dismissed EB-3 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-R-E-S-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 3, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a real estate data and software provider. seeks to employ the Beneficiary as a Senior 
Software Engineer. ·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 visa 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. finding that the record did not establish 
that the Beneficiary had the qualifying experience required by the labor certification. The Director 
dismissed the Petitioner's subsequent motion to reopen because it did not meet the filing 
requirements for a motion. 
The matter is now before us on appeal. The Petitioner submits additional evidence and asserts that the 
Beneficiary gained qualifying experience with the Petitioner, which the Beneficiary should be allowed 
to rely on to qualify for the position offered.1 Upon de novo review, we will dismiss the appeal. 
I. LAW AND PROCEDURE 
A. The Roles of the DOL and USCIS in the Immigrant Visa Process 
A United States employer may sponsor a foreign national for lawful permanent residence. which is a 
three-part process. First, the U.S. employer must obtain a labor certitication, which the U.S. 
Department of Labor (DOL) processes. See 20 C.F.R. § 656, et seq. The employer does so by tiling 
an ETA Form 9089. Application for Permanent Employment Certification, with the DOL. The ETA 
Form 9089 sets forth: (A) the position's job duties, (B) the position's education. experience and 
other special requirements, (C) the required proffered wage, and (D) the position's work location(s). 
In addition, as part of the labor certification, the beneticiary attests to his or her education and 
experience. The date the ETA Form 9089 is filed becomes the "'priority date" for the visa petition. 
1 The Petitioner also maintains that the Director should have forwarded its motion to reopen to us for reconsideration. 
rather than requiring it to appeal the Director's decision on motion. However, the Petitioner"s Form 1-2908. Notice of 
Appeal or Motion. of June 29, 2015, identifies the filing as a motion to reopen, not an appeal. The Director therefore 
properly ruled on the motion without forwarding the filing to us. 
Matter of V-R-E-S-, LLC 
8 C.F.R. § 204.5(d). 2 The DOL's role in certifYing the labor certification is set forth at section 
212(a)(5)(A)(i) ofthe Act, 8 U.S.C. § 1182(a)(5)(A)(i). The DOL's approval ofthe labor certification 
affirms that, "there are not sufficient [U.S.l workers who are able. willing, qualified" to perform the 
position offered where the beneficiary will be employed. and that employment of such beneficiary will 
not ·'adversely affect the wages and working conditions of workers in the United States similarly 
employed." Jd The labor certification is valid for 180 days. 
Following labor certification approval, a Petitioner files Form I-140, Immigrant Petition for Alien 
Worker, with U.S. Citizenship and Immigration Services (USCIS) within the labor certification 
validity period. See 20 C.F.R. § 656.30(b)(l); 8 C.F.R. § 204.5. USCIS then examines whether: (A) 
the Petitioner can establish its ability to pay the proffered wage, (B) the degree and/or experience 
required for the position offered matches the petitioned-for classification, and (C) whether the 
beneficiary has the required education, training, and experience for the position offered. See section 
203(b)(3)(A)(ii) ofthe Act; 8 C.F.R. § 204.5. 
If the I-140 visa petition is approved. then in the third and final step, the beneficiary would file an I-
485, Application to Adjust Status or Register Permanent Residence, either concurrently with the 1-
140 petition based on a current priority date, or following approval of an I-140 petition and a current 
priority date. See 8 C.F.R. § 245. If the I-485 is approved. this application to adjust status will 
afford the beneficiary lawful permanent resident status. 
Here, as required by statute, the I-140 petition is accompanied by an ETA Form 9089. Application 
for Permanent Employment Certification (labor certification), approved by DOL. The priority date 
of the petition is July 23, 2014. The petitioner properly filed the Form I-140 on March 6. 2015. 
within the allowed 180 day labor certification validity period, December 23, 2014 to June 2 L 2015. 
See 20 C.F.R. § 656.30(b)(l). 
B. The Beneficiary's Qualifications 
A petitioner must establish a beneficiary's possession of all the education, training. or experience 
stated on an accompanying labor certification at the time of a petition's priority date. 8 C.F.R. 
§§ 103.2(b)(l), (12); see also Matter(?( Wing's Tea House. 16 I&N Dec. 158, 159 (Acting Reg'l 
Comm'r 1977); lvfatter ofKatigbak. 14 I&N Dec. 45.49 (Reg'l Comm'r 1971). 
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. 1 012-1013 
(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 exact(v as it 
is completed by the prospective employer.'' See Rosedale Linden Park Co. v. Smith. 595 F. Supp. 
829,833 (D.D.C. 1984) (emphasis added). Interpretation ofthejob's requirements. as stated on the 
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The priority date is used to calculate when the 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). 
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(b)(6)
Matter of V-R-E-S-, LLC 
labor certification involves reading and applying the plain language of the labor certification 
application form. !d., at 834. 
Part H. of the ETA Form 9089 sets forth the following requirements for the offered position of 
·'Senior Software Engineer": 
H.4. 
11.4-B. 
H.6. 
H.6-A. 
H.7. 
H.7-A. 
H.8. 
H.IO. 
H.ll. 
Education: Bachelor's. 
Major field of study: Computer Science or related field. 
Experience in the job offered: Required. 
Number of months experience required: 60. 
Alternate field of study: Accepted. 
Major in alternate field of study: Information Technology. 
Alternate combination of education and experience: None accepted. 
Experience in an alternate occupation: Not accepted. 
Job duties: Develop and document software based requirements, resolve code 
defects and identify software risks. 
Therefore, to satisfy the requirements of the labor certification. the Beneficiary must: (A) hold a U.S. 
bachelor's or foreign equivalent degree in computer science, information technology. or a related 
field, and (B) have five years of experience in the job offered, i.e., as a Senior Software Engineer. 
The record reflects that the Beneficiary has a four-year bachelor of engineering degree specialized in 
information technology from the India issued in December 2004. 
This degree is the foreign equivalent of a U.S. bachelor's degree in a field related to computer 
science or information technology as allowed by the certified labor certification. At issue. therefore. 
is whether the Beneficiary possesses the required 60 months of experience as a Senior Software 
Engineer. 
As part of the labor certification, the Beneficiary attested to his employment with the Petitioner as a 
Senior Software Engineer since November 2. 2009. meaning he had approximately 57 months of 
full-time experience with the Petitioner before the labor certification's July 23. 2014 priority date. 
A Petitioner generally cannot count qualifying experience that a Beneficiary gained with the same 
employer that filed the labor certification. unless the experience was in a position "'not substantially 
comparable'' to the offered position, or the employer demonstrates that it is no longer feasible to 
train a worker to qualify for the position. 20 C.F.R. §§ 656.17(i)(3 )(i). (ii). A "'substantially 
comparable" 
position means one ··requiring performance ofthe same job duties more than 50 percent 
of the time.'' 20 C.F.R. §656.17(i)(5)(ii). 
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Matter of V-R-E-S-, LLC 
Stated otherwise, the Beneficiary's experience with the Petitioner can be used where the position 
duties are at least 50 per cent different than the duties of a Senior Software Engineer, and if the 
Petitioner allowed for experience in an alternate occupation in H.1 0. Here, that is not the case. 
In the instant case, the Petitioner asserts that the Beneficiary gained qualifying experience with it in 
a position not substantially comparable to the offered position. In a March 16, 2014. letter 
accompanying the petition, the Petitioner states that the offered position would constitute ··a 
promotion" for the Beneficiary to work on .. larger[.] more critical" software systems. However. the 
Petitioner's assertion is inconsistent with the labor certification. The job duties for the offered 
position listed in H.11 are nearly identical to the job duties for the position in which the Beneficiary 
claims to have gained his experience. including developing and documenting software based 
requirements, resolving code defects and identifying software risks. 
If the Beneficiary's qualifying experience with the Petitioner is in the job offered. then 20 C.F.R. § 
656.17(i)(3) bars the Petitioner from counting the experience. On the other hand. if the 
Beneficiary's experience with the Petitioner is in a position not substantially comparable to the 
offered position, then his experience is not '·in the job offered'' as required by the labor certification. 
In either event, the result is the experience cannot be used to establish that the Beneficiary has the 60 
months of experience required. 
Even if the Beneficiary's experience with the Petitioner could be accepted, this experience standing 
alone is less than the required 60 months of qualifying experience to meet the terms of the certified 
labor certification. 
The Petitioner asserts that based on the labor certification's continued validity until June 21. 2015, 
the Beneficiary could establish that he has more than 60 months of qualifying experience with the 
Petitioner. Essentially, the Petitioner seeks to additionally rely on the Beneficiary's experience 
between the date of filing the labor certification. July 23, 2014, and the end of the 180 day labor 
certification validity time period of June 21,2015. 
However, as previously indicated, we cannot consider education or experience obtained hy a 
beneficiary after a petition's priority date. See Wing's Tea House, 16 I&N Dec. at 160: Katighak. 14 
I&N Dec. at 49. The June 21. 2015 date represents the validity date within which an employer must 
first submit the certified ETA Form 9089 in support of a Form 1-140 petition. See 20 C.F.R. § 
656.30(b )( 1 ). 
Although not stated on the accompanying labor certification, the record contains evidence of the 
Beneficiary's possession of about 55 months of experience with three prior employers. A 
beneficiary's experience, without such fact certified by the DOL on the underlying labor 
certification, lessens the credibility of the evidence and facts asserted. Afatter of Leung. 16 I&N 
Dec. 12, 14-15 (BIA 1976), disapp'd of on other grounds, Matter ofLam. 16 I&N Dec. 432.434 
(BIA 1978). However, even if we credited this 55 months of purported experience, it would fall 
short of the 60 months required by the accompanying labor certification. Also, the Petitioner states 
that only about 40 months of that prior, purported experience involved performance of the same job 
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Matter of V-R-E-S-, LLC 
duties as the offered position. As discussed above, the Petitioner did not allow for acceptance of 
experience in any alternate occupation in H.lO ofthe ETA Form 9089, and the remaining 15 months 
of experience in alternate occupations cannot be used to demonstrate that the Beneficiary had the 
experience required. 
For the foregoing reasons, the record docs not establish that the Beneficiary has the required 60 
months of qualifying experience in the offered position as stated on the accompanying labor 
certification by the petition's priority date. We will therefore affirm the Director's decision. 
C. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must demonstrate its ability to pay a proffered wage from a petition's priority date until 
a beneficiary obtains lawful permanent residence. 8 C.P.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. 
The Director did not deny the decision on this basis, and we do not deny the appeal on this basis 
either. However, we note that the record does not contain the required evidence of the Petitioner's 
ability to pay from 2014, the year of the petition's priority date, onward as the petitioner's tax return 
would not have been available at the time of filing. Therefore, in any future filings in this matter, the 
Petitioner must submit copies of annual reports, federal tax returns, or audited financial statements 
from 2014 onward pursuant to 8 C.P.R. § 204.5(g)(2). 
II. CONCLUSION 
A petitioner must establish the elements for the approval of a petition at the time of filing. KatiKhak, 
14 I&N Dec. at 49. In the present case, the record does not establish that the Beneficiary had five 
years of experience in the job offered as required by the labor certification by the visa petition's July 
23, 2014, priority date. For this reason, we will affirm the Director's decision and dismiss the 
appeal. 
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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013 ). Here that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-R-E-S-, LLC, ID# 16033 (AAO May 3, 2016) 
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