dismissed EB-3 Case: Real Estate

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF SMJG- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 15, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a real estate business, seeks to employ the Beneficiary as a development manager. It 
requests classification of the Beneficiary as a professional or skilled worker under the third 
preference immigrant classification. S'ee Immigration and Nationality Act (the Act) 
section 203(b)(3)(A), 8 U.S.C. § 1153(b)(3)(A). This professional classification allows a U.S. 
employer to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The skilled worker classification allows a U.S. employer to sponsor a foreign national for lawful 
permanent resident status to work in a position that requires at least two years of training or 
. I 
expenence. 
The Director of the Nebraska Service Center initially approved the petition, but later issued a notice 
of intent to revoke the approval (NOIR). Subsequently, the Director revoked the petition's approval. 
The Director found that the Petitioner submitted evidence demonstrating that the Beneficiary's 
educational credentials were not earned through a valid institution of higher education. The Director 
concluded that because the Petitioner did not establish the validity of the Beneficiary's educational 
credentials. the Petitioner did not demonstrate that the Beneficiary was quali lied for the offered job. 
The Director determined that the submission of questionable educational documents also cast doubt 
on the other evidence submitted with the petition, including the evidence submitted to verify the 
Beneficiary's experience. 
1 
The Petitioner initially requested classification of the Beneficiary as a member of the professions holding an advanced 
degree under the second preference immigrant classification. See section 203(b)(2) of the Act, 8 U.S.C. ~ 1153(b)(2). 
This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced 
degree for lawful permanent resident status. In a letter submitted with the petition, the Petitioner former counsel 
submitted educational documentation from and a credentials evaluation and stated that "the 
beneficiary is the recipient of educational degrees from both bachelor"s and master's degrees in 
Business Administration.'' He further stated that the Beneficiary "should therefore he designated as a member of the 
professions with an advanced degree in that he has at least five years of post-graduate employment experience, thereby 
qualifying him for the EB-2 classification sought herein.'' In response to the Director's request for evidence, the 
Petitioner requested the amended classification of the Beneficiary as ·'a professional or a skilled worker." In our July 17, 
2012, appeal decision, we analyzed the petition under both the professional and skilled worker classifications. and 
determined that the petition could not be approved under either classification. 
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Matter ofSMJG- Corp. 
The Petitioner appealed the Director's decision and we dismissed that appeaL as well as four 
subsequent motions to reopen and motions to reconsider, atlirming the Director's decision and 
further finding that the Petitioner had not established its ability to pay. The matter is now before us 
again on a motion to reopen and motion to reconsider. 
On motion, the Petitioner asserts that we misapplied the law, policy. and procedure resulting in an 
erroneous decision. It states that the Director rejected the Beneficiary's education based on evidence 
that was not credible; that we improperly analyzed the labor certification requirements; that a notice 
of intent to deny (NOlO) should not have been issued in this case: and that it has established its 
continuing ability to pay the profTered wage. 
Upon review, we will deny the motion to reopen and the motion to reconsider. 
I. LAW AND ANALYSIS 
A. Motion to Reopen 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 1 03.5(a)(2). The regulation at 8 C.F.R. § 1 03.5(a)(2) does not define what constitutes a '·new .. 
fact, nor does it mirror the Board of Immigration Appeals' (the Board) definition of "new .. at 
8 C.F.R. § 1 003.23(b)(3) (stating that a motion to reopen will not be granted unless the evidence 
"was not available and could not have been discovered or presented at the former hearing .. ). Unlike 
the Board regulation, we do not require the evidence of a "new face to have been previously 
unavailable or undiscoverable. Instead. we interpret ''new facts'' to mean facts that are relevant to 
the issues raised on motion and that have not been previously submitted in the proceeding. which 
includes the original petition. Reasserting previously stated facts or resubmitting previously 
provided evidence does not constitute "new facts ... 
The Petitioner presents no new facts or evidence on motion, and has not shown proper cause to 
reopen the proceeding. See 8 C.F.R. § 1 03.5(a)(l ). Therefore, the motion to reopen is denied. 
B. 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. § 1 03.5(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 Depmiment of Homeland Security policy. We 
may grant a motion that satisfies these requirements and demonstrates eligibility for the requested 
immigration benefit. 
On motion, the Petitioner states that the Director rejected the Beneficiary's education at 
England, based on evidence that was not credible, and that the Petitioner did 
2 
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Matter (?fSMJG- Corp. 
not have an opportunity to rebut the allegations against However, the 
Petitioner did have a chance to rebut the allegations in the NOIR. Yet in response to the NOIR, on 
appeal, and in its subsequent motions, the Petitioner has provided no evidence to establish that 
is a valid institution of higher education. Therefore, the Petitioner's claims 
are without merit. 
On motion, the Petitioner also states that we improperly analyzed the labor certification's 
educational requirements. The Petitioner stated the following educational requirements for the 
offered position on the labor certification: 
• Grade School -
8 years: 
• High School -
4 years; 
• College -
6 years; 
• College Degree Required (specify)- Master's Degree*: and 
• Major Field of Study- Management or Business Administration. 
The Petitioner defined the asterisk in the college degree block as "*In alternative, employer will 
accept 10 years of managerial experience involving applicant in increasingly high levels of authority 
& supervision." The Beneficiary did not list any education on the labor certification. 3 The record 
does not contain any evidence that the Beneficiary attended grade school. Thus. the record does not 
establish that the Beneficiary completed eight years of grade school as required by the labor 
certification. 
Further, the record contains a statement of marks dated July 7, 1977. from the 
India, for ' showing that he completed his higher 
secondary (one-year course) examination. Nothing in the record establishes that the 
listed on the marks sheet is the Beneficiary, The Beneficiary did not list a middle 
name or alias on any documents submitted to the record. Further, even if the marks sheet belongs to 
the Beneficiary, it establishes only one year of secondary education. The labor certification requires 
four years of high school education. Thus, the record does not establish that the Beneficiary 
completed four years of high school as required by the labor certification. 
Further, the record does not establish that the Beneficiary completed six years of college education. 
As noted in our prior decisions, the plain language of the labor certification indicates that an 
applicant must have eight years of grade school education, four years of high school education, six 
years of college education, and either a master's degree in management or business administration or 
2 The Director noted in the NOIR that a "search of publicly available internet resources indicates that 
is not an institution of higher education and is considered a 'Diploma Mill'." 
3 
The Beneficiary's experience, without such fact certified by the Depmiment of Labor (DOL) on the labor certification, 
lessens the credibility of the evidence and facts asserted. See Matter of" Leung. 16 I&N Dec. 12. 14-15 (Dist. Dir. 1976). 
4 We note that the record contains a letter from stating that the Beneficiary worked 
as an executive trainee and manager of construction from June 1976 to July 1990. It is unclear how the Beneficiary 
worked for and also attended secondary school in 1976 and 1977. 
3 
Matter ofSMJG- Corp. 
10 years of managerial experience involving applicant in increasingly high levels of authority and 
supervision, to qualify for the proffered job. 5 As was discussed at length in our prior decisions, the 
Petitioner has not demonstrated that the Beneficiary is qualified for the job offered. On motion, the 
Petitioner does not submit any pertinent precedent or adopted decision. statutory or regulatory 
provision, or statement of policy to establish that our interpretation of the labor certification is 
incorrect. As such, the Petitioner's claim that we improperly analyzed the labor certification 
requirements is without merit. 
On motion, the Petitioner also states that a NOlO should not have been issued in this case. It is not 
clear if the Petitioner is referring to the NOlO issued by our otlice in this matter, or if it is referring 
to the Director's NOIR. We will address both. 
Regarding the NOlO issued by our ot1ice, if the evidence in the record does not establish eligibility 
for the requested immigration benefit, we may deny the motion; request more information or 
evidence from the Petitioner; or notify the Petitioner of our intent to deny the motion.
6 
We properly 
issued a NOID in this case on January 20, 2015, as the evidence in the record did not establish the 
Petitioner's and the Beneficiary's eligibility for the requested immigration benefit. 
Further, the Director properly issued an NOIR pursuant to Matter olArias, 19 I&N Dec. 568 (BIA 
1988) and Matter (~f Estime, 19 I&N Dec. 450 (BIA 1987). Both cases held that a notice of intent to 
revoke a visa petition is properly issued for good and sufficient cause when the evidence of record at 
the time of issuance, if unexplained and unrebutted, would warrant a denial of the visa petition based 
upon the petitioner's failure to meet his burden of proof. The Director stated in the NOIR that the 
Petitioner's submission of questionable educational documents cast doubt on the veracity of other 
evidence submitted with the petition. The Director's NOIR sufficiently detailed the evidence that. if 
unexplained and unrebutted, would warrant a denial of the visa petition. Thus, the Petitioner's 
assertion that a NOID should not have been issued in this case is without merit. 
On motion, the Petitioner also states that it has established its continuing ability to pay the proffered 
wage. In this case, the priority date is July 30, 2003, and the proffered annual wage is $64.045.80 
(based on an hourly wage of $35.19 and a claimed 35-hour work week). We analyzed the 
Petitioner's ability to pay the proffered wage in our prior decision. The Petitioner has not 
established that it had the ability to pay the difference between the annual proffered wage and the 
amounts it paid the Beneficiary for the year 2003 based on its net income or net current assets. On 
motion, the Petitioner submits a copy of its response to our NOID and asserts that it has the ability to 
pay the proffered wage based on the totality of the circumstances. 
5 
In addition to the educational requirements. the labor certification also requires six years of experience in the job 
offered or in the related occupation of manager (general). 
6 
See 8 C.F.R. § 103.2(b)(8), (II), (13)-(14), (16); see also USCIS Policy Memorandum PM-602-0085, Requestsfor 
Evidence and Notices of Intent to Deny (June 3, 20 13). https://www.uscis.gov/laws/policy-memoranda. 
4 
Matter ofSMJG- Corp. 
Pursuant to Matter l?{Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). we may consider evidence 
of a petitioner's ability to pay beyond its net income and net current assets. As in Sonegawa, we 
may consider such factors as: the number of years it has conducted business; the growth of its 
business; its number of employees; the occurrence of any uncharacteristic business expenditures or 
losses; its reputation in its industry; whether a beneficiary will replace a current employee or 
outsourced service; or other evidence of its ability to pay a proffered wage. 
The Petitioner asserted in response to our NOID that it has been in business for 29 years and that ""a 
single year of poor financial performance does not disprove a company's ability to pay, especially 
when the company shows it financially rebounded from the poor year." The Petitioner stated that it 
invested money in renovations of and improvements to three properties in 2002 and 2003, and that 
this investment was discretionary and not necessary for the business to generate revenue. The 
Petitioner noted that expenses of $202,187 recorded on Line 16 of Form 8825 were unusually high 
in 2003 and that they have not reached this level since. We stated in our most recent motion 
decision that the record does not include the Petitioner's 2002 tax return to support the position that 
the expenses in 2003 were uncharacteristic. The Petitioner did not submit its 2002 return with this 
motion. Further, we stated in our most recent motion decision that there is no evidence in the record 
to support the purchase of the additional properties or that the Petitioner's decision to make 
improvements was discretionary. The Petitioner did not submit additional evidence with this 
motion. If the Petitioner had chosen to delay or not make the improvements to the prope1iies, 
presumably the properties would not have generated the rental income claimed in 2004. The 
Petitioner must support assertions with relevant probative, and credible evidence. See Matta of 
Chawathe, 25 I&N Dec. 369,376 (AAO 2010). It has not done so here. 
In addition, while the Petitioner indicated in response to our NOlO that a shortfall in a single year 
should be overlooked "when the company shows it financially rebounded from the poor year,'' the 
Petitioner has not shown how it had financially rebounded. The Petitioner had a net loss in every 
year except 2004 and 2006, and it had net current liabilities in every year except 2014. This is an 
indication that 2004, the year in which the Petitioner claims it financially rebounded, is the anomaly. 
rather than 2003, which reflects net loss and net current liabilities similar to other years. The 
Petitioner did not submit relevant. probative, and credible evidence with this motion to establish that 
it financially rebounded from a single poor year. !d. 
In support of its ability to pay the proffered wage in the totality of the circumstances, the Petitioner 
also asserted in response to our NOlO that it ''has been consistently increasing wages." However, 
the Petitioner's tax returns reveal that the wages and salaries paid by the company have fallen from 
2003 to 2014. Further, the Petitioner has reduced its workforce from 4-5 employees in 2005 to 0-1 
employee since 2008. 7 With this motion. the Petitioner did not submit relevant. probative, and 
7 The Petitioner indicated on the labor certification that the Beneficiary will supervise 15-25 employees. but the evidence 
in the record does not support that assertion. The Petitioner must resolve these inconsistencies with independent. 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved 
material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support 
5 
Matter ofSMJG- Corp. 
credible evidence to establish that it has been consistently increasing wages. Chavvathe. 25 I&N Dec. 
at 376. Further, unlike in Sonegawa, the Petitioner has not established its reputation in its industry. 
The Petitioner's financial documents in the record are not sufficient to establish its ability to pay the 
proffered wage in 2003. Assessing the totality of the evidence provided in this case. we conclude 
that the Petitioner has not established that it had the continuing ability to pay the proffered wage 
from the priority date onward. 
On motion, the Petitioner has not demonstrated that our prior decision was based on an incorrect 
application of law or policy based on the record at the time of that decision, nor has the Petitioner 
established eligibility for the benefit sought. Therefore. the motion to reconsider is denied. 
II. CONCLUSION 
The Petitioner has not shown proper cause for reopening or reconsideration of this matter. Further. 
the Petitioner has not established that the Beneficiary is qualified for the offered position or that it 
has the continuing ability to pay the proffered wage. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of'SMJG- Corp., ID# 347297 (AAO Nov. 15. 2017) 
of the requested immigration benefit. /d.