dismissed EB-3 Case: Manufacturing

PUBLIC COPY 
iaeatifL@ data deleted ta 
prevent ddy unwarranted 
invasiab of pem~I privaey 
U.S. Department of Tfomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 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. 
Administrative Appeals Office 
DISCUSSION: The Director, California Service Center, denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office ("AAO") on appeal. The appeal will be dismissed. 
The petitioner is a laser printer and cartridge manufacturer. The petitioner seeks to employ the beneficiary 
permanently in the United States as an inspection supervisor ("Quality Control Technician"). As required by 
statute, the petition filed was submitted with Form ETA 750, Application for Alien Employment 
Certification, approved by the Department of Labor ("DOL"). As set forth in the director's denial, the case 
was denied based on the petitioner's failure to show that the 1-140 petitioner was the successor-in-interest to 
the petitioner listed on the labor certification. The director further raised the issue that the position offered to 
the beneficiary by the entity asserting itself to be the successor-in-interest appeared materially different than 
the initial petitioned for position. 
The AAO takes a de novo look at issues raised in the revocation 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 appeal.' 
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. 
The petitioner filed to obtain permanent residence and classitjl the beneficiary as a skilled worker. Section 
203(b)(3)(A)(i) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. 5 1 1 53(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 petitioner must establish that its ETA 750 job offer to the beneficiary is a realistic one. A petitioner's filing 
of an ETA 750 labor certification application establishes a priority date for any immigrant petition later filed 
based on the approved ETA 750. The priority date is the date that Form ETA 750 Application for Alien 
Employment Certification was accepted for processing by any office within the employment service system 
of the Department of Labor. See 8 CFR 5 204.5(d). Therefore, 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. 5 204.5(g)(2). 
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 
' 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. 5 103.2(a)(I). 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). 
-- fi Page 3 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
Here, the Form ETA 750 was accepted for processing by the relevant office within the DOL employment 
system on September 5, 1995.~ The proffered wage as stated on the Form ETA 750 is $17.34 per hour, for an 
annual salary of $36,067.20 based on a 40-hour work week.3 The Form ETA 750 was certified on August 12, 
2000, and the petitioner filed the 1-140 on the beneficiary's behalf on May 17, 2004. The petitioner's 
representative listed the following information on the 1- 140 Petition related to the petitioning entity:4 date 
established: 1982; gross annual income: $750,000; net annual income: $200,000; and current number of 
employees: twelve. 
The director issued a Request for Evidence ("RFE") on July 23, 2004, requesting that the petitioner provide: 
evidence that the beneficiary met the requirements of the certified ETA 750; and a copy of the petitioner's 
current business license.' 
In response to the RFE, the petitioner's president listed that the company employs 140 individuals and, 
therefore, did not have to supply further documentation regarding its ability to pay; that the beneficiary has 
been employed with International Laser Group since 1996, and that 
 purchased 
that Citizenship and Immigration Services ("CIS") should contact the petitioner's president 
experience; that the beneficiary is mainly responsible for ensuring that the factory 
is properly operating, and that the beneficiary is further in charge of ensuring quality control. 
On October 22, 2004, the director issued a Notice of Intent to Deny ("NOID"), which provided that the 
petitioner's response to the RFE was deficient and allowed the petitioner 30 days to submit further 
information related to the beneficiary's qualifications. Further, the director noted that the petitioner failed to 
submit its current business license. 
The ~etitioner res~onded. Following consideration of the ~etitioner's resDonse. on December 20. 2004. the 
director denied the petition findin that the petitioner failed to establish that 
-~ Further, the director raised the i!sue that in a letter to CIS, the 
listed the beneficiary's title as Director of Engineering, when the labor 
certification was for the position of "Quality Control Technician" and, therefore, the petition could not be 
3' The petitioner initially listed a wage of $12.00 per hour. DOL required that the wage be increased to 
$17.34 prior to certification. 
information contained in the record of proceeding, the information on the 1-140 appears to relate to Spectrum 
West. 
The RFE may have requested additional documentation, however, the record of proceeding before us does 
not contain a copy of the WE. We have ascertained what documentation was requested in the RFE based on 
the subsequently issued Notice of Intent to Deny. 
Page 4 
approved for failure to provide a proper labor certification. The petitioner appealed and the matter is now 
before the AAO. 
e of successor-in-interest. On appeal, counsel asserts that the director accepts 
is the successor-in-interest to the initial etitioner. We believe that counsel has 
misread the decision, and, further, we do not believe that 
C 
has established that it is 
the successor-in-interest to the initial petitioner, 
To show that the new entity qualifies as a successor-in-interest to the original petitioner requires documentary 
evidence that the new entity has assumed all of the rights, duties, and obligations of the predecessor company, 
and has the ability to pay from the date of the acquisition. See Matter of Dial Auto Repair Shop, Inc., 19 I&N 
Dec. 481 (Comm. 1986). Moreover, the petitioner must establish that the predecessor enterprise had the 
financial ability to pay the certified wage at the priority date. See Matter of Dial Auto Repair Shop, Znc., 19 
I&N Dec. 481 (Comm. 1986). 
In consideration of $1,000, the receipt of which is ackno 
(Seller), effective June 1 5, 1996, hereby transfers to 
the following assets of t 
A Sole Proprietorship" located at 
- 
,hereafter referred to as "the Business"): 
1. 
 Machinery, equipment and leasehold improvements. 
2. 
 Goodwill associated with the same. 
Executed on June 1 5, 1996 at Pasadena, California. 
The Bill of Sale is signed by the Seller (signature unclear, and the name of the Seller was not listed), and 
signed by the Purchaser (name of Purchaser not listed, but the signature does appear to be "Gary" and last 
name beginning with an "M" consistent with the name of the present petitioner's owner). 
submitted an affidavit from the petitioner's president, which 
and assumed all immigration-related rights and obligations 
of previously submitted to the Director." The record 
The documentation submitted does not demonstrate that the petitioner "has assumed all of the rights, duties, 
and obligations of the predecessor company." The Bill of Sale merely outlines the purchase of some 
machinery for $1,000, which would not likely represent the company's full assets if the prior petitioner 
generated income of $750,000 annually as listed on the 1-140 Petition. From the documentation submitted, 
we would not conclude that the petitioner has established itself as the successor-in-interest. Based on Matter 
of Dial Auto Repair Shop, Inc., 19 I&N Dec. 48 1 (Comm. 1986), International Laser Group has not 
demonstrated its assumption of all immigration-related rights and obligations from Spectrum West. 
Page 5 
Further, the successor must establish that it has the ability to pay from the date of the acquisition. See Matter 
of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 1986). We find that the petitioner has not 
demonstrated this, and the petition should have been denied on this basis as well. 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, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 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). 
In support of I ability to pay, 
October 4, 2004, in response to the RFE, which 
 employed 
approximately 140 individuals and therefore could 
submitted Forms DE-6, Quarterly Wage Reports, for the quarters ending: June 30, 2004, March 3 1, 2004, 
December 3 1,2003, and September 30,2003. 
The regulation at 8 C.F.R. 5 204.5(g)(2) allows that "in a case where the prospective employer employs 100 
or more workers, the director may accept a statement from a financial officer of the organization which 
establishes the prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence . . . may be submitted by the petitioner or requested by [CIS]." Accepting a letter to satisfy the 8 
C.F.R. fj 204.5(g)(2) requirement is discretionary as the regulation provides that the "director may accept" 
such a statement. CIS may additionally require that the petitioner provide the other regulatory prescribed 
forms of evidence to include its federal tax returns, annual reports, or audited financial statements. 
The labor certification was filed in 1995. 
 asserts that it took over the initial 
petitioner in 1996. would be required to demonstrate its ability to pay from 1996 
mitted addresses the number of employees that the petitioner had in 2004. 
would need to demonstrate that it had over 100 employees from 1996 onward, or 
that it has paid, or could pay the proffered wage. 
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, on the Form ETA 750B, signed by the beneficia 
 on Au ust 13 
1995, the beneficiary did not list that he was employed with either -, or - 
The present petitioner does provide that it hired the beneficiary in 1996. The record contains the 
following W-2 Forms for the beneficiary: 
Year Employer Wages Paid 
2003 
0 
$1 70,598.32~ 
2002 $144,256.96 
200 1 $99,750.007 
dditionally provided a paystub for the period ending November 17, 2004 
for the year to date. 
submitted its business registration, which shows that it does 
business as president states that- 
ased on the affidavit, the beneficiary 
president, has been the 
was employed for Spectrum West, the 
- - 
initial petitioner. 
er note that 
I 
has the same tax identification number as International Laser 
It would appear a n erna lona aser is the successor to that were 
the case, it is unclear why the petitioner lists that the 
statements demonstrate that he has been employed with 
were the successor-in-interest to , based on the above, it would be 
pay for the years 2002 and 2003. Further, 
 the initial petitioner 
would be required to demonstrate its ability to pay in 1995, at the time of the priority date. The record of 
proceeding contains no information related to the initial petitioner's ability to pay. 
has failed to establish that it is the successor-in-interest to 
es not demonstrate that the initial petitioner had the ability 
to pay the proffered wage from the priority date, or that -1 had the continuing ability 
to pay the proffered wage from 1996 onward. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 48 1 
(Comm. 1986). 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 identi@ all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 1 025, 1 043 (E.D. Cal. 200 I), afd. 
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). Accordingly, the petition was properly denied for failure to 
properly establish successorship-in-interest. The petition also should have been denied for the petitioner's 
failure to demonstrate its ability to pay the beneficiary the proffered wage from the priority date until the 
beneficiary obtains permanent residence." 
* No W-2 Forms were provided for 1996, 1997, 1998, or 1999. 
We note that the beneficiary's W-2 Form employers for the years 1992 to 1995 conflict with the employers 
that the beneficiary has listed on Form ETA 750. See footnote 13 below for further discussion of this issue. 
lo The beneficiary's paystub from fidated November 22, 2004 lists the beneficiary's 
date of hire as January 1, 1991. T e reason or t e iscrepancies in the beneficiary's date of hire is unclear. 
However, these inconsistencies raise questions about the veracity of the petition. See Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988), which states: "Doubt raised on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition." 
 Further, "It is incumbent on the petitioner to resolve any inconsistencies in the record by 
independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent 
objective evidence pointing to where the truth, in fact, lies will not suffice." Matter of Ho, 19 I&N Dec. at 
591-592. 
11 
asserts that it took over the initial 
its ability to pay in 1995. No 
ould be required to demonstrate its ability to pay 
from 1996 onward. 
 100 employees. The letter 
submitted addresses the number of employees that the petitioner had in 2004. 
would need to demonstrate that it had over 100 employees from 1996 onward, or that it has pa~d, or could pay 
the proffered wage from 1996 through 2001 (W-2 Forms submitted on behalf of the beneficiary would 
A second issue to be determined is whether the position offered in the Form ETA 750 is materially different 
than the position that the beneficiary presently holds. On appeal, counsel asserts that the petitioner's 
president has reaffirmed the offer to employ the beneficiary as a "Quality Control Technician" that operates 
under the title of "Director of Engineering." Counsel further asserts that based on DOL's Dictionary of 
Occupational Titles ("DOT") that both positions are supervisory in nature and, therefore, not materially 
different. Further, counsel asserts that the change in wage should not make the position offered, and the 
beneficiary's current position materially different. 
In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the alien 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 Infa-Red Commissary of Massachusetts, Inc. v. 
Coomey, 661 F.2d 1 (1" Cir. 198 1). A labor certification is an integral part of this petition, but the issuance of a 
Form ETA 750 does not mandate the approval of the relating petition. To be eligible for approval, a beneficiary 
must have all the education, training, and experience specified on the labor certification as of the petition's 
priority date. 8 C.F.R. § 103.2(b)(l), (1 2). See Matter of Wing's Tea House, 16 I&N Dec. 15 8, 159 (Acting 
Reg. Comm. 1977); Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comm. 197 1). The priority date is the 
date the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. See 8 C.F.R. 5 204.5(d). The petitioner must also demonstrate 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. Comm. 1977). 
On the Form ETA 750A, the 'Ijob offer" states that the position requires three years of experience in the job 
offered, as a quality control technician with job duties including: 
Tests and inspects products at various stages of production process[es] and 
compiles and evaluates statistical data to determine and maintain quality and 
reliability of products: interprets engineering drawings, schematic diagrams, 
or formulas and confers with management or engineering staff to determine 
quality and reliability standards. Selects products for tests at specified stages 
in production process and tests products for variety of qualities . . . records 
test data, applying statistical quality control procedures. Evaluates data and 
writes reports to validate or indicate deviations from existing standards. 
Recommends modifications of existing quality or production standards to 
achieve optimum quality within limits of equipment capability. Sets up and 
performs destructive and nondestructive tests on materials, parts, or products 
to measure performance, life or material characteristics. Prepares graphs or 
charts of data or enters data into computer for analysis. Supervise other 
quality control technicians who are inspecting. 
demonstrate the petitioner's ability to pay for the years 2002, and 2003). Evidence would, therefore, be 
lacking for the years 1995 through 200 1. 
The petitioner listed education requirements of high school in Section 14, and listed other special 
requirements for the position in Section 15 as "all applicants must have experience in the Laser Printing 
Cartridge Industry." 
Prior coun~el'~ additionally sent a letter dated May 2, 1996 to the California State Workforce Agency (the 
Employment Development Department, "EDD"), which outlined the position's "supervisory duties" to 
include: "(a) to test and inspect products that his employees under him make; (b) will supervise other quality 
control technicians who are inspecting; and (c) will make sure that the manufacturing of laser ink cartridges 
pass all specifications." Both counsel and the petitioner's representative signed the statement related to the 
position's duties. 
The wage listed for the position of Quality Control Technician was $1 7.36. The position was certified based 
on the foregoing wage and job duties, with the experience requirements listed above. 
In a letter dated, November 23, 2004, the petitioner provides that, "this letter is to confirm the offer of full- 
time and regular employment to [the beneficiary] for which there is an approved labor certification for the 
position of Quality Control Technician at a salary of no less than $17.34 per hour based on a 40 hour work 
week." 
The petitioner additionally provided an Affidavit, dated February 17, 2005, "1 wish to confirm our 
corporation's intent to employ [the beneficiary] under the terms, conditions, and duties of the approved labor 
certification field by f for the position of Quality Control Technician at a salary of no less than 
$17.34 per hour . . . because o pay raises his annual salary is $144,256.96." Further, the affidavit provides 
that the beneficiary's title is "Director of Engineering, but his occupational duties remain the same as the 
Inspection Supervisor position certified by the DOL Certifying Officer on August 12,2000." 
Counsel contends that the increase in salary or promotion would not necessarily invalidate the labor 
certification, and that an adjudicator may determine the position still qualifies based on the original labor 
certification after considering a letter from the Petitioner. which ex~lains the details of the new Position. He 
references a letter from, Chief, 1mmigrant ~rinch Adjudications, ~ovemder 28, 1994, 
reprinted in 72 Interpreter Releases at 80 (January 9, 1995) in support. Further, counsel contends that in 
comparing the positions, the approach is similar to that used under the "American Competitiveness in the 
Twenty-first Century Act," AC21 5 106(c), INA 5 204(i) to determine whether a new position obtained is the 
same or similar to the initial position. 
Counsel has provided the DOT code for "Inspection Supervisor," which partially provides "supervises and 
coordinates activities of workers engaged in inspecting materials, tools, workpieces, and products, such as 
metal stock, cutting tools, gauges, machine parts, and assembled units for conformance to specifications." 
Counsel has additionally provided the "crosswalk" search for Inspection Supervisor under DOL's revised and 
updated Occupational Information Network, O*Net Online. The O*Net provides that an Inspection 
Supervisor is equivalent to First-Line SupervisorsManagers of Production and Operating Workers who 
"supervise and coordinate the activities of production and operating workers." 
l2 A different attorney initially filed the ETA 750 on behalf o-nd additionally filed the I- 
140 petition. Present counsel took over representation of the petitioner at the time of the petitioner's response 
to the NOID. 
CIS has wide authority to determine the materiality of any post-certification changes to the position and to 
determine their effect on the validity of the labor certification. See James A. Puleo, Associate Commissioner 
for Operations, U.S. Immigration and Naturalization Service, "Amendments of Labor Certifications in 1-140 
Petitions," December 10, 1993, reproduced at 70 Interpreter Releases 1 676 (December 20, 1993). 
Despite the petitioner's letter stating that the beneficiary is employed as a "Director of Engineering," 
documentation in the record of proceeding provides conflicting information as to the beneficiary's position. 
On Form G-325A filed with the beneficiary's 1-485 Adjustment of Status application, the beneficiary listed 
the following as his work experience: (1) International Laser Group, January 1998 to present (date of 
signature, November 18, 2004), position, CMO (since the abbreviation was not defined, the AAO questions 
whether the abbreviation is Chief Management officer);') (2) Cartridge Remanufacturing lnternational (dba 
Lazer Perfect), January 1997 to December 1997, General Production 
Remanufacturing International, January 1994 to January 1997, Quality Control; (4 
ridee 
beneficiary's position as Factory Manager. 
14 
We note that the beneficiary's work experience conflicts based on other documents. Prior counsel had sent 
a series of letters to DOL regarding corrections, and clarifications related to Forms ETA 750A and 750B. By 
letter of January 13, 1996, counsel provided in letter from a summary of the beneficiary's work experience: 
1 . Work experience: from 1992 through the present. 
2. Name aid address of Employer for the dates listed above: I 
I ~idalgo, Mexico. 7 
- Laser Printer Cartridge Manufacturer 
4. Hours Per Week: 40 
5. Job Title: Quality Control Technician. 
6. Duties Performed: 
 Tests and inspects products at various stages of production . . . interprets 
engineering drawings . . . selects products for tests at specified stages in production process . . . 
evaluates data . . . recommends modifications of existing quality or production standards. 
Both counsel and the beneficiary signed the January 13, 1996 letter related to the beneficiary's prior 
experience. The beneficiary later submitted an affidavit, dated November 18 2004, contesting that he was in 
the U.S. from 1992 to 1996, not in Mexico, and had worked for 
w 
s Imaging, and Cartridge 
Remanufacturing International Inc. between the years 1992 and 1996. The ene iciary asserts in the affidavit 
that the Form ETA 750B did not accurately reflect his experience, and that he informed prior counsel of this. 
We do note that the Form ETA 750B is signed by the beneficiary, and again note that the beneficiary signed 
the letter submitted to DOL, which listed the conflicting work experience in Mexico. 
We note that misrepresentation has serious consequences. See section 2 12(a)(6)(C) of the Act, 8 U.S.C. 1 182, 
regarding misrepresentation, "(i) In General - Any alien, who by fraud or willfully misrepresenting a material 
fact, seeks (or has sought to procure, or who has procured) a visa, other documentation, or admission to the 
United States or other benefit provided under the Act is inadmissible." 
See also 20 C.F.R. $5 656.30(d) and 656.3 1(d) regarding labor certification applications involving fraud or 
willful misrepresentation: 
It would appear that the beneficiary was initially a Quality Control Technician with a prior employer. We 
might be willing to accept that a General Production Manager is a "first line supervisor," however, the 
position CMO, or Director of Engineering, would likely entail a position more advanced than merely a "first 
line supervisor." We would question whether a position that pays $144,000'~ to $170,000 would be a first 
line supervisor position, or whether the position might now be more properly classified as a "General and 
Operations Manager," ONET code: 1 1-1 02 1.00, or as an Engineering Manager, ONET code: 1 1-9041.00. 
A First Line Supervisor has a standard vocational preparation (svP)'~ of 617 to less than 7 while a General 
and Operations Manager has a SVP of 718 to less than 8, and an Engineering Manager has a SVP of 819 and 
above. The varying SVP levels would provide that the different positions require a different level of training 
and experience in order to carry out the functions of the position. 
We find that the petitioned for position of Inspection Supervisor is materially different than the position of 
CMO, or Director of Engineering. The stated purpose of the labor certification is to ensure that there are no 
qualified available U.S. workers who are ready, willing, and available to work. See Section 212(a)(5)(A)(i), 
which provides: 
In general. Any alien who seeks to enter the United States for the purpose of performing skilled 
or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to 
the Secretary of State and the Attorney General that- 
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified 
in the case of an alien described in clause (ii)) and available at the time of application for 
a visa and admission to the United States and at the place where the alien is to perform 
such skilled or unskilled labor, and 
(11) the employment of such alien will not adversely affect the wages and working 
conditions of workers in the United States similarly employed. 
Based on the advertised position, potential applicants for the proffered position would not have been apprised 
of the salary, or of the extensive management duties during the labor market test phase before DOL. The 
Finding of fraud or willful misrepresentation. If as referenced in Sec. 656.30(d), a court, the 
DHS or the Department of State determines there was fraud or willhl misrepresentation 
involving a labor certification application, the application will be considered to be 
invalidated, processing is terminated, a notice of the termination and the reason therefore is 
sent by the Certifying Officer to the employer, attorney/agent as appropriate. 
l5 This would equate to an hourly wage of approximately $69.23 per hour. We note that the petitioner did 
not seek to amend the wage, or the petitioner as a successor-in-interest while the labor certification was 
pending before DOL despite its lengthy adjudication time frame. 
l6 The estimated training or experience required to carry out the position. 
17 
 This position is classified as a job zone 3, where one or two years of training would be required to carry 
out the duties of the position. 
l8 This would require two to four years of work related skills and experience. 
Engineering Managers are classified as "job zone five" positions, which may require five or more years of 
experience. 
position as drafted contemplates substantially lower level activities, such as "tests and inspects products at 
various stages of production process[es] and compiles and evaluates statistical data to determine and maintain 
quality and reliability of products." While the Form ETA 750 was amended to specifically state supervisory 
duties, the majority of the job duties relate more to the work of a technician. Whereas, the "Director of 
Engineering," "CMO," or "Factory Manager" position would contemplate a greater degree of supervisory 
duties, and based on the O*Net SVP listings discussed above, would likely require more than three years of 
experience to carry out the position's job duties. Accordingly, we conclude that the positions are materially 
different to the extent that a new labor certification would be required. 
As Form ETA 750 states that the beneficiary will be employed in a different capacity than the one in which the 
petitioner intends to employ the beneficiary, the petitioner is not in compliance with the terms of the Form ETA 
750. Matter of Izdebska, 12 I&N Dec. 54 (Reg. Comm. 1966). We do not find it credible that the beneficiary's 
title has changed, and his salary has increased from $17 per hour to $69 per hour and above, but that the described 
position remains as an Inspection Supervisor, or First Line Supervisor. A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to CIS requirements. See Matter of 
Zmmrni, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). As the position contemplates greater managerial job 
duties, a significantly higher salary, and a different ONET job zone, including more substantial training to handle 
the position, the position has materially changed. 
The record of proceeding contains a number of inconsistencies regarding the beneficiary's prior work 
experience, his date of employment with his present employer, his position titles, the discrepancy in his pay, 
and insufficient documentation related to the issue of successorship. See Matter of Ho, 19 I&N Dec. at 59 1 - 
592, "It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective 
evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence 
pointing to where the truth, in fact, lies will not suffice." 
Based on the foregoing, the petitioner has failed to establish that the new petitioner is the successor-in-interest 
to the initial petitioner, and has failed to establish its ability to pay the beneficiary the proffered wage fro the 
priority date until the beneficiary obtains permanent residence. Accordingly, 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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.