remanded EB-3 Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-W-I- INC. 
Non-Precedent Decision oHhe 
A~ministrative Appeals Office 
DATE: FEB. 13, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of weight-management products and services, seeks to employ the 
Beneficiary as a marketing manager: It requests his classification under the third-preference, 
immigrant category as an "other worker." Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). This employment-based, "EB-3" category allows a 
U.S. business to sponsor a foreign national for lawful permanent resident status to work in a job 
requiring less than two years of training or experience. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate the offered position's qualifications for the requested classification. 
On appeal, the Petitioner argues that, because the position requires less than two years of training or 
experience, it qualifies for requested classification of other worker. The Petitioner also asserts the 
Beneficiary's qualifications for the position. 
Upon de nova review, we will withdraw the Director's decision and remand the matter for entry of a 
new decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
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Immigration as an other worker generally follows a three-step process. To permanently fill a 
position in the United States. with a foreign worker, a prospective employer must first obtain 
certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § l l 82(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, 
qualified, and available for an offered position, and that employment of a foreign national will not harm 
.wages and working conditions of U.S. workers with similar jobs: Id. . · 
If the DOL approves an offered po•sition, an employer must next submit the 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 beneficiary meets 
the DOL~certified, job requirements of a position. If USCIS grants a petition., a foreign national may 
finally apply . for an immigrant visa abroad or, if eJigible, adjustment of status in the United 
States. See section 245 of the Act, 8 U.S.C. § 1255.· 
Matter of W-W-1- Inc. 
II. THE REQUESTED CLASSIFICATION 
Other workers must be capable of performing "unskiUed labor." Section 203(b)(3)(A)(iii) of the 
Act. "Unskilled labor" m~ans "requiring less than two years training or experience." 8 C.F.R. 
§ 204.5(1)(2) ( defining the_ term "other worker"). "The determination of whether a worker is a 
skilled or other worker will be based on the requirements of training and/or experience placed on the 
job by the prospective employer, as certified by the Department of Labor [(DOL)]." 8 C.F.R. 
§ 204.5(1)(4). 
Here, the labor certification states that the offered position of marketing manager requires no 
training and one year of experience. Thus, the position requires less than two years of training or 
. experience. The job therefore qualifies for other worker classification and we will withdraw the 
Director's contrary 'decision. r 
III. THE EDUCATIONAL REQUIREMENTS OF THE OFFERED POSITION 
The appeal overcomes the denial ground, but the record does not establish the petition's 
approvability. Specifically, the Petitioner has not demonstrated that the Beneficiary meets the job's 
minimum educational requirements. A petitioner must demonstrate a beneficiary's possession of all 
DOL-certified job requirements by a petition's priority date. Matter o_f Wing's Tea House, 16 l&N 
Dec. 158, 160 (Acting Reg'l Comm'r 1977). 1 An.other worker petition must include "evidence that. 
the alien meets any education, training and experience, and any other requirements of the labor 
certification." 8 C.F.R. § 204.5(l)(3)(ii)(D). In evaluating a beneficiary's qualifications for an 
offered position, U.S. Citizenship an:d Immigration Services (USCIS) must examine the job-offer 
portion of a labor certification to determine the position's minimum requirements. USCIS may' 
neither ignore a certification term, nor impose additional requirements. See, e.g., Madany v. Smith, 
696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that the "DOL bears the authority for setting the 
content of the labor certification") ( emphasis in original). 'i · 
As previously indicated, the labor certification here states the minimum educational requirements of 
the offered position of marketing manager as a U.S. bachelor's degree or a foreign equivalent degree 
in business administration, marketing, commerce, business strategy and economic management, or a 
related field of study. Part H.14 of the labor certification, "Specific skills or other requirements," 
also states the Petitioner's.acceptance of "a three or four year Bachelor's degree.'' . 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he earned a 
foreign bachelor's degree in a field equating_ to business administration. The Petitioner submitted 
copies of diplomas and transcripts indicating that, after nine semesters of studies, an Australian 
university awarded the Beneficiary two degrees: a bachelor of commerce in business strategy and 
economic_ management; 'and a bachelor of science in anatomy. 
1 This petition's priority date is December 13, 2017, the date the DOL accepted the accompanying labor certification 
application for processing. See 8 C.F.R. 204.5(d) (explaining how to determine a petition's priority date). 
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Matter <?f W-W-1- Inc. 
The Petitio11er submitted an independent evaluation of the commerce degree. The evaluation 
concludes that the Beneficiary "earned a three-year Bachelor of Commerce Degree,. with a 
concentration in Business Strategy and Economic Management, from an accredited university in 
Australia." The evaluation, however, does not state the degree's U.S. equivalency. In a letter, the 
Petitioner's human resources director asserted.that the Beneficiary "earned the equivalent of a three-' ' 
year Bachelor of Business Administration with a concentration in Business Strategy and Economic 
Management from an accredited college or university in the United States." But the record lacks 
objective evidence supporting that assertion. Thus, contrary · to the minimum educational 
requiremerits listed on the labor certification, the record does not establish the Beneficiary's 
possession of a U.S. bachelor's degree or a foreign equivalent degree. 
\ 
On appeal, counsel indicates the Petitioner's acceptance of a bachelor's degree that is neither from 
the United States nor equivalent to a U.S. bachelor's degree. Asse1tions of counsel, however, do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of 
Ramirez-Sanchei, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's statement must be substantiated 
with independent evidence, which may include affidavits or declarations. Neither the plain language of 
the labor certificatior:i nor other evidence of record establishes the Petitioner's acceptance of a three­
or four-year degree that is not equivalent to a U.S. bachelor's degree. 
The Petitioner did not receive notice or an opportunity to be heard on this issue. We will therefore 
remand the matter. On remand, the Director should notify the Petitioner that it has not demonstrated 
the Beneficiary's educational qualifications for the offered position. 
IV. BONA FIDES OF THE JOB OFFER 
· The record also does not establish the validity of the job offer. A petitioner must be "desiring and 
intending to employ [a foreign national] within the United States." Section 204(a)(l)(F) of the Act, 
8 U.S.C. § l 154(a)(l)(F). It must also intend to employ a beneficiary under the terms and conditions 
of an accompanying labor certification. See Matter oflzdebska, 12 I&N Dec. 54, 55 (Reg'! Comm'r 
1966) ( affirming a petition's denial where, contrary to ~he labor certification, a petitioner pid not 
demonstrate his intention to employ a beneficiary as a domestic worker on a full-time, live-in basis). 
For labor certification purposes, the term "employment" means "[p ]ermanent, full-time work." 
20 C.F.R. § 656.3. An "employer" must also have a valid, individual, federal employer 
identification number (FEIN). Id 
Here, the Petitioner attested on the labor certification that it intends to permanently employ the 
Beneficiary on a full-time basis in the offered position of marketing manager. The Beneficiary also 
stated that the Petitioner has employed him in nonimmigrant visa status since 2013. But evidence of 
the Beneficiary's wages in 2017 and 2018 indicate that a subsidiary corporation of the Petitioner has 
employed him.2 The Beneficiary's IRS Form W-2, Wage and Tax Statement, indicates that the 
2 An exhibit to the Petitioner's 2017 annual report lists the corporation that paid the Beneficiary in 2017 and 2018 as a 
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Matter of W-W-1- Inc. 
subsidiary's FEIN differs from the Petitioner's as listed on the labor certification and the Form I-
140, Immigrant Petition for Alien Worker. The record therefore does not establish the intention of 
the Petitioner - as opposed to its subsidiary - to employ the Beneficiary in the offered position. 
On remand, the Director should also notify the· Petitioner of this deficiency and provide it with a 
reasonable opportunity to respond. Upon receipt of a timely response, the Director should review 
the entire record and enter a new decision. 
V. CONCLUSION 
The record establishes the offered position's qualifications for the requested immigrant 
classification. But the Petitioner has not d~monstrated the Beneficiary's educational qualifications 
for the position or the company's intention to employ him in the job. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry ofa new 
. decision consistent with the foregoing analysis. 
Cite as Matter qfW-W-1-, Inc., ID# 2606869 (AAO Feb. 13, 2019) 
subsidiary of the Petitioner. See U.S.· Sec. & Exch. Comm'n, "Company Filings," https://www.sec.gov/edgar/ 
searchedgar/companysearch.html (last visited Jan. 18, 2019). 
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