dismissed EB-3 Case: Marina Services

MATTER OF H-Y-H-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: JUL. 6, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a full service marina, seeks to employ the Beneficiary as a cleaner of vehicles and 
equipment. It requests class.ification of the Beneficiary as an "other worker" under the third preference 
immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This employment-based '"EB-3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent resident status a foreign national who is capable of 
performing unskilled labor that requires less than two years of training or experience and is not of a 
temporary or seasonal nature. 
The Director of the Texas Service Center denied the petition on the ground that the evidence of 
record did not establish the Petitioner's continuing ability to pay the proffered wage from the priority 
date onward. The Petitioner filed motions to reopen and reconsider, which the Director denied. 
On appeal, the Petitioner submits additional documentation and asserts that the evidence of record 
establishes its ability to pay the proffered wage. We issued a notice of intent to deny (NOID) 
advising that it did not appear the Beneficiary had the educational credential required by the labor 
certification and that the Petitioner must submit a type of documentary evidence required by 
regulation to establish its ability to pay the proffered wage. The Petitioner has responded to the 
NOID with additional materials. 
Upon de nova review, we will dismiss the appeal on the grounds that the Petitioner has not submitted 
the requisite type of evidence to establish its ability to pay the proffered wage and the Beneficiary 
does meet the minimum educational requirement of the labor certification. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification (ETA Form 9089, Application for Permanent Employment 
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). By approving the labor certification, DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of U.S. workers similarly employed. See section 2 I 2(a)(5)(A)(i)(l)-(II) of the 
Matter of H-Y-H-
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the 
, petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of 
status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
II. ANALYSIS 
At issue in this case is whether the Petitioner has established its continuing ability to pay the 
proffered wage from the priority date 1 onward, and whether the Beneficiary meets the minimum 
educational requirement of the labor certification. 
A. Petitioner's Ability to Pay the Proffered Wage 
The regulation at 8 C.F.R. § 204.5(g)(2) provides that a petitioner must establish its ability to pay the 
proffered wage from the priority date until the beneficiary obtains lawful permanent residence. The 
evidentiary requirements for a petitioner to establish its ability to pay the proffered wage are stated, 
in pertinent part, as follows: 
Evidence of this ability shall be either in the form of copies of annual reports, federal 
tax returns, or audited financial statements. . . ; . In appropriate cases, additional 
evidence, such as profit/loss statements, bank account records, or personnel records 
may be submitted by the petitioner or requested by [USCIS]. 
Id. Thus, the regulation clearly indicates that for each year a petitioner must establish its ability to 
pay the proffered wage, at least one type of required evidence - an annual report, or a federal tax ,, 
return, or an audited financial statement - must be submitted. 
The Petitioner states that it has employed the Beneficiary since April 2009 and has submitted copies 
of the Forms W-2, Wage and Tax Statements, it issued to the Beneficiary for the years 2013-2017. 
They show that the Beneficiary's gross pay has exceeded the proffered wage each of these years. 
The Petitioner asserts that this documentation establishes its continuing ability to pay the proffered 
wage from the priority date of January 13, 2014, up to the present. 
As stated by the Director in his request for evidence (RFE), however, the Petitioner must submit one 
of the three types of evidence required by 8 C.F.R. § 204.5(g)(2) for each year since the priority 
date. The Petitioner did not submit any type of required evidence in response to the RFE, and the 
Director denied the petition accordingly, finding that the Petitioner had not established its ability to 
pay the proffered wage. On appeal the Petitioner contends that the Forms W-2 establish its ability to 
pay the proffered wage because they show the wages paid to the Beneficiary have consistently 
exceeded the proffered wage since the priority date. We advised the Petitioner once again in our 
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1 The "priority date" of the petition is the date the underlying labor certification is filed with the DOL. / See 8 C.F.R. 
§ 204.S(d). In this case the priority date is January 13, 2014. 
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· Matter of H-Y-H-
notice of intent to deny (NOID), however, that notwithstanding the Forms W-2 in the record the 
Petitioner was required by regulation to submit either an annual report, or a federal tax return, or an 
audited financial statement for each year since the priority date. The Petitioner did not submit any 
such documents in its response to the NOID. Instead, the Petitioner submitted two sets of income 
statements and balance sheets, one for the month of January 2015 and the other for the month of 
January 2017:, The income statements and balance sheets bear no evidence of having been audited, 
and neither covered more than one month. Thus, they do not meet the regulatory requirement of 
audited financial statements for 2015 or 2017. 
In view of the Petitioner's failure to submit at least one type of documentation required by the 
regulation at 8 C.F .R. § 204.5(g)(2) - either an annual report, or a federal tax return, or an audited 
financial statement - for each year since the priority date of January 13, 20 I 4, despite repeated 
requests to do so by the Director and by this office, we conclude that the Petitioner has not 
established its continuing ability to pay the proffered wage from the priority date onward. 
B. Beneficiary's Educational Qualifications under the Terms of the Labor Certification 
A beneficiary must meet all of the education, training, experience, and other requirements of the 
labor certification as of the petition's priority date. See Matter of Wing ·s Tea House, 16 l&N Dec. 
158, 159 (Acting Reg'] Comm'r 1977). 
In this case, the labor certification specifies in section H (boxes 4 and 9) that the mm1mum 
educational requirement for the job offered is a high school diploma or a foreign educational 
equivalent. As evidence of the Beneficiary's education the record includes a copy of a certificate 
issued by Mexico, on 1993 (along with an 
English translation), certifying that the Beneficiary had completed secondary education (educacion 
secundaria). The record indicates that the Beneficiary was 15 years old at that time. As described 
by the ----================ _ ~ created by the 
in Mexico is awarded after three years of lower secondary 
education and is comparable to less than a complete high school education. credential 
advice states that the holder of a _____________ may be placed in I 0th grade 
in the United States. 
In our NOID we informed the Petitioner of this credential advice from and stated that it did 
not appear the Beneficiary's education in Mexico was equivalent to a high school education in the 
United States. In response to the NOID the Petitioner submitted an educational evaluation from 
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Matter of H-Y-H-
stating its opinion that the Beneficiary's Mexican education is 
equivalent to the completion of grade nine at an accredited U.S. high school. Thus, the evaluation 
from concurs with the credential advice of that the Beneficiary's education at 
Telescundaria is not equivalent to the completion of high school in the United States. Accordingly, 
the Petitioner has not established that the Beneficiary has the minimum education required by the 
terms of labor certification. 
III. CONCLUSION 
We will dismis_s the appeal because the Petitioner has not established its continuing ability to pay the 
proffered wage from the priority date onward and because the Beneficiary does not meet the minimum 
educational requirement of the labor certification. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-Y-H-, ID# 1289116 (AAO Jul. 6, 2018) 
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