remanded EB-3 Case: Software Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 12260062 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 27 , 2021 
The Petitioner , a pro vider of software-based platforms and applications for interactive televi sion and 
digital media , seeks to employ the Beneficiary as director , account management. The company requests 
his classification under the third-preference, immigrant visa category for professionals. See Immigration 
and Nationality Act (the Act) section 203(b )(3XA)(ii), 8 U.S.C. § 1153(b)(3)(AXii). 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner didn't demonstrate the Beneficiary ' s possession of the minimum educational requirements 
of the offered position or the requested immigrant visa category . 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof) ; see also 
Matter ofCha wathe, 25 I&N Dec. 169, 175 (AAO 2010)(discussingthe standard of proof) . 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. EMPLOY1\1ENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process . First , a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able , willing , qualified , and available for an offered position ; and (2) the employment of a 
noncitizen in the position won't harm wages and working conditions of U.S. workers with similar jobs. 
See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit an approved 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 noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally , if USCIS approves a petition , a designated noncitizen 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. 
II. THE EDUCATIONAL REQUIREMENTS 
A petitioner for a professional must demonstrate that a beneficiary holds at least a U.S. bachelor's 
degree or a foreign equivalent degree. 8 C.F.R. § 204.5(1)(3)(ii)(C). The evidence must include "an 
official college or university record showing the date the baccalaureate degree was awarded and the 
area of concentration of study." Id. 
A petitioner must also establish a beneficiary's possession of all DOL-certifiedjob requirements of an 
offered position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). In assessing a beneficiary's qualifications, USCIS must examine the 
job-offer portion of an accompanying labor certification to determine a position's minimum 
requirements. USCIS may neither ignore a certification term, nor impose additional requirements. 
See, e.g., Madanyv. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears authority 
for setting the content of the labor certification") ( emphasis added). 
The accompanying labor certification states the minimum educational requirements of the offered 
position of director, account management as a U.S. bachelor's degree, or a foreign equivalent degree, 
in engineering. The petition's priority date is June 6, 2019, the date DOL accepted the labor 
certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to dete1mine a 
petition's priority date). 
On the labor certification, the Beneficiary attested that, by the petition's priority date, a university in 
the United Kingdom awarded him a bachelor's degree in engineering. The Petitioner submitted a copy 
of a diploma from the U.K. university, indicating the Beneficiary's receipt of a bachelor of engineering 
degree in "engineering with business" in 1998. The Petitioner also submitted an independent, 
professional evaluation finding the degree equivalent to a U.S. bachelor's degree in engineering. 
In a request for additional evidence, the Director asked the Petitioner to provide transcripts of the 
Beneficiary's university studies. The Petitioner responded that transcripts were unavailable but 
provided copies of examination results for the Beneficiary's last two years of university studies and 
letters from school officials confirming his receipt of the degree. 
The Director noted that one of the university letters states the Beneficiary's attendance at the school 
from September 1995 to June 1998, or three academic years. A U.S. bachelor's degree usually requires 
at least four academic years of study. Matter of Shah, 17 I&N Dec. 244,245 (Reg'l Comm'r 1977). 
Also, the Director noted that counsel's assertion of the unavailability of the Beneficiary's university 
transcripts didn't constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 
1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980)). The Director therefore 
concluded that the record didn't demonstrate the Beneficiary's possession of a foreign equivalent of a 
U.S. baccalaureate degree in engineering. 
As the Petitioner argues on appeal, however, the Director overlooked evidence. The university letters 
state the unavailability of the Beneficiary's transcripts, citing the "age of the record" and the school's 
legal responsibility to retain transcripts for only five years after corresponding students complete their 
studies. Thus, evidence - not merely assertions of counsel - supports the unavailability of the 
Beneficiary's university transcripts. 
2 
Also, the Petitioner submitted a copy of a report from the Electronic Database for Global Education 
(EDGE). Federal courts consider EDGE to be a reliable source of information about foreign 
credentials equivalencies. 1 The EDGE report concludes that a three-year, bachelor of engineering 
degree from a U.K. university equates to a U.S. bachelor's degree in engineering. Also, the EDGE 
report and a letter from the evaluator indicate that the Beneficiary's U .K. university admission required 
his completion of two "general ce1iificates of education advanced level," equating to one year of U.S. 
university. A preponderance of evidence therefore demonstrates the Beneficiary's possession of a 
foreign degree equating to a four-year, U.S. baccalaureate. We will therefore withdraw the Director's 
contrary decision. 
The Petitioner, however, hasn't demonstrated the Beneficiary's possession of a bachelor's degree in 
the field of study required for the offered position. The labor certification states the offered position's 
need for a baccalaureate in "engineering." The certification states that the Petitioner won't accept a 
degree in a related field. As previously indicated, the Beneficiary's diploma describes his degree as a 
baccalaureate in "engineering with business." 
A letter from the school where the Beneficiary studied states that the "engineering with business" 
program provides students with "a broad understanding of engineering, including mechanical and 
electronic, relevant practical and technical expertise and supporting business knowledge." The 
Beneficiary's examination results indicate his passage of exams in: manufacturing systems; marketing 
for engineers; money in business; computer applications; continuous improvement; instrumentation 
& control systems; project planning and management; integrated electronics; manufacturing systems 
strategy and design; project feasibility; projects I and 2; law; systems modeling; business strategy; 
and computers in engineering. The evaluation submitted by the Petitioner describes the Beneficiary's 
degree as the equivalent of a U.S. baccalaureate in "engineering." But the evaluation doesn't discuss 
the business coursework included in the Beneficiary's curriculum or explain how his degree in 
"engineering with business" equates to a U.S. baccalaureate in "engineering." The immigration 
service may reject or afford lesser evidentiary weight to expert testimony that conflicts with other 
evidence or"is in anyway questionable." MatterofCaronlnt'l,Inc., 19 I&NDec. 791,795 (Comm'r 
1988). The record therefore doesn't establish the Beneficiary's possession of a baccalaureate in the 
offered position's required field of study. 
The Director didn't notify the Petitioner of this evidentiary deficiency. We will therefore remand the 
matter. On remand, the Director should infonn the Petitioner of its need to demonstrate the 
Beneficiary's possession of a bachelor's degree in the required field of study. 
III. THE EXPERIENCE REQUIREMENTS 
The record also doesn't establish the Beneficiary's possession of the mm1mum employment 
experience required for the offered position. 
1 EDGE was created by the American Association ofCollegia te Registrars and Admissions Officers (AACRAO), a non­
profit, voluntary group of more than 1 1,000 higher-education professionals representing a bout 2,600 institutions in more 
than 40 countries. See AACRAO, "Who We Are," https://www.aacrao.org/who-we-are (last visited Aug. 12, 2021 ); see 
also, e.g., Viraj, LLC v. US. Att'.v Gen., 578 Fed. Appx. 907,910 (11th Cir. 2014) (describing EDGE as "a respected 
source of information"). 
3 
In addition to a bachelor's degree in engineering, the labor certification states that the offered position 
of director, account management requires at least five years of experience in the job offered or as a 
"Manager, Video Product Development." Also, part H.14 of the labor certification, "Specific skills 
or other requirements," states that all of the requisite five years of experience must include: "working 
with video service providers in product and/or engineeringroles;" "in software development and cable 
services industry;" "in new product development at a video service provider or selling new products 
to video service providers;" and "in the technical infrastructure of video distribution infrastructures." 
On the labor certification, the Beneficiary attested that a company employed him in Canada as a 
manager, video product development for more than six years, from 2007 to 2014. To support claimed 
qualifying experience, a petitioner must submit a letter from a beneficiary's former employer. See 
8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must contain the employer's name, title, and address, and 
describe the Beneficiary's experience. Id. 
Consistent with the information on the labor certification, the Petitioner submitted a notice from a vice 
president of the Canadian company stating its employment of the Beneficiary as a manager, video 
product development from December 2007 to February 2014. Contrary to 8 C.F.R. 
§ 204.5(1)(3)(ii)(A), however, the notice doesn't describe the Beneficiary's experience. The notice 
therefore doesn't establish the Beneficiary's qualifying experience in the job offered or the alternate 
occupation. 
The Petitioner also submitted a letter from a director of the Canadian company. The director's letter 
describes the Beneficiary's duties. But the letter confirms the Beneficiary's employment and describes 
his experience from December 2007 to only an unspecified month or day in 2012, when the letter's 
signatory stated he stopped directly supervising the Beneficiary. The letter therefore doesn't establish 
the Beneficiary's qualifying experience for the requisite period of five years. 
Also, the director's letter doesn't detail the nature of the Canadian company's business at the time of 
the Beneficiary's tenure. Thus, contrary to the additional requirements listed in part H.14 of the labor 
certification, the record doesn't establish the Beneficiary's work with "video service providers," "in 
software development and cable services industry," "in new product development at a video service 
provider or selling new products to video service providers;" or "in the technical infrastructure of 
video distribution infrastructures." 
On remand, the Director should ask the Petitioner for additional evidence establishing the 
Beneficiary's possession of at least five years of qualifying experience. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The record also does not establish the Petitioner's ability to pay the proffered wage of the offered 
position. A petitioner must demonstrate its continuing ability to pay a proffered wage, from a 
petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must generally include copies of annual reports, federal tax returns, or 
audited financial statements. Id. 
4 
The labor certification states the proffered wage of the offered position of director, account 
management as $147,618 a year. As previously indicated, the petition's priority date is June 6, 2019. 
The Petitioner submitted audited financial statements for 201 7 and 2018, and more recent payroll 
records and money market and bank account statements. But the record lacks regulatory required 
copies of an annual report, federal tax return, or audited financial statements for 2019, the year of the 
petition's priority date, or thereafter. The record therefore doesn't establish the Petitioner's ability to 
pay the proffered wage "at the time the priority date is established and continuing until the beneficialy 
obtains lawful permanent residence." See 8 e.F.R. § 204.5(g)(2). 
Also, users records indicate the Petitioner's filing of Form I-140 petitions for other beneficiaries. A 
petitioner must demonstrate its ability to pay the proffered wage of each petition that it files. 8 C.F.R 
§ 204.5(g)(2). This Petitioner therefore must demonstrate its ability to pay the combined proffered 
wages of this and any other of its petitions that were pending or approved as of this petition's priority 
date or filed thereafter. See Patelv. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014)(affirming our 
revocation of a petition's approval where, as of the filing' s grant, the petitioner didn't demonstrate its 
ability to pay the combined proffered wages of multiple petitions). 2 
users records indicate the Petitioner's filing of at least three Form I-140 pet1t10ns for other 
beneficiaries thatwerependingorapprovedas of June 6, 2019,orfiled thereafter. 3 The record doesn't 
contain the proffered wages or priority dates of the other petitions. users therefore can't calculate 
the combined proffered wages that the Petitioner must demonstrate its ability to pay. For this 
additional reason, the record doesn't establish the Petitioner's ability to pay the proffered wage. 
On remand, the Director should ask the Petitioner to provide the proffered wages and priority dates of 
its other petitions. Also, regulatory required evidence of the Petitioner's ability to pay the proffered 
wage from the petition's priority date onward should now be available. The Director therefore should 
also ask the Petitioner for copies of annual reports, federal tax returns, or audited financial statements 
for 2019 and 2020. The Petitioner may also submit additional evidence of its ability to pay the 
combined proffered wages in relevant years, including proof of any wages it paid to applicable 
beneficiaries in relevant years or materials suppmiing the factors stated in Matter of Sonegawa, 
12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 
V. VALIDITY OF THE LABOR eERTIFieA TION 
Finally, the record doesn't establish the validity of the accompanying labor ce1iification. Unless 
accompanied by an application for Schedule A designation, a petition for a professional must include 
a valid, individual labor certification. 8 e.F.R. § 204.5(1)(3)(i). 4 A labor certification remains valid 
2 The Petitioner needn't demonstrate its ability to pay proffered wages of petitions that it withdrew or, unless pending on 
appeal or motion, that USCIS rejected, denied, or revoked. The Petitioner also needn't demonstrate its ability to pay 
proffered wages before the priority dates oftheirconespondingpetitions or aftertheirconesponding beneficiaries obtained 
lawful permanent residence. 
3 USC IS records identify the otherpetitions by the following receipt numbers: I U land 
4 The regulation also allows "documentation to establish that the alien qualifies forone of the shortage occupations in the 
5 
only for the "particular job opportunity," non citizen, and geographical area of intended employment 
stated on it. 20 C.F.R. § 656.30(c)(2). Also, an employer must list a valid federal employer 
identification number (FEIN) on a labor certification. 20 C.F.R. § 656.3 (defining the term 
"employer"). 
The accompanying labor certification identifies a job off er for director, account management by 
.__ _______ __. Notes to the Petitioner's audited financial statements for 2017 and 2018, 
however, state that that Delaware limited liability company (LLC) "was dissolved" after August 2015 
and that another LLC constitutes "a continuation" of the first one. Also, USCIS records indicate that, 
in 2016, a Form I-140 petition in the name of the same "dissolved" LLC listed a different FEIN than 
the one stated on this Form I-140 and accompanying labor certification. See.__ ______ _. 
Thus, the record doesn't demonstrate the validity of the labor certification employer's stated FEIN or 
the employer's existence at the time of the application's filing in 2019. Further, the Petitioner's 
website indicates that, in June 2020, while this appeal was pending, another firm acquired the 
Petitioner. The record therefore doesn't establish the labor certification's validity for "the particular 
job opportunity" stated on it. 
A petitioner may use the labor certification of another employer only if the petitioner establishes itself 
as the employer's "successor in interest." See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 
481 (Comm'r 1986). For immigration purposes, a successor in interest must acquire the rights and 
liabilities needed to carry on the labor certification employer's business or a discrete part of it. A 
successor must: 1) demonstrate that, except for the change of employer, the job opportunity remains 
materially the same as listed on the labor certification; 2) describe and document the transaction(s) by 
which the successor acquired control of the labor ce1iification business; and 3) demonstrate eligibility 
for the requested benefit, including the abilities of the original employer, the successor, and any 
intervening owners to continuously pay the proffered wage of the offered position. Id. at 482-83. 
On remand, the Director should ask the Petitioner for additional evidence establishing its acquirer as 
a successor in interest of the labor certification employer. The Petitioner must also demonstrate the 
existence of the labor certification employer at the time of the application's filing and explain the 
entity's apparent use of two, differentFEINs. See Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988) 
(requiring a petitioner to resolve inconsistencies of record with independent, objective evidence 
pointing to where the truth lies). 
If supported by the record, the Director may notify the Petitioner of any additional, potential grounds 
of denial. On remand, the Director should afford the Petitioner a reasonable opportunity to respond 
to all issues raised. Upon receipt of a timely response, the Director should review the entire record 
and enter a new decision. 
VI. CONCLUSION 
A preponderance of evidence establishes the Beneficiary's possession of a bachelor's degree as 
required for the offered position and the requested immigrant visa classification. The Petitioner, 
[DOL]'s Market Information Pilot Program." 8 C.F.R. § 204.5(1)(3)(i). DOL, however, hasn't implemented the pilot 
program described in the regulation. That portion of the regulation therefore doesn't apply. 
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however, hasn't demonstrated the Beneficiary's possession of a degree in the field of study required 
for the offered position, or the minimum qualifying experience for the job. The record also doesn't 
demonstrate the Petitioner's ability to pay the proffered wage or the validity of the accompanying 
labor certification. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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