dismissed EB-3 Case: Corporate Training

U.S. Citizenship 
and Immigration 
Services 
In Re: 6059157 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 19, 2020 
The Petitioner seeks to employ the Beneficiary as a corporate trainer under the third-preference, 
immigrant classification as a member of the professions. See Immigration and Nationality Act (the 
Act) section 203(b)(3)(A)(ii), 8 U.S.C . § 1153(b)(3)(A)(ii). 1 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate the Beneficiary's possession of the minimum qualifications required 
for the offered position or the requested visa classification . The Director also found that, on the 
accompanying certification from the U.S . Department of Labor (DOL) , the Petitioner and the 
Beneficiary willfully misrepresented the Beneficiary's qualifications. 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 
of the Act, 8 U.S.C. § 1361. Supplemental argument would not benefit us in this matter. Under 8 
C.F.R. § 103.3(b), we therefore deny the Petitioner's request for oral argument. Upon de nova 
review , we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional 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 DOL 
1 In a letter accompanying the petition, the Petitioner's partner/sole shareholder requested the Beneficiary's classification 
as a skilled worker. See section 203(b)(3)(A)(i) of the Act. The Petitioner, however, marked the box in Part 2 of the 
Form I-140, Immigrant Petition for Alien Worker, identifying the requested classification as professional. The letter 
does not assert that the Petitioner seeks a classification change to correct a clerical error. See USCIS, "Petition Filing 
and Processing Procedures for Form 1-140, Immigrant Petition for Alien Worker," https://www.uscis.gov/forms/petition­
filing-and-processing-procedures-form-i-140-immJgrant-petition- alien-worker (last visited Jan. 29, 2020) ( describing 
how to correct the visa classification of a Form 1-140 petition). The filing procedures also note that, "Although you may 
request that we change the visa classification to correct a clerical error in Part 2 of the form, we will make the final 
determination about whether to change the visa classification based on everything in your case." Additionally, the 
procedures state that, "We cannot change the visa category ifwe have already made a decision on your Form f-140." 
We will therefore treat the petition as a request for professional classification as indicated on the Form 1-140. 
certification. See section 212(a)(5)(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. 
Id. Labor certification also includes DOL's finding that employment of a foreign national will not harm 
wages and working conditions of U.S. workers with similar jobs. Id. 
If DOL approves an offered position, an employer must next submit the certified labor application 
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 requirements of a DOL-certified position and a requested visa classification. 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. 
II. THE REQUIRED QUALIFICATIONS 
To obtain classification as a professional, a foreign national must hold at least a U.S. bachelor's 
degree or a foreign equivalent degree. 8 C.F.R. § 204.5(1)(2) ( defining the term "professional"). A 
petitioner must also establish a beneficiary's possession of all DOL-certified job requirements of an 
offered position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977).2 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. USCIS 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 "DOL bears the 
authority for setting the content of the labor certification") ( emphasis in original). 
Here, the accompanying labor certification states the minimum requirements of the offered position 
of corporate trainer as a U.S. bachelor's degree in English, or a foreign equivalent degree, and two 
years of experience in the job offered. Experience "in the job offered" means "experience 
performing the key duties of the job opportunity." Matter of Symbioun Techs., Inc., 2010-PER­
O 1422 slip op. at *4 (BALCA Oct. 24, 2011) ( citations omitted). 3 
Contrary to the information on the labor certification, the letter from the Petitioner's partner/sole 
shareholder states the offered position's requirements as "3 years of similar experience as a 
corporate trainer plus [a] degree." As previously discussed, however, the job requirements listed on 
the labor certification control. Thus, despite the requirements stated by the Petitioner's partner/sole 
shareholder, the company must demonstrate the Beneficiary's possession of at least a bachelor's 
degree in English and two years of experience in the job offered. 
2 This petition's priority date is August 27, 2018, the date 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). 
3 Decisions of the Board of Alien Labor Certification Appeals (BALCA) do not bind USCIS. See 8 C.F.R. § 103.9(b) 
(stating that, in Department of Homeland Security (DHS) proceedings involving the same issues, precedent decisions of 
the Attorney General and the Board of Immigration Appeals bind DHS officers). But USCIS defers to DOL's 
reasonable interpretations of its labor certification regulations. See Martin v. Occupational Safety & Health Review 
Comm 'n, 499 U.S. 144, 152 (1991) (requiring one administrative agency to defer to another's reasonable interpretation 
ofregulations that Congress authorized it to promulgate and enforce). 
2 
On the labor certification application, the Beneficiary attested that, by the petition's priority date, a 
Turkish university awarded her a bachelor's degree in English. A petition for a professional must 
include evidence of a beneficiary's possession of a bachelor's degree "in the form of an official 
college or university record showing the date the baccalaureate degree was awarded and the area of 
concentration of study." 8 C.F.R. § 204.5(1)(3)(ii)(C). The Petitioner submitted copies of a diploma 
and transcript from the Turkish university. The documents indicate that, after the Beneficiary's 
completion of four years of study in November 1999, the university awarded her a lisans diplomasi 
in English language and literature. 4 The Petitioner also submitted an independent, professional 
evaluation of the foreign credential, concluding that it equates to a U.S. bachelor's degree in English. 
In a written notice of intent to deny (NOID) the petition, the Director questioned the Beneficiary's 
educational qualifications. The NOID notes that the Beneficiary did not indicate her receipt of 
university-level education on a November 2013 application for a U.S. nonimmigrant visa. The 
NOID thus alleges a discrepancy in the Beneficiary's educational history between the visa and labor 
certification applications. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a 
petitioner to resolve inconsistencies of record with independent, objective evidence pointing to 
where the truth lies). The Petitioner's NOID response included a letter from the Beneficiary stating 
that she does not recall whether the visa application form asked her about education. She said that, if 
the form indicates that she received no university education, then she must have misunderstood the 
question. The Beneficiary also stated that she had difficulty completing the application because she 
then suffered from postpartum depression and her spouse could not help her because he was 
temporarily away from home. In addition, she stated that "I would never intentionally say that I 
have less education than I actually do - that wouldn't help my application after all." 
The Director found the Petitioner's evidence insufficient to demonstrate the Beneficiary's possession 
of a bachelor's degree in English. A review of her nonimmigrant visa application, however, 
indicates that her visa application did not ask her about post-secondary education. The record 
therefore does not support a discrepancy finding between the visa and labor certification applications 
regarding the Beneficiary's university education. Also, under Ho, the copies of the Beneficiary's 
diploma and transcript would constitute independent, objective evidence of her university degree. 
Thus, although the visa application does not mention the Beneficiary's post-secondary studies, the 
Petitioner has demonstrated her possession of the minimum education required for the offered 
position and the requested visa classification. We will therefore withdraw the Director's contrary 
finding. 
The Beneficiary also attested on the labor application that, by the petition's priority date, she gained 
more than the requisite two years of experience in the job offered. She stated that a healthcare firm 
employed her full-time in Turkey as a corporate trainer for about 26 months, from November 2010 
to January 2013. She also stated that she worked at a Turkish cosmetics company as a full-time 
corporate trainer for about 28 months, from February 2008 to May 2010. 
4 The diploma and transcript identify the Beneficiary by a different name than listed on the Form T-140 and labor 
certification. The Petitioner, however, provided a copy of the Beneficiary's marriage certificate, indicating the degree's 
issuance in her maiden name. 
3 
As proof of a beneficiary's qualifying experience, a petitioner must provide letters from the 
beneficiary's employers. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must include the names, titles, 
and addresses of the employers, and describe a beneficiary's experience. Id. The Petitioner did not 
submit a letter from the cosmetics company, but provided one from the healthcare firm. Consistent 
with the information on the labor certification, the firm's letter states its employment of the 
Beneficiary from November 2010 to January 2013. 
The NOID, however, notes that the Beneficiary's November 2013 visa application indicates her 
employment by a third Turkish company for part of her claimed tenure at the healthcare firm. The 
application states that she worked as a project coordinator for the third company from February 2012 
to July 2013. The Director therefore questioned the Beneficiary's claim of more than two years of 
experience with the healthcare firm. See Matter of Ho, 19 I&N Dec. at 751 (requiring a petitioner to 
resolve inconsistencies ofrecord with independent, objective evidence). 
In her letter responding to the NOID, the Beneficiary stated that, on the visa application, she 
inadvertently listed an incorrect start date of employment with the third company. She said that, 
contrary to the information on the application, she began working for the third company in February 
2013, not February 2012. The Petitioner submitted copies of payroll records from both the 
healthcare firm and the third company, as well as documentation from the Turkish social security 
administration. The social security records show the Beneficiary's employment from November 
2010 to January 2013 by one company, and her employment from February 2013 to July 2013 by 
another. The social security records identify the employers by numbers. The number of the 
Beneficiary's employer from November 2010 to January 2013 corresponds to the employer 
identification number on the payroll records of the healthcare firm. Similarly, the number of the 
Beneficiary's employer from February 2013 to July 2013 corresponds to the employer identification 
number of the third company listed on the Beneficiary's visa application. 
The Director found the Petitioner's evidence insufficient to demonstrate the Beneficiary's possession 
of at least two years of experience at the medical firm. But, just as the university documents would 
constitute independent, objective evidence of the Beneficiary's qualifying education, the Turkish 
social security records constitute independent, objective evidence of her employment at the 
healthcare firm. See Matter of Ho, 19 I&N Dec. at 591 (requiring "independent object evidence" to 
resolve inconsistencies of record). The Beneficiary credibly explained that she inadvertently listed 
an incorrect start date of employment on the visa application. The social security and payroll 
records show that she worked for the healthcare firm for the period stated on the labor certification. 
The Petitioner also submitted an updated letter from the firm confirming the Beneficiary's claimed 
experience. Thus, a preponderance of evidence establishes that the healthcare firm employed the 
Beneficiary for at least two years. 
Although the record establishes the Beneficiary's employment by the healthcare firm for 26 months, 
the Petitioner has not demonstrated that her tenure with the firm included the requisite two years of 
experience in the job offered. The Beneficiary attested on the labor certification that she worked the 
entire 26-month period with the firm as a "corporate trainer." The firm's initial letter, however, 
states that it employed her during that period "as a corporate trainer and project coordinator." 
4 
( emphasis added). 5 Thus, the initial letter suggests that she had two positions with the healthcare 
firm - "corporate trainer" and "project coordinator." The letter describes her experience "[a] s the 
corporate trainer," establishing that experience was in the job offered. The letter does not describe 
her job duties as a "project coordinator." A copy of the Beneficiary's employment agreement with 
the firm also suggests that, during her tenure with the firm, she worked in two positions. The 
agreement states her hiring "as PROJECT MANAGER and CORPORA TE TRAINER" ( emphasis in 
original). Thus, substantial evidence indicates that the Beneficiary's 26-month tenure at the 
healthcare firm included experience outside the job offered. The record therefore does not establish 
the Beneficiary's possession of the requisite two years of qualifying experience in the job offered. 
The record on appeal does not establish the Beneficiary's possession of the minimum employment 
experience required for the offered position. We will therefore affirm the petition's denial. 
III. MISREPRESENTATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a petition for a professional must include a 
valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). USCIS may invalidate a labor 
certification after its issuance upon a finding of "fraud or willful misrepresentation of a material fact 
involving the labor certification application." 20 C.F.R. § 656.30(d). 
An intentional omission of information requested on an immigration application constitutes a 
misrepresentation. Matter of D-R-, 27 I&N Dec. 105, 114-15 (BIA 2017) (holding that a refugee 
applicant misrepresented his background by willfully concealing his service as a special police 
officer and platoon commander during the Bosnian War). Misrepresentations are willful if they are 
"deliberately made with knowledge of their falsity." Matters of Valdez, 27 I&N Dec. 496, 498 (BIA 
2018) (citations omitted). A misrepresentation is material when it has a "natural tendency to 
influence, or [be] capable of influencing, the decision of the decision-making body to which it was 
addressed." Id. ( citation omitted). 
Here, the Director found that the Petitioner and Beneficiary willfully misrepresented the 
Beneficiary's education and experience on the accompanying labor certification application. The 
decision states that "USCIS intends to invalidate the labor certification." 
Although USCIS did not actually invalidate the labor certification, the record does not support the 
misrepresentation findings. As previously discussed, there is insufficient evidence that the 
certification application falsely states the Beneficiary's educational qualifications. The record does 
not indicate that the 2013 visa application asked the Beneficiary about her university education. 
Moreover, consistent with the information on the labor certification, the Petitioner submitted 
independent, objective evidence establishing the Beneficiary's possession of a requisite bachelor's 
degree in English. See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve 
inconsistencies with independent, objective evidence). 
5 The healthcare firm's later letter identifies the Beneficiary's former position as only "corporate trainer." 
5 
We found that the Petitioner did not establish the Beneficiary's possession of the requisite two years 
of experience in the job offered because evidence indicates that her 26-month tenure with the 
Turkish healthcare firm may include experience outside the job offered. But, consistent with the 
Beneficiary's attestation on the certification, the Petitioner demonstrated that at least part of her 
employment by the healthcare firm included qualifying experience. The record therefore does not 
establish that the certification contains a willful misrepresentation of a material fact regarding the 
Beneficiary's qualifying experience. 6 In future filings, the Petitioner must establish through 
independent objective evidence that her entire tenure with the firm constituted qualifying experience, 
or that she gained the requisite experience with her other former employer listed on the certification. 
The record on appeal does not support the Director's finding that the Petitioner and Beneficiary 
willfully misrepresented the Beneficiary's qualifications on the labor certification. We will therefore 
withdraw that portion of the decision. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record also does not establish the Petitioner's ability to 
pay the proffered wage of the offered position. A petitioner must demonstrate its continuing ability 
to pay a proffered wage, from a petition's priority date until a beneficiary obtains lawful permanent 
residence. 8 C.F.R. § 204.5(g)(2). For petitioners with less than 100 employees, as in this case, 
evidence of ability to pay must include copies of annual reports, federal tax returns, or audited 
financial statements. Id. 
Here, the labor certification states the proffered wage of the offered position of corporate trainer as 
$44,013 a year. As previously noted, the petition's priority date is August 27, 2018. 
As proof of its ability to pay, the Petitioner submitted copies of its federal income tax returns for 
2016 and 2017. Contrary to 8 C.F.R. § 204.5(g)(2), however, the record lacks required evidence of 
the Petitioner's ability to pay in 2018, the year of the petition's priority date. The record therefore 
does not establish the Petitioner's ability to pay the proffered wage from the petition's priority date 
onward. 
Also, USCIS records indicate the Petitioner's filing of Form 1-140 pet1t10ns for two other 
beneficiaries. 7 A petitioner must demonstrate its ability to pay the proffered wage of each petition it 
files until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner 
here must therefore demonstrate its ability to pay the combined proffered wages of this and any other 
6 The record indicates that the information on the labor certification misrepresents a different fact. The Beneficiary 
indicated that, during the three years preceding the filing of the certification application, she was unemployed. See part 
K of the certification application (requiring a list of "all jobs the alien has held during the past 3 years"). Information 
provided to the Texas Workforce Commission, however, does not support the Beneficiary's claimed unemployment 
during that entire period. Even if the Beneficiary willfully concealed employment from the ce1iification application, 
however, the record would not establish the misrepresentation's materiality. We note, however, that this adds to the 
collective inconsistencies throughout the record to include inconsistent dates and inconsistent titles as noteda ,..b~o~v~e~. -~ 
I 7 :J~:~r records identify the two other petitions by the following receipt numbers: .__ _____ _,.and~I ---~ 
6 
Form I-140 petitions that were pending or approved as of this petition's priority date of August 27, 
2018, or filed thereafter. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our 
revocation of a petition's approval where, as of the filing's grant, the petitioner did not demonstrate 
its ability to pay the combined proffered wages of multiple petitions). 8 
The record lacks the proffered wages and priority dates of the Petitioner's two other Form I-140 
petitions. We are therefore unable to determine the total amount of combined proffered wages the 
Petitioner must demonstrate its ability to pay. For this additional reason, the record does not 
establish the Petitioner's ability to pay the proffered wage. 
In any future filings in this matter, the Petitioner must submit copies of annual reports, federal tax 
returns, or audited financial statements for 2018 and, if available, 2019. The Petitioner must also 
provide the proffered wages and priority dates of its other two Form I-140 petitions. The company 
may also submit additional evidence of its ability to pay the combined proffered wages, including 
proof of wages paid to beneficiaries in relevant years and materials supporting the factors stated in 
Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
V. CONCLUSION 
The record on appeal does not support the Director's finding that the Petitioner and Beneficiary 
willfully misrepresented the Beneficiary's qualifications on the accompanying labor certification. 
But the Petitioner has not demonstrated the Beneficiary's possession of the minimum experience 
required for the offered position. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
8 The Petitioner need not demonstrate its ability to pay proffered wages of petitions that it withdrew or that USCIS 
rejected, denied, or revoked. The Petitioner also need not demonstrate its ability to pay proffered wages before the 
priority dates of their corresponding petitions, or after the dates their corresponding beneficiaries obtained lawful 
permanent residence. 
7