dismissed EB-3 Case: Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-, INC. 
\ 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 28, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a mobile games publisher, seeks to permanently employ the Beneficiary in the United 
States as its director of technology. 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, concluding that the mm1mum 
educational requirements on the submitted ETA Form 9089, Application for Permanent Employment 
Certification (labor certification) did not support the requested professional classification. 
The matter is now before us on appeal. The Petitioner asserts the Director erred in finding that the 
labor certification did not support classification as a professional. Alternatively, the Petitioner states 
that the petition should be considered under the skilled worker classification. Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
' 
As required by statute, the petition is accompanied by an approved labor certification, certified by 
the Department of Labor (DOL). See Section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see 
also 8 C.P.R. § 204.5(a)(2). The priority date ofthe petition is March 11, 2015. 1 
The regulation at 8 C.P.R. § 204.5(1)(3)(ii)(C) states, in part: 
If the petition is for a professional, the petition must be accompanied by evidence 
that the alien holds a United States baccalaureate degree or a foreign equivalent 
degree and by evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the form of an official college or university record 
1 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). 
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Matter of J-, Inc. 
showing the date the baccalaureate degree was awarded and the area of 
concentration of study. 
Section 101(a)(32) of the Act defines the term "profession" to include, but is not limited to, 
"architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." If the offered position is not statutorily defined as a 
profession, "the petitioner must submit evidence showing that the minimum of a baccalaureate 
degree is required for entry into the occupation." 8 C.F.R. § 204.5(1)(3)(ii)(C). 
In addition, the job offer portion of the labor certification underlying a petition for a professional 
. "must demonstrate that the job requires the minimum of a baccalaureate degree." 8 C.F.R. 
§ 204.5(1)(3)(i). 
The beneficiary must also meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's 
Tea House, 16 I&N Dec. 158, 159 (Act. Reg'l Comm'r 1977); see also Matter ofKatigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). 
Therefore, a petition for a professional must establish that the occupation of the offered position is 
listed as a profession at section 101 ( a)(32) of the Act or requires a bachelor's degree as a minimum 
for entry; the job offer portion of the labor certification requires at least a bachelor's degree or 
foreign equivalent degree; the beneficiary possesses a U.S. bachelor's degree or foreign equivalent 
'degree from a college or university; and the beneficiary meets all of the requirements of the labor 
certification. 
II. ANALYSIS 
A. Labor Certification Does Not Support Professional Classification 
In this case, the Petitioner requests classification of the Beneficiary as a professional pursuant to section 
203(b)(3)(A) of the Act, 8 U.S.C. § 1153(b)(3)(A). 'The required education, training, experience, and 
skills for the proffered position are set forth at Part H of the labor certification. The labor 
certification states that the position has the following minimum requirements: 
H.4. 
H.4-B. 
H.6. 
H.6-A. 
H.7. 
H.8. 
Education: minimum level required: Associate's degree 
Major field of study: Electronics Engineering Technology 
Is experience in the job offered required for the job? Yes 
If Yes, number of months experience required: 84 
Is there an alternate field of study that is acceptable? No 
Is there an alternate combination of education and experience that is 
acceptable? No 
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Matter of J-, Inc. 
H.9. Is a foreign educational equivalent acceptable? Yes 
H.14. Specific skills or other requirements: Associate degree in Electronics 
Engineering Technology and at least 7 years of experience as Director 
of Technology. 
As noted above, a petition for a professional must establish that, among other things, the job offer 
portion of the labor certification requires at least a bachelor's degree or foreign equivalent degree. 
Here, the Director found that the Petitioner plainly states that it will accept less than a bachelor's 
degree or foreign equivalent degree for the proffered position, an associate's degree, and thereforre, 
the labor certification did not support a petition for professional classification. 
On appeal, the Petitioner states that its response to H.14 on the labor certification "should not be 
interpreted as indication of willingness to ~accept less than a Bachelor's degree as the minimum 
level of education required' as stated in the Denial Letter." Rather, the Petitioner asserts that: 
Although the Petitioner did state that it requires, and would accept, an "Associate 
degree in Electronics Engineering Technology and at least 7 years of experience as a 
Director of Technology," the combination of required education and experience is 
essentially the same as a Bachelor's degree in Computer Science in the United States. 
United States Citizenship and Immigration Services (USCIS) may not ignore a term of the labor 
certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1008; K.R.K. 
Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 
F .2d 1 (1st Cir. 1981 ). USCIS interprets the meaning of terms used to describe the requirements of a 
job 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' interpretation of the job's requirements, as stated on the labor 
certification must involve "reading and applying the plain language of the [labor certification]" even 
if the employer may have intended different requirements than those stated on the form. /d. at 834 
(emphasis added). Here, the Petitioner explicitly stated that the proffered position did not require a 
bachelor's degree or foreign equivalent degree. The labor certification instead clearly stated the 
minimum required education is only an associate's degree. r 
Moreover, the Petitioner's contention on appeal that the job offer portion of the labor certification 
requires education and experience "equivalent" to a U.S. bachelor's degree is not sufficient for 
professional classification. As is noted above, in order to support a request for classification as a 
professional, the job offer portion of the labor certification must require at least a U.S. bachelor's 
degree or a foreign equivalent degree from a college or university. The regulation at 8 C.F.R. § 
204.5(1)(3)(ii)(C) uses a singular description of the . degree required for classification as a 
professional. In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal 
Register, the Immigration and Naturalization Service (now USCIS or the Service), responded to 
criticism that the regulation required an alien to have a bachelor's degree as a minimum and that the 
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Matter of J-, Inc. 
regulation did not allow for the substitution of experience for education. After reviewing section 
121 of the Immigration Act of 1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of 
the Committee of Conference, the Service specifically noted that both the Act and the legislative 
history indicate that an alien must have at least a bachelor's degree: "[B]oth the Act and its 
legislative history make clear that, in order to qualify as a professional under the third classification 
or to have experience equating to an advanced degree under the second, an alien must have at least a 
bachelor's degree." 56 Fed. Reg. 60897,60900 (November 29, 1991) (emphasis added). 
It is significant that both section 203(b)(3)(A)(ii) of the Act and the relevant regulations use the word 
"degree" in relation to professionals. A statute should be construed under the assumption that 
Congress intended it to have purpose and meaningful effect. Mountain States Tel. & Tel. v. Pueblo 
of Santa Ana, 472 U.S. 237, 249 (1985); Sutton v. United States, 819 F.2d. 1289, 1295 (5th Cir. 
1987). It can be presumed that Congress' requirement of a single "degree" for members of the 
professions is deliberate. 
Therefore, a labor certification for a professional position must indicate that the minimum education 
required is a bachelor's degree or foreign equivalent degree. Here, the Petitioner explicitly states 
that the minimum requirements of the proffered position are a lesser degree combined with 
experience, which could be deemed as "equivalent" to a bachelor's degree, rather than a U.S. 
bachelor's degree or foreign equivalent degree. As such, the terms of the labor certification do not 
support the request for professional classification. 2 
On appeal, the Petitioner requests that we consider the petltlon under the skilled worker 
classification, rather than the professional classification. When submitting the initial Form I -140, the 
Petitioner clearly indicated that it was requesting classification as a professional. Neither the law nor 
the regulations require the Director to consider lesser classifications if the Petitioner does not 
establish eligibility for the classification requested. We cannot conclude that the Director committed 
reversible error by adjudicating the petition under the classification requested by the Petitioner. 
There are no provisions permitting the Petitioner to amend the petition on appeal in order to establish 
eligibility under a lesser classification. Moreover, a petitioner may not make materiaLchanges to a 
petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988). 
2 On appeal, the Petitioner also asserts that the proffered position should be considered a statutory professional position 
as it employs elements of the engineering discipline. Here, we will not enter a finding on this issue, other than to note 
that whether or not a position may be considered a statutory professional does not negate the requirement that the job 
offer portion of the labor certification must state that a bachelor's degree or foreign degree equivalent is the minimum 
education requirement in order to support classification as a professional. We additionally note that DOL assigned 'the 
O*NET code for a Computer and Information Systems Manager to the proffered position, and did not classify the 
position as an engineer. 
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(b)(6)
Matter of J-, Inc. 
B. The Record Does Not Establish that the Beneficiary has the Education Required by the Labor 
Certification 
We note that the record does not establish that the Beneficiary has the education required by the 
labor certification. Although not grounds for denial in the instant petition, the Petitioner must 
resolve the issues discussed below in any future filing. 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F .R. § 103 .2(b )(1), (12). See. Matter of Wing's 
Tea House, 16 I&N Dec. 158; see also Matter ofKatigbak, 14 I&N Dec. 45, 49. 
Here, as noted above, the labor certification in part H.4 requires a minimum of an associate's degree 
in electronics engineering technology. Part J of the labor certification reflects that the Beneficiary 
states that he has an associate's degree in electronics engineering technology from the 
Canada. 
In corroboration, the Petitioner provided the Beneficiary's diploma and transcripts from the 
showing completion of six semesters of study in the 
electronics engineering technology program, along with transcripts from the 
which reflects the Beneficiary's completion of 10.5 credits toward a bachelor's degree in 
computer science. The Petitioner also submitted a letter from Academic Counsellor, 
Faculty of Science, at the clarifying that the Beneficiary was 
awarded 3 additional credits toward his bachelor's degree on the basis of his completion of the 
diploma program at community college. The Petitioner also submitted a credentials evaluation from 
from the which stated that the 
Beneficiary's diploma from and further 
study at the as "equivalent to an associate's degree (two years) in 
electronics engineering technology from an accredited community coll~ge in the United States and 
completion of 2 1/2 years of university-level credit toward a bachelor's degree in computer science 
from an accredited college or university in the United States." USCIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. However, where an opinion is not in 
accord with other information or is in any way questionable, USCIS is not required to accept or may 
give less weight to that evidence. Matter ofCaron International, 19 I&N Dec. 791 (Comm'r. 1988). 
See also Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)(expert witness testimony may be given 
different weight depending on the extent of the expert'squalifications or the relevance, reliability, 
and probative value of the testimony). 
In determining whether the diploma from is 
a foreign equivalent of an associate's degree, we have reviewed the Electronic Database for Global 
Education (EDGE) created by the American Association of Collegiate Registrars and Admissions 
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(b)(6)
Matter of J-, Inc. 
Officers (AACRA0). 3 EDGE provides a great deal of information about the educational system in 
Canada and for the province of and indicates that completion of the diploma from a 
is comparable to 2 to 3 years of university study in the United 
States. EDGE does not indicate that the diploma is the foreign degree equivalent of a U.S. 
associate's degree. The Beneficiary's study at the likewise does not 
establish that the Beneficiary possesses an associate's degree or foreign equivalent degree in the 
required field. First, while the Beneficiary completed over two years of course work, no degree was 
awarded, and second, the courses taken were in the field of computer science, not in the required 
field of electronic engineering technology. 
Therefore, in the instant case, the record does not contain evidence showing that the Beneficiary has 
a U.S. associate's degree or the foreign equivalent degree in the required field. The Petitioner did 
not indicate on the labor certification that a combination of education "equivalent" to an associate's 
degree would be accepted. Therefore, the Petitioner would need to submit evidence to resolve this 
issue in any further filing to establish that the Beneficiary has the minimum level of education 
required and that he would meet the terms of the labor certificatioQ.. 
C. The Record Does Not Establish the Petitioner 's Ability to Pay the Proffered Wage 
We further note that the record does not contain the regulatory prescribed documents to establish 
that the Petitioner has the ability to pay the Beneficiary the proffered wage from the priority date 
onward. Although the Petitioner submitted its 2014 federal tax returns and 2015 Form W-2 for the 
Beneficiary, showing that he was paid a portion of the proffered wage, the record does not contain 
the regulatory required documents pursuant to 8 C.F.R. § 204.5(g)(2) (annual reports, federal tax 
returns, or audited financial statements) for 2015, the year of the priority date. The Petitioner must 
submit evidence of its ability to pay for this year in any future filing. 
III. CONCLUSION 
The petition will be dtmied and the appeal dismissed for the above stated reason. 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; See Matter of Brantigan , 11 I&N Dec. 493 (BIA 1966); 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner has not met that burden. 
3 According to its website, www.aacrao.org, AACRAO is "a nonprofit, voluntary, professional association of more than 
11 ,000 higher education admissions and registration professionals who represent more than 2,600 institutions and 
agencies in the United States and in over 40 countries around the world." See 
http://www4 .aacrao.org /centennial/about.htm (accessed October 20, 20 16). According to the registration page for 
EDGE, EDGE is "a web-based resource for the evaluation of foreign educational credentials ." 
http://edge .aacrao .org/info.php (accessed October 20, 20 16). 
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Matter of J-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of J-, Inc., ID# 85891 (AAO Oct. 28, 2016)