dismissed EB-3 Case: Healthcare Administration

ldentifyingdatadeletedtOted
preventdearlyunwarran
invasionofpersonalprivacy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3042
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
WAC 03 15850515
Office: CALIFORNIA SERVICE CENTER Date: ttAy 02 -
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § I 153(b)(3)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
www.uscis.gov
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DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a residential care facility. It seeks to employ the beneficiary permanently in the United
States as an administrative services manager. As required by statute, the petition is accompanied by a Form
ETA 750, Application for Alien Employment Certification, approved by the Department of Labor. The
director determined that the petitioner has failed to submit sufficient evidence of the beneficiary's prior
experience, and, the petitioner had not established that the beneficiary has minimum requirements as stated on
the labor certification petition. The director denied the petition approval accordingly.
According to information in the record of proceeding the petitioner owns and operates a licensed 24-bed
residential care facility for developmentally disabled adults.
On appeal, the counsel submits a legal brief and additional evidence.
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(3)(A)(i),
provides for the granting of preference classification to qualified immigrants who are capable, at the time of
petitioning for classification under this paragraph, 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.
The regulation at 8 CFR § 204.5(1)(3)(ii)states, in pertinent part:
(A) General. Any requirements of training or experience for skilled workers, professionals, or other
workers must be supported by letters from trainers or employers giving the name, address, and titleof the
trainer or employer, and a description of the training received or the experience of the alien.
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied by evidence
that the alien meets the educational, training or experience, and any other requirements of the individual
labor certification, meets the requirements for Schedule A designation, or meets the requirements for the
Labor Market Information Pilot Program occupation designation. The minimum requirements for this
classification are at least two yearsof training or experience.
The petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form
ETA 750 Application for Alien Employment Certification as certified by the U.S. Department of Labor and
submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
Here, the Form ETA 750 was accepted on August 6, 2001. The proffered wage as stated on the Form ETA
750 is $29.54 per hour ($61,443.20 per year). The Form ETA 750 states that the position requires four years
expenence.
The 1-140 petition is dated October 22, 2002, and it was filed on April 24, 2003. With the petition, counsel
submitted the following documents: the original Form ETA 750, Application for Alien Employment
Certification, approved by the Department of Labor, and, copies of documentation concerning the
beneficiary's qualifications as well as other documentation.
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To be eligible for approval, a beneficiary must have the education and experience specified on the labor
certification as of the petition's filing date, which is August 6, 2001. See Matter of Wing's Tea House, 16I&N
Dec. 158 (Act. Reg. Comm. 1977).
To determine whether a beneficiary is eligible for an employment based immigrant visa, Citizenship &
Immigration Services (CIS) must examine whether the alien's credentials meet the requirements set forth in the
labor certification. In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the
labor certification to determine the required qualifications for the position. CIS may not ignore a term of the
labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese
Restaurant, 19 I&N Dec. 401,406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir.
1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (lst Cir. 1981).
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 13 and 14, sets
forth a description of the job to be performed, and, the minimum education, training, and experience that an
applicant must have for the position of administrative services manager at a residential care facility.
The Form ETA-750A Item 13 describes the job to be performed as follows:
Will coordinate clerical activities and organize office operations, such as typing, bookkeeping,
preparation of payrolls, flow of correspondence, filing, requisition of supplies, and other clerical
services in the facility. Will plan office layouts, and devise and implement strategies to improve
efficiency and quality of workflow. Will plan organization budget, and compile, prepare and
review activities and financial reports to ensure completeness, accuracy, and timeliness using
MS Excel computer program. Will prepare and review records. Will train and supervise clerical
staff.
In the instant case, item 14 describes the requirements of the proffered position as follows:
14. Education .
Grade School Blank
High School Blank
College Blank
College Degree Required Blank
Major Field of Study Blank
Training Blank
Experience " .
Years Four Years
Training .
Years Blank
In the instant case, the Application for Alien Employment Certification, Form ETA-750B, items 11, 12, 13. 14
set forth the education, additional qualifications, licenses, and a list of documents as evidence that the beneficiary
may possess the education, training, experience and abilities represented in the Form ETA 750 for the position of
administrative services manager at a residential care facility. Form ETA-750B, items 11, 12, 13. 14 are blank.
The Application for Alien Employment Certification, Form ETA-750B, item 15, sets forth work experience for
the position of administrative services manager at a residential care facility:
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15. WORK EXPERIENCE
(a)
NAME AND ADDRESS OF EMPLOYER
Unemployed)
NAME OF JOB
Blank
DATE STARTED
Month - 08 [August] Year 2000
DATE LEFT
Month - Present [to the date of signing which is July 23, 2001]
KIND OF BUSINESS
Blank
DESCRIBE IN DETAIL DUTIES ...
Blank
NO. OF HOURS PER WEEK
Blank
(b)
NAME AND ADDRESS OF EMPLOYER
FNE STAR MONEY CHANGER, CVC Supermarket, JP Rizal Street, Poblacion, Baliuag,
Bulacan, Philippines
NAME OF JOB
Manager
DATE STARTED
Month - 05 [May] Year 1994
DATE LEFT
Month - 07 [July] 2000
KIND OF BUSINESS
Foreign Exchange and Currency Trading
DESCRIBE IN DETAIL DUTIES ...
Directed and coordinated general activities and organized overall business operations.
Planned and developed organizational policies/procedures, and budgeted allocations.
Implemented company goals and strategies. Conferred with personnel and regularly
reviewed activity, operating, and financial reports. Hired, trained, supervised and terminated
employees.
NO. OF HOURS PER WEEK
40
The director issued a request for evidence dated November 20, 2003, and requested inter alia, an explanation of
the beneficiary's lack of prior employment as stated in Form G-235A and his prior employment in the certified
Alien Employment Application (Form ETA 750, Part B).
1 According to the petition, the beneficiary arrived in the United States on July 31, 2000.
Page 5
In response to the request for evidence counsel stated "... that the information involving the beneficiary 's foreign
employment was inadvertently omitted on Form G-325A .... " Counsel further stated the beneficiary 's work
experience on the ETA 750 part B above stated is correct.
The director issued an additional request for evidence dated January 30 , 2004, and, requested inter alia, proof of
the beneficiary 's foreign employment history by way of contracts, pay statements with employer contact
information.
In response to the request for evidence concerning the beneficiary's foreign employment history, counsel
recounted information already stated in ETA 750 Part B 15. (b) above set forth. Counsel said in that response
dated April 9, 2004, that there was no documentary proof of the beneficiary employment with the business Five
Star Money Changer . Counsel asserted that since that business' proprietor was the beneficiary's wife, he was
paid in cash. Therefore , there were no employment contract, pay checks, or pay stubs submitted into evidence .
Counsel has submitted business permits and a commercial lease of space for Five Star Money Changer all signed
by the petitioner's wife. According to the record of proceeding, the beneficiary's wife had submitted with the
petition a letter on Five Star Money Changer letterhead stating that her husband was an employee of the business
on a regular basis from May 1 , 1994 to July 28, 2000. Although not stated in that letter , the beneficiary has stated
on the Form ETA 750 Part B, 15. (b) that he was employed there on a weekly basis 40 hours each week between
those dates.
The director requested an inquiry into the beneficiary 's prior employment experience , and, in an investigation
conducted in June of 2004, could not verify that employment with Five Star Money Changer in Baliuag ,
Bulacan, Philippines.
The director issued an intent to deny the petition on AUbJUst 25, 2004 finding that independent objective evidence
was not submitted that could be verified to demonstrate that the beneficiary had the employment experience
stated in his wife's letter and the Form ETA 750 Part B, 15. (b).
In response to the notice of intent to deny the petition, counsel on September 10, 2004, asserted that the "greater
part of the investigation" was of a person interviewed by the consulate investigator who has taken over the lease
space formerly occupied by Five Star Money Changer in Baliuag, Bulacan, Philippines , and, according to counsel
the investigator should have spoken to individuals who "... were either employed by or leased a business space at
that location." Further , counsel states that the couple owned and operated several businesses, the other one being
Lody's Duck Egg Dealer that commenced business on November 18 , 1985, and , was registered in the
beneficiary 's name. There is no additional information concerning the beneficiary's involvement in this second
business.
Along with the above assertions, counsel has submitted an affidavit from the beneficiary 's wife that recounts
counsel's assertions noted above. She does state that she and her husband jointly managed the Five Star Money
Changer business. A second affidavit was submitted from a former emplo yee of the Five Star Money Changer
that the beneficiary and spouse owned that business from May 1994 to December 31 , 2001; and, that the
beneficiary left for the United States in July of 2000. A third statement from Anel 's Money Changer was
submitted stating that its business started on February 2002 , and before that , Five Star Money Changer operated
at that location.
The director denied the petition on October 28 , 2004 finding that that the petitioner has failed to submit
sufficient evidence of the beneficiary's prior experience , and, the petitioner had not established that the
beneficiary has minimum requirements as stated on the labor certification petition.
Page 6
The petitioner in its appeal of the denial of the preference visa petition asserts that all the evidence submitted
demonstrates that" ' " the beneficiary's previous managerial experience that spans almost fifteen ... years ­
or four ... years for Five Star Money Changer qualifies him for the position [administrative services manager at
a residential care facility] of the labor certification ...." Counsel states that the director 's finding that " ... the
beneficiary has not met the petitioner 's minimum requirements " was based upon the report of the overseas
investigation that the business known as Five Star Money Changer was not in busines s " ... even before the year
2000" among other assertions.
As additional evidence , counsel submits the Philippine income tax returns for the years 1995, 1996, 1997,
1998, 1999 and 2000 for the beneficiary and his spouse, noted thereon as taxpayer
and her spouse, the beneficiary, with gross receipts and sales noted separately for each individual on the
returns under the titles taxpayer and spouse; financial statements; a Philippine social security card and
records; an affidavit; and , a certification.
In determining the respective jurisdictions of the Department of Labor and the CIS , one may turn to the entire
body of recent court proceedings interpreting the interplay of the agencies and strictly confining the final
determination made by the Department of Labor. See Stewart Infra-Red Commissary, Etc. v. Coomey, 661 F.2d
1 (1st Cir. 1981) ; Denver Tofu Company v . District Director, Etc., 525 F. Supp . 254 (D. Colo . 1981); and,
Joseph v . Landon, 679 F.2d 113 (7th Cir. 1982).
These cases recognize the labor certification process and the authority of the Department of Labor in this
process stem from section 214(a)(14) of the Act, 8 U.S.c. 1182(a)(14). In labor certification proceedings , the
Secretary of Labor's determination is limited to analysis of the relevant job market conditions and the effect ,
which the grant of a visa would have on the employment situation. The CIS , through the statutorily imposed
requirement found in section 204 of the Act, 8 U .S.c. 1154, must investigate the facts in each case and , after
consultation with the Department of Labor, determine if the material facts in the petition including the
certification are true.
Although the advisory opinions of other Government agencies are given considerable weight, the Service has
authority to make the final decision about a beneficiary's eligibility for occupational preference classification.
The Department of Labor is responsible for decisions about the availability of United States workers and the
effect of a prospective employee's employment on wages and working conditions . The Department of Labor's
decisions concerning these factors , however, do not limit the CIS's authority regarding eligibility for
occupational preference classification. Therefore, the issuance of a labor certification does not necessarily mean
a visa petition will be approved.
The tax return s s ubmitted by counsel on appeal have a Section F entitled "Summary of Income From
Business, Profession, etc." that states separately incomes from each income source. It is blank on the returns .
The financial statements subm itted state "income from farming" along with income from the Five Star Money
Changer business. For the years 1995 , 1996, 1997, and 1999 the beneficiary and his spouse stated separate
income sources on the first page of the return. In 1998 , the tax document does not state incomes for the
beneficiary and his spouse. In 2000, the tax return states that the taxpayer is and none
for the spouse benefic iary. According to the record of proceeding the benefic iary entered the United States on
July 31, 2000.
Ba~submitted the taxpayer who is identified on the return as Five Star Money Changer
is ----.. On the returns, the beneficiary is identified as spouse and under that column , he
Page 7
also states separate gross receipts for the years for which evidence was submitted. The record of proceeding
indicates that the beneficiary is registered owner of Lody's Duck Egg Dealer that commenced on November 18,
1985. Based on the tax returns submitted the beneficiary owned and operated a second business during the years
examined.
A Philippine social security card was submitted identifying the beneficiary, and receipts showing payments
paid into that fund in the Philippines by the beneficiary. There is no identification of an employer of the
beneficiary such as Five Star Money Changer or a business that generated income for the beneficiary that is
noted on the returns.
An undated letter entitled "Certification" was submitted by store manager of CVC
Supermarket. It states that the beneficiary was" ... co-owner and manager of Five Star Money Changer"
~h1994 "up to December 2001." He further states that " ... He helps his wife Mrs.
~to operate and manage this business from March 1994 up to his ... (the beneficiary's]
departure to United States on July 2000 .... " According to the record of proceeding, the beneficiary's wife had
submitted with the petition a letter on Five Star Money Changer letterhead stating that her husband was an
employee of the business on a regular basis from May 1, 1994 to July 28, 2000. Although not stated in that letter,
the beneficiary has stated on the Form ETA 750 Part B, 15. (b) he was employed there on a weekly basis 40 hours
each week between those dates. The above letter does not support these statements. According to the regulation
at 8 CFR § 204.5(l)(3)(ii) "... Any requirements of training or experience for skilled workers, must be supported
by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a
description of the training received or the experience of the alien"; and, " ... If the petition is for a skilled worker,
the petition must be accompanied by evidence that the alien meets the educational, training or experience, and any
other requirements of the individual labor certification .... " See 8 C.F.R. § 103.2 (b)(2). The petitioner concedes
that such documentation is unavailable for the beneficiary. The minimum requirements as stated in the labor
certification are four years of training or experience. The letter from Mr. Rayo is not probative of the job duties
as stated above, or of the job duties of an administrative services manager at a residential care facility. It is
unclear how the personal management of such a money changing business relates to the duties of an
administrative services manager at a residential care facility.
An affidavit was submitted by as made November 18, 2004. _isan employee
of the CVC Supermarket. He states through his personal acquaintance with the beneficiary and his wife, that
the beneficiary was the manager of Five Star Money Changer and that" ... this must be the case, considering
that this "Five Star Money Chan er" is a famil own sic] business entity and that it is expected that spouses
... [the beneficiary] and have personal management of such money changing
business .... " Similar to the letter from the CVC store manager, this affidavit from a CVC employee is not
probative of the job duties are stated above of an administrative services manager at a residential care facility.
An affidavit was submitted by the beneficiary's spouse relative to his Philippine tax identification number. As
stated above, the tax returns and social security records were submitted do not prove that the beneficiary was an
employee. There was no documentary proof of the beneficiary continuous employment with the business Five
Star Money Changer.
Counsel has submitted excerpts the laws of the Philippine to assert that according to that nation's laws a husband
and wife own property acquired by either one as "conjugal partnership property." Counsel is contending that
because the beneficiary has an ownership interest in Five Star Money Changer, he worked full time for seven
years in that business. The issue in this case is whether or not the beneficiary worked 40 hours a week in the
business as he has stated in the Form ETA 750 B 15. (b), and, in that business he developed the job experience to
Page 8
fulfill the job duties to perform as an administrative services manager at a residential care facility. There is no
independent objective evidence submitted in this case that the beneficiary has the ability to coordinate clerical
activities and organize office operations, such as typing, bookkeeping, preparation of payrolls, flow of
correspondence, filing, requisition of supplies, and other clerical services in the facility; plan office layouts, and
devise and implement strategies to improve efficiency and quality of workflow; plan organization budget, and
compile, prepare and review activities and financial reports to ensure completeness, accuracy, and timeliness
using MS Excel computer program; prepare and review records; and, train and supervise clerical staff.
The problem that arises in this case is the inconsistencies in the averments and information provided by the
petitioner and the beneficiary to show the beneficiary's prior employment in a 40 hour each week position in
the Five Star Money Changer business, and that the duties performed there allowed the beneficiary through
that experience to perform the duties stated above as an administrative services manager at a residential care
facility. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) states: "Doubt cast on any aspect of the
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining
evidence offered in support of the visa petition." Matter of Ho, 19 I&N Dec. at 591-592 also states: "It is
incumbent on 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." No document, letter, or pay stub contained in the record of
proceeding establishes that the beneficiary was employed for four years in an employment capacity with
duties similar to the duties of the proffered position. No job verification letter submitted state beneficiary's
dates of employment/experience, number of hours worked per week, and number of weeks per year worked in a
complete fashion that would enable a reviewer to determine if beneficiary had attained the requisite four years of
experience stated in the certified ETA 750.
Under 20 C.F.R. 626.20(c)(8) and 656.3, the petitioner has the burden when asked to show that a valid
employment relationship exists, that a bona fide job opportunity is available to U.S. workers. An application
or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if
the Director does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises,
Inc. v. United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see
also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1 989)(noting that the AAO reviews appeals on a de novo
basis).
Beyond the decision of the director, the Form G-235A in the record of proceeding state~e middle name
of the beneficiary is Robles, and that the beneficiary's mother's maiden/family name is _ The owner of
petitioner is According to DOL precedent and regulations, under 20 C.F.R.
§§ 626.20(c)(8) and 656.3, the petitioner has the burden when asked to show that a valid employment
relationship exists, that a bonafide job opportunity is available to U.S. workers. See Matter ofAmger Corp.,
87-INA-545 (BALCA 1987). 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."
See Matter of Summart 374, 00-INA-93 (BALCA May 15, 2000). Based on this apparent familial
relationship between the petitioner and the beneficiary the AAO could not conclude that the petitioner is
extending a bona fide job offer to the beneficiary. Should the petitioner continue to pursue this petition, this
issue should be addressed further.
The evidence submitted does not demonstrate that the beneficiary had the requisite four years of experience.
Therefore, the petitioner has not established that the beneficiary is eligible for the proffered position.
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C.
§ 1361. The petitioner has not met that burden. The petition will be denied for the above stated reasons, with
each considered as an independent and alternative basis for denial.
ORDER: The appeal is dismissed.