dismissed EB-2 Case: Construction

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
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5 FILE: EAC 06 086 5 1029 Office: NEBRASKA SERVICE CENTER Date: oCT 1 4 2008 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1153(b)(2) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
L*LU.~L> 
6~obert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 06 086 5 1029 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner purports to be a construction company. It seeks to employ the beneficiary permanently in 
the United States as a carpenter pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. fj 1153(b)(2). As required by statute, a Form ETA 750,' Application for Alien 
Employment Certification approved by the Department of Labor (DOL), accompanied the petition. 
Upon reviewing the petition, the director determined that the job requirements were insufficient for 
the classification sought and that the beneficiary did not satisfy the minimum experience stated on 
the labor certification. 
On appeal, counsel submits a statement from the petitioner requesting that the petition be considered 
under a lesser classification and a new experience letter. For the reasons discussed below, we 
uphold the director's decision. 
Section 203(b) of the Act states in pertinent part that: 
(2) 
 Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -- 
(A) In general. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
The regulation at 8 C.F.R. 5 204.5(k)(4) provides the following: 
(i) General. 
 Every petition under this classification must be accompanied by an 
individual labor certification &om the Department of Labor, by an application for 
Schedule A designation (if applicable), or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of Labor's Labor Market 
Information Pilot Program. To apply for Schedule A designation or to establish that the 
alien's occupation is within the Labor Market Information Program, a fully executed 
uncertified Form ETA-750 in duplicate must accompany the petition. The job offer 
portion of the individual labor certification, Schedule A application, or Pilot Program 
application must demonstrate that the job requires a professional holding an 
advanced degree or the equivalent or an alien of exceptional ability. 
1 
 After March 28,2005, the correct form to apply for labor certification is the Form ETA 9089. 
EAC 06 086 5 1029 
Page 3 
Citizenship and Immigration Services (CIS) may not ignore a term of the labor certification, nor may 
it impose additional requirements. See Mutter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 
401,406 (Comm. 1986). See also Madany, 696 F.2d at 1008; K.R.K. Iwine, Inc., 699 F.2d at 1006; 
Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). CIS 
must examine "the language of the labor certification job requirements" in order to determine what 
the job requires. See generally Madany, 696 F.2d at 1015. The only rational manner by which CIS 
can be expected to interpret the meaning of terms used to describe the requirements of a job in a 
labor certification is to "examine the certified job offer exactly as it is completed by the prospective 
employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984)(emphasis added). CIS'S interpretation of the job's requirements, as stated on the labor 
certification must involve "reading and applying the plain language of the [labor certification 
application form]." Id. at 834 (emphasis added). CIS cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
The key to determining the job qualifications is found on Form ETA-750 Part A. This section of the 
application for alien labor certification, "Offer of Employment," describes the terms and conditions 
of the job offered. It is important that the ETA-750 be read as a whole. The instructions for the 
Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job 
Duties. 
 Do not duplicate the time requirements. 
 For example, time required in 
training should not also be listed in education or experience. Indicate whether months 
or years are required. Do not include restrictive requirements which are not actual 
business necessities for performance on the job and which would limit consideration 
of otherwise qualified U.S. workers. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: None listed 
Major Field of Study: None listed 
Experience: 
 Two years in job offered or related occupation. 
Block 15: Blank 
On July 7, 2006, the director advised that the record did not reveal that the beneficiary or the 
position qualified for classification pursuant to section 203(b)(2) of the Act and inquired as to 
whether the petitioner wished the petition to be considered under a lesser classification. The 
petitioner's response did not include such a request. Thus, the director considered the petition under 
EAC 06 086 5 1029 
Page 4 
the classification requested on the petition and concluded that the job requirements did not merit 
consideration under section 203(b)(2) of the Act. 
On appeal, both counsel and the petitioner request that the petition be considered under a lesser 
classification. Counsel provides no legal authority, and we know of none, that would allow a 
petitioner to amend a petition to seek a lesser classification or request consideration under more than 
one classification. A petitioner may not make material changes to a petition that has already been 
filed in an effort to make an apparently deficient petition conform to CIS requirements. See Matter 
of Izummi, 22 I&N Dec. 169, 175 (Comm. 1998). Thus, the director did not err in considering the 
petition under the classification originally requested. 
Regarding the beneficiary's experience, the regulation at 8 C.F.R. 5 204.5(g)(l) provides, in 
pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) 
from current or former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties performed by the alien 
or of the training received. If such evidence is unavailable, other documentation 
relating to the alien's experience or training will be considered. 
The beneficiary indicated on the Form ETA 750B, signed on March 12, 2002 under penalty of 
perjury, that he had worked for the petitioner as a carpenter since September 2000, for Mills 
Remodeling as a carpenter from June 1998 through August 2000 and as a construction worker for 
Subcontracting from May 1997 to June 1998. The initial submission included no 
evidence of this experience. 
On July 7, 2006, the director requested evidence that the beneficiary had the necessary experience. 
The director's letter stated: 
Evidence of experience must be in the form of letter(s) from current or former 
employer(s) giving the name, address, and title of the employer and a description of 
the experience of the alien, including specific dates of the employment and specific 
duties. 
In response to the director's request for evidence of the beneficiary's experience, the petitioner 
submitted a brief signed statement from r 
' ' -"' 
asserting that the beneficiary worked with him 
for "approximate [sic] one year, (1999-2000)." Below the statement are copies of checks issued by 
Mills Remodeling, Inc. to the beneficiary dated August 6, 1999 and August 25, 2000. m 
asserts that these checks are the beneficiary's first and last paychecks. does not indicate 
the nature of the beneficiary's work for him and the letter is not on company letterhead. As part of 
the petitioner's evidence to establish its ability to pay the proffered wage, the petitioner also 
provided Forms 1099 Misc. reflecting income paid from the petitioner to the beneficiary in the years 
2001 through 2005. While the Form 1099 issued to the beneficiary in 2001 lists the petitioner's 
Federal Employer Identity Number (FEIN), the remaining Forms 1099 all list the sole proprietor's 
EAC 06 086 5 1029 
Page 5 
social security number as the payer's federal identification number even though the sole proprietor 
continued to list a separate FEIN for the petitioner on his Internal Revenue Service (IRS) Form 1040 
U.S. Individual Income Tax Return, Schedule C. 
The director noted that the dates provided byid not correspond with the beneficiary's 
claim on the Form ETA 750B and that had not established the nature of the beneficiary's 
employment with him. Thus, the director concluded that the petitioner had not submitted the 
necessary evidence to establish that the beneficiary has the experience required for the position as 
stated on the alien employment certification. 
On appeal, the petitioner submits a new letter from 
 asserting that the beneficiary worked 
for Mills Remodeling 40 hours a week as a carpenter from August 1999 to August 2000. 
 In 
addition, the petitioner submitted its own letter asserting that the beneficiary has worked full-time as 
a carpenter for the petitioner as of September 2000. 
The petitioner was put on notice of required evidence, specifically what information an employment 
letter must contain, and was given a reasonable opportunity to provide it for the record before the 
visa petition was adjudicated. The petitioner failed to submit the requested evidence and now 
submits it on appeal. However, the AAO will not consider this evidence for any purpose. See Matter 
of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 
1988). The appeal will be adjudicated based on the record of proceeding before the director. We 
concur with the director that the record before him contained unresolved inconsistencies regarding 
the dates of the beneficiary's experience with Mills  emo ode ling* and that the evidence submitted did 
not conform to 8 C.F.R. tj 204.5(g)(l). 
Even if we were to consider the new evidence, the petition would not be approvable under any 
classification. The petitioner must establish that the job offer was realistic as of the priority date, and 
that the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Regl. Commr. 1977). We attempted 
to verify that either the petitioner or the sole proprietor has acquired a Virginia contracting license at 
the state's official "LicenseLookup" site, http://www.d~or.virginia.cr;ov/regulantlookup/ (accessed 
September 19, 2008.) We were unable to confirm that the petitioner or the sole proprietor is a 
licensed contractor. Thus, any future petition filed under the correct classification would need to 
document that the petitioner can make a realistic job offer for a carpenter through the submission of 
evidence either that the petitioner possesses the necessary license to engage in construction as 
claimed on the Form ETA 750 or that no such license is required in the State of Virginia. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 3 1361. The petitioner has not met that burden. 
2 
 It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591- 
92 (BIA 1988). 
EAC 06 086 51029 
Page 6 
ORDER: The appeal is dismissed.