dismissed EB-3 Case: Mortgage Brokerage

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm 3000 
Washington, DC 20529 
PUBLLIC COPY 
Office: TEXAS SERVICE CENTER 
 Date: 
 1 0 2006 
SRC 04 095 5 1820 
IN RE: 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1153@)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
- 
Robert P. Wiemann, Chief 
Administrative Appeals Off~ce 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a mortgage broker. It seeks to employ the beneficiary permanently in the United States as an 
assistant mortgage broker. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the United States Department of Labor (DOL). 
The director determined that the petitioner had not established that the beneficiary is qualified to perform the 
duties of the proffered position with two years of qualifying employment experience. The director denied the 
petition accordingly. 
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. 
As set forth in the director's March 7,2005 denial, the single issue in this case is whether or not the petitioner 
has demonstrated that the beneficiary is qualified to perform the duties of the proffered position. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153@)(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 mtioner must 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 DOL and submitted with the 
instant petition. htter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). Here, the Form ETA 
750 was accepted on April 9,200 1. 
The AAO takes a de novo look at issues raised in the denial 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.' On appeal, 
counsel submits a revised Form G-325A for the beneficiary, a letter dated October 15, 1998 from Bridge 
Mortgage Bank of America regarding the beneficiary's previous training, and a letter dated April 1, 2005 
from the petitioner regarding the beneficiary's previous training. Other relevant evidence in the record 
includes a letter dated January 5,2005 from the petitioner regarding the beneficiary's prior work experience, 
the beneficiary's transcripts from The International University in India and The Hailey College of Commerce 
in India, and the beneficiary's examination results from The Board of Intermediate & Secondary Education in 
India. The record does not contain any other evidence relevant to the beneficiary's qualifications. 
On appeal, counsel asserts that the beneficiary has the required two years of experience for the proffered 
position. He states that at the time the Form 1-140 was submitted, the petitioner did not submit evidence of 
the time the beneficiary worked as a trainee. Counsel asserts that the petitioner erroneously believed the time 
spent as a trainee did not qualify as actual experience and, therefore, evidence of the beneficiary's training 
was omitted from the petition. 
1 
 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)(l). 
Page 3 
To determine whether a beneficiary is eligible for an employment based immigrant visa, Citizenship and 
Immgration Services (CIS) must examine whether the alien's credentials meet the requirements set forth in the 
labor certification. In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the 
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, @.C. Cir. 
1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infa-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750& items 14 and 15, set 
forth the minimum education, training, and experience that an applicant must have for the position of assistant 
mortgage broker. In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education 
Grade School 
High School 
College 
College Degree Required 
Major Field of Study 
Training 
No. Years 
No. Mos. 
Type of Training 
The applicant must also have two years of experience in the job offered or two years of experience in marketing. 
The duties of the job offered are delineated at Item 13 of the Form ETA 750A and since this is a public record, 
will not be recited in this decision. Item 15 of Form ETA 750A requires that the applicant speak Hindi, Urdu, 
Punjabi and English. 
The beneficiary set forth her credentials on Form ETA-750B and signed her name under a declaration that the 
contents of the form are true and correct under the penalty of perjury. On Part 15, eliciting information of the 
beneficiary's work experience, she represented that she worked for Bridge Mortgage, Inc. as a mortgage 
processor assistant fiom 1997 to 1999. She also represented that she worked as a marketing executive for The 
English Weekly Businessman in Pakistan fi-om January 1988 to December 1991. She does not provide any 
additional information concerning her employment background on that form. 
The record of proceeding also contains a Form G-325, Biographic Information sheet, submitted in connection 
with the beneficiary's application to adjust status to lawfui permanent resident status. On that form, above a 
warning for knowingly and willfiiily falsifying or concealing a material fact and under a section eliciting 
information about the beneficiary's employment for the last five years, she represented that she worked for the 
petitioner as a broker fi-om March 2003 to the date she signed the Form G-325 on July 9, 2003. She does not 
provide any additional information concerning her employment background on that form. 
The regulation at 8 C.F.R. 3 204.5(1)(3) provides: 
(ii) Other documentation- 
Page 4 
(A) General. 
 Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters fiom trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
In response to the director's request for evidence dated November 19, 2004, the petitioner submitted a letter 
dated January 5,2005 verifying that the beneficiary has been a full-time employee of the petitioner since the 
approval of her labor certification and certifying that she is fluent in Punjabi, Hindi, Urdu and ~nglish.~ 
However, the letter does not give a description of the beneficiary's experience and, as noted by the director, 
the letter does not demonstrate that the beneficiary obtained the required two years of experience as of the 
priority date. A petitioner must establish the elements for the approval of the petition at the time of filing. A 
petition may not be approved if the beneficiary was not qualified at the priority date, but expects to become 
eligible at a subsequent time. Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
On appeal, counsel submits a revised Form G-325A for the beneficiary which states that the beneficiary 
worked as a trainee for Bridge Mortgage Bank of America from October 1997 to September 1998, that the 
beneficiary worked as a trainee for the petitioner from October 1998 to November 1999 and that the 
beneficiary worked for the petitioner as an assistant mortgage brokertloan processor from March 2003 to the 
date she signed the revised Form G-325A on April 4,2005. Further, on appeal counsel submits a letter dated 
October 15, 1998 from Bridge Mortgage Bank of America stating that the beneficiary completed her 
internship as a residential loan processor at the company from October 1997 to September 1998. The letter 
states that the beneficiary received no compensation during her internship. Further, the letter contains a 
syllabus for a 10-week mortgage course and indicates that the beneficiary received training in the areas of 
expertise listed in the course syllabus. Also, on appeal counsel submits a letter dated April 1, 2005 from the 
petitioner stating that the beneficiary received training fiom October 1998 to November 1999 as an assistant 
mortgage brokerfloan processor. The letter states that the beneficiary received no compensation during her 
training period. 
Counsel asserts on appeal that the petitioner omitted the information regarding the beneficiary's unpaid 
training because the petitioner believed that it did not qualify as actual experience. The assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). None of the evidence submitted in the record of proceeding 
represents that the beneficiary received any training with either Bridge Mortgage Bank of America or the 
petitioner. On appeal, the petitioner wishes to change its original submissions regarding the beneficiary's 
experience to conform to CIS requirements. A petitioner may not make material changes to a petition in an 
effort to make a deficient petition confonn to CIS requirements. See Matter of izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm. 1988). 
* The Form ETA 750 was approved by the DOL on March 7,2003. 
Page 5 
Even assuming this office would accept the petitioner's submissions on appeal, the beneficiary's training with 
Bridge Mortgage Bank of America and the petitioner does not qualify as experience required by the labor 
certification application in this matter. In this case, the Form ETA 750A clearly states that no training is 
required. Instead, the labor certification application specifically requires two years of experience in the job 
offered or two years of experience in marketing. The beneficiary has not established that she has the required two 
years of experience.3 
Therefore, the AAO affirms the director's decision that the preponderance of the evidence does not 
demonstrate that the beneficiary acquired two years of experience in the job offered or two years of 
experience in marketing &om the evidence submitted into this record of proceeding. Thus, the petitioner has 
not demonstrated that the beneficiary is qualified to perform the duties of the proffered position. 
ORDER: The appeal is dismissed. 
3 
 This office also notes that the letter dated April 1, 2005 from the petitioner does not meet the regulatory 
requirements of 8 C.F.R. 5 204.5(1)(3). The letter states that the beneficiary received training as an assistant 
mortgage brokerAoan processor and that during her training, she "received extensive know how and skill for the 
trades which will be very helpfuf in her future job procurement in this field." The letter does not provide a 
description of the specific training received by the beneficiary.