remanded EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-B-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
I 
DATE: MAY 16, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a pork and beef processor, seeks to employ the Beneficiary as an IT analyst II. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification.' See Immigration and Nationality Act (the Act), section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This "EB-3" classification allows a U.S. employer to sponsor a foreign national 
for lawful permanent resident status to work in a position that requires at least two years of training 
or expenence. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had 
not established that the Beneficiary possessed the minimum educational requirement of the job offer. 
Specifically, the Director found that the Beneficiary's submitted provisional certificate was not proof 
of a final degree, and also concluded that the Beneficiary did not possess any degree in the field of 
computer science or information systems, as required by the job offer. 
The matter is now before us on appeal. The Petitioner asserts that the Director erred in not accepting 
the Beneficiary's provisional certificate as evidence that he possessed the education required by the 
job offer and that the Director overstepped his authority and should have deferred to the Department 
of Labor (DOL) to interpret the educational requirements of the job offer. The Petitioner 
acknowledges that the job offer specified that the position required a master's degree in computer 
science or information systems, but notes that it-had also listed that a bachelor's degree and five 
years of experience as an alternative combination of education and experience that would be 
accepted, and that the alternative bachelor's degree was not required to be in the same field of study 
as the primary degree listed. 
Upon de novo review, we will remand the case for further proceedings. 
1 We note that the Petitioner previously filed an employment-based petition under section 203(b)(2) of the Act, 8 U.S.C. 
§ 1153(b)(2), seeking to classify the Beneficiary as an "EB-2" professional with an advanced degree. The Director 
denied this petition after concluding that the Beneficiary did not possess an advanced degree in computer science or 
information systems as required by the job offer. 
Matter ofS-B-C-
I. THE LABOR CERTIFICATION 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain an approved labor certification from DOL. 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. Section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the 
employer may file an immigrant visa petition 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. 
As required by statute, the Form I-140, Immigrant Petition for Alien Worker, filed in this matter is 
accompanied by an approved labor certification certified by the DOL.2 The priority date of the 
petition based on the date that the labor certification was filed in this matter is December 18,2014. 3 
The required education, training, experience and skills for the offered position are set forth at Part H 
of the labor certification. In the instant case, the labor certification states that the position has the 
following minimum requirements: 
H.4. 
H.4-B. 
H.6. 
H.6-A. 
H.7. 
H.8. 
H.8-A. 
H.8-C. 
H.9. 
H.14. 
Education: minimum level required: Master's degree: 
Major field of study: Computer science, information systems. 
Is experience in the job offered required for the job? Yes. 
If Yes, number of months experience required: 12. 
Is there an alternate field of study that is acceptable? No. 
Is there an alternate combination of education and experience that is 
acceptable? Yes. 
If Yes, specify the alternate level of education required: Bachelor's 
degree. 
If applicable, indicate the number of years experience acceptable in 
question 8: 5. 
Is a foreign educational equivalent acceptable? Yes. 
Specific skills or other requirements: Employer will accept any 
suitable combination of education, training, or experience. 
2 See Section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(0); see also 8 C.F.R.' § 204.5(a)(2). 
3 
See 8 C.F.R. § 204.5(d). A beneficiary must be eligible as of that date. 
2 
.
Matter ofS-B-C-
On the labor certification, in Part J .11, J .12, and J .13, the Beneficiary listed his education as a 
master's degree in commerce from in India, completed in 2004. The Petitioner 
submitted copies of the Beneficiary's diploma, provisional certificate, and consolidated 
memorandum of marks from reflecting that the Beneficiary had passed the 
Bachelor of Commerce examination in April 1999. The Petitioner also submitted copies of the 
Beneficiary's provisional certificate, dated March 25, 2006, and memorandum of marks from 
for the Beneficiary's Master of Commerce program of study. The Petitioner 
further submitted a certificate and mark sheet 
from of 
India, showing the Beneficiary passed the final examination there in March 2005. 
The Petitioner submitted a credentials evaluation performed by Ph.D., for 
examined the Beneficiary's bachelor's degree and 
master's degree and concluded that these degrees equated "[s]ixty academic credit hours toward the 
Bachelor of Science degree in Management Information Systems, at~ a regionally accredited 
institution in the United States." also examined the Beneficiary's employment 
experience from March 2006 through the April 15, 2013, date of the evaluation. The professor 
stated that "[:fJollowing the three-to-one rule of the ... USCIS ... formula, [the Beneficiary's] 
professional work experience, [sic] can be equated to seventy (70) academic credit hours of college 
level study in Management Information Systems." 4 concluded that the Beneficiary 
"has achieved, through his academic credentials, and his professional work experience, the 
equivalent of a Bachelor of Science degree in Management Information Systems, at a regionally 
accredited institution in the United States." 
The Director found that the Beneficiary's education in commerce or the evaluation that combined 
education and experience did not satisfy the requirements of the job offer, which required a master's 
degree in computer science or information systems plus 12 months of experience in the offered job 
or, in the alternative, a bachelor's degree plus five years of experience. Therefore, the Director 
denied the petition. 
II. LAW AND ANALYSIS 
The Director raised two issues regarding the Beneficiary's educational record: whether a provisional 
certificate was proof that a university had conferred a degree, and whether the Beneficiary possessed 
a U.S. bachelor's degree or a foreign equivalent degree in the required field of study. We will 
examine both issues. 
A. The Beneficiary's Degree 
The beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F .R. § 103 .2(b )(1), (12). See Matter of Wing's 
4 We note that the equivalence cited by the evaluator applies to non-immigrant H-1 B petitions, not to immigrant petitions 
such as this one. See 8 CFR § 214.2(h)(4)(iii)(D)(5). 
3 
.
Matter of S-B-C-
Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N 
Dec. 45,49 (Reg. Comm. 1971). 
In the instant case, the labor certification states that the position requires a master's degree in 
computer science or information systems and twelve months of experience in the offered job. The 
Petitioner indicated that a candidate could alternatively qualify for the offered position with a 
bachelor's degree and five years of experience. As noted above, the record contains copies of the 
Beneficiary's March 25, 2006, provisional certificate for his master of commerce degree and 
memorandum of marks from 
The Director stated that a provisional certificate is not proof that the university awarded a final 
degree. However, we must consider evidence submitted of the individual nature of each university's 
or college's requirements for each program of study and each student's completion of those 
requirements. A petitioner will bear the burden to establish that a beneficiary's provisional 
certificate, combined with statement of marks, or relevant documentation reflects that, at the time the 
certificate was issued, all of the substantive requirements for the degree were met and the degree was 
in fact approved by the responsible university body. 
Here, the record demonstrates that, by issuance of the provisional certificate on March 25, 2006, the 
Beneficiary had completed all substantive requirements and the university had in fact approved the 
degree. The record contains the following university documents contemporaneous with the relevant 
events: (1) a copy ofthe Beneficiary's provisional certificate issued on March 25, 2006, which states 
that the Beneficiary "passed the M. Com. Examination of this University"; and, (2) a copy of the 
Beneficiary's statement of marks showing that he passed the "M. Com. (COMMERCE) FINAL" 
exams. 
Finally, we have turned to information publicly available from the American Association of 
Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global 
Education (EDGE),5 and note that it accords with the Petitioner's claim and evidence. On the matter 
of provisional certificates issued by Indian universities, AACRAO EDGE states: 
The Provisional Degree Certificate is evidence of completion of all requirements for 
the degree in question, the name of the degree and the date upon which it was 
approved by the responsible university governing body, and is comparable to an 
official US academic transcript with a degree statement certifying completion of all 
5 
AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education professionals who 
represent approximately 2,600 institutions in over 40 countries." http://www4.aacrao.org/centennial/about.htm (last 
visited April 25, 20 17). According to its registration page, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials." http://edge.aacrao.org/info.php (last visited April 25, 20 17). 
4 
.
Matter of S-B-C-
requirements for the degree, the name of the degree and the date upon which it was 
approved by the academic senate at universities in the United States.6 
EDGE additionally notes that some students never receive their "final Degree Certificate," but 
instead rely on the provisional degree certificate as evidence of degree completion. Jd. 
The provisional certificate, together with his statement of marks, demonstrates that the Beneficiary 
completed all the substantive requirements and that the university approved his degree dated from 
March 25, 2006. Accordingly, we find .that the provisional certificate from 
conferred on the Beneficiary a master's of commerce degree. EDGE states that a master's of 
commerce in India is "[a]warded upon completion of two years of study beyond the three year 
bachelor's degree" and that it represents the "attainment of a level of education comparable to 
bachelor's degree in the United States." 
While the Petitioner has established that the Beneficiary possesses the foreign equivalent of a U.S. 
bachelor's degree, we must still examine whether the Beneficiary's degree is in the field of study 
required by the labor certification. 
B. The Beneficiary's Field of Study 
On appeal, the Petitioner cites the credentials evaluation performed by who relies on the 
Beneficiary's academic studies combined with his employment experience as being equivalent to a 
U.S. bachelor's degree in information systems. The Petitioner also submits a new evaluation of the 
Beneficiary's education, training, and experience, performed by for 
While concluded that the. Beneficiary's two degrees and all of his 
past work experience combined to form the equivalent of a U.S. bachelor's degree in management 
information systems, arrived at a different conclusion. 7 found that 
the Beneficiary's Indian bachelor's and master's degrees are "indicative of his fulfillment of at least 
a bachelor's-level degree equivalency in Business Administration, Management, or a related field." 
In addition to the Beneficiary's academic credentials, examined the Beneficiary's 
employment experience from March 2006 until March 2012, as well as his work experience since 
March 2012. cited "the equivalency ratio promulgated by the USCIS, pursuant to 
which not less than five years of work experience in the field of specialty following completion of a 
6 See India:· Provisional Degree Certificate, AACRAO, http://edge.aacrao.org/country/credentiallprovisional-degree­
certificate (last visited April 25, 20 17). 
7 
The discrepancy is significant because the labor certification requires 12 months of experience in the offered job i!:! 
addition to the required master's degree or, in the alternative, five years of experience in the offered job in addition to a 
bachelor's degree. In this case, since the credentials evaluation from uses all of the Beneficiary's employment 
experience (up until 2013) to form the equivalent of a bachelor's degree, it is not clear that the Beneficiary would 
possess the full amount of required employment experience in addition to the equivalent of a master's degree. It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts 
to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, 
lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
5 
Matter ofS-B-C-
baccalaureate degree is equivalent to an advanced, or master's-level degree" and concluded that the 
Beneficiary "has attained, in time equivalence, a Master of Science Degree in Computer Information 
Systems, as well as one additional year of professional experience in the field." 
The terms of the labor certification require a master's degree in computer science or information 
systems plus one year of experience in the offered job, or a bachelor's degree plus five years of 
experience. We note that the Beneficiary's Indian bachelor's and master's degrees are both in 
commerce, and his submitted memorandums of marks reveal no coursework in either computer 
science or information systems. The Petitioner maintains on appeal that while it specified at line 4-B 
of the labor certification that a candidate must possess a master's degree in computer science or 
information systems, the Petitioner contends that it listed alternative qualifications at line H.14 of the 
labor certification and did not place any field of study requirements on the alternative requirements, 
stating instead that it would accept "any suitable combination of education, experience and/or 
training for this position."8 The Petitioner explains that this language "was meant to broaden the 
pool of U.S. worker applicants who might be eligible for the open position." 
As the record does not contain documentation of how the position was advertised to determine 
whether the Petitioner allowed for "any field," in connection with the alternate education and 
experience or advertised to allow for "any combination of education, and experience," the matter is 
being remanded to the Director for examination of the Petitioner's intent concerning the actual 
minimum requirements of the position as that intent was explicitly and specifically expressed during 
the labor certification process to the DOL and to potentially qualified U.S. workers. 
The Director may request that the Petitioner provide a copy of the signed recruitment report required 
by 20 C.F.R. § 656.17(g)(l), as well as copies of the prevailing wage determination, all online, print 
and additional recruitment conducted for the position, the job order, the posted notice of the filing of 
the labor certification, and all resumes received in response to the recruitment efforts. The Director 
may also request that the Petitioner submit any other communications with the DOL that may be 
probative of its intent regarding the minimum requirements of the offered position and showing that 
the ads allowed U.S. workers with bachelor's degrees in other fields of study to apply for the 
position, and that the Petitioner actually considered applicants with other fields of study. 
8 
By way of background, the regulation at 20 C.F.R. § 656.17(h)(4)(ii) states: 
If the alien beneficiary already is employed by the employer, and the alien does not meet the primary 
job requirements and only potentially qualifies for the job by virtue of the employer's alternative 
requirements, certification will be denied unless the application states that any suitable combination of 
education, training, or experience is acceptable. 
This language is referred to as "Kellogg language" based on the Board of Alien Labor Certification Appeals ruling in 
Francis Kellogg, 1994-INA-465 and 544, 1995-INA 68 (Feb. 2, 1998) (en bane). Accordingly, H.14 appears to be 
"Kellogg" language rather than an expression of any allowed bachelor's equivalency. 
Matter of S-B-C-
III. CONCLUSION 
In view of the foregoing, the previous decision of the Director will be withdrawn. The petition is 
remanded to the Director. The Director may request any additional evidence considered 
pertinent. Similarly, the Petitioner may provide additional evidence within a reasonable period of 
time to be determined by the Director. Upon receipt of all the evidence, the Director will review the 
entire record and enter a new decision. 
ORDER: The decision of the Director, Nebraska Service Center, is withdrawn. The matter is 
remanded to the Director, Nebraska Service Center, for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofS-B-C-, ID# 11960 (AAO May 16, 2017)