dismissed EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
In Re : 7628088 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 26, 2020 
The Petitioner seeks to employ the Beneficiary as a cook under the third-preference immigrant 
classification for skilled workers . See Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(i) , 8 U.S .C. § 1 l 53(b )(3)(A)(i) . 
The Director of the Texas Service Center denied the petition . The Director concluded that the 
petition lacks required certification of the position by the U.S. Department of Labor (DOL). 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 
of the Act , 8 U.S.C. § 1361. Upon de novo review , we will reject the appeal. 1 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker 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 
certification. See section 212(a)(5) of the Act, 8 U.S .C. § l 182(a)(5). DOL approval signifies that 
insufficient U.S. workers are able, willing , qualified , and available for an offered position. Id. Labor 
certification also indicates that employment of a foreign national will not harm wages and working 
conditions of U.S . workers with similar jobs . Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to 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. 
1 U.S. Citizenship and Immigration Services (USCIS) records indicate that this appeal was initially sent to an incorrect 
office and was not forwarded to the AAO until 2019. The AAO regrets the delay in the adjudication of the appeal. 
II. THE LABOR CERTIFICATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a petition for a skilled worker must include an 
original, valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). If an original labor 
certification was lost or destroyed, a petitioner may ask USCIS to request a duplicate copy from 
DOL. Memorandum from Donald Neufeld, Acting Assoc . Dir., Domestic Ops., USCIS, HQ 76/6.2, 
Revisions to Adjudicator's Field Manual (AFM). Chapter 22.2(b) General Form I-140 Issues, 6 
(Sept. 14, 2009). DOL will issue a duplicate labor certification only to the USCIS officer who 
requested it. Id.; see also 20 C.F.R. § 656.30(e)(l). "[W]hen the denial of the petition is based upon 
lack of a certification by the Secretary of Labor," we lack appellate jurisdiction. 8 C.F.R. 
§ 103.l(f)(3)(iii)(B) (2003); see also Department of Homeland Security Delegation Number 0150.1 
(effective March. 1, 2003) (assigning appellate jurisdiction to us over the matters listed in former 
8 C.F.R. § 103.l(f)(3)(iii)). 
Here, the petition lacks an original labor certification. The Petitioner asked USCIS to request a 
duplicate certification from DOL, stating that "the original approved labor certification was never 
received in the mail." As proof of filing on January 15, 1998, the Petitioner submitted a copy of an 
uncertified DOL Form ETA 750, Application for Alien Employment Certification, Part A. Offer of 
Employment, in its name for the Beneficiary in the offered position. The Petitioner also submitted 
copies of correspondence between counsel and DOL regarding the application. The record, 
however, lacks a copy of Form ETA 750, Part B. Statement of Qualifications of Alien, which is the 
part of the labor certification application that would detail the Beneficiary's credentials for the 
offered position. 
The Director's decision states that neither the DOL office in Atlanta nor Philadelphia could locate 
records of the Petitioner's labor certification application for the Beneficiary. 2 In a written request 
for additional evidence , the Director asked the Petitioner to provide copies of both Forms ETA 750, 
Part A and Part B. In response , the Petitioner asserted that its prior petition for the Beneficiary 
contained the requested documents. As previously indicated , however , the record lacks a copy of 
Form ETA 750, Part B, either with this or the Petitioner 's prior petition . 
On appeal, the Petitioner asserts that USCIS should have requested a duplicate labor certification 
from the DOL office in New York City that issued the document. The record, however, indicates 
that, before denying the Petitioner's prior petition for the Beneficiary in the same offered position, 
USCIS sent the New York City office multiple requests for a duplicate certification. DOL 
confirmed the Petitioner's filing of a certification application for the Beneficiary, providing a case 
number matching the one stated on a copy of a certification approval notice that the Petitioner 
submitted with its prior petition. The approval notice indicates that, after filing the prior petition for 
the Beneficiary, the Petitioner requested a duplicate certification directly from DOL. Dated in 
March 2004, the approval notice identifies the issuance as a "DUPLICATE CERTIFICATION" and 
2 After DOL officially closed its "backlog elimination centers" in Dallas and Philadelphia in December 2007, the 
agency 's "national processing centers" in Atlanta and Chicago bandied questions about labor certification applications 
filed before March 27, 2005. "DOL Issues FAQ Round 8 Regarding Backlog Elimination Centers," 85 No.I 
INTERREL 25, Appendix V (Jan. 2, 2008). 
2 
states that DOL originally certified the application in April 2001. It appears that the duplicate was 
sent to Petitioner's former counsel. However, there is no indication that the duplicate was submitted 
to USCIS. 
Although DOL apparently issued a duplicate labor certification to Petitioner's former counsel, the 
agency provided conflicting responses on whether it could issue one to USCIS. A May 2005 
response states that the labor application "cannot be located by the archives," but that DOL can issue 
a duplicate certification if USCIS provides copies of Forms ETA 750, Parts A and B, filed by the 
Petitioner. A July 2005 response from a different DOL employee agrees that the application is not 
in the agency's archives, but states that "a duplicate certification cannot be issued." 3 
The Petitioner bears the burden of establishing eligibility for the requested benefit. Section 291 of 
the Act. The record indicates that USCIS attempted multiple times to obtain duplicate copies of the 
labor certification from DOL. The record further indicates that DOL previously sent a duplicate 
copy of the certification to prior counsel. The Petitioner has not explained why it did not submit 
copies of the forms that DOL sent prior counsel , as specifically requested in the Director's RFE. See 
8 C.F.R. § 103.2(b)(l4) (stating that "[f]ailure to submit requested evidence which precludes a 
material line of inquiry shall be grounds for denying the benefit request"). Thus, as the Director 
found, the record lacks a required , complete labor certification . See 8 C.F.R. § 204.5(1)(3)(i). We 
therefore lack jurisdiction over the appeal and must reject the filing. 
III. THE PETITIONER'S INTENTION TO EMPLOY THE BENEFICIARY 
Even if the petition contained a complete labor certification, the record would not establish the 
Petitioner's required intention to employ the Beneficiary in the offered position. A U.S. business 
may file an immigrant petition if the business is "desiring and intending to employ [ a foreign 
national] within the United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to 
employ a beneficiary under the terms and conditions of an accompanying labor certification. See 
Matter of Izdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, 
contrary to the accompanying labor certification, the petitioner did not intend to employ the 
beneficiary as a domestic worker on a full-time, live-in basis). 
Here, the Petitioner states its intention to employ the Beneficiary full-time in the offered position of 
cook. Online government records, however, indicate that two corporations in the Petitioner's home 
3 The Director's decision misstates the date of the labor application 's original certification. A copy of a letter from 
former counsel to the DOL office in New York City does not state that the office "certified" the labor application in 
March 2001, but rather that the office then received the application. At that time, state offices adjudicated certification 
applications and forwarded them to DOL offices for final reviews and decisions . See Final Rule for Applications for 
Pennanent Employment Certification, 67 Fed. Reg. 77326, 77326 (Dec. 27, 2004) (outlining the labor certification 
process before new regulations took effect in March 2005). Thus, the record indicates that the DOL office in New York 
City received the Petitioner's application from a state office in March 2001 and certified the application the following 
month. Also, the Petitioner's request to USCIS for a duplicate certification misstates the petition's priority date. The 
copy of the certification approval notice identifies this petition's priority date as January 15, 1998, the date the state 
office received the certification application, not the April 2001 date on which DOL certified the application. See 
8 C.F.R. § 204.5(d) (explaining how to determine a petition 's priority date). 
3 
state have used the Petitioner's trade name. One corporation is the Petitioner, which formed in 1997; 
the other incorporated in 2005. See N.J. Div. of Revenue & Enter. Servs., "Business Name Search," 
https://www.njportal.com/dor/businessnamesearch/ (last visited Sep. 28, 2020). The online records 
do not indicate whether the petitioning corporation remains active. 
Corporations are distinct legal entities. See, e.g., Matter of A. Dow Steam Specialties, Ltd., 19 I&N 
Dec. 389, 389 (Comm'r 1986) (finding that "the corporations are two separate entities"). Thus, the 
record does not establish whether the Petitioner or the more recently formed corporation intends to 
employ the Beneficiary in the offered position. If the more recently formed corporation intends to 
employ the Beneficiary, it must demonstrate its acquisition of the rights and obligations needed to 
carry on the Petitioner's business. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481, 
482-83 (Comm'r 1986) (discussing circumstances under which a "successor in interest" may use the 
labor certification of another entity). 
Thus, the record would not establish the Petitioner's intention to employ the Beneficiary. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The record also would 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). If a petitioner employs less than 100 people, as in this case, evidence of ability to pay 
must include copies of annual reports, federal tax returns, or audited financial statements. Id. 
As previously noted, this petition's priority date appears to be January 15, 1998. The Petitioner 
submitted copies of its federal income tax returns for 2000 through 2005. Contrary to 8 C.F.R. 
§ 204.5(g)(2), the Petitioner did not submit required evidence of its ability to pay "at the time the 
priority date is established" or in 1999. Also, the record lacks required evidence of the Petitioner's 
ability to pay since 2005. 
In addition, a labor certification employer must guarantee that it will pay a foreign national the 
"prevailing wage" for the occupation when the alien begins work as a lawful permanent resident. 
See 20 C.F.R. § 656.20(c)(2) (2001). 4 The Petitioner here, however, appears to offer the Beneficiary 
less than the prevailing wage determined by DOL. The copy of the Form ETA 750 Part A submitted 
by the Petitioner indicates a DOL-approved, prevailing wage of $17.43 an hour for a 40-hour work 
week, or $697.20 a week. The Petitioner's Form I-140 and letter from its president state that the 
company would pay the Beneficiary only $650 a week. In addition, in support of the Beneficiary's 
application for adjustment of status, the Petitioner submitted a letter stating that it would pay him 
only $550 a week. 
Thus, the record would not establish the Petitioner's ability to pay the proffered wage. 
4 DO L's current labor certification regulations apply only to applications filed on or after March 28, 2005. Final Rule for 
Applications for Permanent Employment Certification, supra, at 77326. As previously discussed, the record indicates 
the Petitioner's filing of its certification application in 1998. We therefore cite labor ce1iification regulations as they 
existed at the time of the application's ce1iification in 200 I. 
4 
V. THE BENEFICIARY'S EXPERIENCE 
The record also would not establish the Beneficiary's qualifying experience for the offered position 
and the requested visa classification. A skilled worker must perform "skilled labor (requiring at least 
2 years training or experience)." Section 203(b )(3)(A)(i) of the Act. A petitioner must also 
demonstrate 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). 
Here, the copy of the ETA Form 750 Part A submitted by the Petitioner states the minimum 
requirements of the offered position of cook as two years of experience in the job offered. The form 
states that neither training nor education is required. As previously discussed, the record lacks Form 
ETA 750, Part B, detailing the Beneficiary's qualifications for the position. 
The letter from the Petitioner's president states the company's employment of the Beneficiary in the 
offered position from January 1, 1998, through May 5, 2006. The record does not indicate any other 
experience claimed by the Beneficiary. 
As previously discussed, however, the petition's priority date appears to be January 15, 1998. Thus, 
the record indicates that, by the petition's priority date, the Beneficiary would have gained only 14 
days of experience. Moreover, a labor certification employer cannot rely on experience that a 
foreign national gained with it, unless the experience was in a position different than the offered one 
or the employer can demonstrate the impracticality of training a U.S. worker for the position. 
20 C.F .R. § 656.21 (b )( 5) (2001 ). The Petitioner here indicated its employment of the Beneficiary 
in the offered position and did not demonstrate the impracticality of training a U.S. worker for the 
job. 
Thus, the record would not have demonstrated the Beneficiary's qualifications for the offered 
position and the requested immigrant visa classification. 
VI. CONCLUSION 
As the Director found, the petition lacks a required, complete labor certification. We therefore lack 
jurisdiction over the appeal. 
ORDER: The appeal is rejected. 
5