remanded EB-3 Case: Health And Safety Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 17141360 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUGUST 9, 2021 
The Petitioner, a commercial cleaning services business, seeks to employ the Beneficiary as a health, 
safety and sanitation engineer. It requests professional classification for the Beneficiary under the third 
preference immigrant category . 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" 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 initially approved the petition, but subsequently revoked 
the approval on multiple grounds. 
On appeal the Petitioner submits a brief and additional documentation, and asserts that it has overcome 
the grounds for revocation. 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 Director's decision and remand the case for further 
consideration and the issuance of a new decision. In these proceedings, it is the Petitioner's burden to 
establish eligibility for the requested benefit by a preponderance of the evidence. See Section 291 of 
the Act, 8 U.S .C. § 1361; Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010). 
I. LAW 
A. Employment-based Immigrant Petition Process 
Employment-based immigration generally follows a three-step process . First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S . Department of Labor (DOL) . See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the 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)(l)-(11) of the 
Act. Second, the employer files an immigrant visa petition (Form 1-140) with U.S. Citizenship and 
Immigration Services (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. 
Section 205 of the Act, 8 U.S.C. § 1155, provides that the Secretary of Homeland Security may "for 
good and sufficient cause, revoke the approval of any petition." By regulation this revocation authority 
is delegated to any USCIS officer who is authorized to approve an immigrant visa petition "when the 
necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). USCIS must 
give the petitioner notice of its intent to revoke the prior approval of the petition and the opportunity 
to submit evidence in opposition thereto, before proceeding with written notice of revocation. See 
8 C.F.R. § 205 .2(b) and ( c ). A notice of intent to revoke (NOIR) "is not properly issued unless there 
is 'good and sufficient cause' and the notice includes a specific statement not only of the facts 
underlying the proposed action, but also of the supporting evidence." Matter of Estime, 19 I&N Dec. 
450,451 (BIA 1987). Per Matter of Estime, "[i]n determining what is 'good and sufficient cause' for 
the issuance of a notice of intention to revoke, we ask whether the evidence of record at the time the 
notice was issued, if unexplained and unrebutted, would have warranted a denial based on the 
petitioner's failure to meet his or her burden of proof." Id. 
B. Professional Classification 
The regulation at 8 C.F.R. § 204.5(1)(2) defines "professional" as follows: 
Professional means a qualified alien who holds at least a United States baccalaureate 
degree or a foreign equivalent degree and who is a member of the professions. 
A petition for a professional must generally be accompanied by a valid, individual labor certification. 
See 8 C.F.R. § 204.5(1)(3)(i). The regulation states that to be eligible for professional classification 
the job offer portion of the labor certification must demonstrate that the job requires at minimum a 
baccalaureate degree. Id. 
The regulations further provide that a petition for a professional must be accompanied by evidence 
that the alien holds a United States baccalaureate degree or a foreign equivalent degree, that the alien 
is a member of the professions, and that the minimum of a baccalaureate degree is required for entry 
into the occupation. See 8 C.F.R. § 204.5(1)(3)(ii)(C). 
II. ANALYSIS 
The instant petition was filed on August 26, 2016, accompanied by a labor certification that was filed 
with the DOL on July 24, 2015, and certified in April 2016. In section Hof the labor certification the 
job duties of the proffered position - health, safety and sanitation engineer (HSS engineer) - were 
listed as follows in box 11: 
• Inspect and evaluate the environment, equipment, materials and processes in working areas 
to ensure compliance with government health, safety and sanitation regulations and 
industry standards. 
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• Maintain company's Injury and Illness Prevention Plan, OSHA, First Aid, CPR and other 
Safety, Health, and Sanitation related topics, and train staff on compliance with these 
programs. 
• Review all Job Hazard Analysis. 
• Coordinate with HR on workers compensation claims and provide opportunities for best 
care of injured employees for expediency of returning to work. 
• Conduct investigation involving client's complaints on all incidents and near misses, in 
collaboration with the applicable and human resources. 
• Ensure adherence to safety programs in order to provide a safe and clean workplace for 
employees within the regulations of all OSHA local and state regulations. 
• Conduct random rounds at the client's facility to visually identify any personnel and/or 
health, safety, sanitation issues or concerns. 
• Review and maintain all safety, health, sanitation training checklists and orientation 
materials related to each worker in the company. Assure all personnel complete required 
health, safety and sanitation training. 
The education, training, and experience requirements for the job of HSS engineer were listed as 
follows in section H: 
4. 
4-B. 
5. 
6. 
7. 
8. 
9. 
10. 
14. 
Education: Minimum level required: 
Major Field of Study: 
Is training required for the job? 
Is experience in the job offered required? 
Is an alternate field of study acceptable? 
Is an alternate combination of education 
Bachelor's degree 
Industrial Engineering or 
Environmental Engineering 
No 
No 
No 
and experience acceptable? No 
Is a foreign educational equivalent acceptable? Yes 
Is experience in an alternate occupation acceptable? No 
Specific skills or other requirements: 
Bachelor['s] Degree or foreign equivalent degree in Industrial Engineering or 
Environmental Engineering. 
Travel is required to visit client's facilities to conduct random rounds and 
observe workers performance. 
Section J of the labor certification indicated that the Beneficiary's highest level of education relevant 
to the job opportunity was a bachelor's degree in environmental engineering froni I 
I I University inl I Poland, completed in 2002. As evidence of this educational 
credential the Petitioner submitted copies of the Beneficiary's transcripts with English translations, 
along with an academic evaluation by Silvergate Evaluations Inc. asserting that the Beneficiary's 
Polish degree was equivalent to a bachelor's degree in environmental and water resources engineering 
in the United States. 
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The petition was initially approved on September 2, 2016, and the record indicates that the Beneficiary 
began working in the proffered position of HSS engineer with the Petitioner on November 16, 2016. 
In April 2020, however, the Director issued a notice of intent to revoke (NOIR) the approval. At the 
outset of the NOIR the Director stated that the issue is whether the Beneficiary "possesses the 
education and skills required to perform the intended job," due to "conflicting information regarding 
[her] degree as well as her ability to perform the job duties." The Director referred to the Beneficiary's 
I-485 (adjustment of status) interview and a site visit to the Petitioner's premises by users which 
appeared to indicate that the Beneficiary was not performing HSS engineering work and that the job 
description and its requisite educational level had been misrepresented in the labor certification. In 
particular, the Director cited a document (dated January 14, 2019) submitted to users by the 
Beneficiary following her I-485 interview which listed her current job duties with the Petitioner (as 
HSS engineer) and the percentage of time spent on each duty. 1 According to the Director, only 43.75% 
of the job duties were related to HSS engineering, while the others related to tasks she previously 
performed for the Petitioner as a part-time bookkeeper and cleaning supervisor. The Director stated 
that the Beneficiary, in her I-485 interview, displayed a lack of knowledge about specific duties she 
ostensibly performed as HSS engineer, acknowledged performing certain duties associated with her 
previous bookkeeping and supervisory positions, and indicated that her duties would not change in the 
future. In addition, the Director cited the Beneficiary's testimony in her I-485 interview that the 
engineering-related duties she took over when she became the HSS engineer used to be performed by 
the Petitioner's president, who has no engineering background. The Director also cited a separate 
interview of the Petitioner's president during the users site visit which purportedly revealed that he 
was not well informed about the proffered position and elicited the admission that a bachelor's degree 
was not required for the job. Finally, the Director indicated that there were irregularities in the 
Beneficiary's university transcripts (unidentified in the NOIR) which called into question whether she 
had the requisite educational credential for a job as a professional engineer. 
In response to the NOIR the Petitioner submitted two additional documents - including an English­
language copy of the Beneficiary's diploma from the 1 I University of Technology" and an 
email communication to the Beneficiary, in Polish with an English translation, from the Dean's Office, 
Faculty of Environmental & Energy Engineering,! I University of Technology - in support of 
its claim that the Beneficiary earned a baccalaureate level diploma in the field of environmental 
engineering on October 8, 1992. With regard to the Beneficiary's job duties, the Petitioner submitted 
notarized statements from its president and the Beneficiary and discussed the January 2019 document 
which listed 10 duties the Beneficiary allegedly performed since starting work as HSS engineer in 
November 2016, the majority of which accorded with the job duties listed in the labor certification, 
but some of which did not. According to the Petitioner the Beneficiary was transitioning to HSS 
engineer in January 2019 and continuing to perform some duties from her previous position as first­
line supervisor of office and administrative support workers. Most importantly, the Petitioner asserted 
that the Director mistakenly excluded a major duty of "traveling to serviced accounts," comprising 
17.5% of the Beneficiary's work time, from her engineering-related duties. The Petitioner claimed, 
therefore, that well over 60% of the Beneficiary's time during the transitional phase of her employment 
1 This document also listed five previous part-time positions the Beneficiaiy held with the Petitioner from September 2011 
to September 2016 as a bookkeeping, accounting and auditing clerk and as a first-line supervisor of office and 
administrative support workers, along with the duties performed in each job. 
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was spent performing engineering-related duties conforming to the job duties listed in the labor 
certification. While acknowledging that its president did not have an engineering degree, the Petitioner 
asserted that its president had over 35 years of experience in handling health, safety, and sanitation 
matters for his business, but now needed an employee with an engineering degree in view of the 
expanding business and higher regulatory standards. 
In his decision revoking the petition's approval the Director first addressed the Beneficiary's 2019 
document listing her job duties as HSS engineer. The Director reiterated the observation in the NOIR 
that only 43. 75% of the Beneficiary's work time was related to job duties listed in the labor 
certification for the position of HSS engineer, while the other duties were unrelated to the proffered 
position and "conform most closely to those tasks she performed as a bookkeeper and first-line 
cleaning supervisor." The Director identified three specific duties in the 2019 document (comprising 
50% of the Beneficiary's work time) as unrelated to the HSS engineering position, including: 
• Contact with customers to ensure adherence to quality standards. Discuss job performance 
problems with employees to identify causes and issues [12.5%]. 
• Supervise the work of office and administrative worker[ s]. Enter and send invoices and 
handle all financial transactions and record keeping [20%]. 
• Traveling to serviced accounts [17.5%]. 
The Director noted the Petitioner's claim that the Beneficiary was performing the above duties because 
she was transitioning from her previous job to the proffered position, but stated that no such claim was 
reflected in the job offer portion of the labor certification. The Director reiterated the observations in 
the NOIR that the Beneficiary, in her I-485 interview in January 2019, displayed a broad lack of 
knowledge regarding specific duties she ostensibly performed as HSS engineer, acknowledged 
performing certain duties unrelated to HSS engineering, and indicated that her duties would not change 
in the future. The Director also reiterated from the NOIR that the separate interview of the Petitioner's 
president revealed that he was not well informed about the proffered position and stated that a 
bachelor's degree was not required for the job. The Director concluded that the job the Beneficiary 
was currently performing does not require a bachelor's degree in industrial or environmental 
engineering, and that filing the labor certification and I-140 petition for an HSS engineer was a pretext 
for retaining the Beneficiary's services as a bookkeeper and first-line cleaning supervisor. 
As for the Beneficiary's educational credential, the Director stated that "the transcript shows some 
inconsistencies." As an example the Director pointed out that classes are listed under two separate 
headings of "summer semester - academic year 1997 /98," and indicated that the Petitioner had not 
submitted any new evidence in response to the NOIR to resolve this inconsisTncy. Tie Director did 
not address the English-language copy of the Beneficiary's diploma from University of 
Technology or the email correspondence from the dean's office submitted in response to the NOIR. 
Nor did the Director identify any further inconsistencies in the transcript. 
In summation, the Director stated that the Petitioner "failed to show that the [B]eneficiary has the 
ability to perform the job duties and did not resolve the inconsistencies in her school record." 
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On appeal the Petitioner asserts that the Director's revocation decision ignored the explanations 
provided in the notarized statements from the Beneficiary and the Petitioner's president submitted in 
response to the NOIR, as well as the additional evidence submitted in response to the NOIR. As an 
example, the Petitioner claims that the Director did not consider the statement of its president denying 
that he ever stated to USCIS officials that the proffered position does not require a bachelor's degree. 
As another example the Petitioner points out that the Director did not consider the Petitioner's claim 
that the job duty described as "traveling to serviced accounts," listed in the January 2019 document as 
comprising 17.5% of the Beneficiary's work time, was closely related to her work as an HSS engineer 
because the purpose of such travel to client sites was to identify personnel and/or health, safety, and 
sanitation concerns. The Petitioner also notes the documentation from I I University of 
Technology submitted in response to the NOIR as evidence of the authenticity of the Beneficiary's 
degree, which the Director likewise neglected to address in the revocation decision. As further 
evidence of the Beneficiary's credential from that university the Petitioner submits a certificate from 
the Politechnikij I dated February 4, 2021, certifying that the Beneficiary completed a 
study program in environmental engineering, specializing in water engineering and water resources 
management during the period of October 1, 1997, to October 8, 2002, and was awarded the 
professional title of Inzynier (engineer), equivalent to a bachelor of engineering. The certificate lists 
the Beneficiary's nine semesters of study and corrects the fourth semester by identifying the summer 
semester concluding the second year of study as "academic year 1998/1999, semester 4 completed on 
12th Nov. 1999" (incorrectly identified as academic year 1997-1998 in the previously submitted 
transcripts). 
After a thorough review of the record we conclude that the Director's decision was deficient in several 
respects and warrants a remand. 
With regard to the Beneficiary's education, the Director did not address the two documents submitted 
in response to the NOIR as evidence that the Beneficiary earned a baccalaureate level degree in 
environmental engineering. Therefore, the Director's determination that the Petitioner "did not 
resolve the inconsistencies in [the Beneficiary's] school record" is incorrect insofar as the Director did 
not take all available evidence into account (which has now been supplemented by the additional 
document submitted in support of the appeal). Since the Director has not properly determined whether 
the Beneficiary earned a foreign degree equivalent to a U.S. baccalaureate degree in environmental 
engineering, the issue of whether the Beneficiary has the requisite credential to meet the minimum 
educational requirement of the labor certification and to qualify for professional classification is still 
open. On remand this issue must be decided based on all the evidence in the record. 
The Director's analysis of the HSS engineer position based on the Beneficiary's listing of her job 
duties in the document dated January 14, 2019, is also problematical. As listed in the document, the 
Beneficiary's duties and the percentage of time spent on each were as follows: 
• Inspect and evaluate the environment, equipment, materials and processes in working areas 
to ensure compliance with government health, safety and sanitation regulations and 
industry standards. (7.5%) 
6 
• Maintain company's Injury and Illness Prevention Plan, OSHA, First Aid, CPR and other 
Safety, Health and Sanitation related topics, and train staff on compliance with these 
programs. (6.25%) 
• Review all Job Hazard Analysis. (5%) 
• Ensure adherence to safety programs in order to provide a safe and clean workplace for 
employees within the regulations of all OSHA local and state regulations. (6.25%) 
• Conduct random rounds at the client's facility to visually identify any personnel and/or 
health, safety, sanitation issues or concerns. (8. 75%) 
• Train or instruct employees in job duties and arrange for training to be provided. (6.25%) 
• Review and maintain all safety, health, sanitation training checklists and orientation 
materials related to each worker in the company. Assure all personnel complete required 
health, safety and sanitation training. (10%) 
• Contact with customers to ensure adherence to quality standards. Discuss job performance 
problems with employees to identify causes and issues and to work on resolving problems. 
(12.5%) 
• Supervise the work of office and administrative worker[ s]. Enter and send invoices and 
handle all financial transactions and recordkeeping. (20%) 
• Traveling to serviced accounts. (17.5%) 
According to the Director, the first five duties and the seventh, totaling 43.75% of the Beneficiary's 
work time, were the only ones "remotely related to her Labor Certification HHS Engineer position 
description," while the other four duties "are unrelated and conform most closely to those tasks she 
performed as a bookkeeper and first-line cleaning supervisor." This assessment of the other four job 
duties is correct with respect to the sixth and ninth duties listed in the January 2019 document, since 
"train or instruct employees in job duties and arrange for training to be provided" and "supervise the 
work of office and administrative workers" are specifically listed among the job duties performed by 
the Beneficiary in her previous position(s) with the Petitioner. However, the Director's assessment 
appears to be incorrect with respect to the tenth job duty listed in the January 2019 document -
traveling to serviced accounts - since that duty is identified at section H.14 of the labor certification 
as an "other requirement" of the HSS engineer position ("to conduct random rounds and observe 
workers performance" at client facilities) and is not listed as a job duty in any of the Beneficiary's 
prior positions with the Petitioner. Adding the 17.5% of the Beneficiary's time spent on that duty 
would raise the total percentage of time spent on HSS engineer related duties to 61.25%. We are also 
not convinced that the Director's assessment with respect to the eighth job duty in the January 2019 
document is correct, since "contact with customers to ensure adherence to quality standards" would 
appear to relate to the Beneficiary's HSS engineer duties. 
The Director referred to the Beneficiary's I-485 interview in January 2019 as indicating that she lacked 
knowledge of specific items listed in her job duties relating to OSHA standards. and the preceding 
NOIR mentioned additional shortcomings in knowledge about the Petitioner's CPR program and its 
injury and illness prevention program. We note, however, that these three items are referenced 
exclusively in the second and fourth job duties listed in the Beneficiary's January 2019 document, 
which comprise in toto just 12.5% of her work time. In view of the Director's focus on the percentage 
of work time spent on the job duties listed for HSS engineer, little explanation was provided as to why 
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this particular area of responsibility, weighed against the other job duties, was so important in 
determining whether the Beneficiary is actually performing the duties of the HSS engineer position. 2 
The analytical shortcomings discussed above undermine the Director's determinations, stated on page 
3 (top) of the revocation decision, that the Beneficiary "cannot perform the duties" of the HSS engineer 
position and that the position "does not require a Bachelor's Degree in Industrial Engineering or 
Environmental Engineering." On remand the Director may review and reconsider these issues taking 
our discussion in this decision and the record as a whole into account. 
III. CONCLUSION 
For the reasons discussed above we will remand this case to the Director, who may issue a new NOIR 
in accordance with the requirements of 8 C.F.R. § 205.2(b) and (c) and Matter of Estime. Following 
the Petitioner's response to the NOIR, or the expiration of the time period for response, the Director 
shall issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further consideration 
and the entry of a new decision consistent with the foregoing analysis. 
2 The Beneficiary is not required to perform the duties of the proffered position in full before her 1-485 application for 
legal permanent residence is approved, though the Petitioner must intend to employ the Beneficiary in the proffered 
position from the time the petition was filed. See 8 C.F.R. § 204.S(c). 
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