dismissed EB-3 Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-0- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 7, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a designer, importer, and distributor of digital billboards and electronic signs, seeks 
to employ the Beneficiary as an electrical engineer. It requests his 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. § I I 53(b)(3)(A)(i). This employment-based, "EB-3" category 
allows a U.S. business to sponsor a foreign national with at least two years of training or experience 
for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition. Finding that the Petitioner willfully 
concealed the Beneficiary's ownership interest in the company, the Director invalidated the 
accompanying labor certification from the U.S. Department of Labor (DOL). The Director also 
concluded that the Petitioner did not demonstrate its required ability to pay the proffered wage. 
On appeal, the Petitioner submits additional evidence and denies that the Beneficiary owned part of 
the company as of the filing of the labor certification application. The Petitioner also contends that 
its amended federal income tax returns establish its ability to pay the proffered wage. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently till a 
position in the United States with a foreign worker, an employer must first obtain DOL 
certification. See section 2 I 2(a)(5)(A)(i) of the Act, 8 U.S.C. § I I 82(a)(5)(A)(i). DOL approval 
signifies that insufficient U.S. workers are able, willing, qualified, and available tor a position, and that 
employment of a foreign national will not harm wages and working conditions of U.S. workers with 
similar jobs. !d. 
If the DOL certifies a position, an employer must next submit the 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. § I I 54. Among other things, USC IS considers whether a beneficiary meets the 
minimum requirements of a certified position and whether a petitioner can pay the certified proffered 
wage. If USCIS approves a petition, a foreign national may finally apply for an immigrant visa 
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Mau er of D-0- LLC 
abroad or, if eligible , adjustment of status in the United States. See sec tion 245 of the Act, 8 U.S.C. 
§ 1255. 
II. THE VALIDITY OF THE LABOR CERTIFICATION 
Unless accompanied by an application for Schedule A 
designa tion or documentation of a 
beneficiary 's eligibility for a shortage occupation, a petition for a skilled worker must include a 
valid, individual labor certification. 8 C.F. R. § 204.5(1)(3)(i) . USCJS may invalidate a labor 
certification after its issuan ce upon tinding fraud or willful misrepresentation of a material fact 
involving the labor certification application. 20 C.F.R. § 656.30(d ). 
Fraud "consist[s] of a false representation of a materi al fact made with knowledge of its falsity and 
with intent to dece ive the other party." Ortiz-Bouchet v. US. All 'y Gen., 7 I 4 F.3d I 353 , 1356 (I I th 
Cir. 2013) (quoting Matler ofG -G-, 7 I&N Dec. 161, 164 (BIA 1956)). "The represen tation must 
also be believed and acted upon by the party deceived to his disadvantage. " Id. A willful 
misrepresentati on of a material fact includes the same element s as fraud , except that a willful 
misrepresentation does not require intent to dec~ive or proof of a successful deception . !d. at 1356-
57 (citing Mafler (~f Kai Hing Hui, 15 I&N Dec. 288 , 290 (B IA 1975)). A misrepre sentatio n is 
material if it tended to shut off a relevant line of inquiry that would have pred ictably disc losed other 
facts affecting eligibility for a benefit request. Matter of D-R-, 27 I&N Dec. 105, I 13 (BIA 20 17). 
Here, the labor certitication , filed June 9, 2014, asked the Petitioner if it is "a close ly held 
corporation , partners hip, or sole proprietor ship in which the alien has an owners hip intere st, or i s 
there a familial relationship between the owner s, stockholder s, partners , corporate otl icers, 
incorporators , and the alien?" The Petitioner answ ered "No. " Copies of its federal income tax 
returns, however , identif y the Beneficiary as the minority own er of the two-m em ber, limited I iabi lity 
company (LLC). The Petitioner 's 2014 tax returns list the Beneficiary as a partner with 10 percent 
share of profit , loss, and capital. The Beneficiary's share rose to 15 percent in 2015 and 20 percent 
in 2016. The Director therefor e found that the Petiti oner willfully misrepresented the Beneficiary's 
ownership intere st on the labor certification. 
On appeal, the Petitioner denies that it concealed the Beneficiary 's relation ship to the compa ny. As 
of the filing of the labor certification application in June 20 14, the Petitioner assert s that the 
Beneficiary was not an owner of the The Petitioner submitted an "Amended & 
Reinstated Operating Agre ement" reflecting the Beneficia ry's admiss ion as a "Me mber ," or owner, 
of the LLC in 20 I 5. Although the agreement describes the Benefic iary's membership as 
retroactive to 2014, the Petition er argues that the Benefici ary did not acq uire owners hip 
until 20 I 5, after the tiling of the labor certific ation applicati on in Jun e 2014. The Petit ioner 
also submitt ed evidence of the Benefici ary's amended federal incom e tax return s for 2014 , which he 
filed in December 2015. The amended returns reflect additional income the Beneticiar y received tor 
2014, purportedl y from his retroactive LLC member ship. 
In corporate records filed before the issuance of the amended and reinstated operating agreem ent, 
however, the Petitioner identified the Beneficiary as a "Manager" of the comp any . The Petitioner 
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Maller of D-0- LLC 
added the Benefic iary as a manager by a mending its a rticles of organ ization in 2013. See 
Fla. Dep't of State, Div. of Corps., http:/ /search.sunbi z.org/lnquir y/Corporati onSea rch/ByName (las t 
visited Apr. 25, 2018). In April 2014 and January 2015, the Petitioner also filed annu al reports , 
certifying that the Beneficiary remained a company man age r. Unde r Flori da law, a manager has or 
share s responsibility for managing an LLC 's acti vities and affair s, and may be a member. Fla. Stat. 
§§ 605.0407(3) , 605.04 72(2). 
The Petition er has not discu ssed wheth er the Benefic iary, as its manager, was also a mem ber of the 
LLC before the issuance of the amended and rein stated operating . agreeme nt in 20I5. 
Further, the Petitioner has not explain ed why its company tax returns listed the Beneficiary as a 
minority owner in 2014, if the Benefici ary was not admitted as a member or owner until August 
20 I 5. See Maller (?f Ho, 19 I&N Dec. 582, 591 (BIA 1988) (req uiring a petitioner to resolve 
inconsistencies of record by independent , objective evidence pointin g to where the truth lies). The 
record theref ore does not establish that the Benefi ciary lacked ownership in the Petitioner .as of the 
filing of the labor certification application in June 20I 4. 
Moreover , even if the Ben eficia ry Jacked an ownership interest in the Petitioner as of the fi ling of the 
labor certification applicati on, Florid a records indic ate that , as the LLC's man ager , he was a 
"corporate officer " of the company. See, e.g , Matter of Kim & Lee Oriental LLC, 20 12-P ER-02779, 
2017 WL 2414312 *5 (BALCA May 26, 2017) (finding that names of an LLC 's managing mem bers 
satisfied the DOL 's reque st for a list of corporate officers). Thus, contr ary to the Petitioner's 
respo nse on the labor certific ation appl ication, the record indicat es that a famil y relatio nship ex isted 
between the Beneficiary and a corporate officer ofthe company, as the Benefici ary himself served as 
an officer. The record ther efore supports the Director 's finding of a misrep rese ntation on the labor 
certification. 
The record also establishes the willfulnes s of the misre presentati on. As previou sly discussed, befo re 
the tiling of the labor cert ifica tion applic at ion, the Petitioner desc ribed the Benelic iary as the LLC's 
manager in multiple corporate document s. See also Matter of Silver Dragon Chinese Rest., 19 l&N 
Dec. 40 I, 404 (Comm' r I 988) (holding that "the officers and principal s o f a corp ora tion are 
presu med to be aware and info rmed of the orga nization and sta ff of their enterpri se" ). The Petitioner 
there fore knew of the falsity of its represe ntation on the labor certification appl ication. 
The Petitioner argues that the Beneficiar y's relation ship to the company was immaterial to the labor 
certification's approval. The Petitioner provided copies of its rec ruitment documentation dur ing the 
labor certification process and notes that all four U.S. workers who applied for the offered posi tion 
lack ed requisite experienc e in the job offered. 
The record , however, doe s not establi sh the Petitioner's good-faith recruitm ent for the offered 
position. The offered occupation of electrical engin eer u suall y requires a minimum of a bachelor's 
degree. See 20 C.F.R. § 656.3 (defining the term "professional occ upation"); see also DOL , Final 
Rule for the Permanent Employment of Foreign Nationals in the United Stares, App'x A, 69 Fed. 
Reg. 77326, 77377 (Dec. 27, 2004) (listing occupation s that customarily requ ire a baccalaureate 
degree or higher ). Contrary to DOL regulations , howeve r, the Petitioner indic ated that the offe red 
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Matter of D-0- LLC 
position was not a professional occupation and did not undertake additional recruitment steps. See 
20 C.F.R. § 656.17(e)(1)(ii) (requiring an employer offering a professional position to select three 
recruitment steps in addition to newspaper advertisements, a job order, and a notice of filing). 
Moreover, the nature of a petitioner's recruitment efforts is but one factor in determining the 
availability of an offered position to U.S. workers. See Mal/er of Modular Container Sys .. Inc., 89-
INA-00228, 1991 WL 223955 *8 (BALCA July 16, 1991) (en bane) (listing other factors, including 
whether a foreign national: has family relationships with a company's directors, officers, or 
employees; founded the company; participates in its management; is one of a small number of 
employees; or has qualifications matching specialized job duties or requirements of an offered 
position). Even where advertisements do not 'generate any applicants for a job opportunity, the 
Board of Alien Labor Certification Appeals (BALCA) may find a position not clearly open to U.S. 
workers. See Maller of Johnman U.S.A., Inc., 2012-PER-03149, 2016 WL 6301766 *8 (BALCA 
Oct. 21, 2016). 
Here, multiple Modular Container factors indicate that the job opportunity was not bona fide. 
Besides the Petitioner's violation of DOL recruitment regulations and the Beneficiary's relationship 
to the company, the record identifies the Beneficiary as one of only seven employees. As "manager" 
of the LLC, he also shared responsibility for the company's management. In addition, the labor 
certification states that the offered position requires a candidate who is "Expert using Linsn, DBStar, 
NOV A, and Xixun operating systems, and must be fluent in English, Chinese, and/or Spanish." The 
Beneficiary's qualifications therefore meet specialized job duties and required skills of the position. 
Thus, multiple Modular Container factors indicate that the offered position was not clearly open to 
U.S. workers. The Beneficiary's ownership interest in the Petitioner and/or his status as a company 
officer was therefore a material factor that pred.ictably would have aflected the labor certification 
decision. 
For the foregoing reasons, the record supports the Director's finding that the Petitioner willfully 
misrepresented a material fact on the accompanying labor certification. The Director therefore 
properly invalidated the labor certification and· denied the petition for lack of a valid labor 
certification. 
Ill. ABILITY TO PAY THE PROFFERED WAGE 
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). 
Evidence of ability to pay must include copies of annual reports, federal mcome tax returns, or 
audited financial statements. !d. 
1 This petition's priority date is June 9, 2014, the date the DOL accepted the accompanying labor certification application 
for processing. See 8 C.F.R. § 204.5(d) (explaining how to detennine a petition's priority date). 
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Matter rif D-0- LLC 
Here, the labor certification states the proffered wage of the offered position of electrical engineer as 
$116,667 a year. As of the appeal's tiling, required evidence of the Petitioner's ability to pay in 
2017 was not yet available. We will therefore consider the Petitioner's ability to pay only from 2014 
through 2016. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary a full proffered 
wage each year from a petition's priority date. If a petitioner did not annually pay a full wage, 
USC IS examines whether it generated annual amounts of net income or net current assets sufficient 
to pay any differences between a proffered wage and the wages paid. If net income and net current 
assets are insufficient, USCIS may consider other factors affecting a petitioner's ability to pay a 
prolTered wage. See MallerrifSonegawa, 12 I&N Dec. 612 (Reg'! Comm'r I967) 2 
The Petitioner submitted copies of IRS Forms W-2, Wage and Tax Statements. The forms indicate 
that it paid the Beneficiary $62,000.12 in 2014, $65,000.10 in 2015, and $87,500.12 in 2016. The 
Petitioner's president/managing member stated that the company also paid the Beneliciary "living 
expenses" of $19,257 in 2014, $33,313 in 2015, and $20,095 in 2016. The record, however, lacks 
documentary evidence of these claimed payments. Without corroboration, the Petitioner has not 
established its claimed annual payments of the Beneficiary's living expenses. We will therefore not 
consider them. 
The annual amounts on the Forms W-2 do not equal or exceed the proffered wage of $116,667. 
Based solely on the Petitioner's payments to the Beneficiary, the record therefore does not establish 
its ability to pay the proffered wage. Nevertheless, we credit the Petitioner's payments to the 
Beneficiary. It need only demonstrate its ability to pay the differences between the annual proffered 
wage and the amounts it paid the Beneficiary; or $54,666.88 in 2014, $51,666.90 in 2015, and 
$29,166.88 in 2016. 
Although reflecting a negative amount of net income, the Petitioner's federal'income tax returns for 
2014 indicate net current assets of $101,189. This amount exceeds the $54,666.88 difference 
between the proffered wage and the wages paid. Based on the Petitioner's net current assets, the 
record therefore establishes its ability to pay the proffered wage in 2014. 
The Petitioner's federal income tax returns for 2015 and 2016 ret1ect negative amounts of net 
income and net current assets. The returns therefore do not establish the Petitioner's ability to pay 
the proffered wage in those years. Thus, based on examinations of the Petitioner's payments to the 
Beneficiary, its net income, and its net current assets, the record does not establish its continuing 
ability to pay the proffered wage. 
On appeal, the Petitioner submits copies of amended tax returns for 2015 and 2016, filed in July 
2017. Unlike the original returns, ·the amended versions reflect amounts of net current assets in 2015 
2 Federal courts have upheld USCIS' method of determining a petition's ability to pay a proffered wage. See, e.g .. River 
St. Donuts. LLCv. Napolitano, 558 F.3d Ill, 118 (1st Cir.'2009). 
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Matter of D-0- LLC 
and 2016 exceeding the annual differences between the proffered wages and the wages paid to the 
Beneficiary. The Petitioner therefore argues that the amended returns establish its ability to pay the 
proffered wage. 
Both the original and amended returns reflect the same total amounts of liabilities on Schedule L of 
IRS Form 1065, U.S. Return of Partnership Income. The Schedules L on the amended returns, 
however, indicate decreased amounts of "Accounts payable," which are current liabilities, and 
increased amounts of "Other liabilities," which are non-current liabilities. The amended returns 
attribute the increases in non-current liabilities to loans received from another company. 
The information on the Petitioner's amended tax returns for 2015 and 2016 is unreliable. The record 
lacks documentary evidence of the loans to the Petitioner and its claimed reductions in accounts 
payable. Also, the record does not explain why the original returns omitted the loans and overstated 
the accounts payable. See Maller of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve 
inconsistencies of record by independent, objective evidence pointing to where the truth lies). We 
will therefore not credit the information on the Petitioner's amended returns. 
As previously indicated, in determining ability to pay, we may consider factors beyond a petitioner's 
wage payments, net income, and net current assets. Under Sonegawa, we may consider: the number 
of years it has conducted business; its number of employees; the growth of its business; its 
incurrence ·of uncharacteristic losses or expenses; its reputation in its industry; a beneficiary's 
replacement of a current employee or outsourced service; or other evidence of a petitioner's ability 
to pay a proffered wage. Maller ofSonegawa, 12 l&N Dec. at 614-15. 
Here, the record indicates the Petitioner's continuous business operations since 2012 and its 
employment of seven people. Also, copies of its income tax returns from 2014 through 2016 reflect 
growing annual amounts of revenues and wages paid.· The Petitioner's tax returns, however, reflect 
losses in two of the three years for which returns were submitted. The petitioner in Sonegawa 
reported a loss in only one of its last ten tax years. Also unlike the petitioner in Sonegawa, the 
Petitioner here did not demonstrate its incurrence of uncharacteristic losses or expenses, or its 
possession of an outstanding reputation in its industry. In addition, the record does not indicate the 
Beneficiary's replacement of a current employee or outsourced service. Thus, a totality of 
circumstances under Sonegawa does not establish the Petitioner's ability to pay. 
For the foregoing reasons, the record does not establish the Petitioner's continuing ability to pay the 
proffered wage from the petition's priority date onward. 
IV. THE REQUIRED EXPERIENCE 
Although unaddressed by the Director, the record also does not establish the Beneficiary's 
possession of the minimum experience required for the offered position. A petitioner must establish 
a beneficiary's possession, by a petition's priority date, of all DOL-certified job requirements. 
Mauer ()(Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'! Comm'r 1977). In evaluating a 
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Malter of D-0- LLC 
beneficiary's qualifications, USCIS must examine the job otTer portion of an accompanying labor 
certification to detennine the minimum requirements of an offered position. USC IS 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 that the offered position of electrical engineer requires a U.S. 
bachelor's degree or a foreign equivalent degree in electrical engineering or computer science, and 
three years of experience in the job oftered. The Petitioner stated on the labor certification that it 
will not accept experience in an alternate occupation. 
Experience in a job oftered means experience performing the primary duties of an offered position. 
Malter of Symbioun Techs., Inc., 2010-PER-01422, 2011 WL 5126284 *2 (BALCA Oct. 24, 2011) 
(citations omitted). The labor certification here states the primary duties of the offered position as: 
evaluating electrical systems, products, components, and applications; designing research programs 
and applying knowledge of electricity and materials; developing electrical products; studying 
customer requirements; researching and testing manufacturing and assembly methods and materials; 
assuring product quality; designing electrical testing methods; and testing finished products and 
system capabilities. 
On the labor certification, the Beneficiary attested that, before beginning work for the Petitioner in the 
otlered position in December 2012, he gained more than tive years of related experience 3 The 
Beneficiary stated the following employment: 
• About 12 months as an electrical engineer for a commercial display and sign business in the 
United States, from December 20 II to December 20 12; 
• About 20 months as an overseas service engineer for a commercial display and sign business in 
China, from May 20 I 0 to January 20 12; 
• About 13 months as an overseas service engineer tor a semiconductor company in China, from 
June 2008 to July 2009; and 
• About two years as a key account manager tor an auto diagnostic and testing equipment 
company in China, from June 2006 to June 2008. 
The Beneficiary stated that all of his experience was full-time, except for his 12-month stint in the 
United States. In that position, he indicated that he worked 28 hours a week. For labor certification 
purposes, part-time employment equates to halt"the value of full-time employment. See Malter of 
Cable Television Labs, Inc., 2012-PER-00449, 2014 WL 5478115 *2 (BALCA Oct. 23, 2014) (tinding 
that 16 months of part-time employment equated to eight months of full-time employment). The 
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A labor certification employer cannot rely on experience that a foreign national gained with it. unless he or she 
obtained the experience in a position substantially different than the job offered, or the employer can demonstrate the 
impracticality of training a U.S. worker for the offered position. 20 C.F.R. s 656.17(i)(3). The Petitioner here docs not 
assert that the Beneficiary gained qualifying experience with it. 
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Mauer of D-0- LLC 
Beneficiary's 12-month period of part-time experience therefore equates to SIX months of full-time 
expenence. 
As evidence of the Beneficiary's claimed experience, the Petitioner submitted letters from three of the 
Beneficiary's four former employers. See 8 C.F.R. § 204.5(1)(3)(ii)(A) (requiring a petitioner to support 
a beneficiary's claimed experience with letters from former employers). The letters cover the 
Beneficiary's experience from June 2008 to December 2012. None of the letters, however, establish the 
Beneficiary's experience with the primary job duties of the offered position. 
The letter from the Beneficiary's fom1er U.S. employer states his former duties as: "Hardware and 
software product design;" "Manufacturing and assembly quality control;" and "Customer technical 
. support." Contrary to the primary duties of the offered position stated on the labor certification, the 
letter does not establish that the Beneficiary: evaluated electrical systems, products, components, and 
applications; designed research programs and applied knowledge of electricity and materials; 
developed electrical products; studied customer requirements; researched and tested manufacturing 
and assembly methods and materials; assured product quality; designed electrical testing methods; 
and tested finished products and system capabilities. 
Similarly, the letters from the Beneficiary's former employers in China are not detailed enough to 
establish his performance of the offered position's primary duties. One letter describes his fom1er 
duties as: "Overseas customer project management;" "Overseas customer technical training and 
support;" and "Overseas market analysis and product development." The other letter states his 
former duties as: "Understand customer's application and recommend SoC solutions;" "Follow up 
with R&D team for custom orders;" and "Follow up with customer for new product development." 
The three letters from the Beneficiary's former employers establish his experience with Linsn, 
DBStar, NOV A, and Xixun operating systems as stated on the labor certification. ·But none of the 
letters describe his capabilities as "Expert" as the labor certification requires. The record therefore 
does not establish the Beneficiary's qualifications for the offered position. 
V. CONCLUSION 
The record on appeal supports the invalidation of the accompanying labor certification and does not 
establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority 
date onward. The record also does not demonstrate the Beneficiary's possession of the required 
expenence. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as Matter ofD-0- LLC, ID# 1281346 (AAO June 7, 2018) 
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