sustained EB-3 Case: It Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 25, 2024 In Re: 28181986 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, an IT services company, seeks to employ the Beneficiary as a software developer. It 
requests classification of the Beneficiary under the third-preference, immigrant classification for 
professional workers. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 8 U.S.C. 
§ 1153(b)(3)(A)(ii). This employment-based category allows a U.S. employer to sponsor a 
professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary possessed the minimum education for the offered position as described 
on the labor certification. 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 Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will sustain the appeal. 
To be eligible for classification as a professional a beneficiary must have a U.S. baccalaureate degree 
or a foreign equivalent degree and be a member of the professions. See 8 C.F.R. § 204.5(1)(3)(ii)(C). 
Furthermore, the beneficiary must possess all of the specific educational, training, experience, and 
other requirements of the labor certification by a petition's priority date. Matter of Wing's Tea House, 
16 l&N Dec. 158, 160 (Acting Reg'l Comm'r I 977). The "priority date" of a petition is the date the 
underlying labor certification was filed with the Department of Labor (DOL). See 8 C.F.R. § 204.5(d). 
The priority date in this case is July 2, 2012. 
When assessing a beneficiary's qualifications for an offered pos1t10n, U.S. Citizenship and 
Immigration Services (USCIS) must examine the job-offer portion of an accompanying labor 
certification to determine the job's minimum requirements. USCIS may neither ignore a certification 
term nor impose unstated requirements . See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 
1983) (holding that "DOL bears the authority for setting the content of the labor certification") 
( emphasis in original). 
The job-offer portion of the Petitioner's labor certification states the mm1mum educational 
requirement of the offered position of software developer as a master's degree in computer science or 
information technology. The labor certification states that the Petitioner will also accept an alternative 
combination of education and experience, stated as a bachelor's degree and five years of experience. 
Part H. 9 of the certification specifies that the Petitioner will not accept "a foreign educational 
equivalent." 
In this case, the Director determined that the Beneficiary did not have a degree in accordance with the 
terms of the labor certification. However, upon farther review and evidence submitted on appeal, we 
conclude that the Petitioner has demonstrated the Beneficiary meets the terms of the labor certification 
allowing approval of the instant petition. 
The Petitioner has established that the Beneficiary possessed the required education and experience before 
the priority date of July 2, 2012. Therefore, we conclude that the Beneficiary met the minimum 
requirements of the labor certification at the time it was filed and the Director's decision is withdrawn. 
ORDER: The appeal is sustained. 
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