remanded EB-3 Case: Architecture

U.S. Citizenship 
and Immigration 
Services 
In Re : 12305025 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Profes sional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN . 04, 2022 
The Petitioner seeks to employ the Beneficiary as an architectural draftsman. It requests classification 
of the Beneficiary under the third-preference , immigrant classification for professional workers. 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii) , 8 U.S.C. § 1153(b)(3)(A)(ii). This 
employment-based , "EB-3" category 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 and dismissed a subsequent motion to 
reopen and reconsider , concluding that the record did not establish that the Petitioner's job offer to the 
Beneficiary is bona fide. The Director found that the Petitioner did not establish that it desires and 
intends to employ the Beneficiary in the offered position or that the offered position was clearly open 
to U.S. workers. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence . Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawath e, 25 I&N 
Dec. 369, 375 (AAO 2010). The AAO reviews the questions in this matter de nova. See Matter of 
Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . Upon de nova review , we will withdraw the 
decision of the Director. The matter is remanded for the entry of a new decision consistent with the 
following analysis . 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process . To permanently fill a position 
in the United States with a foreign worker , a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C . § l 182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing , qualified, and available for a position . 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position , an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act , 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a foreign national may finally 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. 
II. BONA FIDE JOB OFFER AND OPPORTUNITY 
Pursuant to the statutory framework for the granting of immigrant status, any United States employer 
desiring and intending to employ a foreign worker entitled to immigrant classification under the Act 
may file a petition for classification. Section 204(a)(l)(F) of the Act, 8 U.S.C. § l 154(a)(l)(F); see 8 
C.F.R. § 204.5(c). Such petitions must be accompanied by a labor certification from the DOL. See 
section 212(a)(5) of the Act, 8 U.S.C . § 1182(a)(5); see also 8 C.F.R. § 204.5(1)(3)(i). The Petitioner 
must intend to employ a beneficiary under the terms and conditions of an accompanying labor 
ce1tification. See Matter of Izdebska , 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affinning denial 
where, contrary to an accompanying labor certification, a petitioner did not intend to employ a 
beneficiary under the terms of the labor certification). Additionally, a labor certification employer 
must attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." 20 C.F.R. § 
656.20( C )(8). 
Because the filing of a labor certification establishes a priority date I for any immigrant petition later 
based on the labor certification, the petitioner must establish that the job offer was realistic as of the 
priority date and that the offer remained realistic for each year thereafter, until the beneficiary obtains 
lawful permanent residence. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 
1977). 
The Director requested that the Petitioner submit evidence that a bona fide job offer and opportunity 
exist. 
After issuing a NOIR and receiving the Petitioner's response to the NOID the Director denied the 
petition concluding it was not bona fide. 
The Director subsequently dismissed the Petitioner's motion to reopen and reconsider. 
On appeal the Petitioner asserts that the Director erred in his analysis of a bona fide job offer and 
opportunity and of its recruitment efforts. 
Based on evidence in the record, including evidence submitted with the appeal, we withdraw the 
Director's decision. However, we cannot not affirmatively find that the Petitioner has established 
eligibility for the requested benefit in other respects. 
III. BENEFICIARY'S QUALIFICATIONS 
Although not discussed by the Director, the record does not contain sufficient evidence that the 
Beneficiary met the minimum education for the proffered position as stated on the labor certification. 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date. 
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The accompanying labor certification states that the offered position requires a bachelor's, or foreign 
equivalent, degree in architecture and 24 months of experience in the offered job of architectural 
draftsman. Experience in an alternate occupation is not accepted. On the labor certification, the 
Petitioner asserts that the Beneficiary earned a bachelor's degree in Colombia in 1985, and that he 
gained experience with two universities and a design services business in Colombia. 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states the following: 
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. To show 
that the alien is a member of the professions, the petitioner must submit evidence that 
the minimum of a baccalaureate degree is required for entry into the occupation. 
The record includes an academic equivalency evaluation asserting that the Beneficiary's five years of 
advanced bachelor's-level coursework resulting in the Title of Architect awarded by the I I 
.__ _______ _.in Colombia is equivalent to a bachelor of architecture degree from an accredited 
U.S. college or university. While it appears that the Beneficiary's degree meets the requirements of 
the offered position as stated on the labor certification, the record includes only the 
Beneficiary'sEnglish translation of a degree of architect and grade transcripts, but the translation is 
not attached to a copy of the originally issued university document. The English translation does not 
appear to have been issued by the university. Therefore, the record lacks an official university record 
as required by the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C). 
Additionally, the translation of the Beneficiary's degree did not comply with the terms of 8 C.F.R. § 
103.2(b )(3): 
Translations. Any document containing foreign language submitted to [USCIS] shall 
be accompanied by a full English language translation which the translator has certified 
as complete and accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English. 
As the Petitioner did not submit the degree in its original foreign language, we are unable to verify the 
accuracy of the English translation and whether the evidence supports the Petitioner's claims. See 8 
C.F.R. § 103.2(b )(3). 
Therefore, on remand the Director should request evidence that the Beneficiary possesses the required 
education for the offered position 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, accompanied by a 
proper translation, if required. 
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IV. CONCLUSION 
Considering the above discussed deficiencies, we are withdrawing the Director's decision. However, 
the record does not demonstrate affirmatively that the Petitioner is eligible for the benefit sought, 
including whether the Beneficiary meets the education requirement as stated on the labor certification. 
Therefore, we will remand this case to the Director for further consideration of the Petitioner's 
eligibility for the requested benefit. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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