dismissed EB-3 Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-R-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 29, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a private school, seeks to employ the Beneficiary as an elementary teacher. 
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. organization to sponsor a foreign national for 
lawful permanent resident status to work in a job requiring at least a bachelor's degree. 
After the Acting Director of the Nebraska Service Center revoked the petition's approval, we 
dismissed the Petitioner's appeal. See Matter of T-R-S-, ID# 1108577 (AAO Aug. 1, 2018). We 
agreed with the Director that the Petitioner did not demonstrate the Beneficiary's qualifications for the 
offered position or the school's required ability to pay the proffered wage. 
The matter is before us again on the Petitioner's motions to reopen and reconsider. The Petitioner 
submits additional evidence of the Beneficiary's qualifications. It also asserts that we legally erred in 
affirming the revocation. 
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 a decision's misapplication of law or policy based 
on the record at that time. 8 C.F.R. § 103.5(a)(3). We may grant motions that satisfy these 
requirements and demonstrate eligibility for the requested immigration benefit. 
II. THE REQUIRED EXPERIENCE 
Our appellate decision found that the Petitioner did not demonstrate the Beneficiary's possession of 
the minimum, full-time experience required for the offered position of elementary teacher: two years 
in the "job offered." See Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 
1977) (requiring a petitioner to demonstrate a beneficiary's possession of all job requirements of an 
Matter of T-R-S-
offered position by a petition's priority date). 1 We therefore upheld the revocation on this ground. 
Experience in the "job offered" means experience performing the primary duties of an offered position. 
Matter of Maple Derby. Inc., 1989-INA-185, 3 (BALCA May 15, 1991) (en bane). In determining 
the minimum requirements of a position, we must examine the plain language of a labor certification. 
See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the 
authority of setting the content of the labor certification and [the immigration service] cannot impose 
job qualifications beyond those contemplated therein") ( emphasis in original). 
On motion, the Petitioner submits a new letter from an Iranian education official in support of the 
Beneficiary's claimed, qualifying experience. The letter indicates that, from October 1980 to June 
1986, the Beneficiary taught 13 hours of English and four hours of mathematics a week at an Iranian 
middle school. The Petitioner argues that 13 hours constitutes 37 percent of a 35-hour, work week 
and that 37 percent multiplied by six years equates to 2.2 years of full-time experience in teaching 
English. The Petitioner therefore asserts the Beneficiary's qualifications for the offered position. 
The plain language of the accompanying labor certification, however, states the primary job duties of 
the offered position as "instruct[ing] elementary K-4 [kindergarten through fourth grade students] in 
English, language arts and Islamic literature." Thus, the offered position requires two years of 
experience teaching not only English, but also "language arts and Islamic literature." The letter 
submitted on motion does not indicate that the Beneficiary taught the two latter required subjects. 
Contrary to the job duties specified on the labor certification, the letter also states that the Beneficiary 
instructed middle school students, not children in "K-4." The labor ce1tification specifies that the 
offered position requires experience in the "job offered." It does not indicate the Petitioner's 
acceptance of experience in a related position. The letter therefore does not demonstrate the 
Beneficiary's possession of the minimum experience required for the offered position. 
The Petitioner argues that, by certifying the labor application, DOL found the Beneficiary qualified 
for the offered position. Citing Madany, the Petitioner notes that, before certifying a position to be 
permanently filled by a foreign national, DOL may analyze his or her qualifications for the job. See 
696 F.2d at 1012 (stating that "DOL may gauge an alien's skill level in evaluating the effect of the 
alien's employment on United States workers"). The Petitioner asserts: "While USCIS [U.S. 
Citizenship and Immigration Services] can request proof of the claimed experience, USCIS cannot 
relitigate the determination by DOL that this experience, once verified, meets the experience required 
in the labor certification." 
Contrary to the Petitioner's argument, however, Madany held that "primary authority" to determine a 
foreign national's qualifications for an offered position rests with the immigration service. Id. at 1013. 
The court found DOL responsible only for determining whether - under 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i) - the United States lacks sufficient workers who are able, willing, 
qualified, and available for an offered position, and whether employment of a foreign national would 
hurt wages and working conditions of U.S. workers similarly employed. Id. 
1 This petition's priority date is December 28, 2004. That is the date an office in the employment service system of the 
Department of Labor (DOL) accepted the accompanying labor certification application for processing. See 8 C.F.R. 
§ 204.5(d) (explaining how to determine a petition's priority date). 
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Matter of T-R-S-
Citing section 204(b) of the Act, 8 U.S.C. § l l 54(b ), other U.S. comts of appeal have also found the 
immigration service, rather than DOL, responsible for determining a beneficiary's qualifications for a 
certified position. See Stewart Infra-Red Commissary of Mass .. Inc. v. Coomey, 661 F.2d 1, 3 (1st Cir. 
1981); Tongatapu Woodcraft Haw., Ltd. v Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984). Section 
204(b) provides: 
After an investigation of the facts in each case, and after consultation with the Secretary 
of Labor with respect to petitions to accord a status under section 203(b )(2) or 203(b )(3) 
[ of the Act], the Attorney General shall, if he determines that the facts stated in the 
petition are trne and the alien in behalf of whom the petition is made ... is eligible for 
preference under subsection (a) or (b) of section 203, approve the petition. 
Section 204(b) of the Act (emphasis added). In an amicus brief to the U.S. Court of Appeals for the 
Ninth Circuit, DOL itself stated that "[t]he labor certification in no way indicates that the alien offered 
the certified job opportunity is qualified ( or not qualified) to perform the duties of that job." K.R.K. 
Irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983). Thus, the Act, case law, and the agencies' 
own interpretations of their duties, indicates that, after DOL determines whether the United States lacks 
sufficient workers for an offered position and whether employment of a foreign national would hurt wages 
and working conditions of U.S. workers similarly employed, USCIS decides de novo whether a 
beneficiary meets the position's certified requirements. The Petitioner's argument is therefore not 
persuasive. 
For the foregoing reasons, the Petitioner has not demonstrated the Beneficiary's possession of the 
minimum experience required for the offered position. We will therefore affirm our dismissal of the 
Petitioner's appeal on this ground. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Our appellate decision also found that, although the Petitioner likely had sufficient financial resources 
to pay the $45,000 annual salary of the offered position of elementary teacher, the school did not 
demonstrate its ability to pay the proffered wage for immigration purposes. We noted that the 
Petitioner filed immigrant petitions for other beneficiaries and that the wage obligations of those 
petitions must also be considered in determining the Petitioner's ability to pay. 
A petitioner must demonstrate its continuing ability to pay the proffered wage of each petition it files, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). Thus, the Petitioner here had to demonstrate its ability to pay the combined proffered 
wages of this and any of its other petitions that were pending or approved as of this petition's priority 
date of December 28, 2004, or filed thereafter, until this petition's approval on November 19, 2013.2 
See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (agreeing with our revocation of a 
2 The Petitioner need not demonstrate its ability to pay the proffered wages of petitions that it withdrew or, unless on 
appeal, that USCIS rejected, denied, or revoked. The Petitioner also need not show its ability to pay a proftered wage after 
a beneficiary obtains lawful permanent residence or before a petition's priority date. 
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Matter of T-R-S-
petition's approval where, as of the grant, a petitioner did not demonstrate its ability to pay the 
combined proffered wages of multiple petitions). 3 
The Petitioner did not provide proffered wages or other requested information about two of its other 
petitions that were approved as of December 28, 2004. 4 We therefore concluded that the Petitioner 
did not demonstrate its ability to pay the proffered wage. See 8 C.F.R. § 103.2(b)(14) (authorizing a 
petition's denial if a petitioner does not submit requested evidence that "precludes a material line of 
inquiry"). 
On motion, the Petitioner asse1ts that, from December 28, 2004, through November 19, 2013, the 
school had no other petitions pending or approved. Because the Petitioner's two other petitions were 
approved before this petition's priority date, the school contends that it need not demonstrate its ability 
to pay their proffered wages. It also argues that the two other beneficiaries no longer work for it. 
The Petitioner, however, misinterprets the scope of its obligations. It must demonstrate its ability to 
pay the proffered wages of its two other petitions because, as of this petition's priority date, the other 
petitions were approved and, thereafter, they were not withdrawn or revoked. The Petitioner must 
therefore demonstrate its ability to pay the proffered wages of the other petitions from this petition's 
priority date until the other beneficiaries obtained lawful permanent residence, or until this petition's 
approval. 
Also, even if the Petitioner does not employ its I-140 beneficiaries, obligations to demonstrate its 
ability to pay their proffered wages attach. Until beneficiaries obtain lawful permanent residence, a 
petitioner need not employ them. Proposed Rule for the Retention ofEB-1, EB-2, and EB-3 Immigrant 
Workers, 80 Fed. Reg. 81900, 81916 (Dec. 31, 2015) (stating that, although a job offer must be bona 
fide, "an individual need not have been employed at any time by the employer that filed the immigrant 
visa petition"). If the other beneficiaries left the Petitioner's employment before obtaining lawful 
permanent residence and the Petitioner no longer intended to permanently employ them in the future, 
it could have ended its ability-to-pay obligations by withdrawing their petitions. 
The Petitioner notes that Department of Homeland Security regulations do not expressly require a 
petitioner to demonstrate its ability to pay combined proffered wages of multiple petitions. The 
Petitioner therefore argues that it need not show its ability to pay its two other beneficiaries. We 
interpret 8 C.F.R. § 204.5(g)(2), however, to require petitioners to demonstrate their abilities to pay 
combined proffered wages. USCIS' determination of a petitioner's ability to pay a proffered wage 
constitutes part of the Agency's assessment of whether a job offer is "realistic." See Matter o.f Great 
Wall, 16 I&N Dec. 142, 145 (Acting Reg'l Comm'r 1977) (holding that the immigration service "must 
consider the merits of the petitioner's job offer, so that a determination can be made whether the job 
offer is realistic and whether the wage offer can be met"). A petitioner that annually generates $50,000 
in net income or net current assets can realistically offer a job with an annual proffered wage up to 
3 The Petitioner argues that Patel does not support a petitioner's obligation to pay the combined proffered wages of multiple 
petitions because the court ruled that it lacked jurisdiction to review the issue. Patel, 2 F. Supp. 3d at 119. The court, 
however, found that its jurisdiction was a "close question," potentially subject to reversal on appeal at that time. Id. Its 
published decision therefore included an alternate analysis of the ability-to-pay issue that wf find persuasive 
4 USCIS records identify the other petitions by the receipt numbers I I and l 
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Matter of T-R-S-
that amount because it has sufficient funds to pay the salary. If the petitioner simultaneously offered 
multiple jobs, each with a proffered wage of $50,000, however, the job offers would be unrealistic 
because the petitioner has not demonstrated its possession of sufficient funds to pay all the wages. 
This is especially true for a non-profit organization like the Petitioner, where an additional worker 
may not generate additional revenue or funding. Thus, the existence of multiple, simultaneous job 
offers affects a petitioner's ability to pay a proffered wage and renders a job offer less realistic. 
Because the Petitioner has not established its ability to pay the combined proffered wages of multiple 
petitions, it has not demonstrated that its job offer is realistic. 
The Petitioner also argues that, under the "rule of lenity," we should resolve any ambiguity regarding 
payment of multiple proffered wages in its favor. The rule of lenity, however, generally applies only 
to criminal or deportation provisions. See. e.g .. INS v. St. Cyr, 533 U.S. 289, 320 (2001) (describing 
the rule as "construing any lingering ambiguities in deportation statutes in favor of the alien") 
(emphasis added). Because the regulation at 8 C.F.R. § 204.5(g)(2) is neither a criminal nor 
deportation provision, we find the rule inapplicable to this matter. 
Finally, the Petitioner notes that the petition's initial adjudication lasted more than six years and that 
DOL certified the accompanying labor application more than 14 years ago. The Petitioner therefore 
argues that the petition's approval merits a "presumption ofregularity" and treatment as the controlling 
"law of the case." These legal doctrines, however, do not bar USCIS from exercising its statutory 
authority to revoke a petition's approval "at any time." See section 205 of the Act, 8 U.S.C. § 1155. 
Moreover, the enoneous nature of a petition's approval justifies revocation. Matter of Ho, 19 I&N 
Dec. 582, 590 (BIA 1988). Here, the record indicates that USCIS ened in approving the petition 
because the Petitioner did not demonstrate its required ability to pay the position's proffered wage or 
the Beneficiary's possession of the experience required for the offered position. 
IV. CONCLUSION 
The Petitioner's evidence and arguments on motion do not demonstrate the Beneficiary's 
qualifications for the offered position or the school's required ability to pay the position's proffered 
wage. We will therefore affirm the appeal's dismissal for the foregoing reasons, with each considered 
an independent and alternate ground of revocation. In revocation proceedings, a petitioner bears the 
burden of establishing eligibility for the requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, the Petitioner did not meet that burden. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofT-R-S-, ID# 2209715 (AAO May 29, 2019) 
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