dismissed EB-3 Case: Electrical Engineering

(b)(6)
MATTER OF M-L-L-(USA) CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 12, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a manufacturer of electronic equipment, seeks to permanently employ the Beneficiary 
as a quality control technician under the immigrant classification of skilled worker. See Immigration 
and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This 
employment-based immigrant classification allows a U.S. employer to sponsor a foreign national for 
lawful permanent resident status to work in a position that requires at least 2 years of training or 
expenence. 
The petition was initially approved. The approval was subsequently revoked by the Director, 
Nebraska Service Center, who found that the Beneficiary did not complete a 4-year degree in 
electrical engineering, as asserted on the labor certification supporting the petition, and that the 
Petitioner provided fraudulent documentation as evidence that he did. The Director invalidated the 
underlying labor certification and revoked the prior approval of the petition on the grounds that the 
petition was not supported by a valid labor certification and that the Beneficiary did not meet the 
minimum experience and/or educational requirements of the labor certification. 
The matter is now before us on appeal. The Petitioner asserts that the Director did not properly 
consider the evidence of record. Upon de novo review, we will dismiss the appeal. 
I. PROCEDURAL HISTORY 
The instant petition, Form I-140, Immigrant Petition for Alien Worker, was filed on April 11, 2005. 
As required by statute, the petition was accompanied by a F()rm ETA 750, Application for Alien 
Employment Certification (labor certification), which was filed with the Department of Labor 
(DOL) on March 26,2002, and certified 
by the DOL on January 31,2005. In Part A, box 13, ofthe 
labor certification, the Petitioner described the job duties of a quality control technician as follows: 
"Perform quality control testing on video, audio, camera products. Test, evaluate product 
performance; test circuit safety to comply with FCC, UL, ISO 9002 standards." In Part A, box 14, 
of the labor certification, the Petitioner stated that the minimum requirements for the job were 3 
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years of experience as a quality control technician or, in lieu of experience, a bachelor's degree in 
electrical engineering. In Part A, box 15. b, of the labor certification the Petitioner stated that the 
Beneficiary had 2 years of experience, from October 1999 to October 2001, as a test 
technician/quality control for m 
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Matter of M-L-L-(USA) Corp. 
California. Two other jobs listed in Part A, box 15, were in a different line of work. In Part B, box 
11, of the labor certification, the Petitioner stated that the Beneficiary earned a bachelor's degree in 
electrical engineering at m China, from September 
1986 to July 1990. 
As evidence of the Beneficiary's education, the Petitioner submitted copies of the following 
documentation with the Form 1-140 and in response to the Director ' s request for evidence : 
• A Chinese-language "diploma " and English translation, dated July 10, 1990, stating that the 
Beneficiary studied at from September 1986 to July 1990, had completed a 4-year 
bachelor's degree program, and was awarded a bachelor's degree in electrical engineering ; 
• A Chinese-language transcript with English translation, on the letterhead of identifying 
the Beneficiary as a student in the Department of Electrical Science and Technology, majoring 
in electrical engineering , and listing eight semesters of coursework with the number of credits as 
well as the examination or test results for each course; and 
• A letter dated October 30, 1998, from the executive director of 
which evaluated the above education as equivalent to a bachelor of 
science in electrical engineering from a regionally accredited U.S. college or university. 
The petition was approved on January 5, 2006 . On July 22, 2015, however, the Director issued a 
notice of intent to revoke (NOIR), noting that conflicting information about the Beneficiary ' s 
education and experience had been provided in earlier Form 1-129, Petition for a Nonimmigrant 
Worker , proceedings involving another petitioner seeking L-1A nonimmigrant visa status for the 
instant Beneficiary. In those petitions (receipt numbers and 
the Beneficiary was presented as having a bachelor ' s degree in accounting from 
earned in the years 1984-1988, followed by employment as the financial 
manager of in the years 1988-1993 (though the Beneficiar y's 
resume only claimed 2 years of employment at this compan)j~ as an accountant, in the years 1988-
1990). The Director indicated that the record included a graduation certificate as evidence of the 
Beneficiary's degree from The Director also referenced a written statement by the Beneficiary 
in an application for another immigration benefit in which he stated that he studied at 
Based on the above information provided in earlier immigration 
proceedings , the Director expressed doubt in the NOIR that the education information provided by 
the Beneficiary in the labor certification underlying the instant petition was true and correct. 
Accordingly, ·the Director proposed to invalidate the labor certification and revoke the prior approval 
of the petition for lack of a valid laqor certification and lack of the requisite educational degree or 
experience by the Beneficiary. 
The Petitioner responded to the NOIR with a brief from counsel and additional documentation from 
the Chinese-language website of with English translations. The website materials concerned 
and included: (1) a chronological history of 
';Vhich began in 1956, was discontinued in 1966, reestablished in 1973, and has expanded over 
the years ,since then ; (2) 2015 admission information for potential students; (3) 
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Matter of M-L-L-(USA) Corp. 
methods of teaching and learning; and ( 4) list of contracted nationwide regional learning 
centers. The Petitioner acknowledged that in 1986 the Beneficiary was studying at in 
China, but asserted that the Beneficiary was able to begin his studies that 
same year with whose main campus is in through the university's program. 
According to the Petitioner, the Beneficiary utilized distance learning correspondence 
courses to earn an engineering degree from at the same time he was earning his accounting 
degree from 
The Director issued his decision on December 11, 2015, invalidating the labor certification and 
revoking the approval of the petition. In reviewing the website documentation from the 
Director determined that it had minimal probative value because it did not establish that in the mid-
1980s, a student in China could matriculate at to enroll in a distanc~ learning bachelor's 
degree program in electrical engineering, and it did not establish that the Beneficiary himself 
enrolled in such a distance learning program at Furthermore, none of the previously 
submitted documents ....!. including the educational ev,aluation dated October 30, 1998, the alleged 
diploma from and the alleged transcript from -- make any reference to as the 
institutional entity through which the courses were taken. The Director also noted that many of the 
courses listed on the transcript did not appear amenable to instruction by correspondence. Finally, 
the Director indicated that the evidence of record did not show the plausibility of the Beneficiary's 
studying full-time for two different degrees in the years 1986-1988 followed by continuing full-time 
studies for an electrical engineering degree while working full-time in finance in the years 1988-
1990. The Director concluded that the Beneficiary, more likely than not, did not complete four years 
of study at in the years 1986-1990 and did not receive a bachelor's degree in engineering 
from that university, as asserted on the labor certification. As a consequence, the Director 
invalidated the labor certification for fraud and misrepresentation of a material fact, in accord with 
the authority granted U.S. Citizenship and Immigration Services (USCIS) under 20 C.F.R. § 
656.30( d). The Director also revoked the approval of the petition on the grounds that it was not 
supported by a valid labor certification, and the evidence of record did not show that the Beneficiary 
met the minimum requirement(s) of the labor certification- either 3 years of experience as a quality 
control technician or a bachelor's degree in electrical engineering- to qualify for the job offered. 
The Petitioner filed an appeal on December 29, 2015. On the Form I-290B the Petitioner indicated 
that no supplemental brief or additional evidence would be submitted in support of the appeal. As 
the basis for the appeal the Petitioner stated as follows on the Addendum to I-290B, Part 4: 
Service Director's decision to deny is arbitrary and capricious in that Service, in 
denying the I-140 petition, failed to accord the probative value to the evidential 
documents provided which are readily available by the University's own Websites, 
which should be taken [into] consideration as true and [have] been in existence since 
the beneficiary's college years and [it is] more likely than not that he has in fact 
enrolled and completed the required coursework and [been] awarded the degree at 
·~ issue. His later years work experience history also indicates he has such skills 
consistent with his education and training in the field of electrical engineering. 
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Matter of M-L-L-(USA) Corp. 
On June 30, 2016, we sent a notice of intent to dismiss (NOID) to the Petitioner. We advised the 
Petitioner: 0 , 
To verify the authenticity of the Beneficiary's educational documents, we requested 
the assistance of the USCIS field office in Beijing. The results of that inquiry cast 
doubt on the veracity of the Beneficiary's claim to have earned a bachelor's degree in 
electrical engineering through the at 
The USCIS investigator searched the online database of the archives center of 
in which includes all student records for 
from 1951 to 2007, and found no record of the Beneficiary or the student ID number 
on the documents you submitted. The USCIS investigator also contacted 
the 
archives directly, which checked its student records and did not find any graduate by 
the name of An email response from the archives center stated that the 
Beneficiary's graduation certificate and transcripts are fraudulent. 
In light of the above information, it appears that the Beneficiary does not have the 
educational credential claimed in the labor certification - a bachelor's degree in 
electrical engineering from - and the documents 
submitted in support of this claim- the diploma and transcripts- are fraudulent. 
Section 212(a)(6)(C)(i) of the Act states that "in general- any alien, who by fraud or 
willfully misrepresenting a material fact, seeks (or has sought to procure, or who has 
procured) a visa, other documentation, or admission to the United States or other 
benefit provided under the Act is inadmissible." 
Based on the derogatory information received from the USCIS field office, we intend 
to affirm the Director's invalidation of your labor certification based on a finding of 
fraud and willful misrepresentation of a material fact by the Beneficiary. We also 
intend to dismiss your appeal on the grounds that the petition' is not supported by a 
valid labor certification, as required by the regulation at 8 C.F.R. § 204.5(1)(3)(i), and 
the Beneficiary does not meet the minimum experience or educational requirement of 
the labor certification. 
You may submit additional evidence in rebuttal, in accordance with 8 C.F.R. 
§ 103.2(b)(16)(i). As indicated on the cover page of this decision, you have 33 days 
to respond to this NOID. Send all of your materials together at one time, with this 
original NOID on top, to: 
U.S. CITIZENSHIP AND 
IMMIGRATION SERVICES 
ADMINISTRATIVE APPEALS OFFICE 
20 MASSACHUSETTS A VENUE NW MS 2090 
WASHINGTON DC 20529-2090 
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(b)(6)
Matter of M-L-L-(USA) Corp. 
The Petitioner did not respond to the NOID within 33 days, or any time up to the date of this 
decision. The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. See 8 C.F.R. § 103.2(b)(l4). 
II. LAW AND ANALYSIS 
A. Validity of the Labor Certification 
The regulation at 8 C.F.R. § 204.5(1)(3)(i) provides that a Form I-140 must be supported by a valid 
labor certification. 
Contrary to the Petitioner's claim that the Director's decision was arbitrary and capricious, we find that 
his analysis of the evidentiary documents was correct. The website materials from lack probative 
value because they do not show that the Beneficiary could have enrolled in a distance learning degree 
program in electrical engineering at thirty years ago. Even if he could have, the website 
materials do not show that the Beneficiary actually did enroll in a degree program in electrical 
engineering under the auspices of in 1986. Moreover, none of the documentation submitted as 
evidence of the Beneficiary's degree from - including the alleged diploma, the alleged 
transcript, and the evaluation - makes any reference to or the degree having been completed 
via distance learning correspondence courses. The evaluation by specifically states that based on 
the documents it was presented the Beneficiary "completed studies (1986-90) at 
located in [emphasis added]." In his decision the Director noted that the distance 
between and where the Beneficiary claimed in the aforementioned Form 1-129 
petitions to have earned an accounting degree at and worked at the 
during the years 1986-1990, is approximately 1900 kilometers ( 1200 miles). Thus, it is 
clear that the Beneficiary could not have pursued studies on the campuses of and at the 
same time. 
As the Petitioner was informed in our NOID, the archives of advised a USCIS investigator in 
China that the diploma and transcripts allegedly from that have been provided in this proceeding 
as evidence of the Beneficiary's degree from that university are fraudulent. The Petitioner has not 
provided any evidence to refute this information.· 
Based on the evidence of record, we determine that the Petitioner has not overcome the Director's 
conclusion that the Beneficiary, more likely than not, did not complete a 4-year bachelor of electrical 
engineering program with in the years 1986-1990, and did not receive a bachelor's degree in 
electrical engineering from that university, as asserted on the labor certification. Accordingly, we 
will not disturb the Director's invalidation of the labor certification based on fraud and willful 
misrepresentation of a material fact in regard to the Beneficiary's educational credentials. 
Since the labor certification in this case is not valid, the petition cannot be approved. 
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Matter of M-L-L-(USA) Corp. 
B. Beneficiary's Qualifications 
Even if the labor certification were valid, the Petitioner must establish that the Beneficiary possessed ' all the education, training, and experience specified on the labor certification as of the petition's 
priority date. See Matter ofWing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); 
Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). The priority date of the petition is 
the date the underlying labor certification application was received for processing at the DOL - in 
this case March 26, 2002. In evaluating the Beneficiary's 
qualifications, USCIS must look to the job 
offer portion of the labor certification (Part A, box 14, of the Form ETA 750) to determine the 
required qualifications for the position. 
As previously discussed, the labor certification stated that the minimum requirements for the job of 
quality control technician were 3 years of experience in the job offered or, in lieu of experience, a 
bachelor's degree in electrical engineering. Since the Petitioner has not established that the 
Beneficiary earned a bachelor's degree in electrical engineering, the only way the Beneficiary could 
meet the minimum requirements of the labor certification is if he has 3 years of experience as a 
quality control technician. 
In Part A, box 15, of the Form ETA 750 - Work Experience - three jobs are listed for the 
Beneficiary from 1997 to 2002. However, only one of them involved qualifying experience for the 
instant petition - namely, his employment with in 
California, where the Beneficiary's job title was "test technician/quality control" and his job duties 
were described as "[r]epaired, tested video, audio equipment, including television, video cassette 
recorder, DVD player, microwave oven, for warranty repair services." The record includes a letter 
from a manager at dated October 7, 2005, confirming that the Beneficiary was employed 
full-time from October 1999 to October 2001 as a test and quality control technician and describing 
his job duties, which accorded with the description of the job on the labor certification. The work 
with only lasted 2 years, however, which was less than the 3 years required by the labor 
certification. The other two jobs listed in Part A, box 15, of the labor certification were assistant 
manager positions with another California company in the years 1997-1999 and 2001-2002, where 
the Beneficiary was responsible for hardware and materials management, procurement, and 
inventory control. These jobs were not qualifying experience for the job at issue in this proceeding. 
In its statement on appeal, the Petitioner suggests that the Beneficiary's/'later years work experience 
history" provided him with enough skills to qualify for the job offered. The only documentary 
evidence of qualifying experience for the Beneficiary, however, is the letter from 
certifying 2 years of employment as a test and quality control technician in the years 1999-2001. 
Any experience acquired after the priority date on March 26, 2002, is not qualifying experience. 
Thus, the Beneficiary does not have 3 years of qualifying experience and does not meet the 
alternative minimum requirement of the labor certification. 
In accord with the foregoing analysis, we determine that the Beneficiary does not qualify for the job 
offered under the terms of the labor certification because he does not have either a bachelor's degree 
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Matter of M-L-L-(USA) Corp. 
in electrical engineering or 3 years of qualifying experience. Therefore, we will not disturb the 
Director's findings that the Beneficiary does not satisfy either the minimum experience requirement 
or the alternative mmtmum educational requirement to qualify for the job of quality control 
technician. 
C. Petitioner's Ability to Pay the Proffered Wage 
We independently note that the Petitioner has not established its ability to pay the proffered wage as 
of the priority date of the petition, March 26, 2002,1 and continuing until the Beneficiary obtains 
lawful permanent residence. rSee 8 e.F.R. § 204.5(g)(2). 
In determining the Petitioner's ability to pay the proffered wage, USers first examines whether the 
Petitioner has paid the Beneficiary the full proffered wage each year from the priority date onward. 
If the Petitioner has not paid the Beneficiary the full proffered wage each year, users will next 
examine whether the Petitioner had sufficient net income or net current assets to pay the difference 
between the wage paid, if any, and the proffered wage.2 If the Petitioner's net income or net current 
assets is not sufficient to demonstrate its ability to pay the proffered wage, users may also consider 
the history and overall magnitude of the Petitioner's business activities. See Matter of Sonegawa, 
12 I&N Dec. 612 (Reg'l eomm'r 1967). 
In the instant case, there is no evidence as to when the Petitioner employed the Beneficiary, if ever, so 
there is no evidence that the Beneficiary has paid the proffered wage from the priority date onward. 
The record includes partial copies of the Petitioner's federal income tax returns for 2002 and 2003, as 
well as an unaudited financial statement for 2004, which show that the Petitioner had net losses and 
current liabilities that exceeded current assets all three of those years. Furthermore, the evidence of 
record does not establish that factors similar to Sonegawa existed in tl)e instant case which would allow 
us to conclude that the petitioner had the ability to pay the proffered wage in 2002, 2003, and 2004 
despite its net losses and net current liabilities in those years. Based on the totality of its circumstances 
the petitioner has not established its continuing ability to pay the proffered wage since the priority date. 
Thus, the evidence of record does not show that the Petitioner had the continuing ability to pay the 
proffered wage of the job offered from the priority date of the petition onward. For this additional 
reason the petition cannot be approved. 
1 
The priority date of the petition is the date the underlying labor certification application was filed with the DOL. 
2 See River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (lst Cir. 2009); Elatos Restaurant Corp. v. Sava, 632 F. 
Supp. 1049, 1054 (S.D.N.Y. 1986); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); Chi­
Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co. v. Sava, 623 F. Supp. 1080 
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983); and Taco 
Especialv. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). 
Matter of M-L-L-(USA) Corp. 
III. CONCLUSION 
We determine that the Petitioner has not overcome the grounds for the Director's invalidation of the 
labor certification based on fraud and willful misrepresentation of a material fact with regard to the 
Beneficiary's education. Since the instant petition is not supported by a valid labor certification, the 
petition cannot be approved. In addition, the Petitioner has not overcome the Director's findings, 
based on the evidence of record, that the Beneficiary does not have either the minimum qualifying 
experience or the minimum educational degree required on the labor certification. Finally, the 
Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
onward. Accordingly, the appeal will be dismissed. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. The burden of proof in these proceedings rests solely with the petitioner. 
See section 291 of the Act, 8 U.S.C. § 1361 (2012); Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 
2013). That burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-L-L-(USA) Corp. ID# 17441 (AAO Sept. 12, 2016) 
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