dismissed EB-3 Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-C-M-G-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 30.2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a single family home builder, seeks to employ the Beneficiary as a senior cost 
estimator. 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 of the Texas Service Center denied the petition after concluding that the Beneficiat-y"s 
work with the Petitioner in the offered job could not serve to establish that the Beneficiary possessed 
the employment experience required by the job otTer. 
On appeal, the Petitioner asserts that the labor certification also listed the work experience gained by 
the Beneficiary before he was hired by the Petitioner. The Petitioner states that this experience 
"corresponds to the primary job responsibility"' of the ofTered job and asserts that it has established 
that the Beneficiary satisfies the experience requirement of the labor certification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain 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, 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 atTect the 
wages and working conditions of domestic workers similarly employed. Section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer may tile 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 USC IS approves the petition, the foreign national may apply for an immigrant visa 
1 The date the labor certification is filed is called the ''priority date." See 8 C.F.R. § 204.5(d). A beneficiary must be 
eligible as of that date. 
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Matter ofS-C-M-G-, LLC 
abroad or, if eligible, adjustment of status in the United States. See section 245 ofthe Act 8 U.S.C. 
§ 1255. 
II. ANALYSIS 
The labor certification requires candidates to possess 24 months of experience in the ofTered job of 
senior cost estimator and does not allow for experience in an alternate occupation. The beneficiary 
must meet all of the requirements of the offered position set forth on the labor certification by the 
priority date ofthe petition. 8 C.F.R. § 103.2(b)(l), (12). See Matter of' Wing's Tea House, 16 I&N 
Dec. 158, 159 (Acting Reg'! Comm'r 1977); see also Matter o{Katighak. 14 f&N Dec. 45,49 (Reg'! 
Comm'r 1971 ). At issue here is whether the Petitioner has established that the Beneficiary possesses 
the 24 months of experience in the offered job required by the labor certification. 
The Petitioner stated on the labor certification that it employed the Beneficiary as a cost estimator 
since 2011 and as a senior cost estimator since 2012. According to DOL regulations, experience 
with the petitioner generally cannot qualify a beneficiary for the proffered position unless the 
beneficiary gained the experience while working there "in a position not substantially comparable to 
the [ ofTered] position." See 20 C.F.R. § 656.17(i)(3 )(i). A "substantially comparable" job or 
position means a job or position requiring performance of the same job duties more than 50 percent 
of the time. This requirement can be documented by furnishing position descriptions, the percentage 
of time spent on the various duties, organization charts, and payroll records. 20 C.F.R. 
§ 656.17(i)(5)(ii 
Here, the Petitioner did not provide a description of the Beneficiary's duties as a cost estimator from 
2011 until 2012. The Beneficiary's described duties with the Petitioner as a senior cost estimator 
since 2012 were predominantly the same as the described duties of the ofTered position and the 
Petitioner did not submit a breakdown of the percentage of time spent on the various duties as would 
be necessary to establish that the claimed experience is "not substantially comparable" to the offered 
job. Therefore, the Petitioner cannot rely on this experience for the Beneficiary to qualify for the 
proffered position. 2 
The Petitioner further stated on the labor certification that the Beneficiary had worked as an architect 
in Mexico, and as a geostatistics coordinator in Mexico, before coming to 
work for them. The Petitioner does not assert that the Beneficiary's experience as an architect is 
qualifying, but does contend that the Beneficiary's past employment as a geostatistics coordinator, 
should be considered as experience in the job otTered. In analyzing whether employment may be 
considered experience in the job offered, we are not restricted to the title of the positions but must 
look to the key duties of the job offered. Experience in a job offered means experience performing 
the job duties of the offered position listed on a labor certification. Matter o{Symhioun Techs .. Inc., 
2 We also note that in response to question J.21 of the labor certification, which asks, "Did the alien gain any of the 
qualifying experience with the employer in a position substantially comparable to the job opportunity requested 0 " the 
petitioner answered "No.'' 
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Matter o_fS-C-M-G-, LLC 
2010-PER-01422, 2011 WL 5126284 (BALCA Oct. 24, 2011 ).3 The Petitioner contends that 
because the past position involved some elements of '·unit price analysis for projects which directly 
corresponds to the primary job responsibility of a cost estimator," it should be considered experience 
in the offered job. 
The employment letter from the Municipality of specifies that over a 15 year period the 
Beneficiary worked there "as an architect, projects planner, work and material costs planner, and 
later as Coordinator in the area of geoinformation.'' The letter lists seven "daily activities'' that the 
Beneficiary performed, including job elements that overlap with the listed duties of the otTered 
position, but the letter does not identify which of the Beneficiary's four different jobs involved these 
duties, nor does the letter break down when the Beneficiary worked in each job during his 15 years 
of employment there. Therefore, the letter is insufficient to establish that the Beneficiary's 
experience as a geostatistics coordinator should be considered qualifying experience for the offered 
position. 
Moreover, we note that the Petitioner's initial description of the Beneficiary's work for the 
Municipality of cites only his work as a geostatistics coordinator and did not mention any 
experience with cost estimation. The Petitioner stated on the labor certification that the 
Beneficiary's work as a geostatistics coordinator consisted of "managed large scale projects ... 
management of enterprise-level hardware and software to support storage and delivery of geospatial 
data and oversight of design and maintenance of database and the development and compliance of 
accepted operating standards." The Petitioner must resolve this discrepancy with independent, 
objective evidence pointing to where the truth lies. Matter o{ Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
The labor certification requires candidates to possess 24 months of experience in the otTered job and 
does not permit consideration of experience in an alternate occupation. The Beneficiary's 
experience with the Petitioner may not be considered because it was in a substantially comparable 
position. As the submitted descriptions of the Beneficiary's work as a geostatistics coordinator 
contain unresolved discrepancies, and as these claimed duties differ from the duties of the offered 
job of senior cost estimator, this work experience cannot be considered to be in the oflered job and 
may not be used to qualify him for the offered position. Therefore, the Petitioner has not established 
that the Beneficiary has the required experience. 
III. ADDITIONAL ISSUES OF INELIGIBILITY 
Although not addressed by the Director, the record also does not establish the Petitioner's ability to 
pay the proffered wage, that the Beneficiary meets the terms of the labor certification, or that the 
Beneficiary is eligible for classification as a professional. 
3 Although we are not bound by decisions issued by the Board of Alien Labor Certification Appeals (BALCA), we, 
nevertheless, may take note of the reasoning in such decisions when considering issues that arise in the employment­
based immigrant visa process. 
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Matter ofS-C-M-G-, LLC 
A. The Petitioner's Ability to Pay the Proffered Wage 
The petitioner must demonstrate its ability to pay the proffered wage from the priority date and 
continuing until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence 
of ability to pay "shall be in the form of copies of annual reports, federal tax returns. or audited 
financial statements." !d. The priority date in this case is April 27. 2016, and the proffered wage is 
$74,000. 
The Petitioner, a limited liability company (LLC), submitted copies of paystubs showing it had paid 
the Beneficiary year-to-date wages of$72,638.30 as of October 31.2016. and also provided a 2015 
IRS Form 1065, U.S. Return of Partnership Income, for its parent company. stating that its finances 
were consolidated into this return. However, an LLC is a distinct legal entity and the assets of other 
enterprises or corporations cannot be considered in determining the petitioning entity's ability to pay 
the proffered wage. See Matter qf Aphrodite Investments. Ltd., 17 I&N Dec. 530 (Comm'r 1980). 
Because the tax return does not separate the income and assets of the Petitioner from the income and 
assets of its parent company, the parent company's tax returns are insufficient to establish the 
Petitioner's ability to pay. The Petitioner further submitted a consolidated balance sheet for its 
parent company showing the breakdown of finances for each of its subsidiaries for the nine month 
period ending September 30, 2016, but the accompanying accountant's letter makes clear that this 
statement was not audited and therefore these statements are not one of the regulatory required 
pieces of evidence. Here, while submitting evidence from its parent company, the Petitioner has 
submitted no other evidence of its own net income or net current assets that would establish its own 
continuing ability to pay the proffered wage to the Beneficiary from the priority date onward. 
In addition to the evidence specifically identified above, 8 C.F.R. § 204.5(g)(2) also provides that we 
may accept a "statement from a financial officer of the organization" as evidence of its ability to pay 
the proffered wage. The Petitioner sought to establish its ability to pay by submitting a letter on 
letterhead from an affiliated company, certifying that the Petitioner employed over 100 workers and 
affirming its ability to pay the proffered wage to the Beneficiary. The signatory to the letter 
identified herself as a "Controller," and an accompanying letter from the Petitioner identifies the 
signatory as the controller for the affiliated company. rather than the Petitioner. Because the 
letterhead and signatory are both from an affiliated company, rather than the Petitioner, we do not 
find the letter sufficient to establish the Petitioner's ability to pay the proffered wage. As such. the 
record does not establish the Petitioner's ability to pay the proffered wage from the priority date 
onward. 
B. The Beneficiary's Qualifications 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states that "ifthe petition is for a professionaL the petition 
must be accompanied by evidence that the alien holds a United States baccalaureate degree or a foreign 
equivalent degree." The Petitioner must also establish that the Beneficiary possessed all the 
education, training, and experience specified on the labor certification as of the priority date. 
8 C.F.R. § 103.2(b)(l), (12). See Matter q(Wing's Tea House. 16 I&N Dec. at 159: see also Malter 
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Matter o.fS-C-M-G-, LLC 
of Katigbak, 14 I&N Dec. at 49. A bachelor's degree is generally found to require four years of 
education. Matter ofShah, 17 I&N Dec. 244, 245 (Comm'r 1977). 
The labor certification requires a bachelor's degree in construction, engineering, or architecture and 
states that the Beneficiary possesses a bachelor's degree in architecture, awarded by the 
in 2004. The Beneficiary's diploma (with English translation) confirms 
that he earned an "architecture degree" and the diploma is accompanied by a credentials evaluation 
that concludes that the Beneficiary's degree is equivalent to a U.S. bachelor's degree. The evaluator 
based his conclusion, in part, on the "course of studies undertaken, the number of credit units earned, 
[and] the number of years of coursework;'' however, the evaluator did not state that the Beneficiary 
completed a four-year course of study and the record does not contain an academic transcript, 
statement of marks, or other official academic record that would verify the information apparently 
relied upon by the evaluator. Absent evidence of the nature and duration of Beneficiary's 
coursework, we cannot find that the Beneficiary has the U.S. bachelor's or foreign equivalent degree 
required by the terms of the labor certification and for classification as a professional. 
IV. CONCLUSION 
We find that the record is insufficient to establish that the Beneficiary has the 24 months of 
qualifying experience in the offered job, as required by the approved labor certification. We further 
find that the Petitioner has not established its continuing ability to pay the protTered wage from the 
priority date onward, has not established that the Beneficiary possesses the education required by the 
labor certification, and has not established that the Beneficiary possesses a U.S. bachelor's degree or 
foreign equivalent degree as is required for classification as a professional. Accordingly, the 
Petitioner has not established the Beneficiary's eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fS-C-M-G-. LLC, ID# 681535 (AAO Oct. 30, 2017) 
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