the motion was based on an 
incorrect application of law or USCIS policy. A petitioner cannot meet its burden of proof in 
immigration proceedings simply by claiming a fact to be true, without supporting documentary 
evidence. See Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure 
Craft ofCaltfornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter ofChawathe, 25 I&N 
Dec. 369 (AAO 2010). A petitioner must support assertions with relevant, probative, and credible 
evidence. Matter ofChawathe, 25 I&N Dec. at 369. 
No evidence~ including relevant precedent decisions, supports the Petitioner's assertion that the 
Director misapplied the Act or USCIS policy by finding the labor certification to require that the 
Beneficiary have a U.S. baccalaureate or foreign equivalent degree. Matter ofSo.ffici, 22 l&N Dec. at 
165; see also Matter ofChawathe, 25 I&N Dec. at 369. Neither do we find the Petitioner to have 
submitted evidence on motion to establish that the Director erred as a matter of law or policy in 
finding that the Kellogg language in Part H.14. of the labor certification did not change the degree 
requirement stated in the labor certification. The Petitioner's assertion on motion that the Director's 
finding in this regard conflicts with DOL guidance concerning the placement of Kellogg language in 
the labor certification appears to reflect a misunderstanding of the Director's decision. Moreover, 
although the Petitioner on appeal points to the MTR's reference to Matter of Francis Kellogg as 
being a reference to a precedent decision, this opinion, issued by the Board of Alien Labor 
Certification Appeals (BALCA), is not a precedent decision for the purposes of this proceeding. As 
previously noted, precedent decisions, as referenced at 8 C.F.R. § 1 03.5(a)(3), are those 
administrative decisions reached by this office, the Board of Immigration Appeals (BIA), and the 
Attorney General, which have been designated as precedent decisions by the Secretary of Homeland 
Security, the BIA, and the Attorney General, respectively. We also find the minutes from the AILA-
5 
Matter of S-S-, LLC 
DOLETA liaison meeting and the copy of DOL Frequently Asked Questions,4 which the Petitioner 
provided to establish that it correctly placed its Kellogg language in Part H.14. of the labor 
certification, are not relevant to the Director's determination regarding the impact of this language 
on the degree requirement of the labor certification. 
Finally, the Petitioner's MTR filing provided no evidence in support of its claim that the Director's 
decision not to consider the Beneficiary's qualifications under its Kellogg language was inconsistent 
with DOL's PERM regulations and that it, therefore, reflects an incorrect application of law or 
USCIS policy. As a result, the Petitioner has not demonstrated that the Director's decision was 
inconsistent with the PERM process, nor that, if inconsistent, the decision reflects an error in law or 
policy on the part of the Director. Matter of So.ffici, 22 I&N Dec. at 165; see also Matter of 
Chawathe, 25 I&N Dec. at 369. 
Based on the record before us, we do not find the Petitioner's MTR to have satisfied the evidentiary 
requirements at 8 C.F.R. § 103.5(a)(3) and, therefore, that the Director's dismissal of the MTR 
resulted from an incorrect application of law or USCIS policy. 
B. Whether the Director's decision was incorrect based on the evidence of record 
On appeal, the Petitioner contends that the Director erred in denying the visa petition as the 
Beneficiary is qualified for the offered position based on the alternative requirements (Kellogg 
language) stated in Part H.14. of the labor certification. 
The Petitioner in this matter views the Kellogg language reflected in Part H.14. of the labor 
certification as a statement of its alternative requirements for the offered position, allowing the 
Beneficiary to qualify for the offered position on the basis of his degree equivalency. However, the 
phrase "any suitable combination of education, training, and/or experience," is not a substitute for a 
petitioner's statement of its alternative requirements for a job opportunity. Instead, this language 
reflects the BALCA decision in Matter of Francis Kellogg, 1994-INA-465 and 544, 1995-INA 68 
(Feb. 2, 1998) (en bane), requiring an employer in a case where a beneficiary potentially qualifies 
for the offered position only because of its alternative job requirements to have indicated its 
willingness to accept applicants with "any suitable combination of education, training or 
experience." In the absence of such a statement, BALCA ruled that the alternative requirements 
would be considered as having been unlawfully tailored to the beneficiary's qualifications. 
Accordingly, DOL, in the past, denied labor certification applications containing alternative 
requirements if the application did not contain Kellogg language in Part H.14. However, two 
BALCA decisions have lessened this requirement. In Federal Insurance Co., 2008-PER-00037 
4 It appears that the Director's reference to "private discussions and correspondence solicited to obtain advice from 
USCIS" reflects a misreading ofthe minutes from the March 23, 2006, AILA-DOLETA liaison meeting as relating to a 
meeting between AI LA and USCIS. 
6 
Matter of S-S-, LLC 
(Feb. 20, 2009), BALCA held that the ETA Form 9089 failed to provide a reasonable means for an 
employer to include the Kellogg language on the labor certification. Therefore, BALCA concluded 
that the denial of the labor certification for failure to write the Kellogg language on the labor 
certification application violated due process. Also, in Matter of Agma Systems LLC, 2009-PER-
00132 (BALCA Aug. 6, 2009), BALCA held that the requirement to include Kellogg language did 
not apply when the alternative requirements were "substantially equivalent" to the primary 
requirements. 
Given this history, USCIS does not generally interpret "any suitable combination of education, 
training and/or experience," when included in Part H.14. of the labor certification, to mean that an 
employer will accept lesser qualifications than the stated requirements on the labor certification. To 
do so would make the actual minimum requirements of the offered position impossible to discern 
and would render the stated requirements of the offered position largely meaningless. As a result, 
we do not consider the presence of Kellogg language in Part H.14. of a labor certification to have 
any material effect on the interpretation of the minimum requirements of the job opportunity. We 
interpret "any suitable combination of education, training and/or experience" to be education, 
training, or experience that is equal to or greater than the specific requirements on the form. 
In the present matter, however, the labor certification lists no alternative requirements for the offered 
position, eliminating the need for Kellogg language. It reflects the Petitioner's primary requirements 
for the job opportunity as: a U.S. bachelor's or foreign equivalent degree5 (Parts H.4. and H.9.) in 
computer science, IT or a related field (Parts H.4-B., H.7., H.7-A.) and 24 months of experience in 
the job offered of senior systems administrator, as a systems engineer, or in a related occupation 
(Parts H.6., H.6-A., H.1 0, H.1 0-A., and H.1 0-B.). In Part H.8. of the labor certification, where a 
petitioner would ordinarily list its alternative requirements, the Petitioner in this matter answered 
"No" in response to the question, which asks "Is there an alternate combination of education and 
experience that is acceptable? As a result, the labor certification clearly reflects that the offered 
position requires the Beneficiary to have a U.S. bachelor's or a foreign equivalent degree in one of 
the fields identified above. 
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not 
ignore a term of the labor certification, nor may it impose additional requirements. K.R.K. Irvine, 
Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 1008, 1012-1013 
(D.C. Cir. 1983). We must examine "the language of the labor certification job requirements" in 
order to determine what the job requires. !d. We must examine the certified job offer exactly as it is 
5 "Foreign educational equivalent," as it appears in Part H.9. of the labor certification reflects a petitioner's willingness 
to accept a foreign degree determined to be the foreign equivalent of a bachelor's degree based on the completion of one 
program of study for which a foreign degree equivalent to a U.S. bachelor's degree was issued by a college or university. 
Foreign educational equivalent does not express, state, or define a petitioner's willingness to accept a combination of 
educational programs and/or experience determined to be the equivalent of a U.S. baccalaureate since that preference 
would be indicated in Part H.8., which is not the case here. 
7 
Matter of S-S-, LLC 
completed by the prospective employer. See Rosedale Linden Park Co. v. Smith, 595 F. Supp. 829, 
833 (D.D.C. 1984). Interpretation of the job's requirements, as stated on the labor certification 
involves reading and applying the plain language of the labor certification application form. !d. at 
834. 
Therefore, as the labor certification requires the Beneficiary to hold a U.S. bachelor's or a foreign 
equivalent degree, the Petitioner may not establish the Beneficiary's qualifications for the offered 
position based on the degree equivalency provided by the submitted credentials evaluation, even 
though it is seeking classification of the Beneficiary as a skilled worker under section 203(b)(3)A)(i) 
ofthe Act. 
While no degree may be required for classification as a skilled worker, the regulation at 8 C.F.R. 
§ 204.5(1)(3)(3)(B) requires that a petition for a skilled worker be accompanied by evidence that 
demonstrates that a beneficiary "meets the education, training or experience, and any other requirements 
of the individual labor certification." Here, the labor certification requires the Beneficiary to hold a 
single-source, 4-year U.S. baccalaureate degree or a foreign equivalent degree. Therefore, the fact that 
the Beneficiary may have been determined to have the equivalent of a U.S. baccalaureate degree 
does not qualify him for the job opportunity. We will not accept a degree equivalency where, as 
here, a labor certification plainly and expressly requires a specific degree. For this same reason, the 
Petitioner cannot establish that the Beneficiary qualifies for the offered position based on his years 
of experience, even though classification as a.skilled worker under section 203(b)(3)(A)(i) of the Act 
may be based on a minimum of 2 years of training or experience. Accordingly, the Petitioner's 
MTR, when filed, did not establish that the Director's decision was incorrect based on the evidence 
of record. 
For the reasons already discussed, the record does not establish that the Petitioner's MTR met either 
of the requirements at 8 C.F.R. § 103.5(a)(3) at the time it was tiled. Accordingly, we find the 
Director to have properly dismissed the Petitioner's MTR. 
IV. CONCLUSION 
For the reasons noted above, the record does not establish that the Petitioner's MTR met the 
requirements for a motion at 8 C.F.R. § 103.5(a)(3). A motion that does not meet applicable 
requirements shall be dismissed. Therefore, the Director properly dismissed the Petitioner's MTR. 
8 C.F.R. § 103.5(a)(4). 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here that burden has not been met. Accordingly, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-, LLC, ID# 12283 (AAO Nov. 21, 2016) 
8