dismissed EB-3 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-C-1~, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 30, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a pre-paid gift card processing company, seeks to employ the Beneficiary as a software 
engineer. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
!i 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 two years of training or experience. 
The Director of the Texas Service Center denied the pelltiOn. The Director found that the 
Beneficiary did not qualify for the job offered because he did not meet the minimum educational 
requirement of the labor certification. 
On appeal, the Petitioner asserts that the Beneficiary meets the mmunum educational (and 
experience) requirements of the labor certification to qualify for the job offered. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 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 employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. Second, the employer tiles 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 USClS 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. 
1 The date the labor certification is filed with the DOL, in this case September 23, 2016, is the "priority date" of the 
succeeding petition. A beneficiary must meet all eligibility requirements as of that date. 
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Maller of 1-C-1-. Inc. 
The Petitioner requests classification of the Beneficiary as a skilled worker.· In order to qual ify as a 
skilled worker, the Beneficiary must posse ss at least two years of training or expe rience and meet the 
"ed ucational , training or experience, and any other requirement s of the individual labor 
certification." 8 C.F.R. § 204.5(1)(3)(ii)(B). See also Matter of Wing 's Tea House, 16 l&N Dec. 
158, 159 (Acting Reg'l Comm'r 1977). 
II. ANALYSIS 
At issue in this case is whether the Beneficiary possesses the minimum education required by the 
terms of the labor certification. In section H of the labor certi fication, the Petitioner specifies the 
following with respect to the education, training, and experience required to qualify for the job of 
software engineer: 
4. 
4-B. 
5. 
6. 
6-A. 
7. 
7-A. 
8. 
9. 
10. 
10-A. 
10-B. 
Education: Minimum level required : 
Major Field of Study: 
Is training required for the job? 
Is experience in the job offered required? 
How long? 
Is an alternate field of study acce ptable? 
What field? 
Is an alternate combination of education 
and experience acceptable? 
Is a foreign educational equivalent acceptable? 
Is experience in an alternate occupation acceptable? 
How long? 
Job titles of alternate occupations 
Bachelor 's degree 
Computer Science 
No 
Yes 
60 mon ths 
Yes 
Engineering or related field 
No 
Yes 
Yes 
60 months 
Developer, Project Lead, 
or related 
Section H.14 of the labor certification - "Specific skills or other requ irement s" - reiterates the 
educational and experience requirements listed above with the following language: 
Requires a Bachelor's degree in Computer Science, Engineering or re lated field and 
five years of experience in the job offered or related position. 
Section J of the labor certification states that the Beneficiary's highest level of education relevant to 
the job opportunity is a bachelor's degree in computer science from 
in India, completed in 2004 . The Benefici ary's diploma fro m states that her 
bachelor of commerce was a three yea r degree course. Section K of the labo r certification states that 
the Beneficiary had seven years and eight months of experience as a projec t lead with 
in , India, between October 2007 and June 20 15, before starting work with 
the Petitioner. The record include s documentary evidence of this expe rience . The petition was 
accompanied by an evaluation of the Beneficiary's education and experience by 
dated in March 2013 , who asserted that the Benefic iary's three- year 
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Maller of 1-C-1-, Inc. 
bachelor's degree was equi valent to t hree years of study a t a U.S. col lege or university, that h is fi ve 
years 
and five months of experien ce with (up to th at time) was equivalent to an additi onal 
year of c ollege or univer sity s tud y, and that the combination of this educa tion and ex perience was 
equi valent to a b achelor of science degree in computer science fro m an acc redited coll ege or 
univers ity in the United State s. 
In respon se to the Director 's request fo r evidence (RFE) the Petitioner submit ted a statement 
exp lainin g that its use of the term "equ ivalent" in the labor certifi cat ion mea nt that the requirement 
of a bachelor 's degree could be met through a combination of education, train ing, and exper ience as 
dete rmined b y a qualified credential eva luation service. The Petiti oner subm itted another eva luation 
of the Benefi ciary ' s education and work ex perience by 
Similar t o the previous evaluation f rom the eva luat ion asse rted that the 
Beneficiary's three-year degree from was equ ivalent to three years of study at a U.S. college or 
university, and that this degree in combination with his work e xperience was equivalent to a U.S. 
bachelor's degree in computer information syste ms. 
In his decision den ying the petition the Director fo und that the Benefi ciary's three-yea r bachelor o f 
science degree from did not m eet the minimum educ ationa l r equi rement of the labo r 
certification because a U.S. baccalaureate degree generally requ ires four yea rs of ed ucation, citin g 
Matter of Shah, 17 I&N Dec. 244 (Reg' ! Comm ' r 1977). The Director also fo und that the labor 
certifi cation did not allow experience to be s ubstituted for any part of the e ducational requir ement. 
In short, the Director found that the Beneficiary' s three-y ear bachelor' s degree from and 
subsequent w ork experienc e did not meet the labor certific at ion r equ ire ment o f a U.S . bache lor's 
degree or a forei gn educ ational equi valent. 
On appeal the Petiti oner d oes not claim that the Beneficiary's three-year bache lor's deg ree f rom 
India is the foreign equiv alent of a U.S. bachelor's degre e. Rather, the Petitioner assert s that the labor 
certification allows the Beneficiary to qualify for the o ffe red position with a combin ation of education 
and expe rience deemed by a qualit ied evaluator to be equivalent to a U.S. bachelor's degree. We do not 
agree. 
In order to determine the min imum requirements of a proffered position, we mu st exam ine "the 
language of the labor certifi cation j ob requirements. " Madany v. Smith, 696 F.2d I 008, I 0 15 (D.C. 
Cir. 1983). USCIS must exa mine the certifi ed j ob offer exactl y as it is completed by the prospectiv e 
employe r. See Rosedale Linden Park Company v. Smith, 595 F.Supp. 829, 833 (D.D.C. 1984). Our 
interpretation of the job' s requi reme nts must involve reading and applying the pla in language o f the 
labor certi fication appli cat ion form . /d. at 834. 
In this case , the l abor certificat ion states that the m inimum educatio nal req uiremen t is a bachelor' s 
degree in computer science, engineerin g, or a relat ed field of study, or a foreign educatio nal 
equivalent (sec tions H.4 , H.4-B , H.7, H.7-A', and H.9), and t hat the min imum experience 
requ irement is 60 months as a software engineer, deve loper, project lead, or related wo rk (section s 
1-1.6, H.6-A , H. I 0, H.l 0-A, and H. I 0-B). Sectio n H .8 is the prope r loca tio n on the labor certification 
to identify any a cceptab le a lternate com binations o f educat ion and expe rience; howeve r, the labor 
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Mauer of 1-C-1-. Inc. 
certification in this case does not permit an alternate combination of education and experience. Nor 
does the labor certification state, in section H.l4 or anywhere else, that the minimum educational 
requirement of a bachelor's degree may be met by a combination of less than baccalaureate level 
education plus experience. To the contrary, H.14 explicitly reiterates the requirement of a bachelor's 
degree. Although, section H.9 of the labor certification states that a "foreign educational 
equivalent" (emphasis added) is acceptable, in this case a foreign equivalent degree of a U.S. 
bachelor's degree, the labor certification does not state that the foreign educational equivalent may 
be met with a combination of education and experience. 
The Petitioner claims that the letter it submitted with the petition, as well as the statement submitted 
in response to the RFE, made clear that when drafting the labor certification it intended the phrase 
"baccalaureate or the equivalent" to include degree equivalency based on a combination of education 
and experience. In the letter submitted with its petition the Petitioner stated that it would "accept 
any combination of education, training or experience found equivalent by a qualified credential 
evaluation service." In the statement submitted in response to the RFE the Petitioner declared that 
"our use of the term 'equivalent' [in the labor certification] means that the requirement for a 
baccalaureate degree can be satisfied through a combination of education, training and experience. 
Specifically, our equivalency standard requires that three years of specialized training and/or work 
experience must be demonstrated for each year of college-level training. the alien lacks." On appeal 
the Petitioner restates that its use of the term "equivalent" does not mean a foreign equivalent degree 
but rather the equivalency standard of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), the regulation for H-lB 
nonimmigrant petitions that allows three years of specialized training and/or work experience to be 
considered the equivalent of one year of college or university study. 
The plain language of the labor certification, however, does not substantiate any of the Petitioner's 
claims. Section H of the labor certification plainly states that the minimum educational requirement 
for the job of software engineer is a U.S. bachelor's degree in computer science, engineering, or a 
related field of study, or the foreign educational equivalent. There is no language in the labor 
certification indicating that this minimum educational requirement can be met with a combination of 
less than baccalaureate level education and work experience. The labor certification does not 
incorporate any of the explanatory language later used by the Petitioner in the letter it submitted with 
the petition and the statement it submitted in response to the RFE. Our interpretation of the labor 
certification's minimum educational requirement cannot be based on the Petitioner's after-the-fact 
assertion that it intended to allow a combination of less than baccalaureate level education plus work 
experience to be considered equivalent to a U.S. bachelor's degree. That intent is not expressed in 
the plain language of the labor certification. See Madany v. Smilh. 696 F.2d at 1015 and Rosedale 
Linden Park Company v. Smilh. 5 F.Supp. a/ 834. 
-The Petitioner asserts that the Beneficiary qualifies for classification as a "skilled worker" because 
he has the requisite two years of experience and a bachelor's degree is not always required for 
software engineering positions. While the Beneficiary appears to have the requisite experience for 
skilled worker classification, the Beneficiary must also meet any additional requirements on the 
labor certification to qualify for the requested classification. See Maller of Wing's Tea House, 16 
I&N Dec. at 159. As discussed above, the labor certification in this case includes a minimum 
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Mauer of 1-C-1-, Inc. 
educational requirement - a bachelor's degree or a foreign degree equivalent - which the 
Beneficiary does not meet. 
lll. CONCLUSION 
The Petitioner has not established that the Beneficiary meets the minimum educational requirement 
of the labor certification. 
ORDER: The appeal is dismissed. 
Cite as Matter ofl-C-1-, Inc., lD# 1266987 (AAO May 30, 2018) 
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