dismissed EB-2 Case: Marketing

(b)(6)
' 
.... 
DATJAN 
2 S 2013 
OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS.2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability P~rsuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2). 
ON BEHALF OF PETITIONER: 
SELF- REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision ofthe . Administrative Appeals Office in-your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Nebraska Service Center (director), denied the employment-based 
immigrant visa petition. The petitioner appealed the decision to 
the Administrative Appeals Office 
(AAO). The appeal wiU be dismissed. · 
The petitioner describes itself as a garment wholesale company . . It seeks to permanently employ the 
beneficiary in the United States as a marketing specialist. The petitioner requests classification of the 
beneficiary 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 (the Act), 8 U.S.C. § 
1153(b )(2). 
The petition is accompanied by an ETA_ Form 9089, Application for Permanent Employment 
Certification certified by the U.S. Department of Labor (DOL). The priority date of the petition, 
which is the date the DOL accepted the labor certification forprocessing, is March 15, 2011. See 8 
C.F.R. § 204.5(d). 
The director's decision denying the petition concludes that the beneficiary did not possess the 
minimum experience required to perform the offered position by the priori!Y date. Further, the 
director ·concluded that the experience letter for was 
unacceptable because an investigation revealed that the corporation ceased operation in 1999. 
Therefore, it would have been impossible for the beneficiary to have gained the required five years 
of experience with from 1997 to 2002 as claimed in the ETA Form 9089 . 
. The record shows that the appeal is properly filed and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the 
decision. Further elaboration of the procedural history will be made only as necessary. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO consider~ all pertinent evidence in the record, including new evidence properly 
· submitted upon appeal. 1 · 
The 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)(l), (12). See Matter of Wing's 
Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N 
Dec. 45,49 (Reg. Comm. 1971). 
In evaluating the labor certification to determine the required qualifications for the position, U.S. 
Citizenship an~ Immigration Services (USCIS) may not ignore a teim of the labor certification, nor 
may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N 
Dec. 401, 406 (Comm'r 1986). See also, Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. 
Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1
51 
Cir. 1981). 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(l). 
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Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., 
by regulation, USCIS must examine "the language of the labor certification job requirements" in 
order to determine what the petitioner must demonstrate about the beneficiary's qualifications. 
Madany, 696 F.2d at 1015. The only rational.manner by which USCIS 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). USCIS'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]." /d. at 834 (emphasis added). USCIS 
cannot and should not reasonably be expected to look beyond the plain language of the labor 
certification or otherwise attempt to divine th~ employer's intentions through some sort of reverse 
engineering of the labor certification. 
The labor certification states that the beneficiary qualifies for the offered position based on 
experience as a marketing manager with in the Philippines from January 1, 1997 until February 
28, 2002. The beneficiary signed the labor certification under a declaration that the contents are true 
and correct under penalty of perjury. 
The regulation at 8 C.F.R. § 204.5(g)(1) states: 
Specific requirements for initial supporting documents for the various employment­
based immigrant classifications are set forth in this section. In general, ordinary legible · ,, . 
photocopies of such documents (except for labor certifications from the Department of 
Labor) will be acceptable for initial filing and approval. However, at the discretion of 
the director, original documents may be required in individual cases. 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. 
Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988), states: 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition ... [i]t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence. Attempts to explain or reconcile 
the conflicting accounts, 
absent competent objective evidence pointing to where the 
truth, in fact, lies, will not suffice. 
The director noted an inconsistency in the experience letter from concerning its claim that the 
beneficiary was employed with the company from 1996 to 2002. However, an investigation of the 
experience letter provided that the company ceased operation in 1999. On November 16, 20.11, the 
director sent the petitioner a request for evidence seeking an explanation for the discrepancy . On 
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Page 4 
February 7, 2012, the petitioner submitted another employment letter of explanation from the 
purported author of the original experience letter. However, the letter is silent concerning the 
director's finding that the company had ceased operation in 1999. The purported author merely 
claimed that as of the writing of the new letter, the company had ceased operation. The letter neither 
confirms nor denies the director's finding that the company ceased operation in 1999. The director 
reviewed the letter and found it more likely than not that the employment letter was unacceptable in 
establishing the beneficiary's claimed work experience and denied the Form 1-140 accordingly. 
On appeal, the petitioner states temporarily ceased operation on June 8, 2011, and that the 
director misinterpreted the new employment letter. In an attempt to establish that the beneficiary 
continued to be employed as a marketing manager after 1999 with the petitioner provided a 
copy of Home Development Mutual Fund Remittances, a verification from the Filipino SSS office, a 
Philippine Health Insurance Corp document, old pay slips, and a sworn statement from the 
beneficiary. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 
C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). As in the present 
matter, where a petitioner has been put on notice of a deficiency in the evidence and has been given 
an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first 
time on appeal. · See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N 
Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it 
should have submitted the documents in response to the director's request for evidence. /d. Under 
the circumstances, the AAO need not, and does not, consider the sufficiency of the evidence 
submitted on appeal. Consequently, the appeal will be dismissed. 
Further, even if we accepted the new evidence provided in the appeal, we have found inconsistencies 
and find it is more likely than not that was not conducting business after 1999. For example, 
the evidence from home development mutual fund gives a different business address for The 
evidence from the Philippine Health Insurance Corp., payroll stubs, and the Filipino SSS office is 
handwritten or computer generated, which cannot be considered independent and objective. 
Thus, we affirm the director's decision that the petitioner failed to establish that the beneficiary met 
the minimum requirements of the offered position set forth on the labor certification as of the priority 
date. Therefore, the beneficiary does not qualify for classification as an advances degree 
professional under section 203(b )(2) of the Act. 
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Page 5 
Beyond the decision of the director, the petitioner has also failed to establish its ability to pay the 
proffered wage as of the priority date and continuing until .the beneficiary obtains lawful permanent 
residence. See 8 C.F.R. § 204.5(g)(2). 
In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether the 
petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the 
petitioner has not paid the beneficiary the full proffered wage each year, USCIS will next examine 
whether the petitioner had sufficient net income or net current assets to pay· the difference between 
the wage paid, if any, and the proffered wage.2 If the petitioner's net income or net current assets is 
not sufficient to demonstrate the petitioner's ability to pay the proffered wage, USCIS may also 
consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 
I&N Dec. 612 (Reg. Comm'r 1967). · 
In the instant case, the petitioner did not employ the beneficiary or pay the beneficiary the full proffered 
wage in 2011 and its net income and net current assets were not equal or greater to the proffered wage 
for 2011. Further, the petitioner failed to establish that factors similar to Sonegawa existed in the instant 
case, which_ would permit a conclusion that the petitioner had the ability to pay'the proffered wage. 
Accordingly, after considering the totality of the circumstances, the petitioner has also failed to establish 
its continuing ability to pay the proffered wage to the beneficiary since the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
2 See River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1
51 
Cir. 2009); Elatos Restaurant Corp. 
v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 
736 .F.2d 1305 (9th Cir. 1984)); Chi-Feng Chang v: Thornburgh, 719 F. Supp. 532 (N.D. Texas 
1989); K.C.P. Food Co." v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 
647 (N.D. Ill. 1982), aff'd, 703 F.2d 57~ (7th Cir. 1983); and Taco Especial v. Napolitano, 696 F. 
Supp. 2d 873 (E.D. Mich. 2010).