dismissed EB-3 Case: Architecture

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-C- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 7. 2016 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an architecture and construction business, seeks to employ the Beneficiary as a project 
manager/architect. It requests classification of the Beneficiary as a professional under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act). section 
203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant classification 
allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful permanent 
resident status. 
The Director, Texas Service Center. denied the petition. The Director determined that the record did 
not establish the offered position as a bonafide job ofTer because the proposed work location was the 
Beneficiary's home address in another state. 
The matter is now before us on appeal. On appeaL the Petitioner asserts that it correctly listed the 
Beneficiary's address as the work location and that it continues to do business in that location. Upon 
de novo review, we will dismiss the appeal. 
I. BONA FIDE JOB OPPORTUNITY 
The visa petitiOn in this case is supported by an ETA Form 9089, Application for Permanent 
Employment Certification (labor certification). which the Petitioner tiled with the U.S. Department 
of Labor (DOL) on April 29. 2013. The labor cetiification reflects (Part H.l.) that the Petitioner, 
based in Florida, intends to employ the Beneficiary in the offered position at 
Texas, which is the Beneficiary's home address. 
A labor certification is valid only for the particular job opportunity. the beneficiary. and the stated 
geographical area of intended employment. 20 C.F.R. § 656.30(c). A petitioner must intend to 
employ a beneficiary according to the terms of the labor certification accompanying the visa 
petition. 5'ee Matter o( Izdebska, 12 I&N Dec. 54. 55 (Reg· I Comm 'r 1966) (upholding a visa 
petition denial where the petitioner did not intend to employ the beneficiary as a live-in domestic 
worker pursuant to the terms of the labor certification). For labor certification purposes. 
·'employment" means .. pennanent. full-time work" and ''employer" is an entity ··that proposes to 
employ a full-time employee at a place within the United States.'' 20 C.F.R. § 656.3. 
(b)(6)
Matter (?lL-C- Corp. 
In his denial of the visa petition, the Director found that the Petitioner had not demonstrated that it 
was authorized to conduct business in Texas. and, therefore, did not intend to employ the 
Beneficiary. Accordingly, he concluded that the record did not establish the offered position as a 
bonafide job opportunity. 
To overcome the Director's denial, the Petitioner, on appeal, submits copies of employment 
contracts with the Beneficiary. statements from a client located in Austin. documentation relating to 
a specific construction project in and materials relating to its recruitment for the offered 
position. 
We issued a notice of intent to dismiss and request for evidence (NOID/RFE) to the Petitioner. The 
NOID /RFE informed the Petitioner that, as determined by the Director. the record did not establish 
the offered position as a valid job opportunity, and, further, that there was insufficient evidence to 
demonstrate its ability to pay the proffered wage and the Beneficiary's qualifying experience. In 
response to the NOID/RFE, the Petitioner submitted additional evidence in support of the visa 
petition, which is discussed below. 
As proof that it has business in that requires a project manager /architect, the Petitioner 
submits two statements from President and Authorized Agent for 
Texas. In an August 7. 2015. statement, indicates that his firm has 
been ··conducting business'' with the Petitioner since May 2013, and that. as of the date of his 
statement , the Petitioner is doing remodeling work for "through" the Beneficiary 
at six different sites. In a second statement, dated March 28, 2016, reports that his 
personal relationship with the Petitioner began in April 2012, when it remodeled his home, and that 
this experience has led to the Petitioner remodeling several of his company's commercial 
establishments , work that was ongoing as of the date of his statement. Copies of an engineer's 
report on the repair work done on the home; an agreement between the Petitioner and the 
Beneficiary. which assigns oversight of the work on residence to the Beneficiary; 
and an architectural drawing, which bears the Beneficiary's signature. suppmi 
claims regarding the work the Petitioner did on his home 
in 2012. 
As futiher evidence of its intent to employ the Beneficiary in the offered position, the Petitioner has 
provided copies of its posting notice and recruiting report for the job oppmiunity; copies of two job 
advetiisements from the and a contract agreement between the 
Petitioner and the Beneficiary, which covers the work to be performed by the Beneficiary in 
connection with unspecified approved architectural and engineering structural plans in One 
of the terms/conditions listed in the agreement is that the Beneficiary will use his Texas 
home otlice, located at as his work otlice '·at distance by 
using information and communication technologies as scheduled by [the Petitionerl" The 
agreement also states that the Beneficiary will be required to commute from his home oftice to work 
sites within the city of 
2 
(b)(6)
Matter (?lL-C- Cmp. 
Having reviewed the above evidence, we find the record to establish by a preponderance of 
evidence. i.e .. more likely than not, that. at the time it tiled the labor certification. the Petitioner 
intended to employ the Beneficiary as a project manager/architect in Texas. Therefore. we 
will withdraw the Director's finding regarding the bona fides of the job offer. which formed the 
basis for his denial of the visa petition. 
Nevertheless. the petition may not be approved as the record establishes neither the Petitioner's 
ability to pay the proffered wage to the Beneficiary nor the Beneficiary's qualifications for the 
offered position. For the reasons discussed below, the evidence submitted by Petitioner on appeal 
does not overcome the evidentiary deficiencies or resolve the inconsistencies identified by our 
NOID/RFE. 
II. ABILITY TO PAY THE PROFFERED WAGE 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability ol prmpective employer to pay wage. Any petition tiled 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 
priority date is established and continuing until the beneficiary obtains lawful 
pem1anent residence. Evidence of this ability shall be either in the form of copies of 
annual reports. federal tax returns, or audited financial statements. 
A petitioner must establish that its job offer to a beneficiary is a realistic one. Because the tiling of a 
labor certification application establishes a priority date for any subsequently tiled immigrant visa 
petition, a petitioner must establish that a job oiler is realistic as of the priority date and that the offer 
remains realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. As 
previously indicated, the priority date of the visa petition in this case is April 29. 2013. Accordingly. 
the Petitioner must demonstrate a continuing ability to pay the Beneficiary the proffered wage of 
$82.035.00 per year from April29, 2013. 
Our NOID/RFE informed the Petitioner that the record lacked the evidence needed to establish its 
continuing ability to pay the proffered wage during the above noted time period. The NOfD/RFE 
specifically notified the Petitioner that its 2014 bank statements did not establish its ability to pay in 
that year as they were not among the three types of evidence required by the regulation at 8 C.F.R. § 
204.5(g)(2), and. further. reflected only the amount in its bank account on a particular date. rather 
than a sustainable ability to pay a proffered wage. The notice. therefore. requested that the Petitioner 
submit its Form 1120S. U.S. Income Tax Return for an S Corporation. annual report. or audited 
financial statement for 2014. as well as the Forms W-2, Wage and Tax Statements. it had issued to 
the Beneficiary in 2014 and 2015. The NOID/RFE additionally requested the Petitioner's 2015 
Form 1120S, if available. 
3 
Matter l?{ L-C- Corp. 
The Petitioner's response to the NOID/RFE docs not include any ofthe requested financial evidence 
or a statement from the Petitioner explaining why it was unable to provide this evidence. 
accompanied by other financial documentation. Accordingly. for the reasons stated above. the 
record does not establish the Petitioner"s continuing ability to pay the Beneficiary the proffered wage 
as of the visa petition· s priority date and we will dismiss the appeal on this basis. We also note that 
as the Petitioner did not respond to our request for evidence of its ability to pay. it has precluded a 
material line of inquiry in this matter. Therefore. the appeal is also dismissed pursuant to the 
regulation at 8 C.F.R. § 103.2(b)(14). 
III. BENEFICIARY QUALIFICATIONS 
A petitioner must establish a beneficiary's possession of all the education. training. or experience 
stated on an accompanying labor certification as of a petition's priority date. 8 C.F.R. 
§§ 103.2(b)(l). (12): see also Matter (~l Wing's Tea House. 16 I&N Dec. 158. 159 (Acting Reg'l 
Comm'r 1977): Matter ofKatighak. 14 I&N Dec. 45. 49 (Reg'l Comm'r 1971 ). 
When determining whether a beneficiary is eligible for a preference immigrant visa. U.S. Citizenship 
and Immigration Services (USCIS) may not ignore a term of the labor certification. nor may it 
impose additional requirements. K.R.K. Irvine. Inc. v. Landon, 699 F.2d 1006. 1009 (9th Cir. 1983): 
Madany v. Smith, 696 F.2d 1008. 1012-1013 (D.C. Cir. 1983). We must examine ··the language of 
the labor certification job requirements" in order to determine what the job requires. !d. We must 
examine the certified job otler exactly as it is completed by the prospective employer. See Rosedale 
Linden Park Co. r. Smith. 595 F. Supp. 829. 833 (D.D.C. 1984) (emphasis added). Interpretation of 
the job's requirements, as stated on the labor certification involves reading and applying the plain 
language of the labor certification application form. I d. at 834. 
In the present matter. Part H. of the labor certification reflects the following requirements for the 
offered position: 
H.4. 
H.4-B. 
H.6. 
H.6-A. 
H.7. 
H.8. 
H.9. 
H.10. 
H.11. 
Education: Bachelor's. 
Major field of study: Architecture. 
Experience in the job ofTcrcd: Required. 
Number of months experience required: 120. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: None accepted. 
Foreign educational equivalent: Accepted. 
Experience in an alternate occupation: Not accepted. 
Plan, design, analyze and direct construction and building projects for clients. 
Plan layout of projects integrating engineering elements for a unified design. 
Prepare scale drawings and contracts with building contractors. Design all 
interior spaces for our custom made projects. [C]oordinate and direct 
residential and commercial construction projects. making on-site supervision 
according with scheduled plans and permits. Ensure compliance with 
4 
(b)(6)
Ma/ler t?( L-C- Corp. 
H.14. 
building codes and safety procedures in projects assigned. Plan and direct the 
installation. testing, operation, maintenance. and repairs of facilities and 
equipment. Coordinate project schedules with employees and contractors and 
evaluate the work done. Develop and implement policies[.] standards, and 
safety procedures for the architectural and technical work. Perform 
expenditures. enforce rules, and make decisions about the purchase of 
materials ore services. Direct and supervise the integration of technical 
activities communication with customers to ensure complete satisfaction. 
Prepare, infmm. and provide weekly reports of ongoing projects. lAttend] 
meetings with customers and contractors, when requested. 
Bachelor's degree in Architecture. 10 years of progressive work experience in 
Residential and Commercial projects. Be dependable with a stable work 
history. Ability to make quick freehand sketches. drawings or drafts. 
Outstanding communication and interpersonal skills. Ability to identify and 
meet customer's needs. expectations and requirements. Effective writing and 
oral skills in English as well as Spanish. Knowledge of international design 
scales and measurements for Latin American projects. Highly organized. 
motivated seltl- Jstarter with the ability to set and attain goals. Computer and 
internet skills, proficient in AutoCAD /Revit;. Microsoft Word. ExceL 
PowerPoint. MS Oftice. and the internet web based applications. Technical 
and problem solving skills. Ability [to] manage and adapt to change in a fast 
paced construction environment. Excellent customer service skills. 
Therefore. the labor certification requires the Beneficiary to hold a U.S. bachelor's or foreign 
equivalent degree in architecture, and to have I 0 years of progressive experience in the offered 
position of project manager/architect. 
We raised the Beneficiary's qualifications for the offered position in our NOID /RFE. We informed 
the Petitioner of inconsistencies in the record that led us to question whether the Beneficiary had the 
I 0 years of experience in the offered position required by the labor certification. 
Part K. of the labor certification. signed by the Beneficiary as being true and correct under penalty of 
perjury. lists the following jobs: 
• Project Manager / Architect. from October I6. 2008. 
until the April29, 20I3. filing oflabor certification: 
• Architect /Contractor, from July 1. 2003. until May 1. 2005: 
and 
• Architect. from March 1. 1989, until June 1. 2003. 
The regulation at 8 C.F.R. § 204.5(g)(l) states the following regarding the evidence required to 
establish employment experience: 
5 
(b)(6)
Maller of L-C- Corp. 
[E]vidence relating to qualifying experience or trammg 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 pcrfonned 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. 
To establish the Beneficiary's qualifying employment experience. the Petitioner initially submitted 
statements from Manager. and 
Chief Engineer. neither of which we found to provide support 
for the Beneficiary's claims. 
In his August 24. 2005. statement. reported that the Beneficiary had worked for 
Colombia) as an architect on five housing projects indicating a 
period of employment from 1983-1990, including: the construction of 11 apartments in June 1983; 
the construction of a condominium project (72 houses) in July 1984: the construction of 11 
apartments in December 1985; the construction of a second condominium project in March 1986: 
and the construction of 52 single family home units in February 1990. However. the NOID/RFE. 
informed the Petitioner that statement offered insufficient proof of the Beneficiary's 
employment with as it did not describe the specific duties performed by the Beneficiary or 
state that he had been employed on a full-time basis. It also notified the Petitioner that 
statement did not support the dates of employment claimed by the Beneficiary in the labor 
certification, where he had indicated that he had been employed with from March 1. 1989, 
until June 1. 2003. The notice further put the Petitioner on notice that we questioned 
claim that could have employed the Beneficiary as an architect in the 1980s since the 
record contained a certificate from the 
that established his architect's license had not been issued until March 15. 
1990. 
With regard to the August 9, 2005, statement provided by the NOID/RFE advised the 
Petitioner that the dates of the Beneficiary's employment with the in as 
repm1ed by March 2003 to March 2005. were inconsistent with those the Beneficiary 
had claimed in the labor 
certification, July 1. 2003, to May 1, 2005. The notice also noted that, like 
had not indicated that the Beneficiary's employment at the hotel had been 
full-time. 
In response to the NOID/RFE. the Petitioner submitted two new statements from 
outlining the Beneficiary's employment with as well as a second copy of the 
August 9, 2005, statement from For 
the reasons discussed below, these statements do 
not resolve the inconsistencies and evidentiary deficits identified in the NOID/RFE. 
6 
(b)(6)
Matter (?lL-C- Cm]J. 
A. Experience Gained with 
In his August 24, 2005. statement, asserted that had employed 
the Beneficiary as an architect during the 1980s, when he was not yet licensed as an architect in 
Colombia. He now explains in the first of two statements that the Beneficiary's employment during 
this period was as an "intern Resident Architect" and lists the duties of the position as follows: 
• Coordinated and directed the projects. supervising that everything was in compliance with 
the blueprints and licenses; 
• Planned and analyzed the project schedule and logistics, and produced reports of project 
development; 
• Coordinated and directed the operations and equipment maintenance on project premises: 
and 
• Developed and implemented policy and procedure standards for safety. 
In his second statement, describes employment of the Beneficiary during the 
period 1995 to 2002, reporting that, in these years, the Beneficiary worked for as an 
I 
independent contractor "through his construction company 
states that in "this position of Contractor.'' the Beneficiary performed the following duties: 
• Analyzed and planned the schedule and logistic[s] of the project, generating reports: 
• Coordinated and directed the 
purchases of materials and equipment needed: 
• Designed and prepared project scaled 
drawings and documents; 
• Assigned. directed and coordinated the schedules, and evaluated 
the project employees: 
• Coordinated and supervised the project according to approved licenses and blueprints: 
• Coordinated and directed the operations and equipment 
maintenance of the project premises: 
• Developed and implemented policy and procedure standards for safety: and 
• Coordinated the project payrolls. 
Having reviewed the above statements. we do not tind them to establish the Beneficiary's claim to 
have been employed by from March L 1989, to June l, 2003. Even if we were to accept 
explanation for his prior claim that the Beneficiary had worked for as an 
intern Resident Architect from 1983-1990 (approximately seven years), his second statement 
regarding employment of the Beneficiary from 1995 to 2002 continues to contradict the 
period of employment claimed by the Beneficiary on the labor certification. Further. it is 
inconsistent with his own August 24. 2005. statement, in which he indicated that 
employment of the Beneficiary ended in 1990. The Petitioner has not demonstrated that the 
Beneficiary gained any experience from 1990-1995, a gap in employment not listed on the labor 
1 The record contain s an April 28. 2016, affidavit sworn by the Beneficiary. In his statement, the Beneficiary also 
asserts that during the period 1995 to 2002, his work for was perfonned under a contract between 
and his own company. 
(b)(6)
Matter l~lL-C- Corp. 
certification. Unresolved material inconsistencies may led us to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Maller (~l 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In light of these unresolved inconsistencies, we do not 
find statements to be reliable evidence of the Beneficiary's employment experience 
with The Petitioner must resolve inconsistencies with independent 
objective evidence pointing to where the truth lies. /d. 
We also note that new statements do not indicate that the Beneficiary worked for the 
company on a full-time basis during either of the periods of employment he now reports . 
Further, his new statements also raise questions as to whether the Beneficiary was employed full­
time by in the ofiered position of project manager/architect, the only employment 
experience accepted by the labor certification. The duties listed by both from 1983-
1990 and from 1995-2002, do not reflect the full range of responsibilities listed for the offered 
position in Part f-1.11. of the labor certification. In both statements, describes the duties 
of a project manager. He does not indicate that the Beneficiary's responsibilities for 
extended to the planning, design, and analysis of construction and building projects for clients, the 
planning of the layout of construction projects, or the design of all interior spaces for custom made 
projects. As a result, we cannot conclude that the experience the Beneficiary has claimed with 
can be considered experience in the otTered position. 
The record also contains an April 28, 2016, affidavit sworn by the Beneficiary in which he attests to 
having worked for during the period 1995 to 2002. While supportive of 
second statement, the Beneficiary's atlidavit contradicts his claim on the labor certification 
to have worked for from March 1, 1989 until June L 2003. 
For these reasons , the record does not demonstrate that the Beneficiary was employed by 
in the ofTered position of project manager /architect, or that he gained the required 
experience with from March I, 1989 until June 1, 2003, the time period indicated on the 
labor certification. 
B. Experience Gained with the 
In support of the Beneficiary's claim to have been employed by the in as an 
architect /contractor , the Petitioner initially submitted an August 9. 2005, statement signed by 
Chief Engineer, which reported the dates of that employment as 
March 2003 to March 2005, rather than July L 2003, to May 1, 2005, as claimed by the Beneficiary 
on the labor ceJiitication. Unresolved material inconsistencies may lead us to reevaluate 
the 
reliability and sufficiency of other evidence submitted in support of the requested immigration 
benefit. Ho, at 591-92. Although our NOID/RFE requested the submission of a new employment 
letter to resolve the inconsistency, the Petitioner did not submit a new letter but again provided a 
copy of the same August 9, 2005. statement from In resubmitting the original 
statement, the Petitioner did not claim or establish that it was unable to provide the new letter from 
or another representative of the m ' Accordingly, the record 
8 
(b)(6)
Matter of L-C- Cm]J. 
does not reliably establish the Beneficiary's employment with the in as an 
architect/contractor from July 1, 2003. to May 1, 2005. The Petitioner must resolve inconsistencies 
with independent. objective evidence pointing to where the truth lies. !d. 
As discussed above, the evidence of record does not resolve the inconsistent accounts of the 
qualifying experience claimed by the Beneficiary on the labor certification and the descriptions 
provided in the experience letters submitted by the Petitioner. Accordingly , the record does not 
demonstrate that the Beneficiary. as of the visa petition's priority date, had the 10 years of 
experience in the offered position required by the labor cet1ification. In that the record does not 
establish the Beneficiary's qualifications for the job opportunity, the appeal will be dismissed. 
Further, as the Petitioner did not provide a new letter regarding the Beneficiary's experience with the 
in it has precluded a material line of inquiry in this matter. For this reason 
as well, the appeal will be dismissed. See 8 C.F.R. § 103.2(b)(14). 
IV. CONCLUSION 
We find that the Petitioner on appeal has established the ofTcred position as a bona .fide job 
opportunity, thereby overcoming the basis on which the Director denied the visa petition. 
Nevertheless, the visa petition may not be approved as the record does not demonstrate the 
Petitioner's ability to pay the proffered wage and the Beneficiary's qualifying employment 
expenence. 
In visa petition proceedings , it is a petitioner ' s burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act. 8 U.S.C. § 1361; A1atfer (~l Otiende, 26 I&N Dec. at 128. 
Here. that burden has not been met. Accordingly. we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
Cite as Mauer ofL-C- Corp., ID# 15730 (AAO June 7. 2016) 
9