remanded EB-3 Case: Software Development

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-C-S-, INC. 
APPEAL OF TEX AS SERVI CE CEN TER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 19,2018 
PETITION: FORM I-140 , IMMI GRANT PETITION FOR ALIEN WORKER 
The Petiti oner, 1 a software development comp any, seeks to employ the Beneficiary as a softwa re 
engineer. It requests classifi cation of the Benefic iary as a skilled worker under the third preference 
immigr ant category. Immi gration 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. emp loye r to 
sponsor a foreign nati onal tor lawful permanent resident status to work in a position that requires at 
least two years of trainin g or exper ience. 
The petiti on was initially approved. The Director of the Texa s Service Cente r subsequently revoked 
the approval, tinding that the Petitioner and the Beneficiary had not resolved evidentiary 
incon sistencies concerni ng the Beneficiary's prior work experien ce and that the Beneficiary did not 
meet the minimum requir ements of the labor certificat ion beca use the Petitioner had not estab lished 
that the Beneficiary had the req uisite education and expe rience spec ified on that document. The 
Director also invalidated the labor certifica tion based on a find ing of willful misrepresent ation of a 
material fac t in regard to the Beneficiar y's qualific ations. 
On appeal the Petitioner assert s· that the evidentiary issues concerning the Bene ficiary's employme nt 
history have been resolved, that the evidence of reco rd establ ishes that the Beneficia ry meets the 
minimum work ex perien ce and educa tion al requireme nts of the labor certifica tion, and that there was 
no proper basis for the findin g of willful misre pre sentation of a materia l fact. 
Upon de novo review, we will reman d the case to the Director for further considerati on and the entry 
of a new decision. 
I. LAW 
Employment-.based immigration gene rally follow s a three-step process. First, an emp loye r obtains 
an approv ed labor certific ation fro m the U.S. Department of Labor (DOL ). See section 
1 
The petition was tiled by of Maine, which subsequently merged with 
under an agreement dated December 31 , 2008, effective January 22, 2009, with 
as the surviving entity. 
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Malter (~! H-C-S. Inc. 
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 are insufficient U.S. workers who are able, willing, qualified, and available 
for the offered pos ition and that employing a toreign nationa l in the positio n will not adversely affec t 
the wages and working conditions of U.S. workers similarly employed. See. section 
212(a)(5)(A)(i)(l)-(ll) 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. Thir d, 
if USCIS approves the petition , the !oreign 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 . 
Section 205 of the Act 8 U.S.C. ~ I I 55, provide s that the Secretary of Homeland Security may " for 
good and sufticient cause, revoke the approval of any petition." By regulation this revoca tion 
authority is de legated to any USCIS officer who is authorized to approve an immigrant visa petition 
"when the necessity for the revocation comes to the attention of [USC IS]." 8 C.F.R. § 205.2(a). 
USClS mus t give the petition er notice of its intent , to revoke the prior approval of the petition and the 
opportunity to submit evidence in opposition thereto , before proceeding with written notice of 
revocation . See 8 C.F.R. § 205.2(b) and (c). 
II. ANALYSIS 
At issue in this case are whether the evidence of record establishes that the Beneficiary meets the 
minimum experience and education requirement s of the labor certification, whether the Petitioner or 
the Beneficiary willfully misrepresented any material facts regarding the Benefic iary's education or 
employment history, and whether the record suppotts the invalidation of the labor certifi catio n. 
The petition was initially approved in December 2007, but the Director issued a notice of intent to 
revoke (NOIR) in December 2015. After receiving the Petitioner 's response to the NOIR, the 
Director issued a decision revoking the approval of the petition. In his decision the Director cited­
another Form 1-140, Immigrant Petition for Alien Worker, filed by the Petitioner on beh alf of the 
Beneficiar y in 2011 2 in which the accompanying labor certification (an ETA Form 9089) contained 
information about the Beneficiary 's employment history that conflicted with the information 
provided on the labor certif1cation substitution accompanying the first petition. The Director also 
found that the Beneticiary' s three-year bachelor 's degree in applied science did not meet the labor 
certification 's fi'eld of study requirement and was not equivalen t to a U.S. bachelor's degree. The 
Director concluded, there!ore , that the Petitioner did not establish that the Beneficiary met the 
minimum requirements of the labor certification. [n addition, the Director found that the 
misrepr ese ntation s of the Beneticiary's qualifications were willful and materia l to the issue of his 
eligibility tor the reque~ted immigrant classification, and on that basis invalidated the labor 
certification. 
2 That petition (receipt number 
Beneficiary, was denied. 
), seeking advanced degree professional classification for the 
2 
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Maller of H-C-S, Inc:. 
We do not agree with the Director's analysis of the education and experience issues, or the rationales 
for his conclusions. However, the petition is not approvable as there remain many evide ntiary 
inconsistencies in the record. Therefore, we will remand the case for further consideration of the 
Beneficiary 's qualifications, as well as the issues of whether the Petitioner and the Beneficiary 
willfully misreprese nted any material facts and whether the labor certifica tion should remain 
invalidated . 
A. Beneficiary's Experience 
A beneficia ry must meet all of the education, training, experience, and other requirements of the 
labor certification as of the petition ' s priority date.3 See Matter of Wing 's Tea House, 16 I&N Dec. 
I 58, I 59 (Acting Reg'! Co~m'r 1977). The priority date in this case is December 15, 2004. The 
labor certification (a Form ETA 750) states that the minimum education required for the job offered 
is a "bachelor's deg. or equiv." in the tield of computer science, information systems, science, or 
engineering. It also states that the minimum experie nce required is 24 months in the job ofte red or 
in a programm ing or programme r analyst position . 
We begin by reviewing the Beneficiary 's employment history as listed on the two labor 
certifications : the labor certification substitution , Form ETA 7508, signed by the Beneficiary on 
.July 9, 2007, and the subsequent labor certification, Form ETA 9089, signed by the Beneficiary on 
August 25, 2011. In his revocation decision the Director discussed the conflic ting information in the 
two labor certifica tions regarding the Bcncliciary's employment during the years 2005-2007. The 
Director noted that if the Benefic iary's employment with began in May 2005, as iisted 
on the Form ETA Form 7508 , then the ETA Form 9089 listing his employment as 
starting on August I, 2006, is incorrect. The Director also noted that the job with listed 
on the Form ETA 7508 , was omitted from the ETA Form 9089 and that the employment dates 
claimed on the ETA 7508 for overlapped the employment dates with claimed 
on the ETA 9089. He further noted that due to the location of in Maine and 
in Georgia it appeared unlikely that the Beneficiary was truly employed by both companies at the 
same time.'
1 
Based on these inconsistencies the Director found that USCIS could not determine that 
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3 
The "priority date" of a petition is the date the undc~l yi ng labor certification was filed with the DOL. See 8 C. F. R 
§ 204.5(d). 
~ The Petitioner asserts that the employment history as listed on the Form ETA 750B signed by the Beneficiary in July 
2007 is correct,~ except for a typographical error in the ''date started" box for the job with which read May 
2005 instead of May 2007. Considering all of the other jobs on the Form ETA 750B were listed in reverse chronological 
order, we find this explanation for the entry of May 2005 instead of May 2007 as the starting date for the job 
to be plausible. The Director does not appear to have taken the possibility of a typographical error into consideration, 
and may wish do so on remand. While the Form ETA 750B is chronologically consistent if May 2007 is accepted as the 
starting date for the Beneficiary's employment, the record still contains conflicting evidence of his 
employment history in 2006 and 2007. Other documents pointing to May 2007 as the starting time for the 
employment include the Form G-325A, Biographic Information, signed by the Beneficiary in August 2007 in 
conjunction with his adjustment of status application (Form 1-485) with USC IS, which listed employment as a software 
engineer with starting in May 2007 as his most recent job. The record also includes copies of the 
Beneficiary's Forms W-2, Wage and Tax Statements, for the years 2006 and 2007 which are consistent with the 
3 
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Malter of H-C-S. Inc. 
the Beneficiary had the requ1s1te work experience to qualify· for the job otTered, and that the 
Petitioner and the Beneficiary had willfully misrepresented material facts about the Beneficiary's 
qualifications. 
The Director's finding that the Beneficiary's qualifying work experience had not been established 
was based exclusively on the inconsistent employment histories for the years 2005-2007. 
Employment during those years was after the priority date and would not count as qualifying 
experience in any event. Since the priority date of this petition is December 15, 2004, only the 
experience gaii1ed by the Beneficiary up to that date could be considered as qualifying experience. 
Experience after the priority date is not material to the Beneficiary's qualifications for the job 
offered. 
As listed on the Form ETA 7508, only the four jobs where the Beneficiary claims to have worked 
prior to December 2004, can be used as qualifying experience. The Director's revocation decision 
did not review the evidence relating to those four jobs, some of which was submitted with the 
original petition and formed the basis for the initial approval, and some of which was submitted with 
the second petition or in the current revocation proceedings. The evidence concerning the 
Beneficiary's claimed exp~rience prior to December 2004 also contains inconsistencies. Regarding 
the alleged employment with· it appears that the employment verification letter and the 
labor certification submitted with the original petition in 2007 describe very different job duties than 
the employment verification letter and the labor certification submitted with the second petition in 
20 I I. As for the employment with the employment verification letter submitted with the 
second petition in 2011 is inconsistent with the employment agreement submitted in the current 
revocation proceedings with respect to the Beneficiary's dates of employment. 
On remand the Director should review the entire record relating to the Beneficiary's employment 
experience, revisit the question of whether the evidentiary discrepancies in the record warrant a 
finding that all of the documentary evidence lacks probative value, and determine whether the 
Beneficiary has at least t\NO years of qualifying experience. The Director should also assess whether 
there was any willful misrepresentation of the Beneticiary's experience that is material to this 
adjudication. 
Beneficiary's claim on the Form ETA 750B to have worked ror from September 2006 to April 2007 before 
starting work with However. the Fonns w_-2 from . which appear to confinn that the Beneficiary 
was employed by that company in Georgi a.-for pans of 2006 and 2007, conflict with a letter from the president 
of dated August 3, 2009, stating that the Beneficiary's dates of employment with that company, located in 
Maine, were from August l, 2006, to July 31, 2009. Neither the Petitioner nor the Beneficiary has provided 
any explanation for this evidence of simultaneous employmenl by two different companies with rio geographical 
proximity to one another from September 2006 to April 2007. 
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Maller ofi-!-C-S. Inc. 
B. Beneficiary's Education 
The minimum educational requirement as stated in the labor certification is a "Bachelor's deg. or 
equiv." in the field of computer science, information systems, science, or engineering. As part of its 
initial evidence the Petitioner submitted documentation showing that the Beneficiary received a 
bachelor of applied science degree from in lndia, on June 21, 
2000. The degree certi11cate and accompanying transcripts indicate that the academic program 
comprised three years of study featuring coursework in English, mathematics, physics, chemistry, 
engineering science, and a specialization in computer science. We find that the Beneficiary's 
curriculum satisfied the tield of study requirement of the labor certification. However, the 
Beneficiary's degree from was awarded after completion of a three-year 
academic program, not a tour-year program as is generally required for a bachelor's degree in the 
United States. See Mauer ofShah, 17 l&N Dec. 244, 245 (Reg'l Comm'r 1977). 
On appeal the Petitioner does not contend that the Beneficiary's three-year degree from 
is equivalent to a U.S. bachelor's degree. It does contend that the combination of this 
degree and a "Professional Diploma in Software Technology & Systems Management" from India's 
granted to the Beneficiary on September 10, 2001, after completion of a two-year program of 
study, is equivalent to a U.S. bachelor's degree. In support of this claim the Petitioner cites the 
previously submitted evaluation from of . which evaluated 
the Beneficiary's three-year degree from as equivalent to three years of study at a 
U.S. college or university, the two-year professional diploma from as equivalent to 45 credits 
tram a U.S. college or university, and the combination of those two credentials as equivalent to a 
four-year bachelor's degree in computer information systems from an accredited college or 
university in the United States. 
ln his revocation decision the Director found that the Beneficiary did not meet the labor certification 
requirement of a "Bachelor's deg. or equiv." because he "does not possess a single degree that is 
determined to be the foreign equivalent of a U.S. baccalaureate degree." According to the Director, 
the wording of the labor certification means that the educational requirement cannot be met by a 
combination of credentials consisting of a three-year degree trom a foreign university and a non­
degree credential like the Beneficiary's professional diploma from That assertion would be 
true if the Petitioner were seeking protessional classification for the Beneficiary, since the regulation 
at 8 C.F.R. § 204.5(1)(3)(ii)(C) states that "[i]f the petition is for a professional, [it] must be 
accompanied by evidence that the alien holds a United States baccalaureate degree or a foreign 
equivalent degree." (Emphasis added.) This petition, however, seeks skilled worker classific·ation 
for the Beneficiary, as stated in a letter from the Petitioner that accompanied the original filing. 5. The 
minimum requirements for skilled worker classiJication are two years of qualifying experience plus 
any education that may be specified on the labor certification. See 8 C.P.R. § 204.5(1)(3)(ii)(B). 
5 The petition was filed on an old version of the Form 1-140 which allowed a petitioner to file for professional or skilled 
worker classification and did not allow for the selection of one and not the other on the face of the document. 
5 
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Mauer of H-C-S. Inc. 
Skilled worker classification, therefore. does not require a U.S. bachelor's degree or a foreign 
equivalent degree unless the labor certification specifies that such a degree is required. 
The Petitioner asserts that its wording of the minimum educational requirement on the labor 
certitication- "Bachelor's deg. or equiv."- means that it would accept a combination of credentials 
which are equivalent to a U.S. bachelor's degree, as determined by an established educational 
evaluation service 
like We find that the labor certification language quoted abovec stating the 
minimum educational requirement for the proffered position , is ambiguous. Additional evidence is 
needed to detennine the Petitioner's intent with regard to the minimum educational requirement. On 
remand, therefore, the Director may request documentary evidence of the Petitioner's advertisements 
for the position, the applications that were received, how the Petitioner responded to them, and 
anything else that may be considered relevant. 
We also note that two different credentials have been presented in these proceedings. The 
credential submitted with the petition in 2007 is called a "Title of in Systems Management," 
was issued on September 16, 2001 at India, and included transcripts. which identified 
the Beneficiary's registration number as and listed course•Nork in four semesters of a 
"network-centered computing curriculum" labeled E, F. G, and H completed from January 12, 1999, 
to August 10, 2000, and two more semesters of "professional practice" labeled PP I and PP 2 
completed in February and August 2001. The credential submitted with the appeal in 2017, 
however, is called a "Professional Diploma in Software Technology & Systems Management," was 
issued on September 10, 200 1, in India, and included transcripts which identifi~d the 
Beneftciary' s registration number as and listed course work in four semesters of ~ 
"software technology & systems management curriculum" labeled I, II, Ill, and IV completed 
between February 18, 2000, and August 18, 2001. In addition to the above described differences , 
none of the listed courses and number grades match up from one credential to the other. 
rt is incumbent upon a petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Attempts to explain or reconcile such inconsistencies will not suffice without 
competent evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 5 82, 591-92 
(BIA 1988). Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of 
the petitioner's remaining evidence. See id. On remand the Director may request an. explanation 
from the Beneficiary as 
to why the record contai1;s evidence of two different credentials from 
III. CONCLUSION 
For all of the reasons discussed above, we will withdraw the Director's decision and remand this 
case for further consideration of whether the Beneficiary meets the educational and experience 
requirements of the labor certification, whether the Petitioner or the Beneficiary willfully 
misrepresented any material facts concerning the Beneficiary's qualifications, and whether the 
record supports the invalidation of the labor certification. If deemed necessary, the Director may 
request additional evidence from the Petitioner. The Director shall.then issue a new decision. 
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Malter of H-C-S. Inc. 
ORDER: The Director's decision is withdrawn. The matter. is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofH-C-S. Inc., JD# 946934 (AAO Mar. 19, 20 18) 
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