remanded EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-1-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 5, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a distributor and importer of natural stones, seeks to employ the Beneficiary as an 
accountant. It requests his classification as a skilled worker under the third-preference, immigrant 
category. 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, "EB-3" category allows a U.S. business to sponsor a 
foreign national with at least two years of training or experience for lawful permanent resident 
status. 
The Director of the Nebraska Service Center denied the petition. concluding that the record did not 
establish the Beneficiary's possession of the minimum education required for the offered position. 
Specifically, the Director found that the Beneficiary's educational credentials did not equate to a 
bachelor's degree. 
On appeal, the Petitioner asserts that, based on a combination of education and experience, the 
Beneficiary meets the position's educational requirement. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for further 
proceedings consistent with the following opinion. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First. an employer files a 
labor certification application with 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). DOL must certify that the United States lacks able. willing. 
qualified, and available workers for an offered position, and that employment of a foreign national will 
not hurt the wages and working conditions of U.S. workers with similar jobs. !d. If DOL certifies an 
offered position, the employer must next tile an immigrant visa petition with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act. 8 U .S.C. § 1154. In visa petition 
proceedings, USCIS, among other things, determines whether a beneficiary meets the DOL-certified 
job requirements of an offered position. Finally, if USCIS approves a petition, the foreign national 
may apply for an immigrant visa abroad or. if eligible, adjustment of status in the United States. See 
section 245 ofthe Act, 8 U.S.C. § 1255. 
Matter of M-1-, Inc. 
II. THE MINIMUM EDUCATIONAL REQUIREMENTS 
A petitioner must establish a beneficiary's possession of all DOL-certified job requirements by a 
petition's priority date. Matter o(WinJ(s Tea House. 16 I&N Dec. 158, 160 (Acting Reg'! Comm'r 
1977).1 In evaluating a beneficiary's qualifications, USC IS must examine the job offer portion of an 
accompanying labor certification to determine the minimum requirements of an oflered position. 
USCIS may neither ignore a term of a labor certification, nor impose additional requirements. See, 
e.g. Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that the "'DOL bears the 
authority for setting the content of the labor certification"). 
Here, the accompanying labor certification states both primary and alternate requirements for the 
offered position of accountant. The primary requirements include a U.S. bachelor's degree. or a 
foreign equivalent degree, in accounting or a related field of study, plus one year of experience in the 
job offered or in a "related Accounting occupation." 2 The Petitioner. however, seeks to qualify the 
Beneficiary for the offered position based on the alternate requirements of a ''Bachelor degree 
equivalent as determined by [an] Accredited Credentials Eval [ uator r and one year of experience. 
On the labor certification, the Beneficiary attested to his completion of a bachelor's degree in 
accounting at an Indian university in 1992. The Petitioner submitted copies of a diploma and marks 
statements indicating that, after three years of study. the university awarded the Beneficiary a 
bachelor of commerce degree in 1992. The Petitioner also submitted an evaluator's report that 
combined the Beneficiary's degree with three years of his accounting-related experience to conclude 
that he has the equivalent of a U.S. bachelor's degree in accounting. 
The Director found that the labor certification required a bachelor's degree and that the Beneficiary 
did not have such a degree. However, the plain language of the labor certification is ambiguous as to 
whether a combination of education and experience meets the position· s alternate educational 
requirement. Instructed on the labor certification to ''indicate the alternate level of education 
required,'' the Petitioner stated a "Bachelor degree equivalent as determined by Accredited 
Credentials Eval[uator]." Because the Petitioner was asked to provide the alternate level of 
"education," however, the Petitioner's response indicates its acceptance of the equivalent of a 
bachelor's degree based on a combination of only educational credentials. The Petitioner's response 
in this part does not specify its acceptance of a bachelor's equivalent based on a combination of 
education and experience. 
On the other hand, in the labor certification's section for ''specific skills or other requirements," the 
Petitioner stated: "The employer will accept any suitable combination of education, training or 
experience consistent with [the position's requirements stated elsewhere on the labor certification]." 
1 
In this case, the petition's priority date is January 16. 2014, the date the DOL received the accompanying labor 
certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
2 For skilled worker classification purposes, relevant college or university studies may qualify as training. See 8 C.F.R. 
§ 204.5(1)(2) (defining the term ''skilled worker"). 
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Matter of M-1-, Inc. 
The Petitioner's statement is similar to the "Kellogg language'' that DOL regulations require labor 
certification applications to state if a foreign national already works for the employer and qualities 
for an offered position based on alternate experience requirements. See 20 C.F.R. ~ 656.17(h)(4)(ii): 
see also Matter of Kellogg, 1994-INA-00465, 1998 WL 1270641 (BALCA Feb. 2, 1998) (en bane). 
The Petitioner's statement, however, adds to the Kellogg language by indicating that any suitable 
combination of education, training, or experience is "consistent with" the other position 
requirements stated on the application. The statement therefore suggests that a combination of 
education and experience could meet the alternate educational requirement. 
Counsel asserts that the Petitioner intended to allow a combination of education and experience to 
satisfy the requirement. But assertions of counsel do not constitute evidence. Matter o{ Obaigbena. 
19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter (~l Ramirez-Sanchez, 17 l&N Dec. 503, 506 
(BIA 1980)). Counsel's statements must be substantiated in the record with independent evidence, 
which may include affidavits and declarations. Thus, the record lacks sufiicient evidence to resolve 
the ambiguous alternate educational requirement stated on the labor certification. 
On appeal, the Petitioner cites a federal court decision on a skilled worker petition, interpreting a labor 
certification requirement of a ''B.A. or equivalent" as allowing a bachelor's degree equivalency based 
on a combination of education and experience. See Grace Korean United Methodist Church v. 
Cher{(~[f, 437 F. Supp. 2d 1174 (D. Or. 2005). Because the petitioner there drafted the educational 
requirement with the beneficiary's background in mind, the court held that the record established the 
petitioner's acceptance of a combination of education and experience. 
We acknowledge that, like the petitioner in Grace Korean, the Petitioner here drafted its alternate 
educational requirement with the Beneficiary in mind. The reasoning in a later federal court decision, 
however, persuades us that the record does not establish the Petitioner's intention to accept a 
combination of education and experience. See SnapNames.com, Inc. v. Chertoff; No. CV 06-65-MO, 
2006 WL 3491005 (D. Or. Nov. 30, 2006). In SnapNames.com. the court rejected Grace Korean's 
reliance on a beneficiary's educational background, finding that users ''has an independent role in 
determining whether the alien meets the labor certification requirements:· 2006 WL 3491005 at *7. 
The SnapNames.com court also found that "interpreting the labor certification on the basis of the 
named alien's background could undermine the DOL's certification" by ''allowing a combination of 
education and work experience to count for alien workers while at the same time requiring a specific 
degree from domestic workers.'' !d. at *8. 
Because the record does not establish the intended meaning of the Petitioner's alternate educational 
requirement, we will remand this matter for further fact-finding. On remand. the Director should 
request additional evidence of the requirement's intended meaning and afford the Petitioner a 
reasonable opportunity to respond. The Director should specifically request copies of documentation 
created during the labor certification process, including: the notice of tiling; the job order tiled with a 
state workforce agency; the prevailing wage determination; advertisements of the offered position in 
newspapers, online, and in the Petitioner's employee referral program; the recruitment report: any 
resumes or applications received in response to the recruitment efforts: and any correspondence with the 
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Matter of M-1-, Inc. 
DOL. The Director should then determine whether the Petitioner gave DOL and U.S. workers notice of 
its acceptance of a degree equivalency based on a combination of education and experience. and if such 
notice was given, whether or not the Petitioner provided information on how such an equivalency 
would be calculated. The Director should then determine whether or not the Beneficiary meets the 
requirements of the labor certification. 
III. THE BENEFICIARY'S QUALIFYING EXPERIENCE 
Although unaddressed by the Director, the record also does not establish the Beneficiary's 
possession of the minimum experience required for the offered position. As previously indicated, 
regardless of whether the alternate educational requirement allows a combination of education and 
experience, the offered position requires at least one year of experience as an accountant or in an 
accounting-related occupation. 
On the labor certification, the Beneficiary attested to his possession of more than six years of 
qualifying experience in India before beginning employment with the Petitioner in the United States 
in 2000.3 The Beneficiary stated the following experience: 
• About 33 months as a full-time senior accountant for an export house from June 1. 1997. to 
February 28, 2000; 
• About 43 months as a part-time accounting consultant for an electronics component dealer 
from February 1, 1996, to September 22. 1999; and 
• About 36 months as an accounting clerk for a wholesaler of auto parts from January 1. 1991, 
to December 31, 1993. 
In support of the Beneficiary's claimed expenence, the Petitioner submitted letters from the 
Beneficiary's purported former employers. See 8 C.F.R. ~ 204.5(1)(3)(ii)(A) (requiring a petitioner 
to submit letters from employers to establish a beneficiary's claimed qualifying experience). 
A September 9, 1999, letter from the export house states the Beneficiary's employment as a senior 
accountant "for the past 3 years" and describes his duties in the position. Contrary to 8 C.F.R. 
§ 204.5(1)(3)(ii)(A), however, the letter does not identify the employer who signed it or that person's 
title. Rather, the letter's signatory is identified only as ''Authorized Signatory:· The letter therefore 
does not establish the Beneficiary's claimed, qualifying experience. 
Also, the letter suggests that the Beneficiary began work for the export house in 1996. On the labor 
certification, however, the Beneficiary stated a start date with the company of June 1. 1997. The 
' A labor certification employer may not generally rely on experience that a foreign national gained with it, unless the 
experience was gained in a position substantially different than the offered position or the employer demonstrates the 
impracticality of training a U.S. worker for the offered position. 20 C.F.R. ~ 656.17(i)(3). The Petitioner here does not 
assert that the Beneficiary gained qualifying experience with it. 
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Matter of M-1-, Inc. 
record therefore does not establish the Beneficiary's claimed, qualifying experience at the export 
house. 
Consistent with the information on the labor certification, a letter from the electronics component 
dealer states that company's employment of the Beneficiary as an accounting consultant from 1996 
to 1999 and describes his duties. Contrary to 8 C.F.R. § 204.5(1)(3)(ii)(A), however. the letter does 
not name the partner who signed the document. The letter therefore does not establish the 
Beneficiary's qualifying experience. 
Also, the Beneficiary's claimed experience with the electronics dealer conflicts with the 
Beneficiary's attestations on a labor certification tiled by the Petitioner on his behalf in 2004. 
Contrary to the most recent certification and the dealer's letter, the prior certification states the 
dealer's employment of the Beneficiary from 1996 to 1997. The prior certification also states that 
the Beneficiary worked for the dealer full-time, rather than on a part-time basis. The inconsistencies 
in the Beneficiary's dates and nature of employment cast doubts on his claimed experience with the 
dealer. See Matter of Ho, 19 I&N Dec. 482, 591 (BIA 1988) (requiring petitioners to resolve 
inconsistencies of record by independent, objective evidence pointing to where the truth lies). The 
record therefore does not establish the Beneficiary's claimed experience with the dealer. 
As indicated in both labor certifications for the Beneficiary, the letter from the auto parts wholesaler 
states its employment of him as an accounting clerk from 1991 to 1993. The Beneficiary's 
university records, however, indicate that he studied full-time during most of that period. The record 
does not explain how the Beneficiary obtained full-time, qualifying experience with the wholesaler 
while simultaneously studying full-time for his degree. See Matter <?( Ho. 19 I&N Dec. at 591 
(requiring a petitioner to resolve inconsistencies by independent, objective evidence). 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the minimum 
experience required for the offered position. On remand, the Director should request additional 
evidence of the Beneficiary's qualifying experience and ask the Petitioner to resolve the 
discrepancies of record. After granting the company a reasonable period to respond. the Director. 
upon receipt of a timely response, should review the entire record and enter a new decision. 
IV. CONCLUSION 
The record lacks sufficient evidence to determine the alternate educational requirement of the 
offered position and whether the Beneficiary meets such a requirement. The record also does not 
establish the Beneficiary's possession of the minimum experience required for the offered position. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of M-1-, Inc., ID# 750506 (AAO Dec. 5, 20 17)