dismissed EB-3 Case: Pastoral Work

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-A-0-N-A-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN.I0.2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a non-profit community center. seeks to employ the Beneficiary as a pastoral 
assistant. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant category. See Immigration and Nationality Act (the Act) section 203(b)(3 )(A)(i), 
8 U.S.C. § 1153(b)(3)(A)(i). This category allows a U.S. employer to sponsor a foreign national 
with at least two years of training or experience as a lawful permanent resident. 
After initially granting the petition, the Director of the Texas Service Center revoked its approval. 
The Director concluded that the record as of the petition's approval did not establish the Petitioner's 
ability to pay the proffered wage, or the Beneficiary's possession of the minimum experience 
required for the offered position. 
We affirmed the Director's decision on appeal and denied the Petitioner's first motion to reopen and 
reconsider. After rejecting the Petitioner's following "appeal'' for lack of jurisdiction, we also 
denied its second motion to reopen and reconsider. 
The matter is now before us on a third motion to reopen and reconsider. The Petitioner asserts that 
we erred in denying its prior motions. 
Upon review, we will grant the motion to reopen in part, and deny it in part. We will deny the 
motion to reconsider. 
I. LAW AND ANALYSIS 
A. Motion to Reconsider 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at 
the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must be supported by a 
pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. 
Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy. Here. 
the Petitioner has not submitted pertinent precedent decisions, regulatory or statutory provisions, or 
Maller of J-A-0-N-A-
statement of policy to demonstrate that the prior decisions were incorrect based on the evidence in 
the record. As such the motion to reconsider will be denied. 
B. Motion to Reopen 
A motion to reopen is based on documentary evidence of new facts. The requirements of a motion 
to reopen are located at 8 C.F.R. § 103.5(a)(2). We may grant a motion that satisfies these 
requirements and demonstrates eligibility for the requested immigration benefit. 
As discussed below, during the pendency of this motion, the Petitioner submitted new evidence to 
establish its ability to pay the Beneficiary the proffered wage. We will therefore grant the motion to 
reopen, in part, to withdraw our prior tinding to the contrary. However. the record does not establish 
that the Beneficiary has the required experience to establish eligibility. so the motion to reopen will 
also be denied in part. 
1. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must demonstrate its continuing ability to pay a protlered wage from a petition's 
priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns. or 
audited financial statements. !d. 
In this case, a labor certification, approved by the U.S. Department of Labor (DOL), accompanies 
the petition. The petition's priority date is July 19, 2002. This is the date an oftice within the 
DOL's employment service system accepted the labor certification application for processing. See 
8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
As a non-profit organization, the Petitioner does not generate income. But the record contains 
copies of its IRS Forms 990, Returns of Organization Exempt from Income Tax. stating its annual 
revenues and expenses. From the petition's priority date of July 19,2002. until its approval date of 
August 16, 2006. the Petitioner's tax returns reflect sufticient surpluses to pay the annual proffered 
wage in all of its fiscal years, except one: July I, 2003. through June 30,2004. But the Petitioner's 
2003-04 tax return, reflects the Petitioner's ability to pay the proffered wage based on its net current 
assets. The balance sheet in Part IV of the IRS Form 990 states the Petitioner's possession of 
$50,642 in cash at the end of that fiscal year. The balance sheet does not reflect any current 
liabilities for that period. Because the amount of net current assets exceeded the annual proffered 
wage of $21,840. the tax return demonstrates the Petitioner's ability to pay the proffered wage in 
2003-04. 
However, our review of the Petitioner's tax returns revealed discrepancies. A 2007-08 return that 
the Petitioner submitted in support of another petition reflected difTerent revenue and surplus 
amounts than the tax return for the same fiscal year submitted with this petition. The dates of the 
returns also differed. The discrepancies cast doubt on the accuracy of the linancial information in 
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Matter (!f.I-A-0-N-A-
the Petitioner ' s tax returns. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988) (requiring a 
petitioner to resolve inconsistencies of record by independent, objective evidence pointing to where 
the truth lies). 
In response to our first notice of intent to deny (NOlO), however, the Petitioner established the 
reliability of the information on its tax returns of record . The Internal Revenue Service (IRS) does 
not maintain tax transcripts of nonprofit returns. But the Petitioner submitted copies of its returns 
from 2006-07 through 2014-15 from a privately 
funded database of non-profit tax 
returns. The Petitioner's returns contain copies of IRS receipt stamps and match the 
corresponding returns submitted by the Petitioner in this matter. The record therefore establi shes the 
reliability of the Petitioner's tax returns in this matter and its ability to pay the proffered wage . 
For the foregoing reasons, the record establishes the Petitioner ' s continuing ability to pay the 
proffered wage from the petition's priority date until its approval date. We will therefore grant that 
portion of the Petitioner's motion to reopen and withdraw our contrary finding . 
2. The Beneficiary ' s Possession of the Required Experience 
Although the record demonstrates the Petitioner's ability to pay, the record does not establish the 
Beneficiary's possession of the minimum experience required for the offered position and the 
requested classification. 
A beneficiary of a skilled worker petition must possess at least two years of training or experience . 
Section 203(b)(3)(A)(i) of the Act; 8 C.F.R. § 204.5(1)(3)(ii)(B). A petitioner must establi sh a 
beneficiary's possession of all the education , training , and experience specified on an accompanying 
labor certification by a petition ' s priority date. See. e.g, Matter olWing's Tea House. 16l&N Dec. 
158, 159 (Acting Reg'l Comm'r 1977). 
Here, the labor certification states the minimum requirements of the offered position of pastoral 
assistant as two years of experience in the job offered . The Beneficiary attested on the labor 
certification to her possession of more than three years of full-time experience in the job offered . 
She stated her employment as a pastoral assistant by in India from July 1996 to 
September 1999. 
We found that the Petitioner's first motion to reopen established the Beneficiary's possession of her 
claimed qualifying experience. See 8 C.F.R. § 204.5(1)(3)(ii)(A) (requiring a petitioner to support a 
beneficiary's claimed qualifying experience with a letter from an employer). However, our second 
NOlO, issued during the pendency of this motion, notified the Petitioner of derogatory evidence 
casting doubt on the Beneficiary's claimed qualifying experience. 
As stated in our second NOlO, a USCIS officer visited in India on September 2, 
2016, meeting with the organization's head and two of its emplo yees. The organi zation· s head 
signed a written statement indicating that it did not employ anyone with the names of the Beneficiary 
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Maller ofJ-A-0-N-A-
or the signatory of an initial letter in support of her qualifying experience. The organization's head 
also stated that it did not issue the letters in support of the Beneficiary's experience and that the 
letters' stationery did not belong to it. In addition, when shown a photograph of the Beneficiary and 
her spouse, the organization's head stated that he did not recognize them. 
The Petitioner requested an extension of time in which to respond to the NOlO. The regulations. 
however, bar us from granting an extension. See 8 C.F.R. ~ 103.2(b)(8)(iv) (limiting the response 
time to a NOID to 30 days). Thus. we cannot consider the Petitioner ' s response to our second 
NOlO, which the Petitioner submitted after the 30-day deadline. 
Moreover, even if we could consider the Petitioner's untimely response, it does not establish the 
Beneficiary's claimed qualifying experience. The response does not explain the discrepancies 
between the Beneficiary's claimed experience at and the statement of the 
organization's head, denying knowledge of her employment. See Maller (?lHo, 19 I&N Dec. at 591-
92 (requiring a petitioner to resolve inconsistencies of record by independent objective evidence 
pointing to where the truth lies). Contrary to a statement in our second NOID, counsel asserts that 
current head did not lead the organization at its founding. However. counsel's 
assertion is not evidence. See INS v. Phinpathya, 464 U.S. 183, 188 n.6 ( 1984) (noting that 
counsel's unsupported assertions do not establish facts of record). 
The Petitioner's untimely NOlO response includes additional documentary evidence in support of 
the Beneficiary's claimed qualifying experience. However, the documents lack details sufficient to 
corroborate her claimed employment in the offered position by from July 1996 to 
September 1999. A February 16, 2000, letter from states that the Beneficiary 
studied at the 
school for seven years and taught a class "for a short period.'' An affidavit from a man 
who purportedly trained the Beneficiary states that she worked at "as an assistant 
for [a] few years." Similarly, an affidavit from a woman 
now living in Canada states that she and 
the Beneficiary "learned various Islamic subjects and gave our services to for [a] 
few years." The documents do not provide dates of the Beneficiary's purported employment or 
establish her claimed experience in the offered position of pastoral assistant. 
The Petitioner also submitted copies of letters from officials of a Muslim congregation in New York. 
including a 2013 letter stating that the Beneficiary taught at the congregation· s school for at least I 0 
years. The Petitioner asserts: "Undoubtedly , [the] Beneficiary has the qualifications to be offered 
the job specified in the Labor Certification.' ' However, the 20 I 3 letter does not establish the 
Beneficiary's possession of at least two years of experience by the petition's priority date of July 19. 
2002. Also, the letter does not demonstrate her possession of experience in the offered position of 
pastoral assistant as the labor certification specifies. The letter states the Beneficiary ' s experience as 
a ''teacher " and describes her duties as teaching and helping in other school operations. The letter 
does not establish the Beneficiary's performance of the job duties of the offered position, which 
include assisting clergy in conducting Muslim worship services, and selecting books and reference 
materials for religious classes. 
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Malter of J-A-0-N-A-
Further, if the Beneficiary gained qualifying experience with the New York congregation, the record 
does not explain why she did not state the experience on the labor certification or in the petition. 
The omission casts doubt on the purported qualifying experience. See Matter of Leung 16 l&N 
Dec. 12, 14 (Distr. Dir. 1976), disapp "d of" on other grounds, Malter of" Lam, 16 I&N Dec. 432 (BIA 
1978) (finding a foreign national's claim of qualifying experience to be "not credible" where the 
former employer was not listed on the labor certification or the petition). 
For the foregoing reasons, the record as of the petition's approval did not establish the Beneficiary's 
possession of the minimum experience required for the offered position and the requested 
classification. We will therefore deny the Petitioner's motion to reopen in part. 
II. CONCLUSION 
The Petitioner's motion to reopen establishes its ability to pay the proffered wage to the Beneficiary 
from the priority date onward. However, the record does not establish the Beneficiary's possession 
of the minimum experience required for the offered position and the requested classification. We 
will therefore grant the motion to reopen in part. and deny, in part. The motion to reconsider was not 
supported by pertinent precedent or adopted decisions. statutory or regulatory provision. or statement 
of policy, and is therefore denied. 
ORDER: The motion to reopen is granted in part, and denied in part. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Maller ol J-A-0-N-A-, ID# 86410 (AAO Jan. 10, 2018) 
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