dismissed EB-3 Case: Medical Billing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF U-B- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 30, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a billing service for physicians, seeks to employ the Beneficiary as an account manager. 
It requests classification of the Beneficiary as an unskilled worker under the third preference 
immigrant classification . Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 
8 U.S.C. § 1153(b)(3)(A)(iii). 1 This employment-based immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires less than two years of training or experience. 
The Director of the Nebraska Service Center denied the petition because the labor certification 
requirements exceed the amount of training or experience permitted under the unskilled worker 
classification. 
On appeal, the Petitioner asserts that the Director misinterpreted the unskilled worker regulation and 
that the labor certification requirements do not exceed the amount of training or experience permitted 
under the unskilled worker classification. 
Upon de nova review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). 2 See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the 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 
1 This statute relates to visas for "[ o ]ther qualified immigrants who are capable, at the time of petitioning for classification 
under this paragraph, of performing unskilled labor, not ofa temporary or seasonal nature, for which qualified workers are 
not availab le in the United States." In contrast, the skilled worker classification at section 203(b)(3)(A)(i) of the Act, 
8 U.S.C. § l 153(b)(3)(A)(i), relates to visas for [q]ualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing skilled labor (requiring at least 2 years training or experience) , not of a 
temporary or seasonal nature, for which qualified workers are not available in the United States." 
2 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
September 21, 2017. See 8 C.F.R. § 204.S(d). 
Matter of U-B- Inc. 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(n-(II) of the 
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, ifUSCIS approves the petition, 
the foreign national applies 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. UNSKILLED WORKER CLASSIFICATION 
The Director denied the petition because the labor certification requirements exceed the amount of 
training or experience permitted under the unskilled worker classification. The labor certification for 
the position of account manager requires an associate's degree in liberal arts and 12 months of 
experience in the job offered of account manager. 3 The Petitioner requests classification of the 
Beneficiary as an unskilled worker. 
On appeal, the Petitioner states that the definition of unskilled worker located in the regulation at 
8 C.F .R. § 204.5(1)(2) requires "less than two years of training OR experience" ( emphasis 
added). Because the conjunction "and" is not used, the Petitioner asserts that the petition qualifies 
under the unskilled worker classification based on the labor certification requirements of an associate' s 
degree or 12 months of experience. 
The regulation at 8 C.F.R. § 204.5 states in pertinent part: 
(1) Skilled workers, professionals, and other workers. 
(1) Any United States employer may file a petition on Form 1-140 for classification of 
an alien under section 203(b )(3) as a skilled worker, professional, or other (unskilled) worker. 
(2) Definitions. As used in this part: 
Other worker means a qualified alien who is capable, at the time of petitioning for this 
classification, of performing unskilled labor (requiring less than two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not 
available in the United States. 
Skilled worker means an alien who is capable, at the time of petitioning for this 
classification, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not 
available in the United States. Relevant post-secondary education may be considered 
as training for the purposes of this provision. 
3 USCIS may neither ignore a term of the labor certification, nor impose additional requirements. See, e.g., Madany v. 
Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (stating that the "DOL bears the authority for setting the content of the labor 
certification"). 
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Matter of U-B- Inc. 
(4) Differentiating between skilled and other workers. The determination of whether a worker 
is a skilled or other worker will be based on the requirements of training and/or experience 
placed on the job by the prospective employer, as certified by the Department of Labor. 
The skilled worker classification requires "at least two years of training or experience." 8 C.F.R. 
§ 204.5(1 )(2). In contrast, the unskilled worker classification requires "less than two years training or 
experience." 8 C.F.R. § 204.5(1)(2). A qualifying position for an unskilled worker cannot exceed 
these limitations. To differentiate between the skilled worker and unskilled worker classification, we 
must look at "the requirements of training and/or experience" on the labor certification. 8 C.F.R. 
§ 204.5(1)( 4). The regulation is clear that it is the combination of experience and training together that 
determines the total requirement. Necessarily, the unskilled worker classification must require less 
training and experience than the skilled worker classification. Under the Petitioner's interpretation, 
the offered position should qualify under the unskilled worker classification because it requires only 
12 months of experience (less than two years), despite the fact that it also requires an associate' s degree 
in addition to 12 months of experience. This interpretation does not comport with the regulations 
differentiating between the two classifications, and would lead to an absurd result. Namely, it would 
permit this petition to qualify for the unskilled worker classification when the offered job is a skilled 
worker position requiring a combined three years of training and experience. We must generally 
follow the plain and unambiguous language of a statute or regulation. See, e.g., Matter of JM Acosta, 
27 I&N Dec. 420, 426 (BIA 2018). Unambiguous language, however, must yield to a statutory or 
regulatory scheme if the language would lead to absurd or bizarre results. See, e.g., Matter of Fajardo 
Espinoza, 26 I&N Dec. 603,606 (BIA 2015) (citations omitted). 
Further, the Petitioner states on appeal that an associate's degree "is a two-year degree" and "[t]wo 
years or less" equals but does not exceed a two-year statutory requirement. However, the unskilled 
worker classification expresses a limit of "less than two years," not "two years or less" as asserted by 
the Petitioner. See 8 C.F.R. § 204.5(1)(2). 
The Petitioner has not demonstrated that the regulations allow for the offered position to qualify for 
the unskilled worker classification. The labor certification requirements exceed the amount of training 
or experience permitted under the requested unskilled worker classification and, therefore, the petition 
cannot be approved. 
III. BENEFICIARY'S QUALIFICATIONS 
In addition to the ground for denial enumerated in the Director's decision, we find that the Petitioner 
did not establish that the Beneficiary possessed the education and experience required by the labor 
certification as of the priority date. 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12); Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). In this case, the labor certification 
requires an associate's degree in liberal arts and 12 months of experience in in the job offered of 
account manager. 
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Matter of U-B- Inc. 
The labor certification states that the Beneficiary qualifies for the offered position based on a 
bachelor's degree in liberal arts from] I University in Russia, completed in 2015. 
However, the record contains no evidence of the Beneficiary's education. It does not contain her 
degree or her transcripts from ~------~University. A petitioner bears the burden of 
establishing eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). A petitioner must establish that 
it meets each eligibility requirement by a preponderance of the evidence. Matter of Chawathe, 25 I& 
N Dec. 369, 375-76 (AAO 2010). 
The labor certification also states that the Beneficiary qualifies for the offered position based on her 
full-time experience as an accounting assistant withl • I in I I 
Russia from November 2, 2015, to July 25, 2017. Evidence relating to qualifying experience must be 
in the form of a letter from a current or former employer and must include the name, address, and title 
of the writer, and a specific description of the duties performed by the beneficiary. See 8 C.F.R. 
§ 204.5(1)(3). 
The record contains an experience letter dated July 25, 2017, from the Director General ofl I I I in I I Russia, stating that it employed the Beneficiary as an accountant 
assistant from November 2, 2015, to August 31, 2016. These dates do not match the dates listed on 
the labor certification, and they do not represent 12 months of experience. The Petitioner must resolve 
this inconsistency in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Further, the letter does not list the Beneficiary's 
duties as required by 8 C.F.R. § 204.5(1)(3), and it is not clear if the duties of accountant assistant 
qualified the Beneficiary for the offered job of account manager. 4 Further, the address of the writer is 
not included in the English translation. 5 A full English language translation must accompany any 
document containing foreign language. 8 C.F.R. § 103.2(b)(3). The translator must certify that the 
translation is complete and accurate, and that the translator is competent to translate from the foreign 
language into English. Id. Because the Petitioner did not submit a properly certified English language 
translation of the document, we cannot meaningfully determine whether the translated material is 
accurate. 
Due to these deficiencies, the Petitioner has not established that the Beneficiary possessed the 
education and experience required by the labor certification as of the priority date. 
IV. ABILITY TO PAY 
Further, although not addressed in the Director's decision, we find that the Petitioner did not establish 
its ability to pay the proffered wage. The Petitioner must demonstrate its continuing ability to pay the 
proffered wage from the priority date of September 21, 2017, and continuing until the Beneficiary 
obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability to pay "shall be in 
the form of copies of annual reports, federal tax returns, or audited financial statements." Id. 
4 The offered job requires 12 months of experience as an account manager. 
5 See 8 C.F.R. § 204.5(1)(3). 
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Matter of U-B- Inc. 
The record before the Director closed on July 27, 2018. As of that date, the Petitioner's 2017 federal 
income tax return was the most recent return available. However, the record does not contain the 
Petitioner's annual report, federal tax return, or audited financial statements for 201 7. Instead, the 
record contains the Petitioner's federal tax return for calendar year 2015. 
With the petition, the Petitioner submitted its bank statements covering October, November, and 
December 2017. However, bank statements are not among the three types of evidence, listed in 
8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While this 
regulation allows additional material "in appropriate cases," the Petitioner has not demonstrated why 
the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable. Further, bank statements show 
the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered 
wage. 
Accordingly, the Petitioner has not established its continuing ability to pay the proffered wage from 
the priority date, and the petition may not be approved for this additional reason. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of U-B- Inc., ID# 05214041 (AAO July 30, 2019) 
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