sustained EB-2 Case: Dentistry

. identifying 'lata ieleted to . 
prevent Cleany unwarranted 
invasion of personal privacy 
~UCCOPl 
FILE: 
INRE: Petitioner: 
. Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services' 
Office: TEXAS SERVICE CENTER Date: OCT 2 8 2010 
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. § 1153(b)(2) . 
ON BEHALF OF ,PETITIONER: 
"', 
INSTRUCTIONS: 
Enclosed please find the decision' of the 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 . 
.. ~~papkY~U.' '. {f .. "." 
'" : 
PerryRhew 
Chief, Administrative Appeals Office 
www.nscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal, will be sustained. 
The petition will be approved. 
The petitioner is a dental office. It seeks to employ the beneficiary permanently in the United States 
as an to section 203(b)(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, the petition is accompanied by an ETA 
Form 9089, Application for Permanent Employment Certification approved by the United States 
Department' of Labor (DOL). The director determined that the petitioner had not established that it 
had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of 
the visa petition. Additionally, the director found that the petitioner failed to establish that the 
beneficiary met the requirements of the position offered.l The director denied the petition accordingly. 
The record shows that the appeal is properly filed and timely 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. 
As set forth in the director's October 2, 2009 denial, the issues in this case are: whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the 
beneficiary obtains lawful permanent residence; and whether the petitioner has established that the 
beneficiary met the requirements of the position offered by the time of the priority date. 
In pertinent part,section 203(b )(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an . . 
employer in the United States. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The 
regulation further states: "A United States baccalaureate degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." !d. 
The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
1 In his decision, the director noted a discrepancy in information provided: the petitioner listed on 
ETA Form 9089 that the beneficiary was from _ The director raised this issue in his 
RFE. The stated that it was a typographical error and that the beneficiary was from the 
Nothing in the record shows that the beneficiary was born in or resided in_ 
We accept the petitioner's explanation on this isslie~ This did not form a basis for the 
petition's denial. 
,. ., 
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Page 3 
priority date is established and continuing until the beneficiary obtains lawful 
pennanent residence. Evidence of this ability shall be either in the fonn of copies of 
annual reports, federal tax returllS, or audited financial statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, which is. the date the ETA Fonn 9089, Application for Pennanent Employment 
Certification, was accepted for processing by the respective DOL national processing center~ See 
8 C.F.R. § 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had 
the qualifications stated on its ETA Fonn 9089, Application for Pennanent· Employment 
Certification, as certified by the DOL and submitted with the instant petition. Matter 0/ Wing's Tea 
House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). 
. . . 2 
Here, the ETA Fonn 9089 was accepted for processmg by DOL on August 14, 2005. The proffered 
wage as stated on the ETA Fonn 9089 is_per year based on a 40 hour work week. The ETA 
Fonn 9089 was certified on S 22, 2006. The ETA Fonn 9089 states that, the position 
and the following specific skills in box H.14: '·1 •••• 
The AAO conducts appellate review on a de novo basis. See So/fane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. 3 
The evidence in· the record of proceeding shows that the petItIOner is structured as a sole 
proprietorship. The petitioner listed the following infonnation on the 1-140 petition filed on 
Novemb~_ date established: April 2002; gross annual income: _ net annual 
income:~d current number of empl.oyees: 8.4 On the ETA Fonn 9089,. signed by the 
beneficiary, the beneficiary did not claim to have worked for the petitioner. 
2 The regulatory scheme governing the alien labor certification process contains certain safeguards 
to assure that petitioning employers do not treat alien workers more favorably than U.S. workers. 
The current Department of Labor (DOL) regulations concerning labor certifications went into effect 
on March 28, 2005. The new are referred.to by the DOL by the acronym _ for 
See 69 Fed. Reg. 77325, 77326 (Dec. 27, 2004). The 
regulation was effective as of March28 , 2005, and applies to labor certification applications 
for the pennanent employment of aliens filed on or after that date. Since the instant labor 
certification application was filed after March 28, 2005, it is governed by the -'egulations. . 
3 The submission of additional evidence on appeal is allowed by the instructions to the Fonn 1-
290B, which are incorporated into the regulations by the regulation at 8 C.F.R. § 1 03.2(a)(1). The 
record in the instant case provides no reason to preclude consideration of any of the documents 
newly submitted on appeal. See Matter a/Soriano, 19 I&N Dec. 764 (BIA 1988). 
4 ETA Fonn 9089 filed in 2005 stated that the petitioner had four employees. The petitioner's 
website shows that it. currently has . five employees. See 
(accessed October 21,2010). 
Page 4 
The petitioner must establish that its job offer to the beneficiary is a realistic one. i Because the filing of 
an ETA 9089 labor certification application establishes a priority date for any immigrant petition later 
based on the ETA 9089, the petitioner must establish that the job offer w~ realistic as of the priority 
date and that the offer remained realistic for each year thereafter, until the beneficiary obtains lawful 
permanent residence. The petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. 
Comm. 1977); see also 8 C.F.R. § 204;5(g)(2). In evaluating whether a job offer is realistic, United 
States Citizenship and Immigration Services (USCIS) requires the petitioner to demonstrate financial 
resources sufficient to pay the beneficiary's proffered wages, although the totality of the circumstances 
affecting the petitioning business will be considered if the evidence warrants such consideration. See 
MatterofSonegawa, 12 I&NDec. 612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS will 
first examine whether the petitioner employed and paid the beneficiary dUring that period. If the 
petitioner establishes. by documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. In the instant case, the petitioner has not established 
that it employed and paid the beneficiary the full proffered wage from the priority date in August 
2005 onwards. On appeal, the petitioner submitted one W-2 statement for 2007 showing that the 
petitioner paid the beneficiary _in wages. The beneficiary states that the petitioner 
employed him for six to ten days in 2007. The record contains no other evidence. of wages paid to 
the beneficiary. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal 
to the proffered wage during that period, USGIS will next examine the net income figure reflected 
on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1 st Cir. 2009); Taco Especial v. 
Napolitano, --- F. Supp. 2d. ---, 2010 WL 956001, at *6 (E.D. Mich. 2010). Reliance on federal 
income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 
(S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 
1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.CP. Food 
Co., Inc. 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 571 (7th Cir. 1983). 
The petitioner is a sole proprietorship, a business in which one person operates the business in his or 
her personal capacity. Black's Law Dictionary 1398 (7th Ed. 1999). Unlike a corporation, a sole 
proprietorship does not exist as an entity apart from the individual owner. See Matter of United 
Investment Group, 19 I&N Dec. 248, 250 (Comm. 1984). Therefore the sole proprietor's adjusted 
gross income, assets and personal liabilities are also considered as part of the petitioner's ability to 
pay. Sole proprietors report income and expenses from their businesses on their individual (Form 
1040) federal tax return each year. The business-related income and expenses are reported on 
Schedule C and are carried forward to the first page of the tax return. Sole proprietors must show 
that they can cover their existing business expenses as well as pay the proffered wage out of their 
Page 5 
adjusted gross income (AGI) or other available funds. In addition, sole proprietors must show that 
they can sustain themselves and their dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D.' Ill. 
1982), aff'd, 703 F.2d 571 (ih Cir. 1983). ' 
In Ubeda, 539 F. Supp. at 650, the court concluded that it was highly unlikely that a petitioning 
entity structured as a sole could support himself, his spouse and five dependents on a 
gross income of slightly more here the beneficiary's proposed salary was_or 
approximately thirty percent petitioner's gross income. 
Although the petitioner had submitted sample bills in response to the director's RFE, the director 
was unable to conclude that the petitioner could pay the proffered wage, as the sole proprietor did 
not submit a list of monthly expenses. The sole proprietor submitted a self-estimate of annual 
expenses on appeal, which included: credit card payments, mortgage payments, auto payments, 
insurance payments, utility payments, cell phone, cable/internet, child care and gardening. The self 
estimate included a number of sample bills issued to the sole proprietor to support the estimate. 
The AAO sent a request for additional evidence on August 13, 2010, which noted that the sole 
proprietor's self-estimate did not appear to include other regularly occurring monthly expenses such 
as food expenses to feed a family of three, gas expenses (separate from auto payments, as such 
expenses appeared on one bill in the amount of" in one month), clothing for a family of three, 
and student loans that the sole proprietor or his wife may have.5 
as as a 
state that the petitioner's business could be expected to face additional start-up costs o~to 
_ in hiring the beneficiary to pay for additional equipment and space for the beneficiary's 
positIOn. Additionally, both estimate that the petitioner would incur an additional_a month in 
overhead "and other recurring expenses" in hiring the beneficiary. The . asserts that the 
beneficiary's specialty practice would generate revenue in the amount to 
defray these costs and cites to Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C. Cir. 1989) 
in support. Although part of this decision mentions the ability of the beneficiary to generate income, 
the holding is based on other grounds and is primarily a criticism of USCIS for failure to specify a 
5 The sole proprietor's 2005 tax return reflects a deduction for student loan interest, which would 
reflect that either the sole proprietor or his wife had 'student loans in that year. In 2005, qualified 
loan recipients could take a deduction on student loan interest paid if modified adjusted gross 
income (MAGI) was less than filing a joint return) and other conditions 
were met. See IRS Publication 970, Tax Benefits for Education, http://www.irs.gov/pub/iis­
prior/p970--2005.pdf (accessed August 4, 2010). Other tax returns did not reflect any deduction for 
student loan interest. In response to the RFE, the sole proprietor states that he and his spouse paid 
, off their student loans in 2004. Other tax returns did not reflect any deduction for student loan 
interest 
Page 6 
fonnula used in detennining the proffered wage. 6 The RFE additionally noted that the petitioner had 
not provided specific details or documentation to explain the projected revenue stream that the . 
beneficiary will generate or any projected time table on how long it would take to develop a client 
base to offset the expected equipment and overhead costs. 
Against the projection of future earnings,Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting 
Reg. Comm. 1977) states: 
I do not feel, nor do I believe the Congress intended, that the petitioner, who 
admittedly could not pay the offered wage at the time the petition was filed, should . . 
subsequently become eligible to have the petition approved under a new set of facts 
hinged upon probability and projections, even beyond the infonnation presented on 
appeal. 
A visa petition may not be approved based on speculation of future eligibility or after the petitioner 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). . , 
The AAO requested that the petitioner submit evidence related to any additional liabilities7 and 
expenses not addressed in the sole proprietor's self estimate submitted on appeal, as well as credible 
evidence to document expected start-up equipment required, and the length of projected time to 
obtain the necessary client base· to generate the additional revenue required to meet monthly 
overhead and expenses related to the beneficiary's employment. 
In response to .the RFE, t~e sol~ proprietor su~mitted a declaration. Regardi~rsonal 
expenses, he estImated that hIS famIly spent approxlmatel~onth on food, ~onth 
. and month on gas. This would result in additional monthly expenses of 
With respect to liabilities, the petitioner submitted an estimate dated 
31, 2010, which shows that the sole proprietor reduced his 
but that his total assets remained the same. 
The sole proprietor states that he has already "installed a 
expense of_' which was done. . 
. The includes: 
beginning would be 
These would cost an 
6 Subsequent to that. decision; USCIS implemented a fonnula that involves assessing wages actually 
paid to the alien beneficiary, and the petitioner's net income and net current assets. 
7 We note that the record reflects that the sole proprietor has substantfalliabilities based on the _ 
July 31, 2008 estimate submitted, which. reflects total liabilities in the amount of 
total assets in the amount of_ 
-Page 7 . 
estimated_ and a general which would cost an esttmated_ He 
additionally estimates that additional materials should only cost approximately~er month, or 
much less than the original estimate of_ per month as originally anticipated. Additionally, a 
search of the . 's website lists current services offered as including oral surgery. See 
(accessed October 22, 2010). 
The petitioner asserts that the income the beneficiary will generate will more than adequately cover 
these costs. Specifically, the sole proprietor estimates that the beneficiary would have immediate 
work from internal referrals from his seven hundred patient base.8 He states in his declaration that 
based on internal referrals alone, an oral surgeon he employed would have "between 4-11 cases per 
~enerate_~er. month ~n .additional revenue [~ualized to 
____ per year~anzes that thIS mcludes one to three Implant cases 
every month,and that he refers out three to eight molar extraction cases per month. He concludes 
that the monthly fees generated would "vastly exceed" the costs associated with employing the 
beneficiary. Additionally, the sole proprietor estimated that his practice would receive additional 
referrals from outside dentists as "there is a shortage of qualified oral surgeons in the Snohomish. 
County area." He estimates that referrals might initially be slow, but by the end of the first year, 
external ~t in two to five oral surgery cases per month, which would generate 
between _per month [annualized to er year]. Counsel 
estimates that the combined internal and external referrals would result in monthly total income of 
[annualized to but ·that overhead and the ben~ 
mo~ combined would only month [annualiied to __ 
to __ To demonstrate the growth in the petitioner's practice, counsel reviews the 
petitioner's gross income year~to-year, which shows a 22% increase from 2005 to 2006, a 34% 
increase from 2006 to 2007; a 19% increase from 2007 to 2008 and a 25% increase from 2008 to 
2009. The numbers reflect that the business has continued to grow and is not static. 
In exam~ecifically, in the instant case, the sole proprietor supports a family of 
three in ____ . ,. . 
The sole proprietor's tax returns reflect the following information for the following years: 
8 The petitioner submitted business banking statements with the underlying filing for 2008 and 2009, 
which reflect both substantial credits and substantial debits to verify the petitioner's regular business 
stream. 
9 A general search online shows that are highly compensated: see 
(accessed October 
21, 2010), which estimates that an is one of the top ten highest 
paying careers and that average pay is _ but the top 5% make more than _ Another 
estimate for 2008 shows the median pay as _ See 
(accessed October 21,2010). 
. Page 8 
Tax 
Year 
. Tax 
Year 
2009 
2008 
2007 
2006 
2005 
Sole 
Proprietor's 
AGI (1040) 
Estimated 
Personal 
Expenses 
Sole Proprietor's 
Gross Receipts 
(ScheduleC) 
Proffered 
Wage 
Sole 
Proprietor's 
. Wages Paid 
; 
I 
Sole Proprietor's Net 
Profit from business 
(Schedule C) 
Total Amount Estimated Equipment 
petitioner must and Costs for the· 
show beneficiary's initial 
10 The petitioner identified these additional expenses on appeal in response to the AAO's RFE. 
Page 9 
USCIS may consider the overall magnitude of the petitioner's business activities in its determination. 
of the petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 
(BIA 1967). The petitioning entity in Sonegawa had been in business for over 11 years and 
routinely earned a gross annual income of about $100,000. During the year in which the petition 
. was filed in that case, the petitioner changed business locations and paid rent on both the old and 
new locations for five months. There were large moving costs· and also a: period of time when the 
petitioner was unable to do regular business. The Regional Commissioner determined that the 
petitioner's prospects for a resumption of successful business operations were well established. The 
petitione{was a fashion . whose work been featured in Her 
clients included 
been included in the lists of the best-dressed The petitioner lectured on fashion 
~esign arid ~ashion show~ t~6ughout the. . ~tates and at colleges and .universities in 
__ The RegIonal CommIssIOner's determmatIOn m Sonegawa was based m part on the 
petitioner's soUnd business reputation and outstanding reputation as a couturiere. As in Sonegawa, 
USCIS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls 
outside of a petitioner's net income and net current assets. USCIS may consider such factors as the 
number of years the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall nUmber of employees, the occurrence of any uncharacteristic 
business expenditures or losses, the petitioner's reputation within its industry, whether the 
beneficiary is replacing a former employee or an outsourced service, or any other evidence that 
USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
In the instant case, the sole proprietor's tax returns reflect that the sole proprietor could pay the 
proffered wage aild support his dependents in 2007, 2008, and 2009. In 2006, the gap between the 
estimated expenses, proffered wage, and AGI, is relatively small and depends partially on the 
accuracy of the petitioner's self-estimated expenses. The AAO has no reason to doubt the accuracy 
of the self-estimated expenses as they are well-reasoned and supported. The only borderline year· 
appears to be in the year of the priority date, where the gap· between the estimated expenses, 
proffered wage, and AGI is much larger when factoring in start-up expenses to bring in an oral 
surgeon. However, given the growth in the petitioner's business demonstrated year-to-year, the 
documented volume of credits and debits in the petitioner's business accounts, the sole proprietor's 
reduction of personal liabilities, and most compellingly, the documented ability of an oral 
maxillofacial surgeon to generate income for the petitioner, in assessing the totality of the 
circumstances in this individual case, it is concluded that the petitioner has established that it has the 
continuing ability to pay the proffered wage beginning on the priority date. 
The second issue that the director identified is that the petitioner failed to establish that the 
beneficiary met the requirements of the labor certification. To determine whether a beneficiary is 
r eligible for an employment based immigrant visa, U.S. Citizenship and Immigration Services (USCIS) 
must examine whether the.alien's credentials meet the requirements set forth in the labor certification. 
In evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor 
certification to determine the required qualifications for the position. USCIS may not ignore a term 
of the labor certification, nor may it impose additional requirements. See Matter of Silver Dragon 
. Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See a/so, Mandany v. Smith, 696 F.2d 
Page 10 
1008, (D.c. Cir. 1983); K.R.K. Irvine, 'nc. V. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra~ 
Red Commissary of Massachusetts, Inc. V. Coomey, 661 F.2d 1 (1st Cir. 1981). The petitioner must 
demonstrate that, on the priority date, the beneficiary had the qualifications stated on its ETA Form 
9089 ~ certified by the DOL and submitted with the petition. Matter of Wing's Tea House, 16 I&N 
Dec. 158 (Act. Reg. Comm. 1977). J 
Here,the ETA Form 9089, filed on August 14, 2005, requires a 
ETA Form 9089, Section H.14, specific skills requires: 
states on ETA Form 9089 that he completed a at" the 
While the year completed appears to 
completed a •••• 
contains a copy of the beneficiary's certificate from 
demonstrate that the beneficiary completed 
training in from July 1, 1999 to June 30, 2003, that he received a 
license from the state of_ on July 22, 1998 to practice _ he received a 
::selJIelmO'er 16,2003, and that he was granted the status of 
by on March 1, 2006. 
. . 
At issue is the meaning of "national" certification required on the labor certification, and whether the 
beneficiary meets this requirement. 
On appeal, counsel asserts that the petitioner meant national certification required "passing both Part 
I and Part II of the . Further, counsel asserts that, in 
_, to receive his license to practice dentistry, the beneficiary "must 
prepared or approved by and administered under the direction of the 
Assurance Commission." Rev. Code Wash., RCW 18.32.040(3)(a) (2005). Counsel continues that 
"in turn, the Commission's regulations require 'Proof of successful completion of the National 
Board Dental Examinations part I and II' in order to receive a license to practice." Wash. Admin. 
Code., (1998). The petitioner's letter submitted from 
also addresses this issue. _states that: 
In dentistry, passing the two-part exam of 
is all that is required for national certification.· There is no other 
certification" for dentists. Furthermore, in order to practice dentistry in any state, 
including Washington, you must have passed both parts of the National Board for 
Dental Examinations. Therefore, by virtue of the fact that [the beneficiary] possesses 
state licensure as a Dentist and an Oral and Maxillofacial Surgeon, he also possesses 
the required 'National Certification.' 
_submitted a second letter that states, "residents completing our four year training~ 
Oral and Maxillofacial Surgery] are not obligated by law to become a member of the __ 
in order to initiate their practice of oral and 
Page 11 
maxillofacial surgery upon graduation." 
The AAO requested documentation of how the petitioner advertised the requirement of "national 
certification" to U.S. applicants, and whether a U.S. applicant applying for the position offered 
would have understood national certification to mean ABOMS certified as opposed to merely 
passing the "national board" exam to obtain a dental license. 
an 
requirements as state 
certifications required." In the sole proprietor's declaration, he states that there were no responses to 
any of the advertisements or postings, and that "there is a shortage of qualified oral surgeons in the 
••••••• [the petitioner's location] area." 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. at 406. In Grace Korean United 
Methodist Church v. Michael Chertoff, 437 F. Supp. 2d 1174 (D. Or. 2005), the court found that U.S. 
Citizenship and Immigration Services (USCIS) "does not have the authority or expertise to impose 
its strained definition of 'B.A. or equivalent' on that term as set forth in the labor certification." In 
the court found that "it was the responsibility of the employer, not [US]CIS, to 
establish the criteria for the open position." Id. The c'ourt looked to the employer's intent as the 
terms of the labor certification were in issue. 
A general search online ~show that there is a '.1111 •• ~._ •••••••• " 
Further, a review of the ~ebsite, which explains "Board Certified" does not reference the 
credential as reflecting a "National certification." The website states: 
Your Board Certified has graduated from an 
accredited dental school and· is licensed in the state in which he/she practices. In 
addition, this individual has completed an oral and'maxillofacial surgery residency 
program approved by the American Dental Association's Commission on Dental 
Accreditation. 
11 A general online search shows that there is a "national certification" for dental assistants, that a 
dental assistant can take the Dental Assisting National Board's (DANB) Certified Dental 
Examination following completion of an accredited program. State requirements and registration 
would vary In addition to the national certification. See 
(accessed October 22, 2010). Nothing shows 
that there is any similar certification for dentists, or dental specialties, but rather regulation and 
licensing is left to each state. . 
Page 12 
See 
2010). 
(accessed October 21, 
As Board Certification reflects only that the individual is licensed in the state in which he or she 
practices, that it does not confer a "national license," and that an is 
not required to be ' Board Certified" in order to practice in the specialty, we accept the 
petitioner's explanation regarding the tenn "nationa1." Given the shortage in the occupation, we do 
not believe that U.S.~ be dissuaded from applying for the position based on the 
phrase "National and_ertification." . 
Accordingly, we accept the petitioner's explanation that "National" referenced the National Board of 
Dental Examinations, required prior to obtaining a dental license. The record demonstrates that the 
beneficiary passed the National Board of Dental Examinations and he was issued his dental license 
from the state of on July 22, 1998 to practice dentistry in the state of 
Therefore, the petitioner has established that the beneficiary met the requirements of the position 
offered by the time of the pri6rity date. 
As an additional issue, the AAO raised in its RFE that the beneficiary may have had a preexisting 
relationship with the petitioner and, therefore, the bona fides of the position may be in question. The 
petitioner has the burden of establishing that a bona fide job opportunity exists when asked to show 
.that the job opportunity is clearly open to U.S. workers. See Matter of Amger Corp., 87-INA-545 
(BALCA 1987); see also 8 U.S.C. § 1361. A relationship invalidating a bona fide job offer may also 
. arise where the beneficiary is related to the petitioner by "blood" or it may "be financial, by 
marriage, or through friendship." See Matter of Sunmart 374, 2000-INA-93 (BALCA May 15, 
2000). In Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401 (Comm. 1986), the 
commissioner noted that while it is not an automatic disqualification for an alien beneficiary to have 
. an interest in a petitioning business, if the alien beneficiary's true relationship to the petitioning 
business is not apparent in the labor c~rtification proceedings, it causes the certifying officer to fail 
to examine more carefully whether the position . was clearly open to qualified U.S. workers and 
whether U.S. workers were rejected solely for lawful job-related reasons. Authority to conduct 
investigations into fraud or material misrepresentation relevant to alien labor certification 
applications is conveyed to the Department of Homeland Security (DHS) and by inference to 
. USCIS, in accordance with 20 c.P.R. Part 656.12 The law of materiality will control the agency's 
detennination that the application should' be invalidated. Under Matter of S & B-C, 9 I&N Dec. 436 
(A.G. 1961), a misrepresentation is material where it 'shuts off a line of inquiry which is relevant to 
the alien's eligibility and which might well have resulted in a proper detennination that he or she is 
12 The regulation at 20 C.P.R. § 656.30(d) states in relevant part: 
"[A]fter issuance, a labor certification is subject to invalidation by the DHS or by a 
Consul of the Department of State upon a determination, made in accordance with 
those agencies' procedures or by a court, of fraud or willful misrepresentation of a 
material fact involving the labor certification application. 
. Page 13 
\. 
inadmissible. An alien's misrepresentation of his or her relationship through blood, financial or 
social ties to a company's owner during the labor certification process would close off a line of 
relevant inquiry, which might have revealed that the labor certification process was flawed. 
The _ regulation specifically sought to control close relationships between the petitioning 
entity and beneficiaries to ensure bona fide job opportunities to protect U.S. workers. See 20 C.F.R. 
§656.17: 
. (1) Alien influence and control over job opportunity. If the employer is·a closely held 
. corporation or partnership in which the alien has an ownership interest, or if there is a 
familial relationship between the stockholders, corporate officers, incorporators, or 
partners, and the alien, or if the alien is one of a small number of employees, the 
employer in the event of an audit must be able to demonstrate the existence of a bona 
fide job opportunity, i.e. , the job is available to all U.S. workers, and must provide to 
the Certifying Officer, the following supporting documentation: 
(1) A copy of the articles of incorporation, partnership agreement, business license or 
similar documents that establish the business entity; 
(2) A list of all corporate/company officers and shareholders/partners of the 
corporation/firmlbusiness, their titles and positions in the business' structure, and a 
description of the relationships to each other and to the alien beneficiary; 
(3) The financial history of the. corporation/company/partnership, including the total 
investment in the business entity and the amount of investment of each officer, 
incorporator/partner and the alien beneficiary; and 
(4) The name of the business' official with primary responsibility for interviewing and 
hiririg applicants for positions within the organization and the name(s) of the 
business' official( s)- having control or influence over hiring decisions involving the 
position for which labor certification is sought. 
(5) If the alien is one of 10 or fewer employees, the employer must document any 
family relationship between the employees and the alien. 
Public information shows that_graduated from of 
for which he received a in 1997. 
See. ••••••••••••• . (accessed August 4,2010). As the 
beneficiary graduated from the same school and degree program in the same year, the two may have 
a preexisting relationship. The AAO's RFE questions that given the small size of the petitioner, 
under ten employees, and the prior social relationship between the petitioner's owner and the 
beneficiary, whether this raised an issue related to alien influence and control over the job 
opportunity. 
The AAO requested that the petitioner indicate whether DOL audired the ~pplication prior to 
certification, and if so,. to submit any documentation related to the audit materials sent. 
Alternatively, the AAO requested that the petitioner should submit eviderice as set forth above, items 
1 through 5 to address the issue of alien influence and control. 
In response, the petitioner indicates that DOL did not audit the labor certification, and that the sole 
proprietor is not related to the beneficiary through "blood," marriage,or any other family 
relationship. Further, the beneficiary "has no interest in the petitioning company, and no ability to 
control its decisions." The sole proprietor singly has responsibility for these decisions, as well as 
control over interviewing, hiring and· firing. As a sole proprietor, the petitioner had no articles of 
incorporation and no shareholders, partners, or directors. The sole proprietor does share office space 
with his brother-in-law, with whom he formed a limited liability corporation "for the purpose of 
allocating .. , [space and overhead] expenses." He submitted the agreement related Ito the shared 
office space, and indicated that the shared expenses paid into the LLC are reported on his Form 1040 
Schedule C. The beneficiary has no ownership interest in the LLC. 
Further, related to the beneficiary's attendance at the same school, the sole proprietor indicates that 
"only individuals who are qualified to perform 'oral surgery on ,the mouth' as stated in the labor 
certification are those who have from an accredited, post-doctoral oral surgery program, 
such as the University of 13 As the beneficiary has no 
documented financial interest in the petitioner, and no familial relatIonship to the petitioner, we find 
that the petitioner has established a. bona fide job offer. While the petitioner and beneficiary might 
have attended school together, based on the lack of responses to the advertisements, combined with 
the shortage of oral surgeons . the fact that the University o~pears to 
be the only dental school in attendance at the sarrie school would not result in the 
. beneficiary'S undue influence on the petitioner. It would be reasonable for the petitioner to recruit 
from that school. 
The AAO also notek that in accordance with our statutory consultation authority at section 204(b) of 
the Act, we referred this case to DOL presenting the issues about the national certification and the 
beneficiary's perceived social relationship with the petitioner's owner. DOL did not respond or 
express concern. Thus, the AAO is satisfied that the DOL considers the labor certification properly 
certified. 
\3 A search of dental schools for shows that the University of _is the 
dental studies. See . . 
m 
the uruversity 
. programs in many dentistry specialties." 
essed October 22, 2010): "Students 
apply to the University of 
. training for a D.D.S., as well as graduate 
Page 15 
Accordingly, we find that the petitioner has overcome the basis for the director's decision. The 
burden of proof in these proceedings rests solely with thepetitioneL Section 291 of the Act,. 
8 U.S.C.§ 1361. The petitioner has been that burden. 
ORDER: The appeal is sustained. The petition is approved.