dismissed EB-3 Case: Religion

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. 8 1153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
~obkrt P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a church. It seeks to employ the beneficiary permanently in the United States as a pastoral 
assistant. As required by statute, a Form ETA 750, Application for Alien Employment Certification approved by 
the Department of Labor, accompanied the petition. The director determined that the petitioner had not 
established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority 
date of the visa petition and denied the petition accordingly. 
The petitioner, through counsel, filed an untimely appeal. Pursuant to 8 C.F.R. 8 103.3(a)(2)(v)(B)(2), the 
director treated the untimely appeal as a motion to reopen as described in 8 C.F.R. $103.5(a)(2) and rendered a 
decision on August 4, 2004. The director affirmed her previous decision denying the petition based on the 
petitioner's failure to establish its ability to pay the proffered wage. 
On appeal, counsel asserts that the proffered wage may be lowered based on the consent of the senior pastor, 
and the beneficiary, 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
 1153(b)(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 regulation at 8 C.F.R. 8 204.5(g)(2) provides: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. In a case where the prospective United States employer employs 100 or more 
workers, the director may accept a statement from a financial officer of the organization which 
establishes the prospective employer's ability to pay the proffered wage. In appropriate cases, 
additional evidence, such as profit~loss statements, bank account records, or personnel records, 
may be submitted by the petitioner or requested by [Citizenship and Immigration Services 
(CISIl. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, 
the day the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. 
 See 8 CFR 3 204.5(d). 
 Here, the Form ETA 750 was accepted for processing on 
September 27, 1999. The proffered wage as stated on the Form ETA 750 is $26.00 per hour, which amounts to 
$54,080 per year. The current beneficiary is a substitution for the original beneficiary. 
Following an examination of the petitioner's 1999, 2000, 2001, 2002, 2003, Form 990, Return of Organization 
Exempt from Income Tax, as well as the other evidence submitted to the underlying record and with the 
petitioner's motion, the director determined that the petitioner failed to establish its continuing ability to pay the 
proffered wage of $54,080 during all of the relevant years. On August 4, 2004, the director concluded that the 
grounds for the denial of the petition had not been overcome and affirmed the denial of the petition. 
Although counsel's "Motion to Appeal" is styled as an attempt to continue the beneficiary's Application to Adjust 
Status (1-485), he addresses the director's decision of August 4, 2004, by asserting that the proffered wage of 
$26.00 per hour should be amended to $16.56 per hour. Counsel maintains that the lower prevailing wage is more 
realistic than the $26.00 per hour and reflects the appropriate salary for a pastoral assistant performing the duties 
set forth in the ETA 750 A. He attaches a letter, dated August 30, 2004, signed by the senior pastor and the 
beneficiary, that sets forth the terms of the beneficiary's employment as a pastoral assistant at $16.56 per hour and 
contends that it is reasonable to amend the prevailing wage by agreement between these parties. 
We do not agree. Amending the prevailing wage is not within the purview of CIS. Although the Dept. of Labor1 
and the former Immigration and Naturalization Service (INS) had a long standing agreement that changes on the labor 
certification relating to changes to the name and address of the employer would be made by INS, no such agreement 
included changes in the job requirements (items 14 and 15) or (prevailing wage rates) because it relates to the process 
which tests the U.S. labor market. 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, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th 
Cir. 1983); Stewart Infra-Red Commissaly of Massachusetts, Inc. v. Coomey, 66 1 F.2d 1 (1 st Cir. 198 1). It is not 
current CIS policy to, in effect, alter the job specifications set forth on the Dept. of Labor Form ETA 750 in order to 
cure even inadvertent errors made by a petitioner. If the petitioner believes that the wage or job title is incorrect, it 
may file a new application for a labor certification with the Department of Labor. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
IDOL policy bars amendments of the approved labor certification except to correct mistakes made by the 
certiQing officers, e.g., in spelling of the employer or alien's name. The only amendments to the substantive 
elements that may be made by a certifying officer is where the amendment was approved prior to the issuance 
of certification. See DOL Field Memorandum No. 47-92, dated May 7, 1992, published in 57 Fed. Reg. 3 1219 
(1992).