remanded EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C- INC. 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 13,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a designer and manufacturer of diesel engines and components, seeks to employ the 
Beneficiary as an IT business analyst principal. It requests classification of the Beneficiary as a 
professional under the third preference immigrant classification. Immigration and Nationality Act 
(the Act), section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(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 Acting Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 
had not established that the Beneficiary has a bachelor's degree or a foreign equivalent degree in the 
fields of management infonnation, computer systems, or infom1ation technology and, thus, does not 
qualify for the offered job. 
On appeal, the Petitioner asserts that the labor certification allowed the Beneficiary to qualify for the 
oiTered position in a field related to one of the fields listed, and that the Director failed to consider 
evidence showing that the Beneficiary's degree was in a related field. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for further 
proceedings consistent with our opinion and for the entry of a new decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. first, an employer obtains 
an approved labor certification li·01n 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). By approving the labor certification, the DOL 
certifies that there arc insuflicient U.S. workers who are able, willing, qualified, and available tor the 
otTcrcd 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 2 I 2(a)(5)(A)(i)(l)-(ll) of 
the Act. Second, the employer Iiles an immigrant visa petition with U.S. Citizenship and 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
March 20. 2017. See 8 C.F.R. § 204.5(d). 
Matter ofC- Inc. 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
approves the petition, the foreign national applies 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. BENEFICIARY'S EDUCATION 
A 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)(l), (12); Malter of' Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'! Comm'r 1977). The labor certification requires a 
bachelor's degree in "Management Infonnation or Computer Systems, Information Technology, o 
[sic]" and 12 months of experience in the alternate occupations of "Senior IT Business Analyst, 
Senior Business Analyst, or related positio [sic]." 2 At Part H.l4 of the labor certification, the 
Petitioner states that the experience must include: "Enterprise Analysis; Lead and conduct solutions 
assessment and validation; Plan the Business Analysis Approach; Requirements Analysis; Technical 
risk assessment; Requirements Management and Communication; Solution Definition processes and 
procedures; Capacity Planning." The labor certification states that no alternate field of study or 
combination of education and experience is acceptable. It also states that a foreign educational 
equivalent is acceptable. 
In denying the petition, the Director concluded that the Petitioner had not established that the 
Beneficiary has a bachelor's degree or a foreign equivalent degree in the fields of management 
information, computer systems, or information technology. On appeal, the Petitiorter contends that the 
minimum requirements of the job are in fact a bachelor's degree in "Management Information or 
Computer Systems, Infonnation Technology, or related field" and that the Beneficiary has such a 
degree. In her decision, the Director did not consider whether the missing language in the field of study 
entry at Part 1-1.4-B of the labor certification allowed for a related field of study. Although the text on 
the labor certification omits "or related field" from Part 1-1.4-B, the text as written, which ends in "o," 
could plausibly represent text that was entered onto the labor certification but cut otT in printing. We 
will remand the petition to the Director to consider whether the labor certification allowed the 
Beneficiary to qualify for the offered position in a field related to one of the fields listed, and if so, 
whether the Beneficiary's degree was in a related field 3 The Director may request evidence to 
demonstrate the Petitioner's actual minimum requirements, including its recruitment materials. 
2 It appears that letters and/or words were cut off when the labor certification was ·printed. On remand, the Petitioner 
must establish that the labor certification permitted a related field of study and that its recruitment reflected that a related 
field of study was acceptable. 
3 The Director reviewed the Beneficiary's transcripts and detennined that the field of study was not ''the same as" 
management information systems, computer systems, or information technology. The Director also reviewed two 
credentials evaluations submitted by the Petitioner and determined that they did not establish that the Beneficiary had a 
bachelor's degree in inanagemcnt information systems, computer systems, or information technology. These analyses 
did not include whether the Beneficiary had a bachelor's degree in a field related to management information systems, 
computer systems, or information technology. 
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Matter ofC- Inc. 
lll. BENEFI CIARY'S EXPERIENCE 
We note that the Petit ioner has also not established that the Benefi ciary has the exper ience required 
for the ofte red job. The labor certi ficat ion states that the Beneficiary qualifies for the otlcred 
positio n based on her experienc e with the Petitioner as a senior IT business ana lyst from March 9, 
2015 , onward; and with as a senior business analyst from February 5, 2012, to 
February 28, 2015. 
Evide nce relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, addre ss, and title of the writer , and a specific descript ion of the 
duties perto nned by the benefi ciary. See 8 C.F.R. § 204.5(1)(3). The record contain s a leuer from the 
Petiti one r deta iling the Benefi ciary' s employ ment as a senior business lT analyst from Marc h 9, 
2015 , to March 20, 20 17.
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lt also contain s a lette r detailing the Beneti ciary' s propo sed dutie s for the 
offe red pos ition of principal IT bus iness analys t. 
A labor certification employer cannot rely on experience that a toreign nati onal gained with it, unless 
the expe rience \vas in a job substanti ally different than the offered position or the empl oyer 
demonstra tes the impracticality of training a U.S. worker for the otTered position. 20 C.F.R 
§ 656.17(i)(3). For these purpose s, a job is subs tantially different from an ofthed pos ition if it requires 
perfonnance of the same job duti es less than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii). 
On the labor certification at Part J.2 1., the Beneficiary attested that she did not gain qualifying 
experience with the Petit ioner in a s ubstantially comparable job. Howeve r, based on the description 
of the duties of the pos itions on the labor certifi cation and in the Petiti one r's two letters, it appe ars 
that the jobs may be subs tantially similar. 5 Although the Petitioner asserts that the position of "IT 
Busil)ess Analyst - Senior " is not substantially comparable to the offered pos ition , the record doe s 
not co ntain sutTicient inform ation to make that determination . Specifi ca lly, the record lacks a 
percentage breakdown of how the Beneficiary alloc ated her time in the posi tion o f " IT Business 
Analyst - Senio r." Thus , the record does not support the Petition er's use of experience that the 
Beneficiary gained with it. On remand , the Pet itioner m ust establi sh ihat the Benctic iary has the 
experience and spec ial skills req uired for the offer ed j ob . 
. IV. ABIUT Y TO PAY THE PROFFERED WAGE 
The Petitioner has not establ ished its cont inuin g ab ility to pay the proffered ""age from the petition's 
priority date in 201 7 onward. The protTered wage is lis ted as a range of $75 ,600 to $97,500 per year. 
Th e regulatio n at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
·• The record does not contain a letter from verifying the Beneficiary's experience. 
5 For example, similar duties include, but are not limited to, enterprise ana!ysis, solutions and assessment validation, 
methodology testing, business analysis p lanning, test plan review. risk assessment, capacity planning and monitoring, 
and capacity and vendor capability analysis. 
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Matter of C- Inc. 
Ability of prospective employer to pay wage. Any pettllon filed by or for an 
employment-based immigrant which requires an otTer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full profiered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage.
6 
The record does not demonstrate that the Petitioner has paid the Beneficiary any wages from the 
priority date onward. The record also does not contain any regulatory-prescribed evidence of the 
Petitioner's ability to pay the proffered wage from the priority date in 2017 onward 7 On remand, 
the Petitioner must establish its continuing ability to pay the profiered wage fi·om the petition's 
priority date in 2017 onward. 
Y. CONCLUSION 
The decision of the Director will be withdrawn. The matter IS remanded to the Director for 
consideration of whether the labor certification allowed the Beneficiary to qualify for the offered 
position in a field related to management information systems, computer systems, or information 
technology, and if so, whether the Beneficiary's degree was in a related field; whether the 
Beneficiary possesses the required experience and special skills for the ofiered job; and whether the 
Petitioner has the ability to pay the proffered wage from the priority date onward. 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. 
6 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g.. River St. 
Donuts. LLC v. Napolitano, 558 F.3d Ill, 118 (1st Cir. 2009); Tongatapu Woodcraji Haw .. Ltd v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder,-- F. Supp. 3d--, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rizvi 
v. Dep 't of Homeland Sec., 3 7 F. Supp. 3d 870, 883-84 (S.D. Tex. 20 14), aff'd, -- Fed. Appx. --, 2015 WL 571 1445, *I 
(5th Cir. Sept. 30, 20 15). 
7 The record contains the Petitioi1er's annual report for the tax year ending December 31, 2016. This annual report does 
not cover the priority date year. 
4 
Mauer of C- Inc. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for turther 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as !VIatler ofC- Inc., 10# 1177867 (AAO Apr. 13, 2018) 
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