remanded EB-3 Case: Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 12, 2023 In Re: 27443157 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a retailer, seeks to employ the Beneficiary as a sales clerk. 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 
employment-based immigrant classification allows a U.S. employer to sponsor a noncitizen for lawful 
permanent resident status to work in a position that requires at least two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary has the qualifications required for the position. The matter is now before 
us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
Immigration as a skilled worker generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must fust obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a noncitizen will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application 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 considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a noncitizen may finally 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. 
The term "skilled worker" is defined in the regulation at 8 C.F.R. § 204.5(1)(2) as follows: 
Skilled worker means [a noncitizen] who is capable, at the time of petitioning for this 
classification, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not 
available in the United States. Relevant post-secondary education may be considered 
as training for the purposes of this provision. 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states that a petition for a skilled worker must be 
accompanied by: 
evidence that the [ noncitizen] meets the educational, training or experience, and any other 
requirements of the individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information Pilot Program 
occupation designation. The minimum requirements for this classification are at least two 
years of training or experience. 
In addition, a beneficiary must meet all of the education, training, experience, and other requirements 
specified on the labor certification as of the petition's priority date. See Matter o_f Wing's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
As noted above, the Director found that the record did not establish that the Beneficiary met the 
minimum requirements for the proffered position. Specifically, the Director concluded that "the 
[B]eneficiary's work experience and college degree did not seem to be related to the job being 
offered." The DOL ETA Form 9089, Application for Permanent Employment Certification, submitted 
with the Form I-140, Immigrant Petition for Alien Workers, indicates that the minimum level of 
education required for the proffered position is an associate degree in "any" major field of study, or a 
foreign equivalent. The ETA Form 9089 also indicates that a minimum of 12 months of experience 
in the job offered may be accepted instead of a qualifying degree. Part H.14 of the ETA Form 9089 
specifically describes the position's minimum requirements as "l year experience or Associate's 
degree or higher (or foreign equivalent)" (emphasis added). Other documents in the record, such as 
job postings published in thel !newspaper, similarly state that the position requires "lyr 
exp or Associate's degree or higher ( or foreign equiv.)," indicating that the position requires a 
minimum of 12 months of experience in the job offered, as opposed to a minimum of two years of 
training or experience ( emphasis added). 
On appeal, the Petitioner asserts that the Beneficiary's "experience is irrelevant to his eligibility for 
this position" because the position's minimum requirement is either an associate degree, the foreign 
equivalent of an associate degree, or 12 months of experience in the position; and because the 
Beneficiary's degree qualifies him for the position. The Petitioner further asserts that, because the 
position's requirements include an associate degree, which "requires at least two years of 
education/training," it also "meets the requirement of classification under the EB-3 skilled worker 
category," notwithstanding the alternative minimum requirement of only 12 months of experience in 
the position. The record contains a copy of a degree from thel I Institute of Technology, 
I in India, awarding the Beneficiary "the degree of bachelor of science in electrical & 
electronic engineering." The degree bears several dates, indicating that, although the degree itself is 
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dated "March 05, 1998," the "final academic session" was "1991-92" and the "date of passing" was 
"April 1996." The record also contains a copy of an academic transcript corresponding to the degree, 
and an academic evaluation that opines the Beneficiary's degree is equivalent to "a bachelor's degree 
in electrical engineering ... from a regionally accredited institution in the United States." 
The Petitioner correctly asserts that the Beneficiary's degree equivalent to a bachelor's degree in 
electrical engineering satisfies the ETA Form 9089's requirement of"l year experience or Associate's 
degree or higher ( or foreign equivalent) ... in any specialty," regardless of any experience the 
Beneficiary may have ( emphasis added). Thus, the Petitioner has established that the Beneficiary is 
qualified for the offered job, and we withdraw the Director's decision on that issue. However, the 
petition cannot be approved under the requested skilled worker classification. Because the ET A Form 
9089 indicates that only 12 months of experience in the job offered may be accepted instead of a 
degree-of any kind-as the minimum qualification for the position, it does not appear to support 
classifying the position as a "skilled worker," which requires, in relevant part, a minimum of two years 
of training or experience. 1 See 8 C.F.R. § 204.5(1)(2), (1)(3)(ii)(B). Because the Director did not 
specifically state that a basis for denial is that the position itself does not support classification as a 
"skilled worker," we will remand the matter for the entry of a new decision. The Director may request 
any additional evidence considered pertinent to the new determination regarding whether the position 
qualifies for classification as a "skilled worker," and any other issue. As such, we express no opinion 
regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
1 In contrast, the regulations define an "other worker," in relevant paii, as a qualified noncitizen who is capable of 
performing "unskilled labor (requiring less than two years training or experience)." See 8 C.F.R. § 204.5(1)(2). 
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