dismissed EB-3 Case: Finance

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-H- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 28, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a hospital, seeks to employ the Beneficiary as a budget analyst. It requests classification 
of the Beneficiary as a professional under the third preference immigrant category. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment­
based immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate 
degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did not 
establish that the Beneficiary met the minimum experience requirement of the labor certification. 
On appeal the Petitioner asserts that the evidence it has submitted is sufficient to establish that the 
Beneficiary has the qualifYing experience required by the labor certification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification (ETA Form 9089, Application for Permanent Employment 
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). By approving the labor certification, DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the 
petition, the foreign national applies 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. 
1 The date the labor certification is filed with the DOL is called the "priority date." See 8 C.F.R. § 204.5(d). In this case 
the priority date is February I, 2016. 
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Matter of A-H- Inc 
II. ANALYSIS 
A beneficiary must meet all of the education, training, experience, and other requirements of the 
labor certification as of the petition's priority date. See Afatter of Wing's Tea House, 16 I&N Dec. 
158, 159 (Acting Reg'l Comm'r 1977). In this case the labor certification states that 12 months of 
experience as a budget analyst is required for the job. The labor certification states that the 
Beneficiary met this requirement by virtue of his employment as a budget analyst by 
m Philippines, from June 1, 1996, to February I, 2002. 
The specific evidentiary requirements to establish qualifying experience are set forth m the 
regulation at 8 C.F.R. § 204.5(g)(l), which reads in pertinent part as follows: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) 
from current or former employer(s) or trainer(s) and shall include the name, address , 
and title of the writer, and a specific description of the duties performed by the alien 
or of the training received. If such evidence is unavailable , other documentation 
relating to the alien's experience or training will be considered. 
The Petitioner has submitted three virtually identical letters from who asserts that 
she was head of the thrift banking group of the in 
Philippines, from 1995 to 2007 and supervised the Beneficiary when he was employed by the bank 
as a budget analyst from June 1996 through February 2002. In the request for evidence and notice of 
intent to deny which were issued prior to the decision the Director noted that claimed to 
be a former co-worker of the Beneficiary, not his employer. 3 In his denial decision the Director 
noted the Petitioner's claim that letters from the Beneficiary's former employer were unavailable 
because had merged with another bank, , but he found that the 
Petitioner had not shown why the merger made evidence about former employees 
unavailable. In the absence of any corroborating evidence to verify the Beneficiary's employment 
by the Director concluded that the affidavit submitted by was not persuasive 
evidence that the Beneficiary was employed by 
On appeal the Petitioner asserts once again that a letter from the Beneficiary's former employer 
containing the information required in 8 C.F.R. § 204.5(g)(l) was unavailable because Equitable 
merged with in December 2006 and no longer exists, as was the surviving entity. The 
Petitioner submits a search result stating that ceased operations in 2007. The 
Petitioner also referred to a previously submitted article from Wikipedia discussing the merger 
with as well as an excerpt from webpage showing that its corporate address is the 
same as old address. Since no employment verification letter can be produced from 
because it no longer exists, the Petitioner contends that we should accept the affidavit of 
2 The first Jetter was submitted as initial evidence with the petition, the second in respon se to the Director 's request for 
evidence, and the third (a sworn affidavit) in response to the Director 's notice of intent to deny the petition . 
3 The Petitioner has not submitted evidence of employment with 
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Matter of A-H- Inc 
the Beneficiary's former supervisor as good evidence of the Beneficiary's employment experience 
with 
However, the Petitioner has not demonstrated that a letter cannot be obtained from the 
surviving entity of the merger, to confirm whether the Beneficiary \vas previously 
employed by The Petitioner has not explained why employment records of 
would disappear , or be suddenly unavailable , just because the bank merged with and ceased to 
be a separate entity. The enlarged that emerged from the merger would have included the 
assets, liabilities , and records of including the personnel records of current 
and former employees. The Petitioner has not submitted any evidence that it inquired directly with 
about obtaining a letter verifying the Beneficiary's prior employment with nor any 
evidence that cannot, or will not, produce such a letter. Therefore, we are not persuaded by the 
Petitioner's claim that a letter cannot be obtained from to verify the Beneficiary's employment 
. with We will not accept the affidavit of a purported former co-worker at 
as a substitute for a letter from since that entity incorporates the bank that allegedly 
employed the Beneficiary. 
As stated above, 8 C.P.R. § 204.5(g)(l) authorizes USCIS to consider "other documentation relating 
to the [Beneficiary's] experience" if letters from current or former employers are "unavailable." In 
this case, however, the Petitioner has not shown that a letter verifying the Beneficiary's experience is 
unavailable from the surviving entity of the merger that incorporated the Beneficiary's former 
employer. Moreover , although we will consider other documentation if the Petitioner demonstrates 
the required evidence is unavailable , the Petitioner continues to bear the burden of establishing 
eligibility for the benefit sought. Here, the Petitioner has not offered any documentary evidence to 
corroborate the claims made in the letter from Accordingly , we find that the Petitioner 
has not established that the Beneficiary has at least 12 months of qualifying employment as a budget 
analyst, as required to meet the experience requirement of the labor certification. 
Ill. CONCLUSION 
The Petitioner has not established that the Beneficiary has the requisite experience to meet the minimum 
experience requirement of the labor certification. 
ORDER: The appeal is dismissed. 
Cite as l'datter of A-H- Inc, ID# 989209 (AAO Feb. 28, 2018) 
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