dismissed EB-3 Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 9684075 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Profes sional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 10, 2020 
The Petitioner, a church , seeks to employ the Beneficiary as music director under the third-preference , 
immigrant classification for professionals . Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii) , 8 U.S .C. § 1153(b)(3)(A)(ii) . 
After initially granting the filing , the Director of the Nebraska Service Center revoked the petition 's 
approval. On appeal , we affirmed the Director's decision . We agreed with her that the Petitioner did 
not demonstrate the Beneficiary's possession of the minimum employment experience required for 
the offered position . See Matter ofT-J-C-0-N-Y- , ID# 6255260 (AAO Nov . 29, 2019) . 
The matter is before us again on the Petitioner's motion to reconsider. The Petitioner bears the burden 
of establishing eligibility for the requested benefit. See section 291 of the Act, 8 U.S .C. § 1361 . Upon 
review , we will dismiss the motion . 
I. MOTION CRITERIA 
A motion to reconsider must demonstrate that our prior decision misapplied law or U.S. Citizenship 
and Immigration Services (USCIS) policy based on the record at the time of the decision . 8 C.F .R. 
§ 103.5(a)(3) . We may grant a motion that meets these criteria and demonstrates a petition's 
approvability. 
IL THE CONSISTENCY OF THE EMPLOYMENT CERTIFICATES 
The Petitioner asserts that our appellate decision erred in finding experience certificates from the 
Beneficiary's former employer to be inconsistent. The Petitioner contends that , although the new 
certificate contains additional details, it does not conflict with the contents of the prior certificate. 
Our appellate decision , however, did not find the experience certificates incon sistent with each other. 
Rather , we concluded that the certificates conflict with the Beneficiary's attestations on the labor 
certification . The Beneficiary stated on the labor certification that he worked as a music director for 
a church in South Korea from September 2006 through October 2009 . Both experience certificates, 
however, indicate his employment by the South Korean church from September 2006 to June 2009. 
Also, the new certificate states that the Beneficiary worked 32 hours a week during that period, while 
he attested on the labor certification to working 40 hours a week. 
For labor certification purposes, the U.S. Department of Labor (DOL) generally requires full-time 
employment to constitute at least 35 hours a week. DOL, Field Memorandum No. 48-94, 1 (May 16, 
1994). Also, a foreign national's part-time employment counts as only half the amount of full-time 
experience. See Matter o_f Cable Television Labs., Inc., 2012-PER-00449 (BALCA Oct. 23, 2014) 
(finding 16 hours of part-time work equivalent to eight months of full-time experience). To 
demonstrate the Beneficiary's possession of at least two years of full-time experience as required for 
the offered position, the Petitioner must therefore resolve the inconsistencies of record regarding the 
Beneficiary's hours and length of employment. See Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
The motion does not resolve the inconsistencies. 
The record does not support the Petitioner's assertion that we found the employment certificates to 
conflict with each other. The church therefore has not demonstrated our misapplication of law or 
policy. 
III. THE EVIDENCE FROM THE BENEFICIARY'S FORMER EMPLOYER 
The Petitioner also contends that our appellate decision relied "solely" on inconsistencies in the 
Beneficiary's testimony at his adjustment-of-status interview and disregarded evidence of his 
qualifying experience from his former employer. The Petitioner describes the Beneficiary as an 
"introverted musician" who was "understandably very nervous" at his adjustment interview. The 
church contends that we "inexplicably refuse[ d] to legitimize the evidence [ from his former employer] 
b[ut] merely question[ed] the authenticity of the letter." 
Our appellate decision found the certificates from the Beneficiary's former employer to lack full, 
certified English translations as required by 8 C.F.R. § 103.2(b)(3). 1 But, contrary to the Petitioner's 
contentions, we also alternately considered the certificates' contents. As previously discussed, we 
found statements in the certificates to conflict with the Beneficiary's attestations on the labor 
certification regarding his hours and duration of employment. See Matter of Ho, 19 I&N Dec. at 591 
(requiring a petitioner to resolve inconsistencies of record). 
Contrary to the Petitioner's assertions, the record does not support our purported sole reliance on the 
Beneficiary's testimony or our alleged disregard of the certificates from his former employer. We 
therefore reject the Petitioner's contentions. 2 
1 The Petitioner did not provide new translations or certifications on appeal. 
2 Contrary to instructions in our appellate decision, the motion also does not resolve inconsistencies between the labor 
certification and the Beneficiary's 2010 student visa application regarding his employment history. In addition. we note 
that the record at the time of the petition's approval did not establish the Petitioner's ability to pay the proffered wage of 
the offered position. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its continuing ability to pay a 
proffered wage from a petition's priority date onward). The Petitioner's federal non-profit tax return for 2015. the year of 
the petition's priority date. reflects excess revenues of $56,904, less than the offered position's annual proffered wage of 
$60,258. In addition, USCTS records show the Petitioner's filing of another Form T-140 petition that the Agency approved 
and whose beneficiary did not receive lawful permanent residence until after this petition's priority date. See I I 
c=]see also Patel v. Johnson, 2 F.Supp.3d I 08, 124 (D. Mass 2014) (requiring a petitioner to demonstrate its ability to 
2 
IV. CONCLUSION 
The Petitioner's motion does not demonstrate our misapplication of law or USCIS policy. The motion 
also does not establish the petition's approvability. We will therefore affirm the petition's revocation. 
ORDER: The motion to reconsider is dismissed. 
pay the combined proffered wages of multiple pending petitions). Thus, in any future filings in this matter, the Petitioner 
should provide the proffered wage and priority date of the other petition. The Petitioner may also submit additional 
evidence of its ability to pay the combined proffered wages of the two petitions in 2015, including proof of any wages the 
church paid to the two beneficiaries or materials supporting the factors stated in Matter of Sonegawa, 12 I&N Dec. 612, 
614-15 (Reg'l Comm'r 1967). 
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