dismissed EB-3 Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-B-. INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 3, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a telecommunications corporation. seeks to employ the Beneficiary as .. Director of 
Quality Assurance Engineering." It requests classification ofthe Beneficiary as a professional or skilled 
worker under the third preference immigrant classification. See Immigration and Nationality Act (the 
Act), section 203(b)(3)(A). 8 U.S.C. § 1153(b)(3)(A). The employment-based immigrant 
classification as a ''professional" allows a U.S. employer to sponsor a professional with a 
baccalaureate degree for lawful permanent resident status. The immigrant classification as a .. skilled 
worker" allows a U.S. employer to sponsor a foreign national for lawful permanent resident status to 
work in a position that requires at least two years of training or experience. 
The Director, Texas Service Center, denied the petition. concluding that the Beneficiary did not 
possess the minimum education and experience for the job offered as required by the labor 
certification. The Petitioner appealed the matter and we rejected the appeal as improperly filed. The 
Petitioner tiled a motion to reconsider, which we denied on February 26, 2013. On May 30. 2013, 
the Director certified the matter to us for review. 1 On September 30, 2014. we affirmed the 
Director's decision in part and withdrew it in part holding in addition that the Petitioner had not 
established the existence of a bonafide job offer. We held that the petition would remain denied. 
The matter is now before us on a motion to reopen and a motion to reconsider. On motion, the 
Petitioner states that we erred in concluding that the Beneficiary does not have sufficient experience 
for the position offered. The Petitioner also states that the evidence in the record demonstrates that 
there is a bona fide job offer. We will deny the motions. 
I. PROCEDURAL HISTORY 
The petition is accompanied by a Form ETA 750, Application for Alien Employment Certification 
(labor certification), certified by the U.S. Department of Labor (DOL). The priority date of the 
petition. which is the date the DOL accepted the labor certification for processing. is 
March 2L 2005. See 8 C.F.R. § 204.5(d). 
1 
Certifications by field office or service center directors may be made to us "when a case involves an unusually complex 
or novel issue of law or fact.'" 8 C.F.R. § I 03.4(a)(l ). 
Matter of A-B-. Inc. 
The Director's decision, dated October 24, 2011, concludes that the Beneficiary did not possess the 
minimum education and experience for the job offered as required by the labor certification. We 
rejected the appeal on December 5, 2012, finding that it was not properly tiled. On 
December 28. 2012, the Petitioner filed a motion to reconsider which we denied on 
February 26,2013. On May 30, 2013, the Director certified the October 24. 2011. decision to us for 
review. On September 30, 2014, we atlirmed the Director's decision in part and withdrew it in part. 
The matter is again before us as a motion to reopen and a motion to reconsider our prior decision. 
The regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part, that .. [a] motion to reopen must 
state the new facts to be provided in the reopened proceeding and be supported by affidavits or other 
documentary evidence." Here, the Petitioner has not submitted any evidence that was not submitted 
previously. Therefore, the Petitioner's motion to reopen the matter is denied. 
The motion to reconsider qualities for consideration under 8 C .F .R. § 103 .5( a)(3) because the 
Petitioner asserts that our previous decision was an erroneous decision through misapplication of law 
or policy. Accordingly, we will reconsider the matter before us. 
II. DISCUSSION 
Section 203(b)(3 )(A)(i) of the Act, 8 U.S.C. § 1153(b)(3)(A)(i), grants preference classification to 
qualified immigrants who are capable of performing skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in 
the United States. Section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(3)(A)(ii), grants 
preference classification to qualified immigrants who hold baccalaureate degrees and are members 
ofthe professions. 
In our previous decision. we held: ( 1) that the Petitioner had not established that the Beneficiary met 
the experience requirements of the labor certification; and (2) that the position otTered did not 
constitute a bonafide job offer. We again address these issues below. 
A. Whether the Beneficiary Meets the Experience Requirements of the Labor Certification 
The beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b)(l), (12). See Maller ol Wing's 
Tea House, I6 I&N Dec. I 58, 159 (Act. Reg'l Comm'r I977); see also Matter <~lKatigbak. I4 I&N 
Dec. 45,49 (Reg'l Comm'r 1971). 
In evaluating the labor certification to determine the required qualifications for the position. U.S. 
Citizenship and Immigration Services (USC IS) may not ignore a term of the labor certification, nor 
may it impose additional requirements. See Madany v. Smith, 696 F.2d I 008 (D.C. Cir. 1983); 
K. R. K. Irvine. Inc. v. Landon, 699 F .2d I 006 (9th Cir. 1983 ): Stewart b?fra-Red Commissary <?l 
Massachusetts. Inc. v. Coomey, 661 F .2d I (1st Cir. 1981 ). 
2 
(b)(6)
Matter <?f A-B-, Inc. 
In this matter, the labor certification states that the offered position has the following minimum 
requirements: 
EDUCATION 
Grade School: 8 years 
High School: 4 years 
College: 4 years 
College Degree Required: Bachelor of Science Degree 
Major Field of Study: Engineering 
EXPERIENCE (JOB OFFERED): Three (3) years 
EXPERIENCE (RELATED OCCUPATION): Zero (0) years 
OTHER SPECIAL REQUIREMENTS: [blank] 
As shown above, the labor certification requires three years of experience in the job offered as a 
Director of Quality Assurance Engineering. 
Question 13 of the Form ETA 750-A states the job duties of the instant position as follows: 
• Formulates and establishes organizational policies and operating procedures tor engineering 
system organizations. 
• Develops, implements, and coordinates product assurance program to prevent or eliminate 
defects in new or existing engineering products. 
• Analyzes. evaluates, and presents information concerning factors, such as business situations, 
production capabilities, manufacturing problems, economic trends. and design and 
development of new engineering products. 
• Directs and formulates company policies, engineering operational procedures and goals. 
Develops initial and subsequent modifications of engineering product assurance programs to 
delineate areas of responsibility and operational procedures according to company goals and 
policies. 
• Reviews technical engineering problems and procedures of departments and recommends 
solutions to problems or changes within engineering procedures. 
The following table compares the job duties stated on the labor certification with those of the 
Beneticiary' s previous positions and states our previous detennination of that experience. 
Employer Position Job duties Length of Do the job 
time duties match 
those required 
on the labor 
certification? 
.. Vice President • Formulating policies and 8/23/2003- No. 
I tor Engineering'' directing the operations of 5117/2005 
3 
(b)(6)
Matter <?f A-B-, Inc. 
LJ the real state interest of (1 year 8 
the company. months) 
• Managing and supervising 
staff engaged in preparing 
lease agreements, 
recording rentals receipts, 
and performed other 
activities necessary to the 
etlicient management of 
the corporation's real 
estate holdings. 
• Determining maintenance 
schedules of common 
areas. Hiring outside 
contractors for larger 
projects and overseeing 
the bidding process. 
"Director of • Establishing the quality 12/2001- Yes. 
I Textile Tech. control system of all 8/2003 
LJ Engineering import and export of raw (1 year 8 
Operations" textile material and months) 
finished textile products. 
• Designing and 
implemented the 
engineering development 
programs to maximize 
productivity strategies. 
• Formulating and 
maintaining the 
engineering operational 
procedures and goals. 
• Designing coordination 
schedules, production 
needs, and product 
assurance for engineering 
specifications. 
·'Director" • .. Monitoring the 11/2000- No. 
u 
I investments and 12/2001 
operations of the (1 year 1 
company's textile month) 
industries, import and 
export and related 
financing. 
4 
(b)(6)
Matter of A-B-. Inc. 
• "Determining operational 
procedures and goals." 
··President'' • ·'Formulating and 7/1966- Yes. 
establishing organizational 11/2000 
policies and operating (34 years 4 
procedures for engineering months) 
system organizations.'' 
• ·'Reviewing the technical 
engineering problems and 
procedures of 
departments.,. 
• ·'Establishing engineering 
operational procedures 
and goals." 
• "Coordinating product 
assurance program to 
improve existing 
engineering products and 
production." 
• ''Implementing cost 
benefit analysis for 
engineering products." 
• .. Directing engineering 
operational procedures 
and goals.'' 
• ''Reviewing technical 
engineering procedures for 
the corporation and 
recommending solutions 
for the business 
engineering quality 
assurance operations.,. 
As shown above, we determined that the experience that correlates with the job experience required 
for the position offered (experience as a ''Director of Quality Assurance Engineering'') includes the 
Beneficiary's positions as (1) Director of Textile Tech. Engineering Operations for 
and (2) as President for l-lowever. we noted inconsistencies in the 
record of proceedings that cast doubt on the Beneficiary's experience with 
On motion, the Petitioner asserts that our conclusion that the Beneficiary does not have sut1icient 
experience to serve in the proffered position is not correct. The Petitioner asserts that it ·'provided 
specific and credible independent evidence that [the Beneficiary] served in at least four engineering 
positions: Vice President of Engineering. (8/23/2003-5/17/2005); 
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(b)(6)
Matter of A-B-. Inc. 
Director of Textile Tech Engineering Operations, 
Director, (11/2000-12/2001); President, 
11/2000).'' 
(12/2001-8/2003); 
(7/1966-
The Petitioner asserts that there is sufficient proof of the Beneficiary's experience as Vice President 
of Engineering for and that he was hired as a managing industrial engineer, 
not a property manager as we indicated in our previous decision. The Petitioner states that 
tiled a Labor Condition Application (LCA) for an H-1 B non-immigrant petition to 
hire the Beneficiary as Vice President of Engineering and that the LCA indicated the position 
corresponds with job code 189 (Miscellaneous Managers and Officials) in the Dictionary of 
Occupational Titles. The Petitioner states that by using this title, · indicated 
[the Beneficiary] would be working as a managing engineer." 
Counsel for the Petitioner specifically states the following in his brief: 
These duties are general industrial engineering skills which are applied 
across 
industries and businesses. There was no requirement in the job description that the 
employee must be an expert in the particular product that the business otTers. Rather, 
the point was that [the Beneficiary] would bring his engineering expertise to the 
business to make the process more etlicient. 
First, the Petitioner states that the Beneficiary's position as Vice President for Engineering at 
constituted qualifying experience for the position offered. In our previous 
decision we noted that the job duties of Vice President for Engineering closely resemble that of a 
manager of real estate investments. The job duties for Vice President for Engineering position as 
stated on the labor certification include: 
• Formulating policies and directing the operations ofthe real state interest of the company; 
• Managing and supervising statT engaged in preparing lease agreements, recording rentals 
receipts, and performing other activities necessary to the efficient management of the 
corporation's real estate holdings; and 
• Determining maintenance schedules of common areas, hiring outside contractors for larger 
projects, and overseeing the bidding process. 
The Petitioner states that the Beneficiary's duties in the position as Vice President tor Engineering 
correspond with the description in the DOL's Occupational Outlook handbook for industrial 
engineers and demonstrate 
that he was working as a managing industrial engineer. 
We stated in our previous decision that Part A of the Form ETA 750 indicates that the DOL assigned 
the occupational code of 189.117.042 with the accompanying job title of Director, Quality 
Assurance tor the protTered position. The DOL previously used the Dictionary of Occupational 
Matter of A-B-. Inc. 
Titles (DOT) to classify occupations. O*NET is the current occupational classification system in 
use by the DOL.2 O*NET incorporates the Standard Occupational Classification (SOC) system.3 
which is designed to cover all occupations in the United States.4 In the instant case, using the DOT 
crosswalk, the DOT code of 189.117.042 equates to the O*NET-SOC code of 11-3051.01. which 
falls under the SOC detailed occupation of Quality Control System Managers. 
The Dictionary of Occupational Titles defines the position of '"Director, Quality Assurance:· as 
follows: 5 
Participates, as member of management team, in formulating and establishing 
organizational policies and operating procedures for company and develops, 
implements, and coordinates. through support stafT and lower echelon managers. 
product assurance program to prevent or eliminate defects in new or existing 
products: Analyzes, evaluates, and presents information concerning factors, such as 
business situations, production capabilities. manufacturing problems. economic 
trends, and design and development of new products for consideration by other 
members of management team. Suggests and debates alternative methods and 
procedures in solving problems and meeting changing market opportunities. 
Cooperates with other top management personnel in fonnulating and establishing 
company policies, operating procedures, and goals. Develops initial and subsequent 
modifications of product assurance program to delineate areas of responsibility. 
personnel requirements. and operational procedures within program. according to and 
consistent with company goals and policies. Evaluates contents of reports from 
product assurance program department heads and confers with top management 
personnel preparatory to formulating fiscal budget for product assurance program. 
Conducts management meetings with product assurance program department heads to 
establish, delineate. and review program organizational policies, to coordinate 
functions and operations between departments, and to establish responsibilities and 
procedures for attaining objectives. Reviews technical problems and procedures of 
departments and recommends solutions to problems or changes in procedures. Visits 
and confers with representatives of material and component vendors to obtain 
information related to supply quality, capacity of vendor to meet orders, and vendor 
quality standards. Confers with engineers about quality assurance of new products 
designed and manufactured products on market to rectify problems. Reviews 
2 S'ee O*NET Online, located at http://online.onetcenter.org, is described as "the nation's primary source of occupational 
information ... containing infonnation on hundreds of standardized and occupation-specific descriptors." .~'ee also About 
O*NET, http://www.onetcenter.org/overview.html (accessed May 16, 2016). 
'See The O*NET-SOC 2010 Taxonomy, http://www.onetcenter.org/taxonomy.html (accessed May 16, 2016). 
4 See 2000 Standard Occupational Classification (SOC) User Guide, http://www.bls.gov/soc/socguide.htm (accessed 
May 16, 20 16); see also Standard Occupational Classification, http://www.bls.gov/soc/homc.htm (accessed 
May 16. 2016) (relating to the 2010 SOC). 
5 
See Code 189.172-042, Director, Quality Assurance, http://www.occupationalinfo.org/18!189117042.html (accessed 
May 16, 2016). 
(b)(6)
}\;fatter of A-B-. Inc. 
technical publications, articles, and abstracts to stay abreast of technical 
developments in industry. 
The O*Net summary report for the position of "Quality Control Systems Managers" states the 
following tasks: 
• Collect and analyze production samples to evaluate quality. 
• Analyze quality control test results and provide feedback and interpretation to 
production management or stafT. 
• Stop production if serious product defects are present. 
• Monitor performance of quality control systems to ensure effectiveness and efliciency. 
• Communicate quality control information to all relevant organizational departments, 
outside vendors, or contractors. 
• Instruct staff in quality control and analytical procedures. 
• Produce reports regarding nonconformance of products or processes, daily production 
quality, root cause analyses, or quality trends. 
• Participate in the development of product specifications. 
• Review statistical studies, technological advances, or 
regulatory standards and trends 
to stay abreast of issues in the field of quality control. 
• Identify critical points in the manufacturing process and specify sampling procedures 
to be used at these points. 
The job duties in the DOT for the position offered of "Director, Quality Assurance,'' and the job 
duties in the O*Net summary report for the crosswalk position of "Quality Control Systems 
Managers,'' both differ from those of the Vice President for Engineering position as stated on the 
labor certification. The position offered has a focus on manufacturing. The position of Vice 
President for Engineering has a focus on managing real estate. Therefore, the Beneficiary's 
experience as Vice President for Engineering does not constitute qualifying experience for the job 
offered. 
Second, the record does not establish that the Beneficiary's experience as Director of Textile Tech. 
Engineering Operations with satisfies the experience requirements for 
the position offered. The Petitioner asserts that the Beneficiary established the quality control 
system of all import and export of raw textile material and performed the duties listed in the chart 
above from December 2001 until August 2003. We noted in our previous decision that this 
experience and whether ever had a textile business was called into 
question due to evidence in the record that U.S. Customs and Border Protection (CBP) did not find 
any import or export records in its databases for from December 200 I 
to December 2004. On motion, the Petitioner states that it was starting the textile business and that 
the Beneficiary was responsible to .. spearhead the process." We noted that the labor certification 
indicated the Beneficiary "'designed and implemented the engineering development programs to 
maximize productivity strategies'' and that he "formulated and maintained the engineering 
operational procedures and goals.'' This implies that the textile engineering system was in place and 
that the Beneficiary was responsible for maximizing production. However, the Petitioner states on 
8 
(b)(6)
Matter <?f A-B-, Inc. 
motion that the Beneficiary was responsible for setting up the textile business but that 
'·changed its operations and abandoned the actual production of textiles:' This 
assertion unsubstantiated by supporting evidence is insufficient to satisfy the Petitioner· s burden of 
proof. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter ofSl?f/ici, 22 l&N Dec. 158, 165 (Comm 'r 
1998) (citing Matten?fTreasure Crqfi <?fCal(fcH·nia, 14 I&N Dec. 190 (Reg'! Comm 'r 1972)). 
Here, supporting evidence is particularly crucial because the description on the labor certification of 
the Beneficiary's experience as Director of Textile Tech. Engineering Operations contradicts the 
Petitioner's assertions. It is unclear how the Beneficiary "maintained .. the engineering operational 
procedures for a system that was not operational, or how he ''implemented . . . programs to 
maximize productivity strategies'' when no actual production occurred. Also, it is unclear how the 
Beneficiary gained qualifying experience in this position for 20 months if the company abandoned 
the production of textiles. The Petitioner has not provided any additional objective evidence to 
demonstrate that productions of textiles ever occurred and to resolve the doubt cast upon this 
expenence. 
Third, the Beneficiary's experience with is called into question by the fact that the 
Beneficiary was employed as the Executive Vice President of for approximately 15 years 
or more during the time that he allegedly worked as President of We previously noted 
that he record contains a complaint from the m 
Florida, tiled by the a government agency of Ecuador, naming 
the Beneficiary and his brother, as defendants. The complaint states in Items 7-9 that in the 
mid-1990s, the Beneficiary served as Executive Vice President of until December 2. 
1998. In the answer to the complaint. the defendants admit in Item 7 that the Beneficiary was the 
Executive Vice President of from the mid-1980s (as opposed to the mid-1990s as the 
complaint alleges) through December 2, 1998. This overlaps the period of time that the Beneficiary 
was allegedly employed as President of from July 1966 to November 2000, and calls 
into question the Beneficiary's employment at In our previous decision we noted that 
it is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent 
objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter <?l Ho, 19 I&N 
Dec. at 591-592. In visa petition proceedings, the burden is on the petitioner to establish eligibility 
for the benefit sought. See Matter <?l Branligan, 11 I&N Dec. 493 (BIA 1966). Therefore, the 
evidence in the record does not demonstrate that the Beneficiary gained the required experience for 
the offered position with The Petitioner submitted no new evidence on motion to 
support its assertion that the Beneficiary gained the required experience as a Director of Quality 
Assurance Engineering. 
B. Whether a Bona Fide Job OtTer Exists 
In our previous decision we found that, when viewed in the totality of the circumstances, due to the 
familial relationships between the Beneficiary and the owners of the Petitioner's parent company, 
9 
(b)(6)
Matter of A-B-, Inc. 
and the discrepancies in the record. the Petitioner had not established that the instant petition 
constitutes a bonafide job offer that is open to U.S. workers. 
The record contains evidence that (Iceland) is the parent 
company of the Petitioner. The record contains a letter from dated 
October 29, 2007. in support of a Form 1-129 tiled on behalf of the Beneficiary's wife. which states 
that the ownership of is shared by (with a 42.27% ownership 
interest) and (with a 6.6% ownership interest), who are the Beneficiary's brothers.
6 
In addition, a search of the Florida Department of State Division of Corporations indicates that the 
Beneficiary's brothers are listed as directors in the Petitioner's Annual Report filings from 2004 
through 2008.7 In our prior decision we concluded that these facts. viewed in the totality of the 
circumstances, indicate that the petition lacks a bonafide job offer. 
A relationship invalidating a bona fide job offer may arise where the beneficiary is related to the 
petitioner by ''blood'' or it may ''be financial, by marriage, or through friendship.'' ,)'ee 1\latter l~l 
Sunmart 374, 00-INA-93 (BALCA May 15, 2000). 
The Petitioner asserts that the evidence in the record demonstrates that there is a bonafide job offer. 
The Petitioner states that even though the Beneficiary's brothers have a 66.66% ownership interest 
in they cut his salary and placed him on suspension due to lapses in his 
employment authorization, thus demonstrating there was no favoritism in hiring him over U.S. 
workers. However, these points involve 
actions taken after he was in the position ofTered. Whether 
a bonafide job offer exists relates to whether the position offered is open to U.S. workers before the 
Beneficiary is hired. Matter l~l Silver Dragon Chinese Restaurant, 19 I&N Dec. 401 (Comm ·r 
I 986), quoted an advisory opinion from the Chief of DOL· s Division of Foreign Labor Certification 
as follows: 
The regulations require a 'job opportunity' to be 'clearly open.' Requiring the job 
opportunity to be bona fide adds no substance to the regulations, but simply clarifies 
that the job must truly exist and not merely exist on paper. The administrative 
interpretation thus advances the purpose of regulation 656.20(c)(8). Likewise 
requiring the job opportunity to be bona fide clarifies that a true opening must exist, 
and not merely the functional equivalent of self-employment. Thus. the 
administrative construction advances the purpose of regulations 656.20. 
!d. at 405. The fact that the Beneficiary's brothers have a significant ownership interest in the 
Petitioner's parent company and previously were listed as the Petitioner's directors from 2004 to 
h 
also holds an ownership interest in and it does not appear that she is related to 
the Beneticiarv. 
7 
See Florida· Department of State Division of Corporations, "Corporation, Limited Partnership, Limited Liability 
Company, Trademark," http://search.sunbiz.org/Inquiry/CorporationSearch/ByName under (as of 
May 16, 2016). 
10 
Matter of A-B-. Inc. 
2008, together with the discrepancies noted in our previous decision, demonstrate that the instant 
position offered is not a bona .fide job offer. In our previous decision we cited the evidence 
stipulated in 20 C.F.R. § 656.17(1) to demonstrate whether the position offered is open to U.S. 
workers or subject to the Beneficiary's influence, including: 
( 1) A copy of the articles of incorporation, partnership agreement, business license 
or similar documents that establish the business entity; 
(2) A list of all corporate/company officers and shareholders/partners of the 
corporation/firm/business. their titles and positions in the business' structure, and a 
description of the relationships to each other and to the beneficiary; 
(3) The financial history of the corporation/company/partnership. including the 
total investment in the business entity and the amount of investment of each officer, 
incorporator/partner and the beneficiary; and 
( 4) The name of the business' ofticial with primary responsibility for interviewing 
and hiring applicants for positions within the organization and the name(s) of the 
business· official(s) having control or influence over hiring decisions involving the 
position for which labor certification is sought. 
( 5) If the beneficiary is one of 10 or fewer employees, the employer must 
document any family relationship between the employees and the beneficiary. 
The Petitioner has not provided any of this evidence to establish that the position otTered constitutes 
a bonafide job offer. The Petitioner cannot meet the burden of proof simply by claiming a fact to be 
true. without supporting documentary evidence. See Matter (?lS(?ffici. 22 I&N Dec. at 165; see also 
Matter ql Chmvathe. 25 I&N Dec. 369 (20 1 0). The Petitioner must support its assertions with 
relevant. probative and credible evidence. See Matter ql Chawathe. 25 I&N Dec. at 376. After 
again reviewing the totality of the circumstances in this case, we find that the Petitioner has not 
established that the instant job opportunity was '"clearly open" to U.S. workers as a bona fide job 
opportunity. 
III. CONCLUSION 
As stated above, the evidence in the record does not establish that the Beneficiary met the experience 
requirements of the labor certification or that the job offered constituted a bona .fide job offer that was 
open to U.S. workers. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter l?lA-B-, Inc., ID# 14192 (AAO June 3. 2016) 
11