dismissed EB-3 Case: Ice Skating

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 15, 2023 In Re: 26144402 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a limited partnership, operates an ice skating rink and seeks to permanently employ 
the Beneficiary as an "ice skating and hydroblading 1 coach." The partnership requests his 
classification under the third-preference, immigrant visa category as a "skilled worker." See 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This 
category allows a prospective U.S. employer to sponsor a noncitizen for lawful permanent residence 
to work in a job requiring at least two years of training or experience. 
The Director of the Texas Service Center denied the petition . The Director concluded that the 
Petitioner did not demonstrate the Beneficiary's qualifying training or experience for the offered 
position. On appeal, the Petitioner submits additional evidence of the Beneficiary's qualifications. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that the Petitioner did not demonstrate the Beneficiary's qualifying experience for 
the offered job. We will therefore dismiss the appeal. 
I. LAW 
Immigration as a skilled worker generally follows a three-step process . First, a prospective employer 
must obtain certification from the U.S. Department of Labor (DOL) that: there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and permanent employment of a 
noncitizen in the position would not harm wages and working conditions of U.S . workers with similar 
jobs . Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i) . 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S .C. 
§ 1154(a)(l)(F). Among other things, USCIS determines whether a noncitizen beneficiary meets the 
1 The record describes hydroblading as a figure skating technique where a skater glides on a deep edge with their body 
stretched in a low horizontal position, almost touching the ice. 
requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. 
§ 204.5(1)(3)(ii)(B). 
Finally, if USCIS approves a petition, a beneficiary may apply 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. 
II. ANALYSIS 
A petitioner must demonstrate that a beneficiary met all DOL-certified job requirements of an offered 
position by a petition's priority date. 8 C.F.R. § 204.5(1)(3)((ii)(B); Matter o_f Wing's Tea House, 16 
I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). This petition's priority date is March 26, 2021, the 
date DOL accepted the Petitioner's labor certification application for processing. See 8 C.F.R. 
§ 204.5(d) (explaining how to determine a petition's priority date). 
When assessing a beneficiary's qualifications for an offered position, USCIS must examine the job­
offer portion of an accompanying labor certification to determine the job's minimum requirements. 
The Agency may neither ignore a certification term nor impose an unstated requirement. See, e.g., 
Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority for 
setting the content of the labor certification") ( emphasis in original). 
The Petitioner's labor certification states the minimum requirements of the offered coaching position 
as three years of training "in Hydroblading" and three years of employment experience as a "developer 
of competitive skaters, or coaching figure skaters." Also, part H.14 of the labor certification -
"Specific skills or other requirements" - states that the required training and experience "may be gained 
simultaneously." The labor certification states that the position has no educational qualifications. 
In part K of the labor certification, "Alien Work Experience," the Beneficiary attested that, by the 
petition's 2021 priority date, he worked more than three years as a developer of competitive skaters 
and ice skating instructor. He stated that - from March 1, 2013 to March 31, 2016 - a U.S. rink 
employed him in these roles for 10 hours a week. 
Part Kofa labor certification should list not only a noncitizen's qualifying experience but also any 
qualifying training, even if they did not receive payment for it. 2 DOL, Emp't & Training Admin., 
"OFLC [Office of Foreign Labor Certification] Frequently Asked Questions and Answers," PERM 
Program, Alien Experience, Q.7, www.foreignlaborcert.doleta.gov/faqsanswers.cfm. If qualifying 
training is indicated, part K should list training providers as "employers," "job title" should state 
"training," and 'job details" should include relevant training activities, topics, or certifications. Id. 
In part K of the Petitioner's labor certification, the Beneficiary did not specify his receipt of qualifying 
training. He attested to additional employment, stating his full-time work for the Petitioner as an ice 
skater from June 2009 to November 2020. But this position does not appear to constitute qualifying 
experience as a developer of competitive skaters or a figure skating coach. 
2 Unpaid experience or "under the table" experience - where a noncitizen is paid ·'off-the-books" - may also constitute 
qualifying experience. Matter o(B&B Residential Facility, 2001-INA-146, *4 (BALCA Jul. 16, 2002). 
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To demonstrate claimed training and experience, a petitioner must submit letters from a beneficiary's 
trainers and employers. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must include the names, addresses, 
and titles of the trainers/ employers, and descriptions of the beneficiary's training/ experience. Id. "If 
such evidence is unavailable, other documentation relating to the alien's experience or training will be 
considered." 8 C.F.R. § 204.5(g)(l). 
The Petitioner's initial filing lacked letters from trainers or employers. The Director therefore mailed 
the Petitioner a request for additional evidence (RFE), asking for the regulatory required proof 
The Petitioner's RFE response included a letter from one of the Petitioner's owners, who developed 
the hydroblading technique. The letter states that the Beneficiary, a native and citizen of Russia, came 
to the U.S. in 2008 to train at the Petitioner's rink. He was half of an ice dancing couple that 
represented the United States in international competitions. The owner stated that she began to mentor 
the Beneficiary in hydroblading, and he continued this training until 2015. Although the Beneficiary 
primarily skated, the owner said that, through her mentoring, he became a "junior coach" and began 
teaching skaters in all the Petitioner's figure skating programs. He also coached skaters at the other 
U.S. ice rink. After the Beneficiary's ice dancing partner stopped performing, the owner stated that 
the Beneficiary became a "main coach" at the Petitioner's facility. 
The owner said that she knows the other rink employed the Beneficiary as a figure skating coach from 
March 2013 through March 2016 because, during that period, she continued to train him in 
hydroblading. She said the Beneficiary worked 10 hours a week as a coach for the other rink and 
spent the remainder of his time training in hydroblading with her and coaching other skaters. The 
owner stated that, although the offered position requires at least three years of hydroblading training 
and three years of experience, the training and experience need not be foll-time. She said that is why 
the Petitioner indicated its acceptance on the labor certification application of concurrent training and 
expenence. 
We agree with the Director that, contrary to 8 C.F.R. § 204.5(1)(3)(ii)(A), the Petitioner did not 
demonstrate the Beneficiary's claimed qualifying experience for the offered position. The labor 
certification does not state the Petitioner's acceptance of part-time experience. But even if it did, the 
regulation requires a letter from the Beneficiary's former "employer." See 8 C.F.R. 
§ 204.5(1)(3)(ii)(A). The Petitioner has not established that it or its owner - as opposed to the other 
ice rink - employed the Beneficiary as a coach at that time. The Petitioner also did not establish the 
unavailability of a letter from the other rink. See 8 C.F.R. § 204.5(g)(l ). The letter from the 
Petitioner's owner therefore does not demonstrate the Beneficiary's claimed qualifying experience. 
On appeal, the Petitioner submits additional evidence of the Beneficiary's experience - including a 
letter from the other rink's assistant general manager. The Petitioner asserts that "the Beneficiary has 
experience and training that far exceeded what USCIS considers 'foll time' during the requisite 36-
month period." 
But, if a petitioner received notice of required evidence and a reasonable opportunity to provide it 
before denial, we do not generally consider evidence on appeal. Matter ofSoriano, 19 I&N Dec. 764, 
766 (BIA 1988). The Director's RFE notified the Petitioner of the evidence needed to demonstrate 
the Beneficiary's qualifying experience for the offered position. The RFE specifically requests 
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"letter(s) from current or former employer(s)" (emphasis added) and provides the Petitioner with a 
reasonable opportunity to respond. The Petitioner does not claim that a letter from the other rink was 
unavailable before the petition's denial. We therefore decline to consider the Petitioner's additional 
evidence on appeal. 
Also, although the owner asserted the Petitioner's acceptance of less than full-time training and 
experience for the offered position in the RFE response, the appeal does not renew that argument. We 
therefore need not decide the issue and consider it to be "waived." See, e.g., Matter ofM-A-S-, 24 I&N 
Dec. 762, 767 n.2 (BIA 2009) (declining to address an argument that was not raised on appeal). Even 
if the Petitioner had continued to assert its acceptance of part-time experience, the argument would 
not cure the RFE response's omission of the regulatory required letter from the Beneficiary's former 
employer. 
Contrary to 8 C.F.R. § 204.5(1)(3)(ii)(A), the Petitioner did not demonstrate the Beneficiary's 
qualifying experience for the offered position. We will therefore affirm the petition's denial. 
Our affirmance resolves the appeal. Thus, we need not review the Director's finding of insufficient 
evidence of the Beneficiary's qualifying training for the offered position. Rather, we will reserve that 
denial ground for consideration if and when needed. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
("[ A ]gencies are not required to make findings on issues the decision of which is unnecessary to the 
results they reach.") 
III. CONCLUSION 
The Petitioner did not demonstrate the Beneficiary's qualifying experience for the offered position. 
ORDER: The appeal is dismissed. 
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