dismissed EB-3 Case: Hvac

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: 
 Office: VERMONT SERVICE CENTER 
 Date: AUG 0 1 ZWT 
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. 9 1 153(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. 
Robert P. Wiemann, ~hier 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Director (Director), Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a property management company. It seeks to employ the beneficiary permanently in the 
United States as a heating and air conditioning installer servicer (mechanic). As required by statute, the 
petition is accompanied by a Form ETA 750, Application for Alien Employment Certification, approved by 
the Department of Labor (DOL). The director determined that the record did not establish that the petitioner 
had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa 
petition. The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's February 3, 2006 denial, the single issue in this case is whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 8 C.F.R. 5 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. See 8 C.F.R. 5 
204.5(d). The petitioner must also denionstrate 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. 
Cornrn. 1977). 
Here, the Form ETA 750 was received on May 8,2002.' The proffered wage as stated on the Form ETA 750 
is $21.06 per hour ($38,329.20 per yea?). The Form ETA 750 states that the position requires two years of 
experience in the proffered position. 
- 
1 
Counsel claims that the priority date in the instant case should be April 20, 2001 and that the May 8, 2002 
priority date was assigned by the DOL Philadelphia Offices upon receipt of the RIR conversion request. 
Page 3 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal3. Relevant evidence 
in the record includes the petitioner's Form 1065 U.S. Return of Partnership Income for 2001,2002 and 2004, 
bank statements for the petitioner's checking accounts for some months from December 2001 to November 
2005, the petitioner's payroll record, the beneficiary's W-2 form and cancelled checks for 2005, and 
documentation pertinent to the petitioner's line of credit and shareholders7 personal line of equity credit. The 
record does not contain any other evidence relevant to the petitioner's ability to pay the wage. 
The evidence in the record of proceeding shows that the petitioner is structured as a general partnership. On 
the petition, the petitioner claimed to have been established in 1995, and to currently employ 3 workers. The 
petitioner did not provide information regarding its gross annual income and net annual income on the 
petition. According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On 
the Form ETA 750B signed by the beneficiary on April 13, 2001, the beneficiary did not claim to have 
worked for the petitioner. 
On appeal, counsel asserts that although the petitioner reported $0 ordinary income on line 22 of the Form 
1065 Schedule M-2 line 3, Forms 1099 issued to the petitioner, bank statements of the petitioner's accounts 
and full payment of the proffered wage to the beneficiary in 2005 have demonstrated that the petitioner had 
the continuing ability to pay the proffered wage beginning on the priority date to the present. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. The 
petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. 
See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. $ 204.5(g)(2). In 
evaluating whether a job offer is realistic, Citizenship and Immigration Services (CIS) requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the 
circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. 
See Matter of Sonegawa, 12 I&N Dec. 61 2 (Reg. Cornm. 1967). 
Although counsel's assertion is supported with the receipt stamp of April 20, 2001 by office of employment 
Security, counsel does not submit any other supporting documents such as the DOL office notice with the 
priority date of April 20, 2001. In addition, the DOL final determination indicates May 8, 2002 as the date of 
acceptance for processing and the Form ETA 750A also shows that the local DOL office received the form on 
May 8,2003. Therefore, the AAO will consider May 8, 2002 as the priority date of this case. 
2 
 The Form ETA 750 shows that the beneficiary will work 35 hours per week and be paid at the rate of $2 1.06 
per hour, and therefore, the annual proffered wage is $38,329.20. The AAO notes that in her February 3, 
2006 denial decision the director mistakenly calculated the annual salary as $43,804.80 based on working 40 
hours a week. 
3 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. $ 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 4 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will first examine 
whether the petitioner employed and paid the beneficiary during that period. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
the evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, the petitioner submitted the petitioner's payroll record, the beneficiary's W-2 form and cancelled 
checks for 2005. These documents show that the petitioner paid the beneficiary at the rate of $2 1.06, totaling 
$35,380.80 in 2005, which is $2,948.40 less than the proffered wage that year. Counsel claimed that the 
shortage of $2,948.40 was from the beneficiary's 4 weeks unpaid leave, that the petitioner demonstrated that 
it paid the beneficiary the full proffered wage in 2005, and therefore, the petitioner established its ability to 
pay the proffered wage through examination of current full payment of the proffered wage per CIS 
instructions. The AAO concurs with counsel's assertion that the petitioner paid the full proffered wage to the 
beneficiary in 2005, however, the petitioner has not established its ability to pay the proffered wage fiom the 
priority date to 2004. The regulation at 8 C.F.R. 8 204.5(g)(2) requires that a petitioning entity demonstrate 
its continuing ability to pay the proffered wage beginning on the priority date. The petitioner must 
demonstrate its continuing ability to pay the proffered wage beginning on the priority date, which in this case 
is May 8, 2002. Thus, the petitioner must show its ability to pay the proffered wage not only in 2005, when 
counsel claims it actually began paying the proffered wage rate, but it must also show its continuing ability to 
pay the proffered wage in 2002 through 2004. Demonstrating that the petitioner is paying the proffered wage 
in a specific year may suffice to show the petitioner's ability to pay for that year, but the petitioner must still 
demonstrate its ability to pay for the rest of the pertinent period of time. The record does not contain W-2 
forms, 1099 forms or other regulatory-prescribed evidence showing that the petitioner paid the beneficiary in 
2002 through 2004. Therefore, the petitioner failed to establish that it paid the beneficiary the proffered wage 
for these relevant years. The petitioner is obligated to demonstrate that it could pay the proffered wage of 
$38,329.20 in 2002 through 2004. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net income figure reflected on the petitioner's 
federal income tax return, without consideration of depreciation or other expenses. Reliance on federal 
income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng 
Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), am, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross sales and profits and wage expense is misplaced. Showing that the 
petitioner's gross sales and profits exceeded the proffered wage is insufficient. Similarly, showing that the 
petitioner paid wages in excess of the proffered wage is insufficient. 
In K. C. P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization 
Service, now CIS, had properly relied on the petitioner's net income figure, as stated on the petitioner's 
corporate income tax returns, rather than the petitioner's gross income. The court specifically rejected the 
argument that the Service should have considered income before expenses were paid rather than net income. 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
Page 5 
income figures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Emphasis in original.) Chi-Feng at 537. 
The evidence indicates that the petitioner is a partnership. The record contains copies of the petitioner's Form 
1065 U.S. Return of Partnership Income for 20014, 2002 and 2004. According to the tax returns, the 
petitioner's fiscal year is based on a calendar year. The petitioner's 2002 and 2004 tax returns demonstrate 
the following financial information concerning the petitioner's ability to pay the proffered wage of 
$38,329.20 per year from the priority date: 
In 2002, the Form 1065 stated net incomeS of $54,292. 
In 2004, the Form 1065 stated net income of $1 8,695. 
Therefore, for the year 2002 the petitioner had sufficient net income to pay the proffered wage while the 
petitioner's net income was not sufficient to pay the beneficiary the proffered wage in 2004. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages 
paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS 
will review the petitioner's assets. The petitioner's total assets include depreciable assets that the petitioner 
uses in its business. Those depreciable assets will not be converted to cash during the ordinary course of 
business and will not, therefore, become funds available to pay the proffered wage. Further, the petitioner's 
total assets must be balanced by the petitioner's liabilities. Otherwise, they cannot properly be considered in 
the determination of the petitioner's ability to pay the proffered wage. Rather, CIS will consider net current 
assets as an alternative method of demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ 
 A 
partnership's year-end current assets are shown on Schedule L to the Form 1065, lines 1 through 6. Its year- 
4 
However, the petitioner's 2001 tax return is not necessarily dispositive since as discussed above the priority 
date is considered to be May 8, 2002 instead of April 20, 2001 as counsel claims. Therefore, the AAO will 
review the petitioner's tax returns for 2002 and 2004 in determining the petitioner's ability to pay the 
proffered wage. 
5 
 Where a partnership's income is exclusively from a trade or business, CIS considers net income to be the 
figure for ordinary income, shown on Line 22 of page one of the petitioner's Form 1065. The instructions on 
the Form 1065, U.S. Partnership Income, state on page one, "Caution, Include only trade or business income 
and expenses on lines la through 22." Where a partnership has income from sources other than from a trade 
or business, net income is found on Schedule K. The Schedule K (pages 3-4 of Form 1065) is a summary 
schedule of all the partners' shares of the partnership's income, credits, deductions, etc. The net income is 
reported on Analysis of Net Income (Loss) line 1 Net income (loss) on page 4 of Form 1065. See Internal 
Revenue Service, Instructions for Form 1065, at http://www.irs.gov/pub/irs-pdf/il065.pdf. In the instant case, 
the net income figures for 2002 and 2004 take into account the rental income (loss) noted by counsel in his 
appeal brief. 
6~ccording to Barron S Dictionary of Accounting Terms 117 (3" ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts 
Page 6 
end current liabilities are shown on lines 15 through 17. If the total of a partnership's end-of-year net current 
assets and the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the 
petitioner is expected to be able to pay the proffered wage using those net current assets. 
Calculation based on the Schedule L's attached to the petitioner's tax return for 2004 yields that the petitioner 
had current assets of $1,964, current liabilities of $0, thus, net current assets of $1,964 in 2004. Therefore, the 
petitioner did not have sufficient net current assets to pay the proffered wage of $38,329.20 per year for the 
year 2004. 
The record before the director closed on July 26, 2004 with the receipt by the director of the petitioner's initial 
submission of the petition. As of that date the petitioner's federal tax return for 2003 should have been available. 
However, the petitioner did not submit its 2003 tax return, nor did counsel explain why the tax return was not 
submitted. In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit 
sought. 
 See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). 
 The petitioner must prove by a 
preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of Martinez, 
21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 11 
I&N Dec. 15 1 (BIA 1965). Counsel submitted 1099 forms issued to the petitioner in 2003 claiming that the 
petitioner had rental income of $35,191 that year. However, the tax return would have demonstrated the 
amount of taxable income the petitioner reported to the IRS and further reveal its ability to pay the proffered 
wage. The income reflected on 1099 forms does not account for the petitioner's business expenses. 
Therefore, the AAO cannot determine the petitioner's net income in 2003. The petitioner failed to establish 
its ability to pay the proffered wage in 2003 because it failed to submit its tax return or other regulatory- 
prescribed evidence. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department of Labor, 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage as 
of the priority date through an examination of wages paid to the beneficiary, its net income or its net current 
assets in 2003 and 2004. 
The record contains bank statements of the petitioner's checking accounts covering certain months during a 
period from December 2001 to November 2005. Counsel's reliance on the balances in the petitioner's bank 
accounts is misplaced. First, bank statements are not among the three types of evidence, enumerated in 8 C.F.R. 
5 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While ths regulation allows 
additional material "in appropriate cases," the petitioner in ths case has not demonstrated why the documentation 
specified at 8 C.F.R. 5 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the 
petitioner. Second, bank statements show the amount in an account on a gven date, and cannot show the 
sustainable ability to pay a proffered wage. Third, no evidence was submitted to demonstrate that the funds 
reported on the petitioner's bank statements somehow reflect additional available funds that were not reflected on 
its tax return, such as the petitioner's taxable income (income minus deductions) or the cash specified on 
Schedule L that was considered in determining the petitioner's net current assets. 
Counsel asserts that the petitioner has funds available in credit lines which are available to pay the proffered 
wage to the beneficiary from the date of filing till present. To support his assertion, counsel submitted the 
petitioner's line of credit account statement for February 2002 showing that the petitioner had maximum line 
of credit of $25,000 with available credit of $24,109. In calculating the ability to pay the proffered salary, 
CIS will not augment the petitioner's net income or net current assets by adding in the corporation's credit 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
Page 7 
limits, bank lines, or lines of credit. A "bank line" or "line of credit" is a bank's unenforceable commitment 
to make loans to a particular borrower up to a specified maximum during a specified time period. A line of 
credit is not a contractual or legal obligation on the part of the bank. See Barron 's Dictionary of Finance and 
investment Terms, 45 (1 998). 
Since the line of credit is a "commitment to loan" and not an existent loan, the petitioner has not established 
that the unused funds from the line of credit are available at the time of filing the petition. As noted above, a 
petitioner must establish eligbility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). Moreover, the petitioner's existent loans will be reflected in the balance sheet provided in the tax 
return or audited financial statement and will be fully considered in the evaluation of the corporation's net 
current assets. Comparable to the limit on a credit card, the line of credit cannot be treated as cash or as a 
cash asset. However, if the petitioner wishes to rely on a line of credit as evidence of ability to pay, the 
petitioner must submit documentary evidence, such as a detailed business plan and audited cash flow 
statements, to demonstrate that the line of credit will augment and not weaken its overall financial position. 
Finally, CIS will give less weight to loans and debt as a means of paying salary since the debts will increase 
the firm's liabilities and will not improve its overall financial position. Although lines of credit and debt are 
an integral part of any business operation, CIS must evaluate the overall financial position of a petitioner to 
determine whether the employer is making a realistic job offer and has the overall financial ability to satisfy 
the proffered wage. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). 
ecord shows that the petitioner is structured as a general partnership with two general partners, 
, each owning 50 percent of the partnership interests. 
 A general partner is 
personally liable for the partnership's total liabilities. As such, a general partner's personal assets may be 
utilized to show the ability to pay the proffered wage. Therefore, CIS will consider the general partners' 
income and their liquefiable assets and personal liabilities as part of the petitioner's ability to pay. In the 
instant case, the record of proceeding does not contain any documents showing the general partners' liquid 
assets, such as cash balances in accounts of savings, money market, certificates of deposits showing extra 
available funds for the general partners to pay the proffered wage andlor personal expenses. However, on 
appeal counsel claims that general partners' personal lines of credit provide the petitioner the ability to pay 
the proffered wage. Counsel submits letters from 
 andclaiming that they had 
in 200 1 and still have personal lines of credit of $57,000 and $130,000 respectively to pay the proffered wage. 
The record also contains bank statements showing that had $32,174 available credit on a 
credit limit of $57,6000 as of February 11,2005 and that had available credit of $135,000 as of 
September 30, 2003. However, evidence submitted has not established that the unused funds from the line of 
credit were available to pay the proffered wage at the ends of the years 2003 and 2004. A petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, a general partner's 
personal expenses and liabilities must also be examined in order to make a determination that his or her assets 
are truly available to pay the proffered wage. The record of proceeding does not contain enough information 
regarding the general partner's personal expenses. As such, the petitioner has not demonstrated that the 
general partners' assets may be utilized to pay the proffered wage and it is not clear whether the general 
partners had available funds sufficient to pay the proffered wage and the general partners' living expenses at 
the end of each year 2003 and 2004. 
Counsel submits two pages of Vermont Service Center (VSC)'s Written Answers to American Immigration 
Lawyers Association (A1LA)'s Liaison Questions (314103) and ISD Liaison Minutes (6127102) from AILA 
InfoNet. Counsel's reliance on the AILA minutes is misplaced. Counsel does not provide a published 
citation relating to the use of total assets or depreciation. While 8 C.F.R. Ij 103.3(c) provides that precedent 
decisions of Citizenship and Immigration Services (CIS), formerly the Service or INS, are binding on all CIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. Precedent 
decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. Ij 103.9(a). 
Counsel submits a copy of Ranchito Coletero, 2002-INA-104 (2004 BALCA). Counsel does not state why he 
submits this case and how DOL Board of Alien Labor Certification Appeals (BALCA) precedent is binding 
on the AAO. While 8 C.F.R. Ij 103.3(c) provides that precedent decisions of CIS are binding on all its employees 
in the administration of the Act, BALCA decisions are not similarly binding. Precedent decisions must be 
designated and published in bound volumes or as interim decisions. 8 C.F.R. Ij 103.9(a). 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day 
the Form ETA 750 was accepted for processing by the Department of Labor. 
Beyond the director's decision and counsel's assertions on appeal, the AAO has identified an additional 
ground of ineligibility and will discuss whether or not the petitioner has demonstrated with regulatory- 
prescribed evidence that the beneficiary possessed the requisite two years of experience in the job offered 
prior to the priority date. An application or petition that fails to comply with the technical requirements of the 
law may be denied by the AAO even if the Service Center 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. 1989)(noting that 
the AAO reviews appeals on a de novo basis). 
To determine whether a beneficiary is eligible for an employment based immigrant visa, 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 
(1st Cir. 1981). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 14 and 15, set 
forth the minimum education, training, and experience that an applicant must have for the position of mechanic. 
In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Experience 
Job Offered 2 years 
Related Occupation Blank 
Page 9 
The duties of the proffered job are delineated at Item 13 of the Form ETA 750A and since this is a public 
record, will not be recited in this decision. Item 15 of Form ETA 750A does not reflect any special 
requirements. 
The beneficiary set forth his credentials on Form ETA-750B and signed his name on April 13, 2001 under a 
declaration that the contents of the form are true and correct under the penalty of perjury. On Part 15, 
eliciting information of the beneficiary's work experience, he represented that he has been unemployed since 
October 1998. Prior to that, he represented that he worked as a full-time (working 40 hours a week) 
"Mechanic" for "Chugurety" in Tbilisi, Georgia from 1994 to 1998. He did not provide any additional 
information concerning his employment background on that form. 
The regulation at 8 C.F.R. tj 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifLing experience or training shall be in the form of letter(s) from 
,current or former employer(s) of trainer@) 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. 
In corroboration of the Form ETA-750B and the regulation quoted above, the petitioner provided a reference 
letter from the beneficiary's former employer. This letter was dated February 10, 200 1, from Housing Utility 
Limited Company "Service Center "Chugurety" of Chugurety district of Tbilisi city with official seal affixed 
and signed by the head of the company. This letter stated concerning the beneficiary's work experience in 
pertinent part that: 
According to the work record card [the beneficiary] worked in Department of Building since 
1994 to October of 1998. He produced all kinds of internal works including install, inspect, 
repair, tune and maintain functional parts of machinery equipment, using hand tools, power 
tools, electronic equipment, testing devices, as well as operate equipment to test it 
functioning,. 
The experience does not verify the beneficiary's full time employment and does not indicate the starting 
month of the beneficiary's employment. Without the starting date, it is not clear whether or not the 
beneficiary had the two full time years of qualifying experience as required for the proffered position if he 
worked on part-time basis. The record of proceeding does not contain any other evidence to support the 
beneficiary's qualifications. Therefore, the petitioner failed to demonstrate that the beneficiary possessed the 
requisite two years of experience in the job offered for the proffered position as required by the ETA 750 with 
the Chugurety letter. 
Therefore, the petitioner did not establish with regulatory-prescribed evidence the beneficiary's prior at least 
two years of experience as a full time mechanic, and further failed to establish that the beneficiary is qualified 
for the proffered position. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.