dismissed EB-3 Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 1, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software provider to the commercial rental industry, seeks to employ the 
Beneficiary as a computer programmer. It requests her classification under the third-preference, 
immigrant category as a professional. Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § l 153(b)(3)(A)(ii). This employment-based, "EB-3" category allows a 
U.S. business to sponsor a foreign national for lawful permanent resident status to work in a job 
requiring at least a bachelor's degree. 
After the Director of the Texas Service Center denied the petition, we dismissed the Petitioner's 
appeal and denied its following motions to reopen and reconsider. See Matter of S-, Inc., ID# 
1369539 (AAO July 31, 2018). We affirmed the Director's conclusion that the Petitioner did not 
demonstrate its required ability to pay the position's proffered wage. We also found that the record 
did not establish the Beneficiary's qualifying experience for the offered position. 
The matter is before us again on the Petitioner's motions to reopen and reconsider. It submits 
additional evidence and argues that we erred by declining to prorate the position's proffered wage 
for the year of the petition's priority date. It also asserts that it may rely on experience the 
Beneficiary gained while working as a contractor at its site because the job duties of the offered 
position substantially differ from her prior, contracted duties. 
Upon review, we will deny the motions. 
I. MOTION CRITERIA 
A motion to reopen must state new facts, supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). In contrast, a motion to reconsider must establish that a decision misapplied law or 
policy based on the record at that time. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must also 
cite a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. 
Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy. Id We 
may grant motions that meet these requirements and establish a petition's approvability. 
Matter ofS-, Inc. 
II. ABILITY TO PAY THE PROFFERED WAGE 
In our most recent decision, we found that the Petitioner did not demonstrate its ability to pay the 
position's annual proffered wage of $66,500 in 2015 or 2016. See 8 C.F.R. § 204.5(g)(2) (requiring 
a petitioner to demonstrate its continuing ability to pay a proffered wage, from a petition's priority 
date until a beneficiary obtains lawful permanent residence). Because of unexplained discrepancies 
between payroll records and IRS Forms W-2, Wage and Tax Statements, the record did not establish 
that the Petitioner's payments to the Beneficiary in those years equaled or exceeded the proffered 
wage. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve 
inconsistencies of record by independent, objective evidence pointing to where the truth lies). Also, 
the Petitioner did not demonstrate its ability to pay the combined proffered wages of this and other 
petitions that were pending or approved as of this petition's priority date of October 15, 2015, or 
filed thereafter. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014 (affirming a petition's 
revocation where, as of the grant, a petitioner did not demonstrate its ability to pay combined 
proffered wages of multiple petitions). Contrary to the request in our notice of intent to dismiss, the 
Petitioner did not provide the proffered wages or priority dates of its other petitions. See 8 C.F.R. 
§ 103 .2(b )(14) (requiring a petition's denial if a petitioner does not submit requested evidence that 
"precludes a material line of inquiry"). 
On motion, the Petitioner does not address the denial grounds of our most recent decision. Rather, 
it contests our denial of its request to prorate the proffered wage. 1 Because the Petitioner's motions 
do not address the denial grounds, its filings do not demonstrate its ability to pay the proffered wage 
in 2015 or 2016. Even if we prorated the proffered wage in 2015 as the Petitioner urges, the record 
would not establish its ability to pay that year. The Petitioner has not established the accuracy of the 
Beneficiary's payroll records by resolving their discrepancies with her Form W-2, nor has the 
Petitioner submitted the information required to evaluate its wage burden to its multiple sponsored 
beneficiaries. 
For the foregoing reasons, the Petitioner has not demonstrated its continuing ability to pay the 
position's proffered wage from the petition's priority date onward. We will therefore affirm our 
prior decision on this ground. 
III. REQUIRED EXPERIENCE FOR THE OFFERED POSITION 
If a labor certification employer already employs a foreign national, it generally cannot rely on 
experience that he or she gained with it. 20 C.F.R. § 656.17(3). An employer may use such 
experience only if the foreign national gained it in a position substantially different than the offered 
1 In our most recent decision, although we did not prorate the proffered wage, we did considered the effect of the period 
between the petition's priority date and the end of 2015 in our totality of the circumstances analysis of the Petitioner's 
ability to pay,. 
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Matter ofS-, Inc. 
one, or the employer can demonstrate the impracticality of training a worker for the job. Id 
Prohibited experience includes experience gained with the employer "as a contract employee." Id 
Here, the Petitioner concedes that it employs the Beneficiary and that she gained experience for the 
offered position as a contractor at the Petitioner's site. It argues, however, that her contracted 
position substantially differed from the offered position. For these purposes, a substantially different 
position means a job that required performance of the same duties less than 50 percent of the time. 
20 C.F.R. § 656. l 7(i)(5)(ii). 
The Petitioner submitted evidence that, when the Beneficiary served as a contractor at its site, 
another company employed her and her work product constituted "the sole property" of that 
employer. The Petitioner therefore contends that, "under basic and traditional principles of 
employment law," the Beneficiary's job with her prior employer "fundamentally" differed from the 
offered position with the Petitioner. 
As previously indicated, however, the regulation at 20 C.F.R. § 656. l 7(i)(3) specifies its application 
to experience gained "as a contract employee." The U.S. Department of Labor (DOL) intended the 
term "contract employee" to "include all persons contracted to work for the employer." DOL, 
"OFLC [Office of Foreign Labor Certification] Frequently Asked Questions and Answers," 
"Prevailing Wage #10," https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!76 (last visited 
Apr. 22, 2019). DOL states that it defined the term broadly "to ensure the provision applies to 
experience gained working for the employer by the foreign worker, whatever the foreign worker's 
employment status." Id (emphasis added). Thus, even though the Beneficiary had a different 
employer as a contractor, DOL guidance indicates that 20 C.F.R. § 656. l 7(i)(3) bars the Petitioner's 
reliance on her prior experience at its site. 
The Petitioner also asserts that, while its staff size remained the same, its number of customers more 
than quintupled from 2010, when the Beneficiary previously worked at its site, until 2015, the year 
of the petition's priority date. The Petitioner argues that "such an extraordinary increase in the work 
without a corresponding increase in the workforce by definition reflects a substantial, even 
fundamental, change in the Beneficiary's job duties." 
The record, however, does not support the Petitioner's argument. On motion, it submits charts 
indicating its customer growth from 2009 to 2015. But the record lacks independent, objective 
evidence of the growth, such as copies of contracts or invoices. The Petitioner also has not 
explained how the job duties of the Beneficiary changed. As detailed in our prior decision, the 
accompanying labor certification states that her current and former positions share many of the same 
job duties. The record does not sufficiently explain how the positions differ or what percentages of 
time the Beneficiary spent or spends on their job duties. A petitioner bears the burden of 
demonstrating eligibility for a requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. For the 
foregoing reasons, the Petitioner has not established the Beneficiary's qualifying experience for the 
offered position. 
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Matter ofS-, Inc. 
IV. CONCLUSION 
The Petitioner's evidence and arguments on motion do not establish the petition's approvability or 
our misapplication of law or policy. We will therefore deny the motions for the reasons stated 
above, with each considered an independent and alternative basis for denial. Contrary to section 291 
of the Act, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of S-, Inc., ID# 2595602 (AAO May 1, 2019) 
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