dismissed EB-2 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re: 8325238 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 1, 2020 
Form 1-140, Immigrant Petition for Advanced Degree Professional 
The Petitioner seeks to employ the Beneficiary as an account manager. It requests classification of the 
Beneficiary as a member of the professions holding an advanced degree under the second preference 
immigrant classification . Immigration and Nationality Act section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
This employment -based immigrant classification allows a U.S. employer to sponsor a professional 
with an advanced 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 experience required by the labor certification as of the 
priority date. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S . Department of Labor (DOL) .1 See section 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 position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) 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. Third , ifUSCIS approves the petition, 
the foreign national applies 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 BENEFICIARY'S EXPERIENCE 
The Director concluded that the Petitioner did not establish that the Beneficiary possessed the 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
September 7, 2018. See 8 C.F.R. § 204.5(d). 
experience required by the labor certification as of the priority date. 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12); Matter o_f Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). In this case, the labor certification 
requires a master's degree in accounting, finance, business administration, or closely related field, and 
24 months of experience in any relevant occupation. Part H.14. also states that the two years of 
relevant work experience must include inventory management, cost management, accounting, bank 
management, tax preparation, administrative controls, payroll, and human resources. 
The labor certification states that the Beneficiary has the following experience: 
• Account manager with the Petitioner in._l __ _.I CA, from March 1, 2011, to the date the labor 
certification was signed; 
• Coordinator of internal controls with I I university in Mexico from May 10, 
2010, to February 13, 2011; a..._n ... d'-----~ 
• Coordinator of payrolls withl I University in Mexico from March 31, 2003, to 
May 9, 2010. 
Evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer, and a specific description of the 
duties performed by the beneficiary. See 8 C.F.R. § 204.5(g)(l). The Petitioner submitted a letter 
with the initial petition confirming its employment of the Beneficiary since October 2013 and 
describing her duties. It also submitted her resume. 
In response to the Director's request for evidence (RFE), the Petitioner submitted another letter from 
the Petitioner stating that it has employed the Beneficiary since September 30, 2013, and listing her 
current duties. It also submitted a letter froml I public accountant, dated 
August 19, 2019, stating that the Beneficiary served under his supervision as coordinator of financial 
and accounting services with Universidadl lin Mexico from May 2010 to February 
2011. The letter lists her duties. Finally, the Petitioner submitted a letter dated August 27, 2019, with 
English translation, from the I lin Mexico stating that the Beneficiary 
worked as head of international control and accounting from April 2011 to August 2013. The letter 
lists her duties. 
In his decision, the Director stated that the Beneficiary's experience with the Petitioner cannot be 
counted toward the 24 month requirement because the dates listed for her employment on the labor 
certification and letter from the Petitioner differ, and the Petitioner indicated on the labor certification 
that she did not gain any qualifying experience with the Petitioner. 2 Further, the Director determined 
that the letter from Universidad [ I established approximately nine months of 
2 A labor certification employer cannot rely on experience that a foreign national gained with it, unless the experience was in 
a job substantially different than the offered position or the employer demonstrates the impracticality of training a U.S. worker 
for the offered position. 20 C.F.R. § 656.17(i)(3). For these purposes, a job is substantially different from an offered position 
ifit requires performance of the same job duties less than 50 percent of the time. 20 C.F.R. § 656. l 7(i)(5)(ii). 
2 
experience, and that because the Beneficiary's experience with~-----------~was 
not listed on the labor certification, the experience does not count as qualifying experience. Thus, the 
Director concluded that the Petitioner did not establish that the Beneficiary possessed the 24 months 
of experience required by the labor certification as of the priority date. The Director stated that the 
Petitioner must resolve inconsistencies in the record with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).3 Doubt cast on any aspect 
of the Petitioner's proof may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Id. 
On appeal, the Petitioner states that the labor certification contains a typographical error and that the 
Beneficiary began her employment with the Petitioner on September 30, 2013, not March 1, 2011. It 
states that the error was harmless and that other evidence in the record establishes her actual start date 
with the Petitioner. It farther states that although failing to list employment experience on the labor 
certification may affect the subsequent credibility of an experience claim, the letter from I I 
~--------~ is independent, objective evidence of the Beneficiary's experience and 
establishes her qualifying employment there. Finally, the Petitioner asserts that it is not relying on the 
Beneficiary's experience with it as qualifying experience, and that the Petitioner's letter was submitted 
to confirm the Beneficiary's current employment, corroborate the Beneficiary's timeline, and farther 
confirm her job duties. 
We agree with the Director that the Petitioner has not established that the Beneficiary has the required 
experience for the offered job. The letter from the I I describes 
employment that was omitted from the labor certification. 4 The omission of the Beneficiary's claimed 
experience from the labor certification application casts doubt on the validity of the experience detailed 
in the letter. See Matter o_f Leung, 16 I&N Dec. 12, 14-15 (Dis tr. Dir. 197 6), disapp 'd of on another 
ground by Matter of Lam, 16 I&N Dec. 432 (BIA 1978) (finding a foreign national's claim of 
qualifying experience to lack credibility where he omitted the experience from a labor certification 
application). 5 As indicated by the Director in his decision, given the discrepancies, the Petitioner must 
provide independent, objective evidence of the Beneficiary's experience with the l I 
L~---~1- Matter o_f Ho, 19 I&N Dec. at 591-92. On appeal, the Petitioner has not resolved the 
discrepancies in the record with independent, objective evidence of the Beneficiary's experience with 
the I J such as paystubs, payroll records, tax returns, and/or personnel 
records. Thus, the Petitioner has not established that Beneficiary's purported experience with the 
~-----------~ is qualifying experience for the offered job. 
Further, the Beneficiary's experience with Universidad~------~ detailed in the letter from 
~----------an from May 2010 to February 2011, which is less than the required 24 
months of experience for the offered job. The letter did not detail her purported experience with the 
university from March 2003 to May 2010. Finally, the Petitioner asserts on appeal that it is not relying 
on the Beneficiary's experience with the Petitioner as qualifying experience. 
3 Independent and objective evidence of the Beneficiary's prior employment would be contemporaneous with that 
employment. 
4 The experience described in the letter also overlaps with the Beneficiary's employment with the Petitioner listed on the 
labor certification. 
5 The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
l&N Dec. 369, 376 (AAO 2010). 
3 
In sum, the Petitioner has not established that the Beneficiary possessed the 24 months of experience 
required by the labor certification as of the priority date. 
III. ABILITY TO PAY 
The record does not contain regulatory required evidence of the Petitioner's ability to pay the proffered 
wage from the priority date on September 7, 2018, and continuing until the beneficiary obtains lawful 
permanent residence. 6 The regulation at 8 C.F.R. § 204.5(g)(2) requires that "[e]vidence of this ability 
shall be either in the form of copies of annual reports, federal tax returns, or audited financial 
statements." 
The Petitioner submitted regulatory-prescribed evidence of its ability to pay the proffered wage in 
2017. However, the record does not contain regulatory-prescribed evidence of its ability to pay for 
2018. Without this regulatory-required evidence, we cannot affirmatively find that the Petitioner has 
the continuing ability to pay the proffered wage from the priority date. In any future proceedings, the 
Petitioner must establish its ability to pay the proffered wage from 2018 onward. 
ORDER: The appeal is dismissed. 
6 The annual proffered wage is $87,152. 
4