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: AUG. 22, 2016 
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 skilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). 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 at 
least two years of training or experience. 
The Director, Nebraska Service Center, initially approved the petition on May 23, 2006, but later 
issued a notice of intent to revoke the approval (NOIR). On January 29, 2010, 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 
qualified for the offered job. 
The Pe,titioner appealed the Director's decision and we dismissed that appeal, as well as three 
subsequent motions to reopen and motions to reconsider. The matter is now before us again on a 
motion to reopen and motion to reconsider. The Petitioner asserts that the offered position does not 
require any education because it would accept experience in lieu of education, and that the 
Beneficiary possesses sufficient experience to be qualified for the offered job. 
We will deny the motion to reopen and the motion to reconsider. 
I. LAW 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) 
must approve an immigrant visa petition. See section 204 ofthe Act, 8 U.S.C. § 1154. Finally, the 
foreign national must apply 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. 
Matter of SMJG- Corp. 
/ 
As required by statute, a Form ETA 750, Application for Alien Employment Certification (labor 
certification), approved by the DOL, accompanies the instant petition. By approving the labor 
certification, the DOL certified that there are insufficient U.S. workers who· are able, willing, qualified, 
and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified 
that the employment of a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of the Act. 
In these visa petition proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification, including the ability to pay the proffered wage. See section 204(b) of the Act (stating that 
users must approve a petition if the facts stated in it are true and the foreign national is eligible for the 
requested preference classification); see also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 
F. 2d 1305, 1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both 
holding that users has authority to make preference classification decisions). 
The priority date of a petition is the date the DOL accepted the labor certification for processing. 
See 8 C.F.R. § 204.5(d). The priority date is used to calculate when the beneficiary of the visa 
petition is eligible to adjust his or her status to that of a lawful permanent resident. See 8 C.F.R. § 
245.1(g). A petitioner must establish the elements for the approval of the petition at the time the 
priority date is established and continuing until the beneficiary obtains lawful permanent residence. 
See 8 C.F.R. §§ 204.5(g)(2), 103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 
158, 159 (Acting Reg'l Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971). 
In the instant case, the priority date is July 30, 2003. Therefore, the Petitioner must establish that all 
eligibility requirements for the petition have been satisfied from July 30, 2003 and continuing 
through the present. 
II. PROCEDURAL HISTORY AND EVIDENCE OF RECORD 
The required education, training, experience and special requirements for the offered position are set 
forth at Part A, Items 14 and 15, of Form ETA 750. In the instant case, the labor certification states 
that the position has the following minimum requirements: 
Block 14: 
College Degree 
Required: 
Grade School: 
High School: 
College: 
Experience: 
Master's degree* in management or business 
administration. *"In alternative, employer will accept 10 
years of managerial experience involving applicant in 
increasingly high levels of authority & supervision." 
8 years 
4 years 
6 years 
6 years in the job offered or as Manager (General) 
2 
(b)(6)
Matter of SMJG- Corp. 
The Beneficiary claimed no education on Form ETA 750B despite submitting such documentation in 
support of other filings. The Director noted that the record included evidence that the Beneficiary 
obtained a bachelor's and master's degree from as well as recommendation 
letters issued to the Beneficiary by claimed professors at The Director 
further noted that is not an institution of higher education and is considered a 
"Diploma Mill." Both degrees and the recommendation letters were determined to be fraudulent 
documents. 
In response to the Director's NOIR, the Petitioner asserted that the Beneficiary does not rely on his 
education to qualify for the offered position, but instead on his more than 18 years of experience as a 
manager. The Director disagreed and found that the record included the Petitioner's multiple 
references to the Beneficiary's bachelor's and master's degrees, demonstrating the Petitioner's 
reliance on the Beneficiary's invalid degree to qualify for the offered position. The Director noted 
that the fraudulent evidence also cast doubt about the validity of the other evidence submitted. 
Although the Director agreed that the the terms of the labor certification indicate that the Petitioner 
will accept 1 0 years of managerial experience in lieu of a master's degree, the labor certification 
indicates that the position still requires 8 years of grade school, 4 years of high school and 6 years of 
college. Accordingly, the Director revoked the approval of the petition under the authority of 
Section 205 of the Act, 8 U.S.C. § 1155. 
On appeal and in the subsequent motions, the Petitioner asserted that its intent was to accept 1 0 years 
of experience in lieu of any education and degree. On July 17, 2012, we dismissed the Petitioner's 
appeal, affirming the Director's revocation. The Petitioner then filed three motions to reopen and 
reconsider our decisions, which we denied. In each of our decisions we concluded that the Petitioner 
had not established that the Beneficiary had the requisite educational background to satisfy the 
requirements stated on the labor certification. In the instant proceedings, we issued a notice of intent 
to deny (NOID) the motions on January 20, 2015, advising the Petitioner that the record did not 
demonstrate its ability to pay the proffered wage to the Beneficiary in all relevant years. The 
Petitioner responded to our NOID and submitted additional evidence to demonstrate its ability to pay 
the proffered wage. 
The regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part, that "[a] motion to reopen must 
state the new facts to be provided in the reopened proceeding and be supported by affidavits or other 
documentary evidence." In this matter, the Petitioner presented no facts or evidence on motion that 
may be considered "new" under 8 C.F.R. § 103.5(a)(2) and that could be considered a proper basis 
for a motion to reopen. Therefore, the motion to reopen is denied. 
The motion to reconsider qualifies for consideration under 8 C.F.R. § 103.5(a)(3) because the 
Petitioner's counsel asserts that we made an erroneous decision through misapplication of law or 
policy. 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. 
3 
Matter of SMJG- Corp. 
III. ANALYSIS 
A. The Minimum Requirements of the Offered Position 
The determination of whether a petition may be approved for a skilled worker is based on the 
requirements ofthejob offered as set forth on the labor certification. See 8 C.F.R. § 204.5(1)(4). In 
evaluating the job offer portion of the labor certification to determine the required qualifications for 
the position, USCIS 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'r 
1986). See also Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red 
Commissary of Massachusetts, Inc. v. Coomey, 661 F .2d 1 (1st Cir. 1981 ). 
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., 
by regulation, USCIS must examine "the language of the labor certification job requirements" in 
order to determine what the petitioner must demonstrate about the beneficiary's qualifications. 
Madany, 696 F.2d at 1015. The only rational manner by which USCIS can be expected to interpret 
the meaning of terms used to describe the requirements of a job in a labor certification is to 
"examine the certified job offer exactly as it is completed by the prospective employer." Rosedale 
Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emphasis added). USCIS's 
interpretation of the job's requirements, as stated on the labor certification must involve "reading 
and applying the plain language of the [labor certification]." !d. at 834 (emphasis added). 
The Form ETA 750, Item 14, includes the following blocks to describe the required education: 
• Grade School; 
• High School; 
• College; 
• College Degree Required (specify); and 
• Major Field of Study. 
In completing the F9rm ETA 750, the Petitioner completed the blocks in Item 14 as follows: 
• 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." We note that the Petitioner did not use an asterisk in the college block to indicate 
that the 10 years of managerial experience would be accepted in place of the 6 years of education. 
Therefore, the plain language of the labor certification indicates that an applicant may qualify for the 
4 
Matter of SMJG- Corp. 
position without an actual master's degree, but that there is no alternative to the 6 years of required 
college education. 
In limited circumstances, USC IS may consider a petitioner's intent to determine the meaning of an 
unclear or ambiguous term in the labor certification. However, an employer's subjective intent may 
not be dispositive of the meaning of the actual minimum requirements of the offered position. See 
Maramjaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008). The best evidence of the 
petitioner's intent concerning the actual minimum educational requirements of the offered position is 
evidence of how it expressed those requirements to the DOL during the labor certification process and 
not afterwards to USCIS. The timing of such evidence ensures that the stated requirements of the 
offered position as set forth on the labor certification are not incorrectly expanded in an effort to fit the 
beneficiary's credentials. Such a result would be contrary to Congress' intent to limit the issuance of 
immigrant visas in the professional and skilled worker classifications to' when there are no qualified 
U.S. workers available to perform the offered position. See !d. at 14.1 
As stated in our prior decisions, the Petitioner's interpretation of the minimum requirements for the 
position must have been communicated to potential applicants. The Petitioner's external newspaper 
advertisement and job bank posting both list the position requirements as: "Master's in Mgmt or Biz 
Adm. & substantial managerial experience." Neither the Petitioner's external ads nor the job bank 
posting express that the master's degree requirement can be met through experience alone to 
accurately apprise U.S. workers of the asserted true minimum requirements. As the Petitioner's 
external recruitment efforts did not notify U.S. workers that they might qualify for the offered 
position with less than a master's degree, potentially qualified workers may have been dissuaded 
from applying for the position. 
The Petitioner asserts that it was not required "to state any job requirements in its newspaper 
advertisements run as part of its recruitment efforts pursuant to the Reduction in Recruitment 'RIR' 
application procedures." The Petitioner discusses the differences between the regulatory scheme 
governing the foreign labor certification process in 2003, when the instant labor certification 
application was filed, and the current system. The regulations contain certain safeguards to assure 
that petitioning employers do not treat sponsored foreign workers more favorably than U.S. 
workers. The most recent DOL regulations concerning labor certifications went into effect on 
March 28, 2005. The new regulations are referred to by the DOL by the acronym PERM. See 69 
Fed. Reg. 77325, 77326 (Dec. 27, 2004). The PERM regulation was effective as of March 28, 2005, 
and applies to labor certification applications for the permanent employment of foreign nationals 
filed on or after that date. The instant petition is governed by the prior regulations. 
1 In Snapnames.com, Inc. v. Michael Chertojf, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the labor certification 
application specified an educational requirement of 4 years of college and a 'B.S. or foreign equivalent.' The court in 
Snapnames.com, Inc. recognized that even though the labor certification may be prepared with the beneficiary in mind, 
USCIS has an independent role in determining whether the beneficiary meets the labor certification requirements. Id at 
*7. Thus, the court concluded that where the plain language of those requirements does not support the petitioner's asserted 
intent, USCIS "does not err in applying the requirements as written." Id 
5 
Matter of SMJG- Corp. 
Although the Petitioner continues to assert that the regulations in effect at the time the labor 
certification was filed did not require that the employer list any position requirements in its 
advertisements, we note that the DOL has provided the following field guidance for interpreting 
labor certification requirements: 1) where the Form ETA 750 states, that work experience or a 
certain combination of lesser diplomas or degrees may be substituted for a degree, "the employer 
must specifically state on the ETA 750, Part A as well as throughout all phases of recruitment 
exactly what will be considered equivalent or alternative [to the degree] in order to qualify for the 
job." See Memorandum from Anna C. Hall, Acting Reg'l Adminstr., DOL Employment and 
Training Admin., Interpretation of "Equivalent Degree," 2 (June 13, 1994), and; 2) the DOL's 
certification of job requirements stating that "a certain amount and kind of experience is the 
equivalent of a college degree does in no way bind [USCIS] to accept the employer's 
definition." See Letter From Paul R. Nelson, Certifying Officer, DOL Employment and Training 
Admin., to Lynda Won-Chung, Esq., Jackson & Hertogs (March 9, 1993). The field guidance 
memoranda referenced herein were in existence at the time the instant labor certification was 
prepared and filed, and to our knowledge, have not been rescinded. 
The external recruitment does not reflect the Petitioner's willingness to accept experience in place of 
education or a degree and is at odds with the language on the labor certification. Although we take 
note of the decisions in Maramjaya and Snapnames.com discussed above, here the Petitioner's 
evidence does not shed light on its intent in determining the meaning of any terms of the labor 
certification. Therefore, we cannot conclude that the Petitioner intended to accept experience alone 
without also requiring 6 years of college education as stated on the labor certification. 
The Petitioner asserts that our previous decisions ignored the intent it expressed in its internal job 
posting. As we have noted in our prior decisions, the Petitioner's internal job posting lists the 
position requirementS as follows: 
Master's degree in Management or Business Administration+ 6 yrs exp in job offered or as 
Manager-General (In alternative, employer will accept 10 yrs of Managerial experience 
involving applicant in increasing high levels of authority and supervision). 
While the internal job posting may be interpreted to indicate the Petitioner's willingness to accept 
experience in lieu of the master's degree and 6 years of work experience, the posting was internal 
only and communicated the Petitioner's intent to a limited number of potentially qualified 
applicants.2 Further, the internal posting mentions only the required degree but does not mention the 
required 6 years of college education. This evidence does not demonstrate the Petitioner's intent to 
allow an alternative to the education requirement. 
2 The petitioner claimed on the Form 1-140 to employ seven workers. The internal job posting indicates that notice was 
posted at the petitioner's business premises. Therefore, the notice provides little probative value of how the Petitioner 
communicated the actual minimum requirements to potentially qualified U.S. workers. 
I 
6 
Matter of SMJG- Corp. 
As the record does not demonstrate that the Petitioner accurately expressed the alternative 
requirements in its recruitment process, we cannot conclude the terms of the labor certification 
should be read to allow the alternate requirements now claimed. The terms of the labor certification 
do not adequately express that the position allowed for experience alone without the required years 
of college education. 
Therefore we conclude that the terms of the labor certification require 6 years of college education. 
The Beneficiary does not possess such education. The Petitioner did not establish that the 
Beneficiary met the minimum educational requirements ~f the offered position set forth on the labor 
certification by the priority date. Therefore, the Beneficiary does not qualify for classification as a 
skilled worker. 
B. Ability to Pay the Proffered Wage 
Although not discussed by the Director, we independently note that the Petitioner has also not 
established its ability to pay the proffered wage as of the priority date and continuing until the 
Beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). 
In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether the 
petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the 
petitioner has not paid the beneficiary the full proffered wage each year, USCIS will next examine 
whether the petitioner had sufficient net income or net current assets to pay the difference between 
the wage paid, if any, and the proffered wage.3 If the petitioner's net income or net current assets is 
not sufficient to demonstrate the petitioner's ability to pay the proffered wage, USC IS may also 
consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 
I&N Dec. 612 (Reg'l Comm'r 1967). 
In the instant case, the priority date is July 30, 2003, and the proffered annual wage is calculated at 
$64,045.80 (based on a proffered hourly wage of $35.19 and a claimed 35-hour work week). The 
Petitioner has employed the Beneficiary since 2002. The submitted Internal Revenue Service (IRS) 
Forms W-2, Wage and Tax Statements, state that the Petitioner paid the beneficiary $50,000.08 in 
2003 and $55,769.28 in 2004, which is less than the proffered wage. The Petitioner has paid the 
Beneficiary at least the proffered wage since 2005. 
The Petitioner cites Matter of Sonegawa in support of its assertion 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." Counsel asserts that the Petitioner invested 
money in renovations of and improvements to three properties in 2002 and 2003, and that this 
3 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder,-- F. Supp. 3d--, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rivzi 
v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, --Fed. Appx. --,2015 WL 5711445, *I 
(5th Cir. Sept. 30, 20 15). 
7 
Matter of SMJG- Corp. 
investment was discretionary and not necessary for the business to generate revenue. Counsel noted 
that expenses recorded on Line 16 of Form 8825 were unusually high in 2003 (-$202,187) and that 
they have not reached this level since. The record does not include the Petitioner's 2002 tax return to 
support the position that the expenses in 2003 were uncharacteristic. Further, 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. If the Petitioner had chosen to delay or not make the 
improvements to the properties, presumably the properties would not have generated the rental 
income claimed in 2004. The Petitioner cannot meet_the burden of proof simply by claiming a fact 
to be true, without supporting documentary evidence. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)); see also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must 
support assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N 
Dec. at 376. 
In addition, while the Petitioner indicated 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's tax records reveal that it claimed annual 
net income4 and net current assets5 as follows: 
Tax Year Net Income Net Current Assets 
2003 -$154,809 -$4,497 
2004 $151,007 -$479 
2005 -$349,505 -$198,098 
2006 $665 -$173,026 
2007 -$351,795 -$475,894 
2008 -$186,011 -$449,828 
2009 -$269,564 -$501,259 
2010 -$520,070 -$452,709 
2011 -$242,497 -$430,241 
2012 -$1,459,118 -$42,302 
2013 -$5,564 -$45,459 
4 Where an s corporation's income is exclusively from a trade or business, users considers net income to be the figure for 
ordinary income, shown on line 21 ofpage one ofthe petitioner's IRS Form 1120S. However, where an S corporation has 
income, credits, deductions or other adjustments from sources other than a trade or business, they are reported on Schedule 
K. If the Schedule K has relevant entries for additional income, credits, deductions or other adjustments, net income is found 
on line 23 (1997-2003), line 17e (2004-2005), line 18 (2006-2014) of Schedule K. See Instructions for Form 1120S, at 
http://www.irs.gov/pub/irs-pdf/ill20s.pdf(accessed March 23, 2015) (indicating that Schedule K is a summary schedule 
of all shareholders' shares of the corporation's income, deductions, credits, etc.). Because the petitioner had additional 
income shown on its Schedule K, the petitioner's net income is found on Schedule K of its tax returns. 
5 Net current assets are the difference between the petitioner's current assets and current liabilities. A corporation's year­
end current assets are shown on Schedule L, lines I through 6. Its year-end current liabilities are shown on lines 16 
through 18. If the total of a corporation's end-of-year net current assets and the wages paid to the beneficiary (if any) are 
equal to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage using those net 
current assets. 
8 
Matter of SMJG- Corp. 
12014 l-$9,867 I $2,825 
Based upon its tax returns, the only evidence the Petitioner submitted, it had negative or low net 
income and net current assets in every year except 2004. 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 income similar to all other years. 
In support of its ability to pay the proffered wage in the totality of the circumstances, the Petitioner 
also asserts 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 $162,129 in 20036 to 
$95,620 in 2014.7 Further, the Petitioner's Forms 941, Quarterly Federal Tax Returns, demonstrate 
that the petitioner has reduced its workforce from 4-5 employees in 2005 to 0-1 employee since 
2008. 
The Petitioner's financial documents in the record are not sufficient to establish its ability to pay the 
proffered wage despite its shortfall in net income and net current assets in 2003. The Petitioner 
asserts that "income taxes are not a reliable basis for determining whether a company can pay a 
proffered wage." This assertion, unsubstantiated by supporting evidence, is insufficient to satisfy the 
Petitioner's burden of proof. Sojjici, 22 I&N Dec. at 165. The Petitioner has not provided other 
financial documentation to establish its ability to pay the proffered wage. 
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 
onwards. 
IV. CONCLUSION 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. The burden of proof in these proceedings rests solely with the Petitioner. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The 
Petitioner has not sustained that burden. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofSMJG- Corp., ID# 12024 (AAO Aug. 22, 2016) 
6 IRS Form 8825, Rental "Real Estate Income and Expenses of a Partnership or an S Corporation, Line 13. 
7 IRS Form 1120S, U.S. Income Tax Return for an S Corporation, Line 8. 
9