dismissed EB-3 Case: Electrician

U.S. Citizenship 
and Immigration 
Services 
In Re: 6985727 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC. 2, 2019 
The Petitioner seeks to employ the Beneficiary as an electrician. The company requests his 
classification under the third-preference, immigrant category for skilled workers. See Immigration 
and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). 
The Director of the Texas Service Center denied the petition and dismissed the Petitioner's 
following motion to reopen. The Director concluded that the Petitioner did not demonstrate the 
Beneficiary's possession of the minimum employment experience required for the offered position. 
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 nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. To permanently fiU a 
position in the United States with a foreign worker, a prospective employer must first obtain 
certification from the U.S. Department of Labor (DOL). 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. DOL also considers whether employment of a 
foreign national will harm wages and working conditions of U.S. workers with similar jobs. Id. 
IfDOL approves 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. § 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 EXPERIENCE 
A petitioner must demonstrate that a beneficiary met all DOL-certified job requirements of an 
offered position by a petition's priority date. 1 Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). In evaluating a beneficiary's qualifications, USCIS must examine the 
job-offer portion of an accompanying labor certification to determine a position's minimum job 
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 labor certification states the minimum requirements of the offered position of electrician as 
two years of experience in the job offered. The labor certification states that the position does not 
require any training or education. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained 
about 17 years of foll-time experience in the offered position of electrician. He stated that a U.S. 
electrical contractor employed him for about seven years, from May 2010 through the filing of the 
labor certification application. He also stated that he worked for an electrical equipment company in 
Kazakhstan for about 10 years, from July 1986 to April 1996. 
To demonstrate qualifying experience, a petitioner must provide letters from former employers of a 
beneficiary. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must contain the names, addresses, and titles 
of the employers, and describe a beneficiary's experience. Id. 
The Petitioner initially submitted a copy of the Beneficiary's union membership card. The card 
identifies his former U.S. employer and his position as an electrician. Contrary to 8 C.F.R. 
§ 204.5(1)(3)(ii)(A), however, the union card does not: constitute a letter; contain the address or title 
of the Beneficiary's former employer; or sufficiently describe the Beneficiary's experience. The 
card therefore does not demonstrate his claimed qualifying experience. 
In response to the Director's written request for additional evidence (RFE), the Petitioner submitted 
a letter from the office administrator of the Beneficiary's former U.S. employer. The letter states 
the company's employment of the Beneficiary from December 2012 to December 2018. Contrary to 
8 C.F.R. § 204.5(1)(3)(ii)(A), however, the letter does not describe the Beneficiary's experience. 
Also, the letter states that the Beneficiary began employment in December 2012, not May 2010 as 
listed on the labor certification. The discrepancy in the Beneficiary's start date of employment casts 
doubt on his claimed experience. 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 motion to reopen included a second letter from the office administrator of the 
Beneficiary's former U.S. employer. This letter reiterates the Beneficiary's start date of December 
1 This petition's priority date is October 30, 2017, 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). 
2 
2012, but includes a description of his job duties. The letter, however, states the Beneficiary's duties 
exactly as the labor certification lists the duties of the offered position. The letter even repeats a 
typographical error on the labor certification, stating the Beneficiary's "uae" of hand and power 
tools, rather than his "use" of them. The identical job duties on the letter and labor certification cast 
further doubt on the Beneficiary's claimed experience. The identical duties suggest that the office 
administrator copied the tasks of the offered position from the labor certification onto the letter, 
rather than describing the Beneficiary's former duties based on the administrator's personal 
knowledge or company records. Also, the former employer's most recent letter is dated before its 
initially submitted letter and before the date of the Director's RFE. The record does not explain why 
the former employer issued a letter before the RFE, or why the Petitioner submitted the former 
employer's most recent letter first. The dates of the letters and their submissions cast doubt on their 
authenticity. See Matter of Ho, 19 I&N Dec. at 591 (stating that doubt cast on any aspect of a 
petition's proof may lead to the reevaluation of the reliability and sufficiency of remaining 
evidence). 
On appeal, the Petitioner submits additional evidence of the Beneficiary's work for his claimed 
former U.S. employer. In an affidavit, the Beneficiary states that the employer's letters correctly 
state his employment start date as December 2012 and that he mistakenly told counsel that he began 
work there in May 2010. Other evidence, however, does not sufficiently corroborate the 
Beneficiary's claim. The Petitioner submits copies of payroll records and IRS Forms W-2, Wage 
and Tax Statements, indicating the U.S. company's employment of the Beneficiary in 2012, 2013, 
2017, and 2018. The payroll records and Forms W-2, however, identify the Beneficiary by a 
different U.S. Social Security number than listed for him on the petition. The discrepancy in the 
Beneficiary's Social Security number casts additional doubt on his claimed experience. 
Also, the payroll records indicate that, in September and October of 2018, the Beneficiary worked on 
a part-time basis. The payroll records therefore conflict with the Beneficiary's attestation on the 
labor certification that he worked full-time for his former U.S. employer. The Petitioner also 
submits copies of safety certificates and photographs of the Beneficiary. These materials indicate 
the Beneficiary's work as an electrician, but they do not establish his employment by his claimed 
former employer. In addition, the record contains a copy of the Beneficiary's resume, indicating that 
he worked as an electrician for other U.S. companies from 2012 to 2015, in 2015, and from 2016 to 
2017. The record does not explain how the Beneficiary worked full-time for his claimed former 
U.S. employer from 2012 to 2018 while also working for the other companies listed on his resume. 
The record also does not establish the Beneficiary's claimed qualifying experience in Kazakhstan. 
The Petitioner's RFE response included a copy of the Beneficiary's government-issued work card 
from the former Soviet Union. Largely consistent with the Beneficiary's attestation on the labor 
certification, the card indicates that he worked for an electronics equipment company in Kazakhstan 
from 1985 to 1996. Contrary to 8 C.F.R. § 204.5(1)(3)(ii)(A), however, the work card does not 
sufficiently describe his experience. In his affidavit, the Beneficiary states that he could not obtain a 
letter from his former Kazakhstani employer because it ceased operations and dissolved. On a labor 
certification application filed for him by another prospective employer in 2008, however, the 
Beneficiary stated that the Kazakhstani company employed him not from 1985 to 1996, but from 
November 2004 to November 2006. Another petition for him also included a purported 2009 letter 
from the Kazakhstani company confirming his employment from 2004 to 2006. In addition, this 
3 
petition states that the Beneficiary last entered the United States in 2000. The record does not 
explain how he could have worked in Kazakhstan from 2004 to 2006 while residing in the United 
States. These discrepancies cast significant doubt on the Beneficiary's claimed qualifying 
experience in Kazakhstan. See Matter of Ho, 19 I&N Dec, at 591 (requiring a petitioner to resolve 
inconsistencies ofrecord with independent, objective evidence pointing to where the truth lies) 
For the foregoing reasons, the record on appeal does not establish the Beneficiary's possession of the 
mm1mum experience required for the offered position. We will therefore affirm the petition's 
denial. 
III. 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. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the foll 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay the foll 
proffered wage, USCIS alternatively considers whether it generated annual amounts of net income or 
net current assets sufficient to pay any difference between the proffered wage and the wages paid. If 
net income and net current assets are insufficient, USCIS may consider additional factors affecting a 
petition's ability to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 
Comm'r 1967). 2 
Here, the labor certification states the proffered wage of the offered pos1t10n of electrician as 
$76,669 a year. As previously noted, the petition's priority date is October 30, 2017. 
The Petitioner submitted a copy of its federal income tax return for 2017, reflecting sufficient net 
current assets to pay the proffered wage. Contrary to 8 C.F.R. § 204.5(g)(2), however, the record 
lacks required evidence of the Petitioner's ability to pay beyond 2017. Thus, in any future filings in 
this matter, the Petitioner must submit copies of annual reports, federal income tax returns, or 
audited financial statements for 2018 and, if available, 2019. The Petitioner may also submit 
additional evidence of its ability to pay, including proof of any wages it paid to the Beneficiary or 
materials supporting the factors stated in Sonegawa. 
2 Federal courts have upheld USCTS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., 
River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 
936, 942-43 (S.D. Cal. 2015). 
4 
IV. CONCLUSION 
The record on appeal does not establish 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. 
5