dismissed EB-3 Case: Construction

MATTER OF S-C-A-R-
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: DEC. 4, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of construction services, seeks to employ the Beneficiary as an 
administrative assistant. It requests her classification under the third-preference, immigrant category 
as_a skilled worker. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). 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 two years of 
training or experience. 
After first granting the filing, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that, as of approval, the Petitioner did not demonstrate the 
Beneficiary's possession of the minimum experience required for the offered position. 
On appeal, the Petitioner asserts that the Director disregarded evidence of the Beneficiary's 
experience and that her educational credentials also qualify her for the position. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a 
position in· the United States with a foreign worker, a prospective employer must first obtain 
certification from the U.S. Department of Labor (DOL). See section 212(a)(S)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, 
qualified, and available for an offered position, and that employment of a foreign national will not ham1 
wages and working conditions of U.S. workers with similar jobs. Id. 
If the DOL approves an offered position, an employer must next submit a labor certification with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS determines whether a beneficiary meets the 
DOL-certified, job requirements of a position. If USCIS grants a petition, a foreign national may 
finally apply 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. 
Maller <?f S-C-A-R-
At any time before a beneficiary obtains lawful permanent resident status, however, USCIS may 
revoke a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. 
§ 115 5. If supported by the record, the erroneous nature of a petition's approval may justify its 
revocation. Matter <~f Ho, 19 l&N Dec. 582, 590 (BIA 1988). 
USCIS may issue a notice of intent to revoke (NOIR) if the unrebutted and unexplained record, as of 
the NOIR's issuance, would have warranted the petition's denial. Maller <?l £slime, 19 l&N Dec. 
450, 451 (BIA 1987). Similarly, USCIS may revoke a petition's approval if a petitioner's response 
does not overcome the grounds stated in an NOIR. Id. at 452. 
II. EXPERIENCE REQUIRED FOR THE OFFERED POSITION 
A petitioner must establish a beneficiary's possession of all DOL-certified job requirements of an 
offered position by a petition's priority date. Matier of Wing ·s Tea House. 16 l&N Dec. 158, 160 
(Acting Reg') Comm'r 1977).1 In evaluating a beneficiary's qualifications, USCIS must examine 
the job-offer portion of an accompanying labor certification to determine a position's minimum 
requirements. USCJS may neither ignore a certification term, nor impose additional requirements. 
See, e.g .. Madany v. Smith. 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that the "DOL bears the 
authority for setting the content of the labor certification") (emphasis in original). 
Here, the labor certification states the minimum requirements of the offered position of 
administrative assistant as a U.S. high school diploma or an equivalent foreign credential, plus two 
years of experience "in the job offered." The labor certification states that the Petitioner will not 
accept experience in an alternate occupation. The Beneficiary's educational qualifications are not at 
issue. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, she gained 
more than two years of qualifying experience. She stated that she worked as an administrative 
assistant for a construction business in Poland from March 2002 to June 2004. 
Pursuant to 8 C.F.R. § 204.5(1)(3)(ii)(A), _the Petitioner submitted a letter from the owner of the 
claimed former employer in support of the Beneficiary's experience. The letter stated her 
employment in the Polish business's "office/administrative division" from March 2002 to June 2004 
and listed her job duties. The Director's NOIR, however, informed the Petitioner that the business's 
owner told a U.S. Department of State (DOS) official in Poland that the Beneficiary is his niece and 
that she "never officially worked for him." 
The Director issued the NOIR for "good and sufficient cause." The owner's statement to the DOS 
official cast doubt on the Beneficiary's claimed employment. See Maller l?( Ho, 19 l&N Dec. at 591 
(requiring a petitioner to resolve inconsistencies by independent, objective evidence pointing to 
1 This petition's priority date is May 14, 2014, the date the DOL accepted the accompanying labor certification 
application for processing. See 8 C.F.R. § 204.S{d} (explaining how to determine a petition·s priority date). 
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Maller of S-C-A-R-
where the truth lies). Also, the owner's stated family relationship with the Beneficiary suggests his 
prejudice on her behalf, reducing the letter's reliability. 
In its NOIR response, the Petitioner submitted an updated, written statement from the owner of the 
Polish business. The statement confirms the business's employment of the Beneficiary as detailed in 
the prior letter. But the owner stated that he told the DOS official that the Beneficiary worked for 
the business without compensation. He described her position as "'an internship, practically applying 
knowledge gained at the University." The owner stated that, during the Beneficiary's period of full­
time work, she studied administration at a university on weekends. The owner did not address his 
relationship to the Beneficiary. But the Petitioner's appellate brief describes him as her "uncle." 
As the Petitioner argues, unpaid work may constitute qualifying experience. See. e.g .. Matter of 
B&B Residential Facility, 2001-INA-00146, 2002 WL 1586297 *3 (BALCA July 16, 2002).2 Here, 
the Petitioner asserts that the Director disregarded the owner's written statement confirming the 
Beneficiary's claimed experience. Contrary to the Petitioner's assertion, however, the owner's 
apparent family relationship to the Beneficiary casts doubt on the statement's reliability. Also, the 
labor certification identifies his business's address as his apartment. Combined with his family 
relationship to the Beneficiary, the residential nature of the address casts doubt on the business's 
existence. The record lacks independent, objective evidence of the business's operations and the 
Beneficiary's full-time work for it during the claimed period. 
In addition, the record does not establish the Beneficiary's possession of experience "in the job 
offered." The labor certification specifies that the Petitioner will not accept experience in a related 
occupation. Experience "in the job offered" means experience "performing the key duties of the job 
opportunity." A,faller of Symhioun Techs .. Inc., 2010-PER-01422, 2011 WL 5126284 *2 (BALCA 
Oct. 24, 2011) ( citation omitted). Consistent with the job duties of the offered position, the owner's 
letter.indicates that the Beneficiary "coordinate(d] office services." But the letter does not state her 
performance of most of the job duties of the offered position. Omitted job duties include: 
"personnel & records control;" "conducting research;" "preparing statistical reports;" "handling info 
requests;" "scheduling meetings;" "creat(ing] new systems/revis[ing] established procedures;" and 
"review[ing] & answer[ing] correspondence." The record therefore does not establish the 
Beneficiary's experience "in the job offered." 
Even if the Beneficiary lacks the requisite experience, the Petitioner argues that we should consider 
her educational credentials. The Petitioner submitted evidence that, by the petition's priority date, 
the Beneficiary earned a Polish master's degree in administration. The Petitioner notes that, for 
purposes of skilled-worker classification, "[r]elevant post-secondary education may be considered as 
training." 8 C.F.R. § 204.5(1)(2) (defining the term "skilled worker"). 
2 While we are not bound by BALCA decisions. we may nevertheless take note of the reasoning [n such decisions when 
considering issues that arise in the employment-based immigrant visa process. 
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Mauer of S-C-A-R-
The Beneficiary's qualifications for the requested classification ·of skilled worker, however, are not 
at issue. Rather, the Director found the record insufficient to establish her qualifications for the 
offered position described on the labor certification. The position requires two years of experience 
in the job offered and does not allow the minimum requirements to be met with training or post­
secondary education. Thus, contrary to the Petitioner's argument, the Beneficiary's university 
education cannot satisfy the experience requirements of the offered position. 
III. CONCLUSION 
The record on appeal does not establish the Beneficiary's possession of the minimum experience 
required for the offered position. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite a~ MatterofS-C-A-R-, ID# 1940178 (AAO Dec. 4, 2018) 
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