dismissed EB-3 Case: Wholesale Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-P-US, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 24,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a fresh produce wholesale company, seeks to employ the Beneficiary as an ot1ice 
coordinator. 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 of the Texas Service Center denied the petition, concluding that the record did not 
establish that the labor certification requires the minimum of a bachelor's degree. 
On appeal, the Petitioner asserts that the primary requirement for the offered position is a bachelor's 
degree; that the alternative requirement of two years of experience is substantially equivalent to the 
primary requirement of a bachelor's degree; and that the preference immigrant classification should 
be based on an employer's primary job requirement instead of the alternate requirement. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. Employment-Based Immigration 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved ETA Form 9089, Application for Permanent ·Employment Certification (labor 
certification), from the U.S. Department of Labor (DOL). 1 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. See section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the 
employer files an immigrant visa petition with U.S. Citizenship and Immigration Services 
1 
The date the labor certification is filed, in cases such as this one, is called the "priority date." See 8 C.F.R. § 204.5(d). 
In this case, the priority date is May 3, 2016. 
Matter of K-P-US, Inc. 
(USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 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. 
B. Professional Classification 
The regulation at 8 C.F.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 
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 this case, Section H of the 'labor certification submitted with the petition states that the offered 
position has the following minimum requirements: 
H.4. Education: Bachelor's degree in any field. 
H.5. Training: None required. 
H.6. Experience in the job offered: None required. 
H. 7. Alternate field of study: Any field. 
H.8. Alternate combination of education and experience: Two years of experience. 
H.9. Foreign educational equivalent: Accepted. 
H.l 0. Experience in an alternate occupation: 24 months as an office coordinator. 
H.14. Specific skills or other requirements: None. 
Thus, the labor certification permits an applicant to qualify for the offered job with two years of 
experience and no education. Since an individual can qualify for the offered position with less than a 
baccalaureate, the petition does not qualifY for the professional classification. Therefore, the petition 
cannot be approved for a member of the professions under section 203(b)(3)(A)(ii) ofthe Act. 
On appeal, the Petitioner asserts that the primary requirement for the offered position is a bachelor's 
degree, although it concedes that an applicant may qualify for the job with no education and two 
years of experience. It asserts that the alternative requirement of two years of experience is 
2 
Matter of K-P-US, Inc. 
substantially equivalent to the primary requirement of a bachelor's degree,2 and that the DOL 
assigned a standard vocational preparation (SVP) of 7 to the offered job. However, the DOL 
assigned an O*NET occupational code of 43-1011 to the otiered job, with an SVP of 6. See O*Net 
Online, https://www.onetonline.org/link/summary/43-1011.00 (last visited August 23, 2017).3 
The Petitioner cites to Globalnet Mgmt., 2009-PER-00110 (BALCA Aug. 6, 2009), in support of its 
assertion that the alternative requirement is substantially equivalent to the primary requirement. This 
Board of Alien Labor Certification Appeals (BALCA) decision addresses DOL labor certification rules 
but not USCIS minimum requirements for classification as a professional under section 203(b)(3)(A)(ii) 
of the Act and 8 C.F.R. § 204.5(1)(3)(ii)(C). Further, BALCA precedent is not binding in these 
proceedings. While 8 C.F .R. § 103 .3( c) provides that precedent decisions of USCIS are binding on all 
its employees in the administration of the Act, BALCA decisions are not similarly binding. Precedent 
decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 
§ 103.9(a). 
On appeal, the Petitioner states that the preference category should be based on an employer's 
primary job requirement instead of the alternate requirement. We disagree. The regulation at 8 
C.F.R. § 204.5(1)(3)(ii)(C) requires a Petitioner to show that the minimum of a bachelor's degree is 
required for entry into the occupation. Here, the labor certification permits an applicant to quality for 
the offered job with two years of experience and no education and, therefore, a minimum of a 
bachelor's degree is not required. Thus the Director correctly concluded that this petition cannot be 
approved under the requested professional classification. 
C. Ability to Pay the Proffered Wage 
Although not addressed by the Director, the record does not establish that the Petitioner has the 
continuing ability to pay the proffered wage from the priority date. As noted above, the priority date 
is May 3, 2016. The proffered wage is $59,176 per year. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
2 
The regulation at 20 C.F.R. § 656.17(h) requires that an alternative requirement must be substantially equivalent to the 
primary requirement of the job opportunity in a labor certification application. 
3 
The DOL previously used the Dictionary of Occupational Titles (DOT) to classify occupations. The Petitioner submits 
an excerpt from the DOT on appeal. However, O*NET is the current occupational classification system used by the 
DOL, and it states that most occupations in this classification "require training in vocational schools, related on-the-job 
experience, or an associate's degree." !d. 
3 
Matter of K-P-US, Inc. 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In this case, the record does not contain an annual report, federal tax return, or audited financial 
statements for the Petitioner for 2016 as required by 8 C.P.R. § 204.5(g)(2). 4 Therefore, the 
Petitioner has not established that it had the continuing ability to pay the proffered wage from the 
priority date. 
II. CONCLUSION 
The Petitioner has not established that the labor certification requires the minimum of a bachelor's 
degree. The Petitioner also has not established that it had the continuing ability to pay the proffered 
wage from the priority date. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-P-US, Inc., ID# 457664 (AAO Aug. 24, 20 17) 
4 
The record contains the Petitioner's federal tax return for 20 15. 
4