remanded EB-3 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L- _I --
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV . 15, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, _ _ _______________________ seeks to employ 
the Beneficiary as a software engineer. It requests her classification under the third-preference 
immigrant category as a professional. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § l 153(b)(3)(A)(ii). 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 at least a bachelor's degree . 
The Director of the Nebraska Service Center denied the petition . The Director concluded that the 
accompanying certification from the U.S . Department of Labor (DOL) does not describe the offered 
position. 
On appeal, the Petitioner argues that the Director violated U.S. Citizenship and Immigration Services 
(USCIS) policy because the labor certification states job duties "essentially identical" to those of the 
offered 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 
Immigration as a professional 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 DOL 
certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). DOL certification 
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 DOL approves a position, an employer must next submit the labor certification with an immigrant 
visa petition to USCIS . See section 204 of the Act, 8 U.S .C. § 1154. Among other things, USCIS 
determines whether a beneficiary meets the requirements of a DOL-certified position and the 
requested classification. If USCIS grants a petition, a foreign national may finally apply for an 
Matter of L- □ 
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. THE VALIDITY OF THE LABOR CERTIFICATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications in a shortage occupation, a petition for a professional must include a 
valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). A labor certification remains valid 
only for the particular job opportunity, foreign national, and geographic area of intended 
employment stated on it. 20 C.F .R. § 656.30( c )(2). If a job opportunity changes during a petition's 
pendency, the validity of an accompanying labor certification may expire. Matter of United Inv. 
Grp., 19 I&N Dec. 248, 249 (Comm'r 1984). 
For a job offer to remain as DOL-certified, "the facts of employment or intended employment must 
remain as stated and the specific employer-employee relationship stipulated and intended must 
continue both in present fact and prospectively." Id. USCIS must assess a petition "to ensure that 
the position offered is the same or similar position that was certified by the DOL." Memorandum 
from Michael Aytes, Acting Assoc. Dir., Domestic Ops., AFM [Adjudicator's Field Manual] 
Update: Chapter 22: Employment-based Petitions (AD03-01), HQPRD70/23.12 6 (Sept. 12, 2006), 
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static _Files_ Memoranda/ 
Archives%201998-2008/2006/afin_ch22_091206r.pdf (last visited June 11, 2019). 
Here, the accompanying labor certification identifies the offered position as "Software Engineer" 
and lists the following job duties: 
Design, develop and integrate cutting-edge software technologies. Develop code that 
provides functional enhancements to platform utilized by [ the Petitioner] to gather 
public[ly] available data across a wide [] range of data sets over the Internet. 
Aggregate, normalize and streamline data so that it can be used in a highly-scaled, 
optimized fashion to enhance various features and functionalities. Learn the existing 
code base, understand development environment and processes, work with cross­
functional teams, and document her work. 
The Director's written request for additional evidence (RFE), however, noted that the pet1t10n 
identifies the offered position by a different job title, "Software Engineer (Senior)," and does not 
specify the job's duties. The Director therefore found that she could not determine whether the 
Petitioner offered the Beneficiary the DOL-certified position. 
In response to the RFE, the Petitioner submitted a letter from a company official indicating that, 
since the labor certification's issuance, the company twice promoted the Beneficiary. The Petitioner 
first promoted her from the offered position of software engineer to "Senior Software Engineer." 
The letter states that the company later elevated her to the position of "Staff Software Engineer." 
The official stated that, despite the promotions and differing job titles, the job duties of all three of 
the Beneficiary's positions are "essentially identical." The official's description of the Beneficiary's 
most recent job deletes the word "Design" in the first sentence of the description on the labor 
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Matter of L- □ 
certification and adds the following job duty: "Mentor junior engineers and aid them in the learning 
and career development process." 
The Director concluded that the Petitioner no longer offers the Beneficiary the same pos1t10n 
described on the labor certification. The Director stated: "Unfortunately, essentially the same is not 
the same." As the Petitioner argues, however, USCIS policy is more lenient. An offered position 
may be "the same or similar" to a position on a labor certification. Aytes Memo, supra, at 6 
( emphasis added). Here, the Petitioner demonstrated that the job duties of the offered position vary 
only slightly from those certified by DOL. Contrary to the Director's decision, we therefore find 
that the minor changes in the offered position's job duties alone do not render the labor certification 
invalid. We will therefore withdraw the Director's decision. 
Whether the labor certification remains valid for the offered pos1t10n, however, requires 
consideration of additional factors. The labor certification process requires an employer to test the 
labor market by placing advertisements for an offered position and soliciting applications from U.S. 
workers. See 20 C.F.R. § 656.17(e) (stating requirements for "pre-filing recruitment" of job 
opportunities). DOL "makes a determination either to grant or deny the labor certification on the 
basis of whether or not ... [t]here is in the United States a worker who is able, willing, qualified, 
and available for and at the place of the job opportunity." 20 C.F.R. § 656.24(b)(2). Thus, "[t]he 
outcome of this labor market test is of paramount importance." See, e.g., Zodiac Solutions, 2015-
PER-00179, slip op. at *3 (BALCA Feb. 22, 2019). Accordingly, DOL has specific advertising 
requirements. For example, an ad for an offered position in a newspaper or professional journal 
must "[ n Jot contain wages or terms and conditions of employment that are less favorable than those 
offered to the alien." 20 C.F.R. § 656.17(f)(7). 
Here, the Petitioner stated that, after the approval of the labor certification application, the 
Beneficiary received two promotions. The labor certification states the proffered wage of the 
offered position as $115,000 to $155,000 a year. The petition states that the Petitioner will pay the 
Beneficiary "at least $115,000 per year." But the Petitioner has not specified exactly how much the 
Beneficiary will receive. Thus, for example, if the Petitioner's newspaper ads stated that the offered 
position pays $115,000 to $155,000 a year and the company now is offering a job with a starting 
salary of more than $155,000 a year, the labor certification would not remain valid. The Petitioner 
would have violated DOL regulations by advertising wages less favorable than those offered to the 
Beneficiary. See 20 C.F.R. § 656.17(f)(7). 
The Petitioner bears the burden of demonstrating its eligibility for the requested benefit. See section 
291 of the Act; 8 U.S.C. § 1361. But the Director did not notify the Petitioner of the need for 
additional evidence to determine the validity of the labor certification for the offered position. We 
will therefore remand the matter. 
On remand, the Director should issue a notice asking the Petitioner to provide evidence of the salary 
offered for the position described as staff software engineer. We note that the job offered is 
prospective and does not necessarily have to be the position in which the Beneficiary is currently 
employed. However, in this case, the Petitioner has indicated that it intends to employ the 
Beneficiary in the position of staff software engineer, rather than in the position of software engineer 
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Matter of L-0 
or senior software engineer. The Petitioner must demonstrate that the labor certification remains 
valid for the position in which they intend to employ the Beneficiary. 
The Director should also provide the Petitioner with a reasonable period to gather and submit the 
required documentation and information. Upon receipt of a timely response, the Director should 
review the entire record and enter a new decision. 
III. CONCLUSION 
Alone, the minor changes in the offered position's job duties do not render the accompanying labor 
certification invalid. The record, however, requires further development to determine the 
certification's continued validity. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter ofL-LJ ID# 4899325 (AAO Nov. 15, 2019) 
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