dismissed EB-3 Case: Business Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 24,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a business consulting services company, seeks to employ the Beneficiary as a director 
of project management. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant classification 
allows a U.S. employer to sponsor a foreign national for lawful permanent resident status to work in 
a position that requires at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish its continuing ability to pay the proffered wage of the job offered from the priority date 
of the petition onward. The Petitioner filed an appeal, which we dismissed on the same ground as 
well as the additional ground that the evidence of record did not establish that the Beneficiary met 
the minimum requirements of the labor certification. 
The matter is now before us on a motion to reconsider. The Petitioner has submitted the same brief 
that was previously submitted in support ofthe appeal. We will deny the motion. 
I. LAW 
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. 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, if USCIS 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. 
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The date the labor certification is filed is called the "priority date." A beneficiary must be eligible for the requested 
classification as of that date. 
Matter of A-, Inc. 
The Petitioner must establish that the Beneficiary possessed all of the education, training, and 
experience specified on the labor certification as of the priority date. See Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). The Petitioner must also establish its 
continuing ability to pay the proffered wage from the priority date until the beneficiary obtains 
lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). 
A motion to reconsider is based on an incorrect application of law or policy. The requirements of a 
motion to reconsider are located at 8 C.F.R. § 1 03.5(a)(3). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
A motion to reconsider must establish that our decision was incorrect based on the evidence in the 
record of proceedings at the time of the decision. !d. We do not consider new facts or evidence in a 
motion to reconsider. A motion to reconsider must also be supported by a pertinent precedent or 
adopted decision, statutory or regulatory provision, or statement of USCIS or Department of 
Homeland Security policy. 
A motion that does not meet applicable requirements shall be denied. 8 C.F.R. § 1 03.5(a)( 4). 
II. ANALYSIS 
The Petitioner's Form I-140, Immigrant Petition for Alien Worker, was accompanied by an ETA 
Form 9089, Application for Permanent Employment Certification (labor certification), which had 
been filed with the DOL on June 2, 2014 (the priority date), and certified by the DOL. Section G of 
the labor certification stated that the proffered wage for the job offered is $145,891 per year. Section 
H of the labor certification specified that four years of qualifying experience and a bachelor's 
degree, or six years of qualifying experience without a bachelor's degree, were required for the job. 
The Director denied the petition on the ground that the Petitioner did not establish its ability to pay 
the Beneficiary the proffered wage. In making this decision the Director reviewed the Beneficiary's 
Form W-2 and pay statements for 2014 and 2015 showing that he was paid less than the proffered 
wage in both of those years, as well as the Petitioner's federal income tax return for 2014 showing a 
net loss and net current liabilities that year. 
On appeal. the Petitioner submitted a brief claiming that the Director's decision was erroneous 
because he did not consider all of the evidence in the record and did not consider the totality of the 
circumstances in determining the Petitioner's ability to pay the proffered wage. 
In reaching our decision on the appeal we conducted a de novo review of the record. We analyzed 
all of the Petitioner's documentary evidence and factual assertions, and considered the totality of the 
Petitioner's circumstances in accord with Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 
1967). Based on the entire record we concluded that the Petitioner had not established its continuing 
ability to pay the proffered wage from the priority date up to the present. We also reviewed the 
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Matter of A-, Inc. 
documentation of the Beneficiary's experience and education and determined that the record did not 
establish that the Beneficiary met the minimum requirements of the labor certification to qualify for the 
job offered. For both of these reasons we dismissed the appeal. 
In the current motion the Petitioner has submitted a brief that is virtually identical to the brief submitted 
in support of the appeal. The motion does not state reasons for reconsideration of our previous decision 
that is supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or 
official statement of policy showing that our decision was based on an incorrect application of law or 
USCIS policy. Nor does the motion address the second ground for dismissal of the appeal - namely, 
the Petitioner did not establish that the Beneficiary met the minimum requirements of the labor 
certification. Since the Petitioner has not met the requirements for a motion to reconsider, we will 
deny the motion. See 8 C.F.R. § 103.5(a)(4). 
III. CONCLUSION 
We will deny the motion to reconsider because it does not meet the requirements of a motion set 
forth at 8 C.F.R. § 103.5(a)(3). 
ORDER: The motion is denied. 
Cite as Matter of A-, Inc., ID# 395304 (AAO July 24, 2017) 
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