dismissed EB-3 Case: Information Technology

MATTER OF W- LTD. 
Non-Prec~dent Decision of the 
Administrative Appeals Office 
DATE: NOV. 3, 2016 
APPEAL OF NEBRASKA SERV-ICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of information technology services, seeks to permanently employ the 
Beneficiary as a computer consultant - enterprise applications (ERP, CRM).
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It requests 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)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). 
This classification allows a U.S. employer to sponsor a professional with a bachelor's degree for 
lawful permanent resident status. 
On March 8, 2016, the Director, Nebraska Service Center, denied the petition. The Director 
concluded that the record did not establish the Beneficiary's possession of the experience required 
for the offered position. 
The matter is now before us on appeal. The Petitioner asserts that the Director imposed evidentiary 
burdens beyond those required by regulation. Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. USCIS's Role 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 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). 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, a 
foreign national must 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. 
1 The record indicates that ERP stands for Enterprise Resource Planning and CRM stands for Customer Relationship 
Management. 
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Matter of W- Ltd. 
_By approving the accompanying ETA Form 9089, Application for Permanent Employment 
Certification (labor certification) in the instant case, the DOL certified that there are insufficient U.S. 
workers who are able, willing, qualified, and available for the offered position of computer consultant­
enterprise applications (ERP, CRM). See section 212(a)(5)(A)(i)(l) ofthe Act. The DOL also certified 
that the employment of 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)(II). 
The issues before us are whether the Beneficiary meets the requirements of the offered position 
certified by the DOL and whether the Petitioner , Beneficiary, and offered position otherwise quali fy 
for the requested classification. See, e.g., Tongatapu Woodcrqft Haw., Ltd. v Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984) (holding that the immigration service "makes its own determination of 
the alien's entitlement to [the requested] preference status"). 
B. The Beneficiary's Qualif ying Experience 
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. 8 C .F.R. §§ 
103.2(b)(l), (12) ; see also Matter of Wing 's Tea House, 16 I&N Dec . 158, 159 (Acting Reg ' l 
Comm'r 1977); Matter ofKatigbak, 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 . 
We may neither ignore a term of the labor certification , nor impose additional requirements. See 
K.R.K. Irvine, Inc. v. Landon , 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 
1008, 1015 (D.C . Cir. 1983) ; Stewart Infra-Red Commissar y of Mass., Inc. v. Coomey, 661 F.2d 1, 3 
(1st Cir. 1981).. 
For labor certification purposes, an employer cannot count experience gained by a foreign national 
with it, unless the worker gained the experience in a position "not substantially comparable" to the 
offered position or the employer demonstrates 
the infeasibility of training a worker for the position. 
20 C.F.R. § 656.17(i)(3). For these purposes , the term "employer" means "an entity with the sam e 
Federal Employer Identification Number (FEIN). " 20 C.F.R. § 656.17(5)(i ). 
In the instant case , the petition ' s priority date is October 10, 2014 , the date the DOL received the 
accompanying labor certification application for processing. See 8 C.F.R. § 204.5(d) . 
The labor certification states the minimum requirements of the offered position as a U.S. bachelor's 
degree or a foreign equivalent degree in computer science, engineering , mathematics, or a related 
technical field. The labor certification also requires 36 months of experience as an information 
technology (IT) professional. Part H.14 ofthe ETA Form 9089 further states: "Experience as an IT 
professional (as listed on Bqx H.l 0-B) must include experience in one of the listed technologies : 
enterprise resource planning (ERP), CRM such as SAP , Oracle , Peopl eSoft, 
SalesForce , Microsoft Dynamics CRM , or similar. " 
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Matter of W- Ltd. 
The record establishes the Beneficiary's possession of a bachelor's degree in a required field. The 
Beneficiary also attested on the accompanying labor certification to his possession of about 38 
months of full-time, qualifying experience before March 30, 2010, when he began working for the 
Petitioner in the United States. The Beneficiary stated the following experience: 
• About 5 months ofexperience with the Petitioner's operations in India as a consultant, 
from October 17, 2009 to March 19, 201 0; and 
• About 33 months of experience with the Petitioner 's operations in France as a technical lead, 
from January 9, 2007 to October 16, 2009. 
A petitioner must support a beneficiary's claimed qualifying experience with letters from employers . 
8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must include employers' names, addresses, and titles, and 
descriptions of a beneficiary 's experiences. !d. 
In support of the instant Beneficiary's claimed qualifying experience, the Petitioner submitted two 
January 6, 2016, letters on its stationery from an assistant manager of human resources operations. 
One letter states the Beneficiary' s full-time employment as a consultant, from 
September 24, 2006 to August 3l, 2007 and from October 17, 2009 to March 19, 2010 in India. The 
other letter states his full-time employment as a technical lead, from September 1, 2007 
to October 16, 2009 in France. 
The experience letters conflict with information on the labor certification. Unlike the labor 
certification, the letters· indicate the Beneficiary' s employment in India not only from October 17, 
2009 to March 19, 2010, but also from September 24, 2006 to August 31 , 2007. Also, while the 
labor certification indicates that the Beneficiary began work in France on January 9, 2007, the letters 
state his French start date as September 1, 2007. 
A petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the 
Act, 8 U.S.C. § 1361. The instant Petitioner must therefore resolve the discrepancies of record in 
the Beneficiary's claimed qualifying experience. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988) (requiring a petitioner to resolve inconsistences of record by independent, objective evidence 
pointing to where the truth lies). 
In addition, a copy of the Petitioner's federal income tax return for 2014 identifies it as an Indian 
corporation with an FEIN and an office in the United States. Thus, the tax return indicates that the 
Petitioner is the same corporation that employed 
the Beneficiary in India. 
Under 20 C.F .R. § 656.17(i)(3), the Petitioner does not assert that the Beneficiary gained experience 
in a substantially different position or the impracticality of training a worker for the offered position . 
The Petitione~ thus concedes that the Beneficiary's experience with it in India does not constitute 
qualifying experience. 
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Matter of W- Ltd. 
In response to the Director's request for evidence, counsel indicated that the Beneficiary worked in 
France for an affiliate of the Petitioner that does not have a U.S. FEIN. If counsel's assertion is true, 
the Beneficiary's experience in France would seem to constitute qualifying experience with an 
employer other than the Petitioner. But counsel's assertion does not constitute evidence. See INS v. 
Phinpathya, 464 U.S. 183, 188 n.6 (1984) (notiJ:?.g that counsel's unsupported assertions do not 
establish facts of record). The record therefore does not establish the French company as a separate 
entity from the Petitioner. 
Also, the record does not resolve the discrepancy in the Beneficiary's start date in France. The 
record therefore does not establish the Beneficiary's claimed qualifying experience in France. 
The Petitioner submitted evidence that the Beneficiary gained other experience. Letters from 
professors at the in India ,indicate that the Beneficiary 
worked on institute projects from January 19, 2002 to February 
2003. 
Contrary to 8 C.F.R. § 204.5(1)(3)(ii)(A), however, the letters from the professors do not describe the 
Beneficiary's experience. The letters describe the projects, but not the Beneficiary's duties or 
project roles. The letters also do not indicate whether the Beneficiary worked on a part-time or full­
time basis. For labor certification purposes, foreign nationals do not receive full credit for part-time 
experience. See, e.g., Matter of Cable Television Labs., Inc., 2012-PER-00449, 2014 WL 5478115, 
*1 (BALCA Oct. 23, 2014) (finding that 16 months of part-time experience equated to 8 months of 
full-time experience). 
Also, the Beneficiary did not state the project experience on the accompanying labor certification. 
Section K of ETA Form 9089 required the Beneficiary to list all of his jobs during the 3 years before 
the October 10, 2014, filing of the labor certification and "any other experience that qualifies the 
alien for the job opportunity." The omission of the 2002-03 projects casts doubt on the purported 
qualifying nature of the experience. See Matter of Leung, 16 I&N Dec. 12, 14-15 (Distr. Dir. 197 6), 
disapp'd of on other grounds by Matter of Lam, 16 I&N Dec. 432, 434 (BIA 1978) (finding 
testimony of qualifying experience by an applicant for adjustment of status to be not credible where 
he did not state the employment on the underlying labor certification). 
In addition, the letters from the professors do not indicate that the Beneficiary worked on the 
projects with one of the ERP or CRM technologies specified in Part H.14 of the accompanying ETA 
Form 9089. On appeal, counsel asserts that the offered position does not require work with a 
specified ERP or CRM technology for all 36 months of the requisite experience. But, again, 
counsel's unsupported assertion does not constitute evidence. See Phinpathya, 464 U.S. at 188 n.6. 
The letter:s from the professors therefore do not establish the purported qualifying project experience. 
The Petitioner also submitted a letter from another company that employed the Beneficiary. The 
March 2, 2016, letter from in India states the Beneficiary's employment as a junior 
manager of industrial engineering from February 17, 2003 to June 23, 2004. 
The letter identifies the Beneficiary as part of a company team that implemented 
software. But the letter also indicates that many of the Beneficiary's duties at did 
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Matter of W- Ltd. 
not focus on information technology. The Beneficiary 's duties included: conducting method 
improvement studies; working on waste reduction projects; and revising incentive schemes. The 
record therefore does not establish the Beneficiary's position with as an "IT Professional" 
as specified on the accompanying labor certification. 
Also, the Beneficiary did not state his purported qualifying experience with on the 
accqmpanying labor certification. As previously indicated, the omission casts doubt on the claimed 
qualifying nature ofthe employment. See Leung, 16 I&N Dec. at 14-15. 
\_ 
The Petitioner asserts that the letters it submitted in support of the Beneficiary's claimed qualifying 
experience comply with USCIS regulations. As required, it claims that the letters include 
employers' names, addresses, and titles, and descriptions of the Beneficiary's experiences. See 8 
C.P.R. § 204.5(l)(3)(ii)(A). 
By requiring the Petitioner to explain the omissions of former employers from the accompanying 
labor certification and to provide independent, objective evidence of the Beneficiary's claimed 
experience, the Petitioner asserts that the Director overstepped his authority. The Petitioner claims 
that the Director effectively 
added evidentiary burdens not contained in the regulations. 
We do not agree that all of the letters submitted by the Petitioner comply with USCIS regulations. 
As previously indicated, pursuantto 8 C.P.R. § 204.5(1)(3)(ii)(A), the letters from the professors do 
not describe the Beneficiary 's experiences. 
Most of the letters submitted by the Petitioner appear to comply with regulations. But because case 
law imposes additional evidentiary requirements, the Director did not overstep his authority. See 8 
C.P.R. § 103.1 O(p) (requiring USC IS officers and employees to follow precedent decisions). 
' 
\._ 
As previously discussed, the letters submitted by the Petitioner conflict with information on the 
accompanying labor certification. Case law therefore requires the Petitioner to resolve the 
inconsistencies by independent, objective evidence. See Ho, 19 I&N Dec. at 591; see also Leung, 
16 I&N Dec. at 14-15 (finding the omission of a former employer from a labor certification to cast 
doubt on claimed qualifying experience). 
Case law supports the Director's findings. He therefore properly concluded that the record does not 
establish the Beneficiary's claimed qualifying experience. 
II. CONCLUSION 
The record does not establish the Beneficiary's possession of the qualifying experience for the 
offered position as specified on the accompanying labor certification by the petition's priority date. 
We will therefore affirm the Director's decision and dismiss the appeal. 
The petition will remain denied for . the above7stated reason. In visa petition proceedings, a 
petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the Act; 
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Matter of W- Ltd. 
Matter ofOtiende, 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 ofW- Ltd., ID# 12053 (AAO Nov. 3, 2016) 
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