dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-I- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 9, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of technology consulting services, seeks to permanently employ the 
Beneficiary as a senior information technology manager. It seeks classification of the Beneficiary as a 
professional worker under the third preference immigrant category. See Immigration and Nationality 
Act (the Act) section 203(b)(3)(ii). 8 U.S.C. ~ 1153(b)(3)(ii). This classification allows a U.S. 
employer to sponsor a professional with a bachelor's degree for lawful permanent resident status. 
The Director. Nebraska Service Center. denied the petition on October 26. 2015. The Director 
concluded that the accompanying ETA Form 9089. Application for Permanent Employment 
Certification (labor certification), approved by the U.S. Department of Labor (DOL). does not 
demonstrate that the offered position requires a minimum of a bachelor's degree. 
The matter is now before us on appeal. The Petitioner asserts that it required at least a bachelor's 
degree as reflected in its recruitment materials for the offered position. Upon de nom revievv. \Ve 
will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. The Roles of DOL and USCIS in the Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First. an employer must obtain an 
approved labor certification from the DOL. See section 212(a)(5)(A)(i) of the Act. 8 U.S.C. ~ 
1182(a)(5)(A)(i). Next. U.S. Citizenship and Immigration Services (USCIS) must approve an 
immigrant visa petition. See section 204 of the Act, 8 U.S.C. ~ 1154. Finally. the foreign national 
must apply for an immigrant visa abroad or. if eligible, adjustment of status in the United States. See 
section 245 ofthe Act. 8 U.S.C. ~ 1255. 
By approving the accompanying labor certification in the instant case. the DOL cer1itied that there are 
insufficient U.S. workers \vho arc able. willing, qualified, and available for the otlered position. Section 
212(a)(5)(A)(i)(I) ofthe Act. The DOL also certified that the employment of a foreign national in the 
position will not adversely atlect the wages and working conditions of domestic workers similarly 
employed. Section 212(a)(5)(A)(i)(II). 
Matter l?f'G-1-LLC 
Following labor certification approvaL a Petitioner files Form I-140. Immigrant Petition for Alien 
Worker. with USCIS within the labor cet1ification validity period. See 20 C.F.R. § 656.30(b )( 1 ): 8 
C.F.R. § 204.5. USCIS then examines whether: (A) the Petitioner can establish its ability to pay the 
proffered wage. (B) the degree and/or experience required for the position offered matches the 
petitioned-for classification, and (C) whether the beneficiary has the required education. training. 
and experience for the position offered. See section 203(b)(3)(A)(ii) of the Act: 8 C.F.R. § 204.5. 
B. The Job Requirements of the OfJered Position 
A petition for a professional 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). The job offer portion of an individual labor certification 
'·must demonstrate that the job requires the minimum of a baccalaureate degree." /d. 
In determining the minimum requirements of an offered position. we examine the job offer portion 
of the accompanying labor certification. We may neither ignore a term of the labor certification. nor 
impose additional requirements. K.R.K. Irvine. Inc. v. Landon. 699 F.2d 1006. 1009 (9th Cir. 1983): 
see also lvfadany. 696 F .2d at 1012-13: Stewart ln.fi'a-Red ConunissWJ! (~(Mass., Inc. v. Coomey. 661 
F.2d 1. 3 (1st Cir. 1981). 
In the instant case. the accompanying ETA Form 9089 states the requirements of the offered position 
of senior information technology manager as follows: 
H.4. Education: Bachelor's degree in computer engineering. engineering. technology. or a related 
field. 
H.5. Training: None required. 
H.6. Experience in the job offered: 60 months. 
H. 7. Alternate field of study: None accepted. 
H.8. Alternate combination of education and experience: .. Other" level of education. specified as 
··work experience equivalent to above." .. 60" years of experience. 1 
11.9. Foreign educational equivalent: Accepted. 
H.l 0. Experience in an alternate occupation: None accepted. 
H.l4. Specific skills or other requirements: None. 
Also. part H.ll of the ETA Form 9089. which contains information about the ··Job Duties'" of the 
offered position. states .. Basic Requirements." Part H.ll of the form states that the offered position 
requires a 'BS in Computer Engineering. Engineering Technology. or related area." and ··60 Months 
post baccalaureate work experience as a project manager, program lead. IT professional. or related 
position.·· 
1 Part H.8-C of the ETA Form 9089 requests the amount of experience in years, and the Petitioner indicated: "60."" 
However. requiring an applicant to possess 60 years of experience would be absurd. We therefore find that the record 
establishes the amount of acceptable experience as 60 months. 
2 
""fatter (?fG-1- LLC 
The job requirements on the ETA Form 9089 cont1ict. Pat1 H.8 of the labor certification requires 
only 60 months of experience. while Parts H.4 and H.11 require a Bachelor's degree and 60 months 
of experience. The job offer portion of the accompanying labor certification theref(we docs not 
demonstrate that the job requires a minimum of a baccalaureate degree pursuant to 8 C.F.R. § 
204.5(1)(3 )(i ). 2 
On appeaL the Petitioner asserts that its labor certification recruitment materials demonstrate that the 
offered position requires at least a bachelor's degree. The Petitioner submitted copies of a notice of 
filing and advertisements placed on its website. indicating that the offered position requires a 
Bachelor's degree and 60 months of experience. The Petitioner states that the inf(mnation indicating 
the acceptability of only 60 months of experience on the labor certification .. was included in error 
and should be overlooked .. pursuant to 1Hatter <?lllealthAmerica. 2006-PER-00001. 2006 WL 
5040202 (BALCA 2006) (en bane). 
However. as previously indicated. we cannot ignore a term of a labor certification. See TonRalapu. 
736 F.2d at 1309 (holding that the former Immigration and Naturalization Service (INS) ··is bound 
by the DOL's certification .. ): see also /'vfadany. 696 F.2d at 1015 (holding that .. DOL bears the 
authority for setting the content of the labor certification"). USCIS reviews a labor certification in 
its entirety to detennine the minimum requirements of an otTered position. See. e.g.. Am. 
Immigration Lawyers Assoc./Serv. Ctr. Ops Directorate Teleconference Agenda. 3 (Jan. 29. 2014) at 
https:l/www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagem 
ents/AILA-scops-QA-01-29-14.pdf (accessed Apr. 26. 2016): see also Aial!er ofSymhioun Techs .. 
inc .. 2010-PER-01422, 2011 WL 5126284. *2 (BALCA Oct. 24. 2011) (holding that .. Form ETA 
9089 is a legal document and as such the document must be considered in its entirety"). 
In HealthAmerica. the Board of Alien Labor Certification Appeals (BALCA) ruled that a 
typographical error on a labor certification application form did not justifY the application· s denial. 
HealthAmerica. 2006 WL 5040202 at * 12. The employer in HealthAmerica misstated the date of 
one of its nevvspaper advertisements on the ETA Form 9089. Jd. at* 1. 
In the instant case. the Petitioner's purported error on the accompanying labor certification goes well 
beyond an inadvertent. typographical error. As previously indicated. the Petitioner affirmatively 
stated in part H.8 of the ETA Form 9089 that the offered position could be filled by an applicant who 
~ The accompanying labor certification also contains other inconsistencies. Part H.4-A of ETA Form 9089 states 
acceptable tields of study as ·'Computer Engineering. Engineering. Technology" or a related tleld. However. there is no 
comma between the words "Engineering" and "Technology" in Part H.ll of the form. which lists acceptable fields of 
study as "Computer Engineering, Engineering Technology" or a related field. Part H.6 of the form requires 60 months of 
experience in the "job offered," and Part H.! 0 states that experience in an alternate occupation is unacceptable. 
However. Part H.ll of the fom1 requires 60 months of experience "as a project manager. program lead. IT professional. 
or related position." In addition, the Petitioner's prevailing wage determination states that travel "throughout the United 
States" is required. However. its notice of filing states that travel outside Washington State "is not expected." and the 
ETA Form 9089 does not state any travel requirements. 
3 
Matter (?fG-1- LLC 
possesses at least 60 months of experience. HealthAmerica is therefore distinguishable on its facts 
from the instant case. 
Also, HealthAmerica's holding has been superseded by regulation. The regulation at 20 C.F.R. * 
656.11 (b) bars modifications to labor certification applications like the Petitioner's. which were tiled 
on or after July 16.2007. See, e.g .. Malter (~f'Inteliops. Inc .. 2012-PER-01099. 2016 WL 1254105. 
*2 (BALCA Mar. 25. 2016). We therefore reject the Petitioner's assertion that its recruitment 
materials demonstrate the offered position's requirement of at least a bachelor's degree and decline 
to overlook the terms of part H.8 of the labor certification. 
The Petitioner also submits copies of resumes received from applicants for the offered position and 
asserts that '"ALL applicants who submitted their resumes for consideration had. at minimum. a 
Bachelor's degree." However. the record does not support that assertion. 
The resume of one of the 12 applicants does not state any educational qualifications. other than 
technical training and certificates. The resumes of two other applicants indicate that they studied at 
colleges. However. the resumes do not indicate the applicants' receipt of degrees. We therefore also 
reject the Petitioner's assertions regarding the applicants for the offered position. 
The record does not establish that the otlered position requires a minimum of a Bachelor's degree 
pursuant to 8 C.F.R. § 204.5(1)(3)(i). We will therefore affirm the Director's decision and dismiss 
the appeal. 
C. Ability to Pay the Proffered Wage 
Although not discussed by the Director. we independently note that the record also does not establish 
the Petitioner's ability to pay the protlered 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)(2). 
Evidence of ability to pay must include copies of annual reports. federal income tax returns. or 
audited financial statements. !d. 
In the instant case. the accompanying labor certification states the protlered wage of the offered 
position of senior infonnation technology manager as $176.446 per year. The petition· s priority date 
is December 10. 2014. the date the DOL accepted the labor certification application for processing. 
See 8 C.F.R. § 204.5(d). 
In determining a petitioner's ability to pay a proffered wage. we first examine whether it paid a 
beneficiary the full proffered wage each year tfom a petition's priority date. If a petitioner did not 
pay the full proffered wage each year. \Ve next examine whether it generated sufficient annual 
amounts of net income or net current assets to pay the difference between any wages paid and the 
proffered wage. If a petitioner's net income or net current assets are insufficient to demonstrate its 
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Maller o(G-1- LLC 
ability to pay, we may also consider the overall magnitude of its business activities. See Matter l?{ 
SoneKawa. 12 I&N Dec. 612,614-15 (Reg'l Comm'r 1967).3 
The accompanying labor certification states the Petitioner's employment of the Beneficiary since 
December 16. 2013. However. the record does not document the amount of wages the Petitioner 
paid him. The record therefore does not establish the Petitioner's ability to pay based on wages paid 
to the Beneficiary. 
A copy of the Petitioner's 2014 federal income tax return states net income of $103.305 and net 
current assets of $43,426. Neither of these amounts equals or exceeds the annual proffered wage of 
$176,446. 
Thus. based on examinations of wages paid to the Beneficiary by the Petitioner and its annual 
amounts of net income and net current assets, the record docs not establish its ability to pay the 
proffered wage from the petition· s priority date onward. 
In addition. USCIS records indicate the Petitioner's filing of at least f()ur Fmms 1-140. Immigrant 
Petitions tor Alien Workers, for other beneficiaries after the instant petition's priority date.4 
A petitioner must demonstrate its ability to pay the proffered wage of each petition it tiles. 8 C.F.R. ~ 
204.5(g)(2). The Petitioner must therefore demonstrate its continuing ability to pay the combined 
proffered wages of the instant Beneficiary and the other beneficiaries whose petitions remained pending 
after the instant petition's priority date. The Petitioner must demonstrate its ability to pay the combined 
proffered wages from the instant petition· s priority date until the other beneficiaries obtained lmvful 
permanent residence. or until their petitions were denied, withdrawn. or revoked. See Patel v. Johnson. 
2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our denial of a petition where the petitioner did not 
establish its ability to pay the proffered wages of multiple beneficiaries). 
The record does not document the priority dates or proflered wages of the Petitioner's other petitions. or 
whether it paid wages to the other beneficiaries. The record also docs not indicate whether any of the 
other petitions were withdrawn. revoked. or denied. or whether any of the other beneficiaries obtained 
lawful permanent residence. Thus, the record does not establish the Petitioner's continuing ability to 
pay the combined protlered wages of the instant Beneficiary and the beneficiaries of its other petitions. 
The record does not establish the Petitioner's ability to pay the proffered wage from the petition's 
priority date onward. We will therefore dismiss the appeal for this additional reason. 
3 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. Sr!e. e.g .. River St. 
Donuts. LLC v. lliapolitano, 558 F.3d Ill, 118 (1st Cir. 2009): Tongatapu Woodcrc?fi Hwr .. Ltd r. Feldman. 736 F.2d 
1305, 1309 (9th Cir. 1984 ): Estrada-Hernande::. v. Holder. 108 F. Supp. 3d 936, 942-43 (S.D. Cal. 20 15): Riv::i t'. Dep ., of 
Homeland5)ec., 37 F. Supp. 3d 870,883-84 (S.D. Tex. 2014). afj"d. 627 Fed. Appx. 292 (5th Cir. 2015). 
~ USCIS records identify the other petitions by the following receipt numbers: LIN 16 092 50455: LIN 16 903 22324: 
SRC 15 085 50244: and LIN 15 904 55358. 
5 
(b)(6)
Maller l?f'G-1- LLC 
D. The Beneficiary's Qualifying Experience 
The record also does not establish the Beneficiary's qualifying experience for the offered position of 
senior information technology manager. 
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. See 8 C.F.R. ~~ 
103.2(b)(l), (12); see also Mafler l?l J1ling's Tea House. 16 I&N Dec. 158. 159 (Acting Reg· ! 
Comm ·r 1977); Matler l?f'Katighak. 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. As 
previously indicated, we may neither ignore a term of the labor certi lication, nor impose additional 
requirements. Irvine. 699 F.2d at 1009: see also Madany. 696 F.2d at 1012-13: SteH·art. 661 F.2d at ., 
-'· 
In the instant case, as previously discussed. the accompanying labor certification does not clearly 
state whether the otiered position requires a Bachelor's degree plus 60 months of experience. or just 
60 months of experience. However. in either case. the record does not establish the Beneficiary's 
qualifying experience for the offered position. 
The Beneficiary attested on the accompanying labor certification to about 96 months of qualifying 
experience before joining the Petitioner on December 16, 2013. The Beneficiary stated his 
employment by in the United States as a technology lead from December 26. 2005 
to December 13,2013. 
A petitioner must support a beneficiary's claimed qualifying experience with a letter from an employer. 
8 C.F.R. § 204.5(1)(3 )(ii)(A). The letter must provide the name, address. and title of the employer. and a 
description of a beneficiary's experience. !d. 
The record contains a December 16. 2013, letter from a human resources official on the stationery of 
The letter states the company's employment of the Beneficiar y from December 26. 
2005 through December 13, 2013. consistent with the information on the labor cet1ification. 
However. the letter does not describe the Beneficiary's experience pursuant to 8 C.F.R. § 
204.5(1)(3)(ii)(A). The letter therefore does not establish the Beneficiary's qualifying experience. 
The letter also does not confim1 the Beneficiary's employment as a technology lead during his 
entire tenure with the company as stated on the labor certification. The letter states the Beneficiary· s 
position as a technology lead at the time of his separation from the company. The letter does not 
indicate whether employed the Beneficiary in any other positions. For this reason also. the 
record does not establish the Beneficiary's qualifying experience. See flo , 19 I&N Dec. a t 591 
(requiring a petitioner to resolve inconsistencies of record by independent, objective evidence). 
/vfatter (?fG-1- LLC 
II. CONCLUSION 
The accompanying labor certification docs not demonstrate that the otTered position requires a 
minimum of a bachelor's degree. We will therefore affirm the Director's decision and dismiss the 
appeal. The record also does not establish the Petitioner's continuing ability to pay the proffered 
wage or the Beneficiary's qualifying experience for the offered position. We will therefore dismiss 
the appeal for these additional reasons. 
The petition will be denied for the above stated reasons, with each considered an independent and 
alternate ground of denial. In visa petition proceedings. a petitioner bears the burden of establishing 
eligibility for the requested benefit. Section 291 of the Act, 8 U.S.C. § 1361; Maller (~(Otiende. 26 
I&N Dec. 127. 128 (BIA 2013). Here. the instant Petitioner did not meet that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter (?lG-1- LLC, ID# 17237 (AAO May 9, 2016)