remanded EB-3 Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-C- LLP 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 24, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a management consulting company, seeks to employ the Beneficiary as a senior 
consultant. It requests classification of the Beneficiary as a professional 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 Texas Service Center denied the petition. The Director found that the Petitioner 
did not establish that the Beneficiary met the minimum experience requirement of the labor 
certification, and therefore did not qualify for the proffered position or for the requested 
classification. 
Upon de novo review, we will withdraw the Director's decision and remand the case for further 
consideration and the issuance of a new decision. 
I. LAW
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the U.S. Department of Labor (DOL). See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). 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)(I)-(II) of the Act. Second, the employer files 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. 
To qualify for classification as a professional a beneficiary must have a U.S. baccalaureate degree or 
a foreign equivalent degree. 8 C.F.R. § 204.5(1)(3)(ii)(C). A beneficiary must also meet the specific 
educational, training, experience, and other requirements of the labor certification. 8 C.F .R. 
Matter of D-C- LLP 
§ 204.5(1)(3)(i). All requirements must be met by the petition's priority date. 1 See Matter of Wing's
Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
II. ANALYSIS
At issue in this case is whether the Beneficiary has the qualifying experience required by the terms 
of the labor certification. 
The labor certification that accompanied the Petitioner's Form 1-140, Immigrant Petition for Alien 
Worker, states in section H, boxes 6, 10/10-A, and 10-B, that the minimum experience required for 
the job of senior consultant is 24 months in the job offered or in an alternate occupation such as 
bioinformatics engineer, data analyst, consultant, or a related job. In addition, some specific 
experience requirements are listed in box H.14 of the labor certification. According to the labor 
certification (section K, boxes a and b) the Beneficiary exceeded the 24-month experience 
requirement by working as a consultant for the Petitioner beginning in October 2015 and ongoing as 
of re 201 8 <: hen the labor certification y as
l 
filed), r d prior to that as a bioinformatics engineer
for.__ ____________ _____, in Georgia, from March 2012 to October 2015. 
With its initial evidence the Petitioner submitted a letter stating that the Beneficiary had been 
employed as a consultant from October 2015 to August 2018, and since August 2018 as a senior 
consultant. The letter described the duties performed in those two positions. No letter was 
submitted froml I to confirm the Beneficiary's prior employment with that company. In 
response to a request for evidence (RFE) from the Director seeking further evidence of the 
Beneficiary's experience, the Petitioner submitted another virtually identical letter confirming the 
Beneficiary's employment with the Petitioner, emphasizing that the position of consultant and senior 
consultant were not substantially comparable and asserting that the Beneficiary gained experience in 
the skills required at H.14 "during the entire course of employment" with the company. Once again, 
no employment verification letter was submitted from I l 
In denying the petition, the Director cited the Petitioner's answer of "No" to the question at section 
J.21 of the labor certification, which asks: "Did the alien gain any of the qualifying experience with
the employer in a position substantially comparable to the job opportunity requested?" According to 
the Director, the Petitioner's "No" answer to the question at J.21 conflicted with a statement in its 
second employment verification letter that "the beneficiary gained the necessary experience to 
satisfy the position's minimum requirements through the experience she gained while employed by 
our organization." The Director concluded that "the Petitioner failed to submit evidence" that the 
Beneficiary had the requisite 24 months of experience required by the labor certification. 
The Director's decision was incorrect, because it denied the petition on the basis of that alleged 
statement and the Petitioner's answer of "No" at J.21 without addressing the decisive issue in J.21 of 
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.S(d). In this case the priority date is June 8, 2018.
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Matter ofD-C- LLP 
whether the Beneficiary's experience with the Petitioner was in a "substantially comparable" 
position to the job offered, or not. The labor certification query at J.21 derives from the regulations 
governing job duties and requirements in the labor certification process, which provide, in pertinent 
part: 
If the alien beneficiary already is employed by the employer, in considering whether 
the job requirements represent the employer's actual minimums, DOL will review the 
training and experience possessed by the alien beneficiary at the time of hiring by the 
employer, including as a contract employee. The employer can not require domestic 
worker applicants to possess training and/or experience beyond what the alien 
possessed at the time of hire unless: 
(i) The alien gained the experience while working for the employer, including as a 
contract employee, in a position not substantially comparable to the position for 
which certification is being sought [emphasis added], or 
(ii) The employer can demonstrate that it is no longer feasible to train a worker to 
qualify for the position. 
20 C.F.R. § 656.17(h)(4)(i)(3)(i) and (ii). For purposes of paragraph (i) above, the regulations go on 
to define "substantially comparable" as follows: 
A "substantially comparable" job or position means a job or pos1t10n requmng 
performance of the same job duties more than 50 percent of the time. This 
requirement can be documented by furnishing position descriptions, the percentage of 
time spent on the various duties, organization charts, and payroll records. 
20 C.F.R. § 656. l 7(h)(4)(i)(5)(ii). 
On appeal the Petitioner references its previously submitted employment verification letters, which 
describe seven job duties of the consultant position the Beneficiary held with the Petitioner from 
October 2015 to August 2018 (which accord with those described at section K.a of the labor 
certification), seven job duties of the senior consultant position that the Beneficiary began with the 
Petitioner in August 2018 (which accord with the duties of the job offered described at section H.11 
of the labor certification), and eight items of experience gained by the Beneficiary in both positions 
(which accord with the specific experience requirements at section H.14 of the labor ce1tification). 
The employment verification letters contend that the job of consultant is not substantially 
comparable to the job of senior consultant because it does not require that the same duties be 
performed more than 50% of the time and it does not include nearly as much supervisory 
responsibility. According to the Petitioner, therefore, the Beneficiary's employment as a consultant 
is qualifying experience for the proffered position of senior consultant. 
Upon review, we find that the Petitioner has demonstrated that the position of consultant is not 
substantially comparable to that of senior consultant. As such, the Beneficiary may qualify for the 
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Matter ofD-C- LLP 
offered job based on her experience with the Petitioner and has satisfied the requirement of two 
years of experience in the job offered or as a bioinformatics engineer, data analyst, consultant, or a 
related job. However, the record does not establish that the Beneficiary has the experience required 
by section H.14 of the labor certification. As noted above, the letter submitted by the Petitioner 
states that the Beneficiary gained the experience listed in H.14 "during the entire course of 
employment" with the Petitioner, but it does not specify that the experience was gained solely in the 
position of consultant or that the Beneficiary has the required two years of experience with each 
special skill. The specific skills experience would only be qualifying if gained prior to the 
Beneficiary's employment in the offered position. On remand, the Director should give the 
Petitioner an opportunity to address this issue and provide evidence of the Beneficiary's 
qualifications. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
whether the Beneficiary meets the minimum experience requirement of the labor certification. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter of D-C- LLP, ID# 4538218 (AAO May 24, 2019) 
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