remanded EB-3 Case: Data Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 20199078 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 26, 2023 
The Petitioner, a technology services provider , seeks to employ the Beneficiary as a "Manager , Data 
Management." It requests his classification under the third preference, immigrant category as a 
professional. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii) , 8 U.S.C . § 
l 153(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 Nebraska Service Center denied the petition, concluding that the job opportunity 
reflected in the Form 1-140, Immigrant Petition for Alien Workers, was not the same position discussed 
in the ETA Form 9089, Application for Permanent Employment Certification . 
On appeal, the Petitioner contends that the position offered to the Beneficiary in the Form 1-140 is the 
same, or similar , to the position provided in the labor certification . The Petitioner states that the 
difference in salary between these positions should not be conclusive in determining that they are 
different. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence . See section 291 of the Act, 8 U.S .C. § 1361 (discussing the burden of proof); see also 
Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010) (discussing the standard of proof). Upon de 
novo review, we will withdraw the Director's decision and remand the matter to the Director for the 
entry of a new decision . 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process . First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing , qualified, and available for an offered position; and (2) the employment of a 
noncitizen in the position will not harm wages and working conditions of U.S . workers with similar 
jobs. See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 1 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing . See 8 C.F .R. § 204 .5( d). 
The priority date of the submitted labor certification in this case is April 6, 2012 . 
Second, an employer must submit an approved labor certification 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 determines whether a noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). USCIS also assesses 
the petition to ensure that the position offered is the same or similar to the position that the DOL 
certified. See generally 6 USCIS Policy Manual E.6(A), https://www.uscis.gov/policy-manual. 
Finally, if USCIS approves a petition, a designated noncitizen 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. 
II. ANALYSIS 
Unless accompanied by an application for Schedule A designation or documentation of a beneficiary's 
qualifications in a shortage occupation, a petition for a professional must include a valid, individual 
labor certification. 8 C.F.R. § 204.5(1)(3)(i). A labor certification remains valid only for the particular 
job opportunity, noncitizen, and geographic area of intended employment stated on it. 20 C.F.R. § 
656.30(c)(2). If a job opportunity changes during a petition's pendency, the validity of an 
accompanying labor certification may expire. Matter of United Inv. Grp., 19 I&N Dec. 248, 249 
(Comm'r 1984). A new original permanent labor certification must be submitted in support of the 
petition where there has been a "material change in the job opportunity covered by the original 
permanent labor certification." 6 USCIS Policy Manual D.l, https://www.uscis.gov/policy-manual. 
The Petitioner submitted the original permanent labor certification with a different Form 1-140 petition 
for the Beneficiary under section 203(b )(3)(A)(ii) of the Act, which was approved on August 1, 2012. 
That petition listed the Beneficiary's position as "Senior Programmer Analyst." The Petitioner 
indicated in the labor certification that a master's degree in software engineering or computer science 
and twenty-four months of experience were required for the position. In the alternative, the Petitioner 
stated in the labor certification that a bachelor's degree and five years of experience would also be 
sufficient for the position. The Petitioner described the position's duties as follows in section H.11 of 
the labor certification: 
Act as a Senior Business Intelligence developer with ETL and Data Integration experience 
in Business Intelligence (BI) and Customer Relationship Management (CRM) 
implementations. This role requires hands-on, experience in current data warehouse, 
business intelligence and ETL technologies, techniques, and architecture. Provide ETL 
requirements analysis, design, development, testing, and implementation. Participate in 
ETL requirement design activities. Coordinate in requirements input to logical and 
physical data model changes and collaborate to determine best data structure to delivery 
BI requirements. Assist in developing ETL flows, source to target maps, transformation 
rules and framework to support ETL development. Prepare and execute migration 
packages for new and modified ETL code and objects. Provide ETL support and operations 
issue resolution and troubleshooting. Recommend continuous improvement of the ETL 
architecture and processes. 
In addition, the Petitioner listed the following specific skills or other requirements for the 
position in section H.14 of the labor certification: 
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2 y[ ea ]rs IT exp[ erience] in data warehousing and business intelligence and ETL platform 
like Datastage, Informatica for Data Extraction, Data Mapping and Data Conversion and 
RDMBS like Teradata, Oracle, [and] SQL server 
The Petitioner now requests use of the same underlying labor certification to support this petition to 
classify the Beneficiary as a professional worker. 
The Petitioner filed the current petition on October 29, 2020, listing the Beneficiary's job title as 
"Manager, Data Management." The Petitioner also submitted the labor certification previously 
certified by DOL in 2012. The Petitioner submitted "expanded duties" for the Beneficiary in this role: 
• Support and communicate ECM capacity needs (user and systems) with internal & 
external partners. 
• Serve as a point of contact with technical teams for issues with tools, data, or processes. 
• Operational and Functional Subject Matter Expert for retail and direct technical & 
operational partners. 
• Customer marketing liaison for Compliance/Privacy initiatives. 
• Manage and monitor system audit processes & reporting, data quality, process 
execution, periodic system/application updates, data enrichment processes. 
• Manage and monitor vendor achievement against SLAs. 
• Adhere to change management process. 
• Provide clear communication for the CDM user community. 
• Provide 24/7 pager support for incident management, resolution & communication ( on 
a rotation basis). 
• Support & communicate Database Enhancements. 
• Support and communicate Process Changes. 
• Ensure Data Integrity. 
• Provide Subject Matter Expertise and functional support for Customer Data Initiatives. 
The Petitioner stated that the Beneficiary's job duties had "slightly expanded" from those listed in the 
labor certification approved more than eight years prior to the date the petition was filed and claimed 
that this "reflect[ ed] a normal career progression." The job certified by DOL had an annual proffered 
wage of $88,000, while the current petition states the Beneficiary would earn $135,200 per year in his 
new role as a manager. The Director later issued a request for evidence (RFE) requesting that the 
Petitioner submit evidence to demonstrate that the job offered to the Beneficiary in the petition was 
the same as that submitted in the labor certification. 
In response, the Petitioner again indicated that the Beneficiary had been promoted to his current 
position as "Manager, Data Management" and that this was a "natural progression in his career." The 
Petitioner listed the following "expanded duties" for the Beneficiary: 
• Building new ETL data flows, new reporting DB platforms. 
• Overseeing the architecture, design and upgrading the systems to newer versions. 
• Managing customer Marketing database (CDM), data science, analytics. 
• Working with internal teams or external vendors to initiate the new capabilities that 
will enhance the business. 
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• CDM governing rules and working with legal, compliance and security teams for data 
compliance. 
• Implementing and managing the cloud infrastructure for data science and Machine 
learning. 
• Managing direct reports and project resources for allocating the work. 
The Director later denied the petition, stating that the position discussed in the labor certification was 
not the same as that submitted with the current petition filed approximately eight years later. The 
Director also stated that the letter submitted by the Petitioner detailed how the position provided with 
the current petition was different from that job described in the 2012 labor certification. 
As previously noted, USCIS must assess the petition to ensure that the position offered is the same or 
similar to the position that the DOL certified. A new original permanent labor certification must be 
submitted where there has been a material change in the job opportunity covered by the original labor 
certification. See generally 6 USCIS Policy Manual, supra. In denying the petition, the Director only 
considered whether the position described in the labor certification was the same as that provided with 
the petition. However, the Director did not analyze whether the Beneficiary's new position described 
in the petition was similar to that provided in the previously certified labor certification. 2 Therefore, 
upon remand, the Director should analyze whether the position described in the labor certification is 
similar to that listed in the petition, and in tum, whether the position offered in the petition remains 
materially unchanged from that described in the original labor certification. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
2 If eligible under section 204(j) of the Act, 8 U.S.C. § 1154(j), a Form 1-140 (and underlying permanent labor certification, 
if applicable) may remain valid and the beneficiary of an approved employment-based immigrant visa petition may 
transfer, or "port," to a qualifying new job offer that is in the same or a similar occupational classification as the job offer 
for which the petition was filed. The Petitioner asserts on appeal that even though the Beneficiary did not "port" to a new 
employer, the analysis used to determine whether a qualifying new job offer is in the "same or a similar occupational 
classification" under section 204(j) of the Act should be used here. The USCTS Policy Manual indicates that this analysis 
of "same or a similar occupational classification" under section 204(j) of the Act includes, but is not limited to, the 
following factors: the DOL occupational codes assigned to the respective jobs; job duties; job titles; the required skills 
and experience; the educational and training requirements; any licenses or certifications specifically required; the offered 
wage or salary; and any other material and credible evidence relevant to a determination of whether the new position is in 
the same or a similar occupational classification. See generally 7 USCIS Policy Manual, supra, at E.5. This issue should 
be addressed on remand. 
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