dismissed EB-3 Case: Farming

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-W-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 11,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an owner of a farm and ranch, seeks to permanently employ the Beneficiary as a farm 
worker. It requests classification of the Beneficiary as an unskilled worker under the third­
preference immigrant category. See Immigration and Nationality Act (the Act) § 203(b )(3)(A)(iii), 8 
U.S.C. § 1153(b)(3)(A)(iii). This classification allows a U.S. employer to sponsor a foreign worker 
for lawful permanent resident status to work in a position that requires less than two years of training 
or experience. !d. 
The Director, Texas Service Center, denied the petition. The Director determined that the record did 
not establish the Beneficiary's qualifying experience for the offered position. 
We dismissed the Petitioner's appeal and denied her following two motions to reopen and 
reconsider. In our most recent decision of October 9, 2015, we found that the record did not 
establish the Beneficiary's qualifying experience for the offered position or the Petitioner's ability to 
pay the proffered wage. Because the record lacked evidence of the Petitioner's successorship-in­
interest to the entity that filed the accompanying labor certification, we also found the labor 
certification invalid for the particular job opportunity stated in the petition. 
The matter is now before us on the Petitioner's third motion to reopen and reconsider. The 
Petitioner attempts to explain inconsistencies of record in the Beneficiary's claimed qualifying 
experience, provides additional information in support of her ability to pay the proffered wage, and 
argues that she is the same entity that filed the labor certification. We will deny the motions to 
reopen and reconsider. 
I. THE BENEFICIARY'S QUALIFYING EXPERIENCE 
A petitioner must establish a beneficiary's possession of all the education, training, and experience 
specified on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 
103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l 
Comm'r 1977); Matter o.fKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
In evaluating a beneficiary's qualifications, we must examine the job offer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position. 
(b)(6)
Matter of D- W-
We may neither ignore a term of the labor certification, nor impose additional requirements. See 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 
1008, 1015 (D.C. Cir. 1983); Stewart Infra-R ed Commissary of Mass ., Inc. v. Coomey, 661 F.2d I, 3 
(1st Cir. 1981). 
In the instant case, an ETA Form 9089, Application for Permanent 
Employment Certification , (labor 
certification) , approved by the U.S. Department of Labor (DOL), accompanies the petition . The 
petition 's priority date is August 21 , 2012, the date the DOL accepted the labor certification 
application for processing . See 8 C.F.R. § 204.5(d). 
The accompanying labor certification states the minimum requirements of the offered position of 
farm worker as 12 months of experience in the job offered. 
The Beneficiary attested on the labor certification to more than 11 years of full-time, qualifYing self­
employment before the petition's priority date. The Beneficiary stated the following experience: 
• About 11 years and two months as a general manager of a farm and ranch in 
Mexico from June 1, 2001 to August 21, 2012; and 
• About 11 years and two months as a fatm worker at that same farm and ranch during the same 
time period. 
Despite the Beneficiary's attestations of self-employment on the accompanying labor certification, the 
Petitioner on appeal asserted her employment of the Beneficiary, who was born in 1985, since 1994. 
She also submitted an April 21 , 2014, affidavit from her neighbor, attesting to the Petitioner's 
employment of the Beneficiary for the prior seven years. 
We doubted the Petitioner's claimed employment of the Beneficiary since he was nine years old and 
questioned his claimed simultaneous employment in two, full-time positions in Mexico as indicated on 
the accompanying labor certification. However, the Petitioner explained in her first motion that the 
Beneficiary's experience had been confused with the experience of his father, who has the same name 
as the Beneficiary, who has also worked for the Petitioner, and for whom the Petitioner has also filed a 
petition. The Petitioner stated that she has employed the Beneficiary's father since 1994, and the 
Beneficiary since 2001. 
With her second motion, the Petitioner submitted a February 9, 2015, affidavit of the Beneficiary' s 
father. The Beneficiary's father stated his employment of the Beneficiary at the ranch he owns in 
Mexico from August 2005 to April2011. 
As indicated in our most recent decision, the affidavit of the Beneficiary' s father conflicts with other 
evidence of record. The Petitioner stated her employment of the Beneficiary's father in the United 
States since 1994. U.S. Citizenship and Immigration Services (USCIS) records also contain a prior 
petition for the Beneficiary's father that indicates his arrival in the United States in 1989. Thus, the 
record does not explain how the Beneficiary' s father employed the Beneficiary in Mexico from 2005 to 
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Matter of D- W-
2011 if the father was working in the United States during the same period. See Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of record by 
independent, objective evidence). 
Also, the Petitioner's neighbor attested to the Petitioner's employment ofthe Beneficiary in the United 
States from 2007 to 2014. The record does not explain how the Beneficiary worked for his father in 
Mexico from 2005 to 2011 if he was working for the Petitioner in the United States for part of that time. 
!d. The inconsistencies of record cast doubt on the Beneficiary's claimed qualifYing experience. 
On motion, the Petitioner asserts that the Beneficiary gained qualifYing experience at both ranches: his 
father's in Mexico; and the Petitioner's in the United States. The Petitioner states: "If time lapses are at 
issue[,] it is because many years have passed since the dates in question and specific time periods such 
as specific days in time have been difficult to recall by the beneficiary." 
The Petitioner also argues that the inconsistencies in the Beneficiary's claimed qualifYing experience 
"are largely based on assumptions as [our most recent] decision questions how the beneficiary could 
gain experience working on his father's ranch while his father was physically in the United States. 
Regardless of his father's physical whereabouts, the ranch in Mexico is not stationary and still open and 
in need of ranching." 
The Petitioner's assertions and arguments on motion are insufficient to establish the Beneficiary's 
qualifYing experience for the offered position. If the Beneficiary gained qualifYing experience at both 
his father's ranch in Mexico and the Petitioner's ranch in the United States, the Petitioner must submit 
documentary evidence from herself and the Beneficiary's father explaining when and where the 
qualifYing experience occurred. See 8 C.F.R. § 204.5(1)(3)(ii)(A) (requiring a petitioner to support a 
beneficiary's claimed qualifYing experience with letters from employers giving the names, addresses, 
and titles of the employer, and descriptions of a beneficiary's experience). If the Beneficiary worked 
intermittently for one or both employers, the Petitioner must explain and document those circumstances. 
As previously indicated, the record contains a letter from the Petitioner and the affidavit of the 
Beneficiary's father in support of the Beneficiary's claimed experience. However, the statements 
conflict with each other and with other evidence of record. The Petitioner must explain the 
inconsistencies and submit independent, objective documentation, such as pay or tax records, to 
establish the Beneficiary's possession of at least 12 months of qualifYing experience before the 
petition's priority date of August 21, 2012. 
If the Beneficiary's father was in the United States while the Beneficiary worked at the ranch in 
Mexico, the Petitioner must submit a letter from someone with personal knowledge of the Beneficiary's 
employment in Mexico. See 8 C.F.R. § 103.2(b)(2)(i) (requiring affiants to have "direct personal 
knowledge of the event and circumstance"). 
The record contains copies of IRS Forms 1099, Miscellaneous Income, issued to the Beneficiary by the 
Petitioner in 2012, 2013, and 2014. However, the forms do not establish the Beneficiary's full-time 
3 
Matter of D- W-
employment for at least 12 months before the petition's priority date of August 21, 2012. The 
Petitioner also did not provide evidence that the U.S. Social Security number stated on the Forms 1099 
corresponds to the Beneficiary, as we requested in our most recent decision. 
Further as indicated in our prior decisions, a labor certification employer generally cannot count 
experience that a foreign national gained with it in a position "substantially comparable" to the offered 
position. 20 C.F.R. § 656.17(i)(3)(i). Thus, the Beneficiary's employment by the Petitioner may not 
constitute qualifYing experience unless he worked in a position that was not substantially comparable to 
the offered position, or unless the Petitioner "can demonstrate that it is no longer feasible to train a 
worker to qualifY for the position." 20 C.F.R. § 656.17(i)(3)(ii). 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the qualifYing 
experience specified on the accompanying labor certification by the petition's priority date. We will 
therefore affirm our most recent decision and deny the motions to reopen and reconsider. 
II. THE PETITIONER'S 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)(l ). Evidence of ability 
to pay must include copies of annual reports, federal income tax returns, or audited financial statements. 
!d. 
In our most recent decision, we found that the Petitioner demonstrated her ability to pay the 
Beneficiary's individual proffered wage. However, we found that the record did not establish the 
Petitioner's ability to pay the combined proffered wages of the instant Beneficiary and the Beneficiary's 
father, whose petition by the Petitioner remained pending after the instant petition's priority date. See 
Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding our denial of petition where a 
petitioner did not demonstrate its ability to pay multiple beneficiaries). 
At the time of our most recent decision, the record did not contain enough information about the 
petition of the Beneficiary's father to determine the Petitioner's ability to pay the combined proffered 
wages. However, on motion, the Petitioner provides the proffered wage stated in the petition for the 
Beneficiary's father. In conjunction with other information about the petition in USCIS records, the 
record establishes the Petitioner's ability to pay the combined proffered wages of the two petitions. 
As discussed in our two most recent decisions, because the Petitioner is a sole proprietor, we may 
consider her individual income and assets in determining her ability to pay the proffered wage. See, 
e.g, Ubeda v. Palmer, 539 F. Supp. 647,649 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). The 
record contains copies of the Petitioner's federal tax returns and a statement of her living expenses. The 
returns establish her annual receipt of tax-exempt interest income that exceeds her expenses and the 
amounts of the combined proffered wages. 
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(b)(6)
Matter of D-W-
Thus, the record establishes the Petitioner's continuing ability to pay the proffered wage from the 
petition's priority date onward. We will therefore withdraw our contrary finding. 
III. THE VALIDITY OF THE ACCOMPANYING LABOR CERTIFICATION 
A petition for an other worker must be accompanied by an individual labor certification, an 
application for Schedule A designation , or evidence of a beneficiary's qualifications for a shortage 
occupation. 8 C.F.R. § 204.5(1)(3)(i). 
A labor certification remains valid only for the particular job opportunity, foreign national, and 
geographic area of intended employment stated on it. 20 C.F.R. § 656.30(c)(2). We may deny a 
petition accompanied by an invalid labor certification. See Matter of Sunoco Energy Dev. Co., 1 7 
I&N Dec. 283, 284 (Reg'l Comm'r 1979) (affirming a petition's denial under 20 C.F.R. § 
656.30(c)(2) where a petitioner intended to employ a beneficiary at its home office in Texas, rather 
than at a project site in Utah as stated on the accompanying labor certification). 
In our most recent decision, we found the accompanying labor certification invalid for the particular job 
opportunity stated in the petition. Although the labor certification identifies the Petitioner as the 
employer, it states a federal employer identification number (FEIN) that corresponds to a corporation of 
which the Petitioner is the sole shareholder and namesake. 
1 
Because a corporation is a separate and 
distinct legal entity from its owners, see, e.g, Matter of Aphrodite Invs., Ltd., 17 I&N Dec. 530, 531 
(Comm'r 1980), we found that the particular job opportunity stated on the labor certification did not 
match the job opportunity stated in the petition. 
A "successor-in-interest" may petition for the same job opportunity if it has acquired the essential 
rights and obligations to carry on the labor certification employer's business. See Matter of Dial 
Auto Repair Shop, Inc., 19 I&N Dec. 481, 482-83 (Comm'r 1986). However, the record does not 
establish the Petitioner as a successor-interest to the corporation whose FEIN was stated on the labor 
certification. 
On motion, the Petitioner asserts that "she is the same entity as the employer that filed the labor 
certification." However, the basis for this assertion is unclear. The Petitioner does not explain why she 
listed the FEIN of the corporation on the accompanying labor certification if she, rather than the 
corporation, intended to employ the Beneficiary.2 
DOL regulations require a labor certification employer to "possess a valid Federal Employer 
Identification Number (FEIN)." 20 C.F.R. § 656.3. A FEIN is required to determine whether an 
employer is a "bonafide business entity." Final PERM Rule, 69 Fed. Reg. 77326, 77329 (Dec. 27, 
2004); see also Matter of Gonzales, 2007-PER-00024, 2007 WL 4157757, *2 (BALCA Apr. 25, 
1 The accompanying labor certification states the employer 's name as However, this appears to be an 
inadvertent , typographical error. 
2 The copies of the IRS Forms I 099 of record state the Petitioner 's FEIN as her Social Security number. 
5 
Matter of D-W-
2007) (finding that the requirement of a valid FEIN on a labor certification "is fully supported by the 
regulations, and by the policy stated in the regulatory history of the PERM regulations to use the 
FEIN as a means of verifying whether an employer is a 'bonafide business entity'"). 
The DOL has denied labor certification applications containing FEINs that do not correspond to the 
employers stated on them, even, as in the instant case, where those FEINs are valid for other entities. 
See Matter of Jeannette, 2011-PER-02930, 2013 WL 865574 (BALCA Mar. 1, 2013) (affirming 
denial of a labor certification application stating the FEIN of the employer's business, rather than her 
personal FEIN, for employment of a domestic worker); see also Matter of Pac(fic Molding Inc., 
2008-PER-00042, 2008 WL 2453378 (BALCA June 12, 2008) (stating that "we concur with the 
[DOL's Certifying Officer] that the agent's FEIN was not an adequate substitute for the petitioning 
Employer's own FEIN. It was the petitioning Employer and not its agent that was sponsoring the 
labor certification application"). 
Based on the importance placed on FEINs by the DOL, we find that the accompanying labor 
certification remains valid only for employment by the corporation whose FEIN is stated on it. 
Because the Petitioner, rather than the corporation, intends to permanently employ the Beneficiary in 
the offered position, the labor certification is not valid for the particular job opportunity stated in the 
petition. For this reason, we will also affirm our prior decision and deny the motions to reopen and 
reconsider. 
IV. CONCLUSION 
The record on motion establishes the Petitioner's ability to pay the proffered wage. We will therefore 
withdraw the contrary finding in our prior decision. However, the record does not establish the 
Beneficiary's qualifying experience for the offered position or the validity of the accompanying labor 
certification for the particular job opportunity stated in the petition. For these reasons, we will affirm 
our prior decision and deny the motions to reopen and reconsider. 
In visa petition proceedings, a petitioner bears the burden of establishing eligibility for the requested 
benefit. INA§ 291, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the 
Petitioner did not entirely meet that burden. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofD-W-, ID# 16553 (AAO Mar. 11, 2016)