dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-G-INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 18,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an information technology (IT) consulting firm, seeks to employ the Beneficiary as a 
consultant specializing in enterprise software. It requests his classification under the third­
preference immigrant category as a skilled worker. Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based, "EB-3" category 
allows a U.S. business to sponsor a foreign national with at least two years of training or experience 
for lawful permanent resident status. 
The Acting Director of the Nebraska Service Center denied the petition and the Petitioner's 
following motions to reopen and reconsider. The Director concluded that the Petitioner did not 
demonstrate the Beneficiary's possession of the minimum experience required for the offered 
position. 
On appeal, the Petitioner asserts that the Director erred in discounting evidence of the Beneficiary's 
experience and in finding discrepancies in his descriptions of his former job duties. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED lMMIGRA TION 
Employment-based immigration generally follows a three-step process. To permanently till a 
position in the United States with a foreign worker, an employer must first obtain 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). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for a position, and that employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. !d 
If the DOL certifies a position, an employer must next submit the certification with an il)lmigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. Among other things, USCIS determines whether a beneficiary meets the 
requirements of a certified position and a requested immigrant classification. If USC IS approves a 
petition, a foreign national may finally 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. 
Matter of D-G- Inc. 
II. THE MINIMUM EXPERIENCE REQUIRED 
A petitioner must establish a beneficiary's possession, by a petition's priority date, of all DOL­
certified job requirements 1 Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'! 
Comm'r 1977). In evaluating a beneficiary's qualifications, USCIS must examine the job offer 
portion of an accompanying labor certification to determine the minimum requirements of a position. 
USCIS may neither ignore a certification term, nor impose additional requirements. See, e.g, 
Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. I983) (holding that the "DOL bears the authority 
for setting the content of the labor certification") (emphasis in original). 
Here, the accompanying labor certification states the minimum requirements of the offered position 
of consultant as a U.S. high school diploma or a foreign equivalent credential, plus four years of 
experience in the job offered or as a systems analyst, programmer, or analyst. The Beneficiary's 
educational qualifications are not at issue. 
On the labor certification, the Beneficiary attested that, before starting work for the Petitioner in 
temporary, nonimmigrant visa status in December 2012, he gained more than seven years of full­
time, qualifying experience in India. 2 He stated that, from August 2003 to May 2005 and from 
November 2006 through July 2012, he worked for IT service providers as a manager- supply chain, 
senior executive- logistics, executive- parts and logistics, and coordinator. 
As the Director noted, the Beneficiary's job titles in India do not match those of the offered position 
or the alternate, acceptable occupations listed on the labor certification. The Petitioner, however, 
argues that the offered position does not require experience under the listed job titles, but rather 
experience performing the job duties associated with the titles. The Petitioner asserts that the 
Beneficiary gained the requisite amount of experience in India performing the duties of the offered 
position. 
The Petitioner's focus on job duties, rather than titles, accords with labor certification case law. See, 
e.g., Matter of Sumeru Inc., 2013-PER-0124I, 20Ii WL 23I5923 *3 (BALCA Apr. 24, 20I7) 
(stating that, "[a]s the title given a job by an employer may not be detenninative of the scope of 
duties and level of education and experience required, the Board's focus must extend to the 
underlying job duties for the position") (citation omitted). We therefore agree that, notwithstanding 
his former job titles, the Beneficiary would qualify for the offered position if he worked full-time for 
at least four years performing the job's primary duties. The certification states the primary duties of 
the offered position as: analyzing user requirements, procedures, and processes to automate or 
1 
This petition's priority date is May 22, 2015, the date the DOL accepted the accompanying labor certification 
application for processing. See 8 C.F.R. § 204.5(d) (explaining how to detennine a petition's priority date). 
2 
A labor certification employer cannot rely on experience that a foreign national gained with it, unless the experience 
was obtained in a substantially different position than the one offered or the employer can demonstrate the impracticality 
of training a U.S. worker for the offered position. 20 C.F.R. § 656.17(i)(3). The Petitioner here does not assert that the 
Beneficiary gained qualifYing experience with it. 
2 
Matter of D-G- Inc. 
improve systems; documenting functional work flow; comparing current and desired levels of 
performance; and testing systems. 
The record contains letters from three of the Beneficiary's former employers, confirming his claimed 
employment from November 2006 through July 2012. See 8 C.F.R. § 204.5(1)(3)(ii)(A) (requiring a 
petitioner to support a beneficiary's claimed, qualifying experience with letters from former 
employers) 3 A letter from one of the employers establishes the Beneficiary's experience from July 
2011 to July 2012. Contrary to 8 C.F.R. § 204.5(1)(3)(ii)(A), however, letters from the two other 
employers, covering November 2006 through July 2011, do not describe his experience. Moreover, 
one of the letters states that the Beneficiary's "roles and responsibilities were the same as a [) 
Consultant during the [software] implementation in our organization." But, contrary to 8 C.F.R. 
§ 204.5(1)(3)(ii)(A), the letter does not identify the Beneficiary's "roles and responsibilities." Also, 
the letter states his performance of the duties of a consultant "during the [software] implementation 
in our organization." The record does not indicate whether the implementation lasted through the 
Beneficiary's entire tenure with the employer, or whether the Beneficiary had different duties before 
and/or after the implementation. Therefore, the employers' letters do not establish the Beneficiary's 
possession of at least four years spent performing the primary job duties of the offered position. 
The Petitioner submitted copies of e-mail messages in which the Beneficiary requested amended 
letters trom the two former employers. Citing company policies, the employers declined to issue 
documents detailing his job duties. The Petitioner also submitted affidavits from the Beneficiary and 
former co-workers of his, detailing his job duties with the two employers. In addition, the Petitioner 
provided copies of appointment and resignation acknowledgement letters trom the employers 
regarding the Beneficiary and the co-workers. 
Although the documents support the Beneficiary's employment from November 2006 through July 
2011, the record does not demonstrate the Beneficiary's experience performing the job duties of the 
offered position during that period, and as such it cannot be considered qualifying experience. As 
stated in the Director's notice of intent to deny, the Beneficiary's descriptions of his job duties 
during this period on a U.S. visitor visa application in July 2011 conflict with descriptions on the 
labor certification and the affidavits supporting his claimed experience. Asked on the vtsa 
application to describe his duties with the most recent former employer, the Beneficiary stated: 
Handling import & export operations, l[iais]on with customs and various other 
authorities for obtaining approvals, strategic planning[) & management, trading, 
logistics, operating, production control, vendor management, client relationship 
management, international trading operations. 
3 The Petitioner has not submitted letters from the employer where the Beneficiary's claims to have worked from August 
2003 to May 2005. Nor has the Petitioner asserted that this prior employment should be considered qualifying 
employment for the offered position. As such, we can only evaluate the Beneficiary's experience based on the 
employment claimed from November 2006 through July 2012. 
3 
,, 
Malter of D-G- Inc. 
Asked on the application to describe his duties at the prior employer, he similarly stated: "Handling 
import export, l[iais]on." 
As listed on the visa application, the Beneficiary's job duties with the two former employers ret1ect 
those of a "logistician," a position that involves using software systems to plan and track the 
movement of products, but that does not include installing, analyzing, or testing the systems as the 
job duties of the otfered position require. See DOL, Occupational Outlook Handbook, 
"Logisticians," https://www.bls.gov/ ooh/ business-and-tinancial/logisticians.htm#tab-2 (last visited 
Apr. 12, 20 18). This is inconsistent with the duties claimed on the labor certification and in the 
coworkers' affidavits, however, which include only tasks associated with the offered position, such 
as: analyzing user requirements; documenting work t1ow; testing systems; running server and 
database queries; and customizing and integrating modules of enterprise application software. 
Also, as previously indicated, the Beneficiary attested on the labor certification that his former 
employers provided "IT Services." On their websites, however, the employers describe themselves 
as a provider of medical diagnostic solutions, a manufacturer of kitchen and bath products, an 
importer/exporter of automotive parts and raw materials, and a logistics company. By enhancing the 
Beneficiary's former job duties and identifying his former employers as providers of "IT Services," 
the certification apparently attempts to portray the Beneficiary as an experienced computer 
consultant. The discrepancies in the Beneficiary's job duties and the businesses of his tormer 
employers cast doubts on his experience performing· the job duties of the offered position. See 
Matter ofHo, 19 I&N Dec. 582,591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of 
record by independent, objective evidence pointing to where the truth lies). 
In addition, the affidavits in support of the Beneficiary's claimed experience describe his job duties 
in virtually identical language. The similarities among the affidavits cast doubt on their reliability. 
See id. at 591 (stating that doubt cast on any aspect of a petitioner's proof may lead to a reevaluation 
of the sufficiency and reliability of the remaining evidence of record). 
On appeal, the Petitioner argues that, as sworn statements from those who· are not parties to the 
proceedings and have personal knowledge of the events, the affidavits comply with regulatory 
requirements. See 8 C.F.R. § 103.2(b)(2)(i). The Petitioner contends that "[t]here is no regulatory or 
policy guidance mandating affidavits lack credibility simply by virtue [of] a standard format." An 
affidavit's compliance with regulatory requirements, however, does not require USCIS to accept the 
truth of its contents. As with all evidence, USCIS must consider an affidavit's relevance, probative 
value, and credibility. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 20 I 0) (requiring a 
director to "examine each piece of evidence for relevance, probative value, and credibility"). The 
regulations do not directly address the evaluation of evidence. But USCIS policy requires 
consideration of an affidavit's credibility. See USCIS, Adjudicator's Field Manual, Ch. II. I (h), 
https:l/www.uscis.gov/ilinkldoc View/ AFM!HTMLI AFM/0-0-0-1 /0-0-0-2061/0-0-0-2073. html#0-0-
0-312 (last visited Apr. 12, 2018) (stating that documentary evidence "is subject to the same 
considerations regarding competency and credibility as is testimonial evidence"). Federal courts 
have also discounted documents that contain significant similarities. See, e.g, Nadeem v. Holder, 
4 
Malter ofD-G- Inc. 
599. F.3d 869, 873 (8th Cir. 2010) (affirming an Immigration Judge's disregard of letters from 
different witnesses that contain similar language, grammar, and spelling errors); Mei Chai Ye v. U.S 
Dep 't of.Justice, 489 F.3d 517, 519 (2d Cir. 2007) (stating that nearly identical language in separate 
asylum affidavits may support an adverse credibility finding) (citation omitted). 
Here, the extensive similarities in the language of the affidavits .regarding the Beneficiary's claimed 
experience suggest that a single person drafted them. The affidavits therefore do not appear to 
constitu_te independent, objective evidence from multiple people with personal knowledge of the 
events. The affidavits' similarities therefore reduce their reliability. 
The Petitioner also denies discrepancies in the Beneficiary's descriptions of his former job duties on 
the labor certification and the visa application. The Petitioner argues that, although the job duties on 
the certification are more detailed, the descriptions are not inconsistent. The Petitioner asserts that, 
while working for the two employers, the Beneficiary performed a broad range of duties, 
encompassing both technical and logistical tasks. Citing an affidavit of the Beneficiary and an 
expert opinion partially based on it, the Petitioner contends that some of the job duties listed on the 
certification include roles on the visa application, while others overlap. 
We do not find the Petitioner's argument persuasive. As previously discussed, the job duties on the 
visa application describe administrative tasks, while those on the labor certification reflect technical, 
computer-related duties. If the Beneficiary's positions involved a combination of technical and 
administrative duties, the record does not explain why he listed only administrative duties on the visa 
application and only technical duties on the labor certification. The record also does explain how 
much time the Beneficiary purportedly spent on administrative duties with his former employers. 
The expert opinion, from a community college professor of computer science, concludes that the job 
duties of the Beneficiary's prior positions on the labor certification "are nothing but detailed job 
functions of the broadly listed job duties" on the visa application. The opinion, however, also states 
that the job duties on the certification detail only some of the duties listed on the application, 
specifically "strategic planning[] & management, trading, logistics, operating, production control, 
vendor management, client relationship management, international trading operations." The opinion 
does not explain how much time the Beneficiary spent on the other duties, including "Handling 
import & export operations, l[iais]on with customs and various other authorities for obtaining 
approvals." The opinion therefore does not establish the Beneficiary's possession of at least four 
years of full-time experience performing the job duties of the offered position. See Matter of Caron 
Int'/, Inc, 19 I&N Dec. 791, 795 (Comm'r 1988) (allowing an adjudicator to reject or afford lesser 
evidentiary weight to expert testimony that conflicts with other evidence or "is in any way 
questionable"). 
For the foregoing reasons, the record on appeal does not establish the Beneficiary's possession of the 
minimum experience required for the offered position. We will therefore affirm the Director's 
decision. 
Ill. ABILITY TO PAY THE PROFFERED WAGE 
5 
.
Maller of D-G- Inc. 
Although unaddressed by the Director, the record also does not establish the Petitioner's ability to 
pay the proffered 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. 
Here, the labor certification states the proffered wage of the offered posttlon of consultant as 
$103,043 a year. As previously noted, the petition's priority date is May 22, 2015. The Petitioner 
submitted copies of financial statements for 2014 and 2015, and federal income tax returns for 2014. 
Contrary to 8 C.F.R. § 204.5(g)(2), however, the record does not establish that the financial 
statements were audited. The record therefore lacks required evidence of the Petitioner's ability to 
pay in 2015, the year ofthe petition's priority date, and thereafter. 
Also, USCIS records indicate the Petitioner's tiling of at least 10 petitions for other beneficiaries that 
were pending or approved as of, or filed after, the priority date of the current petition. 4 A petitioner 
must demonstrate its ability to pay the proffered wage of each petition it files until a beneficiary 
obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore 
demonstrate its ability to pay the combined proffered wages of this and its other petitions from May 
22, 2015, until the other beneficiaries obtained lawful permanent residence. 5 See Patel v. Johnson, 2 
F. Supp. 3d 108, 124 (0. Mass. 2014) (affirming revocation of a petition's approval where, as of the 
filing's grant, the petitioner did not demonstrate its ability to pay the combined proffered wages of 
multiple beneficiaries). 
In any future filings in this matter, the Petitioner must provide the proffered wages and priority dates 
of its other petitions. The -Petitioner may also submit evidence of any wages paid to other 
beneficiaries after May 22, 2015, and of the denial, withdrawal, or revocation of any of the other 
petitions. Further, the Petitioner must provide copies of its annual reports, federal income tax 
returns, or audited financial statements for 2015, 2016, and, if available , 2017. The Petitioner may 
also submit additional evidence of ability to pay, including evidence in support of the factors stated 
in Maller oJSonegawa, 12 I&N Dec. 612 (Reg'l Comm 'r 1967). 
IV. THE VALIDITY OF THE LABOR CERTIFICATION 
4 USCIS record s identify the other petitions by the following receipt number s: 
5 The Petitioner's ability to pay the proffered wage of one of the other l-140 beneficiaries is not considered: after the 
other beneficiary obtains lawful permanent residence; if an l-140 petition filed on behalf of the other beneficiary has 
been withdrawn , revoked, or denied without a pending appeal or motion; or before the priority date of the 1- 140 petition 
filed on behalf of the other beneficiary . 
6 
.
Matter of D-G- Inc. 
The record also does not establish the validity of the accompa nying labor certification. If 
unaccomp anied by an application for Schedule A designation or documentation of a beneficiary's 
qualifications for a :shortage occupation , a 
petition for a skilled worke r must · inclu de a valid, 
individu al labor certification. 8 C.F.R. § 204.5(1)(3)( i). USCIS may invalidate a certification after 
its issuan ce upon a finding of "fraud or willful mi srepresentation of a material fact involv ing the 
labor certification application. " 20 C.F.R. § 656.30(d). 
Here, asked on the labor certification "[I]s there a familial relationship between the owners, 
stockhold ers, partners, corpor ate officers, or incorpo rators , and the alien?" the Petitioner indicated 
"No." Evidence , howev er, indicates that the Benefic iary's sister and her spouse own the petit ioning 
corporati on. On his 2011 visa application , the Beneficiar y listed his sister as a U.S. citizen and 
resident. USCIS records identify her as the spouse of the Petitioner's senior vice president who 
signed this petition and the accompanying labor certification on behalf of the corporati on. Copies of 
the Petitioner' s 2014 federal income tax returns indicate that, together, the Beneficiar y's sister and 
her spou se owned all of the company's stock. Also, public records indicate that the couple, together 
or separately , owned the home s the Benefi ciary listed as his residences on the petition and 
certific ation. See , https: (last visited Apr. 12, 20 18). Thus, 
contrar y to the Petitioner 's statement on the labor certification , the record indicates a famil y 
relationship between the company's owners and the Beneficiary. 
"[T]he officers and principal s of a corporation are presumed to be aware and infonned of the 
organization and staff of their enterprise." Matter of Silv er Dragon Chinese Rest. , 19 I&N Dec. 401, 
404 (Com m'r 1986). The Petitioner' s misrepr esentation on the labor certificati on therefore appea rs 
to be willful. The misrepresentation also appears to be material , as disclosure of the family 
relation ship may have result ed in the labor certification 's denial. See, e.g, Matter of .Johnm an 
U.S.A .. Inc., 2012-PER-0314 9, 2016 WL 6301766 *3 (BALCA Oct. 21, 2016) (stating that a family 
relationship between a foreign n
ational and owners of a labor certification empl oyer creates a 
presump tion that the job is not clearly open to U.S . workers) (citations omi tted); see also 20 C.F.R. 
§ 656.1 O(c)(8) (requiring an employer to attest to the clear availability of a position to U.S. workers). 
In any futur e filings in this matter, the Petitioner must submit copies of: its articles of inco rporatio n; 
a list of all officers and shareh olders, describing their relationship s to each other and the Beneficiary; 
a financial history including the total investment. in the corporation and the amount invested by each 
officer, shareholder, and the Beneficiary; and the name of the company offic ial(s) exercising control 
or influence over hiring for the offered position. See 20 C.F.R. § 656. 17(1). 
Pursuant to the factors stated in Maller of Modular Conrainer Sys., Inc., 1989- INA-0 0228 , 1991 WL 
223955 *8 (BALCA July 16, 199 1 (en bane), the Petitioner should also submit evidence ofthe bona 
fides of the job opportunity . The Petitioner 's evidence should includ e copies of d ocu mentation 
supporting its labor certification , including: its notice of filing; its j ob order with a state workforce 
agency; its request for a prevailing wage determination; newsp aper adve rtisement s; ads with its 
employee referral program , a private emplo yment firm, and a job- searc h website; its recru itment 
report ; a nd any resumes/applications receiv ed from U.S. worker s. If not resolved, the issues 
7 
Matter of D-G- Inc. 
discussed above would be grounds for a finding of fraud or willful misrepresentation and 
invalidation of the labor certification. 
V. CONCLUSION 
The record on appeal does not establish the Beneficiary's possession of the minimum experience 
required for the offered position. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as Maller of D-G-!nc., ID# 1224201 (AAO May 18, 2018) 
8