dismissed EB-3 Case: Software Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 28,2017 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of software consulting services. seeks to employ the Beneficiary as a 
programmer analyst. 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. business to sponsor a 
foreign national with at least two years of training or experience for lawful permanent resident 
status. 
The Director of the Texas Service Center denied the petition. The Director concluded that the record 
did not establish, as required, the Beneficiary's possession of the experience required for the otTered 
position and the requested classification. 
On appeal, the Petitioner submits additional evidence and asserts that it has now established the 
Beneficiary's qualifications for the otTered position and the requested classification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration is generally a three-step process. First. a U.S. employer must 
obtain an approved ETA Form 9089, Application for Permanent Employment Certification (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, the employer must file a Form I-140. Immigrant Petition for Alien 
Worker, with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act. 
8 U.S.C. § 1154. Finally, if USCIS approves the immigrant visa petition, a foreign national may 
apply for an immigrant visa abroad or, if eligible. adjustment of status in the United States. See 
section 245 ofthe Act, 8 U.S.C. § 1255. 
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Matter of V-, Inc. 
II. BENEFICIARY QUALIFICATIONS 
A petitiOner must establish a beneficiary's possession of all the experience specified on an 
accompanying labor certification by a petition's priority date. 1 8 C.F.R. ~ 103.2(b)(l). (12); see also 
Matter of Wing's Tea House, 16 l&N Dec. 158, 159 (Acting Reg') Comm'r 1977); Matler of 
Katigbak. 14 I&N Dec. 45. 49 (Reg'! Comm'r 1971). As previously noted, a skilled worker must 
also possess at least two years oftraining or experience. Section 203(b)(3)(A)(i) ofthe Act. 
In evaluating a beneficiary's qualifications, we must examine the job offer portion of a labor 
certification to determine the minimum requirements of an otlered position. We may neither ignore 
a term of the labor certification, nor impose additional requirements. See K. R. K. Irvine. Inc. v. 
Landon. 699 F.2d 1006, 1009 (9th Cir. 1983); Madany 1'. S'mith. 696 F.2d 1008, 1012-13 (D.C. Cir. 
1983); Stewart Infra-Red Commissar.v ofMass .. Inc. v. Coomey. 661 F.2d L 3 (1st Cir. 1981 ). 
Here, the labor certification states that 24 months of experience as a programmer analyst is the 
minimum experience requirement of the oflered position, or 24 months of experience either providing 
programmer or technical support or as a computer technician. On the labor certification, the 
Beneficiary attested that he had at least 24 months of full-time, qualifying experience with prior 
employers as follows: 
--
Job title Employer name Employer address Start date End date --
Programmer/analyst Illinois 12/0112005 07/13/2006 
Programmer/tech 08/01/2004 08/31/2005 
support Ireland r----
Computer India 06/01/2003 07/20/2004 
technician I I 
A petitioner must support a beneficiary's claimed qualifying experience with a letter from an employer. 
8 C.F.R. ~ 204.5(g)(l ). The letter must provide the name, address, and title of an employer. and a 
description of a beneficiary's experience. Jd Here, the Petitioner did not initially provide letters from 
the Beneficiary's purported former employers attesting to his experience. Instead, in response to a 
request for evidence (RFE), the Petitioner submitted an employment offer from and 
letters from individuals who attested that they were aware that the Beneficiary worked for the above 
entities; however, this information does not satisfY the regulatory requirement for experience letters 
from former employers. The regulation at 8 C.F.R. ~ 204.5(g)( 1) allows for the consideration of other 
documentation relating to a beneficiary's experience or training if the experience letters from fom1er 
employers are unavailable. The Petitioner submitted letters and mail tracking receipts that it claimed 
show the Beneficiary had sought these letters from its employers and asserted that his employers were 
unable or unwilling to respond. However. in one case, the Beneficiary appears to have sought 
1 
In this case, the petition's priority date is November 16, 2006. This is the date the DOL accepted the labor certification 
application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
2 
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Matter (?f V-, Inc. 
employment verification from an entity that he did not previously claim as an employer. Specifically, 
he sought a response from but had named on 
the labor certification. In addition, the mail tracking receipts show only that one mail item was 
delivered in India and signed for by ' and that another mail item was delivered in 
Ireland, and signed for by · The letters and tracking infom1ation do not establish 
the identities of the individuals who signed tor the mail, and whether they worked for 
(or and Moreover, even if the mai I 
information shows the Beneficiary sought experience letters from his prior employers, the lack of 
response in the record is not sufficient to demonstrate that the companies refused to respond and that 
experience letters are consequently unavailable. For example, as will be discussed, the Petitioner 
eventually provided a letter from on appeal: therefore. at least one of the 
Beneficiary's prior employers appears to have been willing to provide employment verification. 
The letters from the individuals who attested that they were aware that the Beneficiary worked for the 
above entities do not contain probative details that establish his employment. For example, and 
separately stated that they knew the Beneficiary while he was working for 
however, the Beneficiary indicated that the name of his employer was 
therefore, the statements are not consistent with the Beneficiary's 
claims. In 
addition, although the each stated that the Beneficiary worked at 
from June L 2003, to July 20, 2004, and provided detailed lists of his alleged duties, they do not claim 
to have been co-workers or otherwise explain why they would have such detailed knowledge of the 
Beneficiary's work. 
In addition , and separately stated that they knew the 
Beneficiary while he was working for from August I, 2004 , to August 31 , 2005 , and 
listed his alleged duties. Although these individuals stated they had personal knowledge of the 
Beneficiary's work at they did not claim to have been co-workers. Moreover, they 
both claimed to reside in India on their affidavits. but did not otherwise explain why they 
would havesuch detailed knowledge of the Beneficiary's work in Ireland. 
Another individual named stated that he had worked at from 
December 2005 until June 2007 , and that the Beneficiary worked there with him thm') December 2005 
until June 2006 . However, the Beneficiary had stated that he worked at until 
July 13, 2006 ; therefore , statement is inconsistent with the Beneficiary's own claims . 
Considering the deficiencies and discrepancies noted. the letters are not sufficient to establish that the 
Beneficiary has the claimed experience. 
Moreover, the Beneficiary's claims on the labor certification and the infmmation in the letters are 
inconsistent with other information in the record regarding the Beneficiary's work history. The 
inconsistencies cast doubt on the Beneficiary's claims and the evidence of his prior qualifying 
experience. The Petitioner must resolve these inconsistencies with independent objective evidence 
pointing to where the truth lies. Mauer of Ho, 19 J&N Dec. 582, 591-92 (BIA 1988). Unresolved 
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Matter of V-, Inc. 
material inconsistencies may lead us to reevaluate the reliability and sufliciency of other evidence 
submitted in support of the requested immigration benefit. !d. 
USCIS records show that the Beneficiary submitted a Form G-325A Biographic Infom1ation, on which 
he listed his experience in the United States prior to working at the Petitioner, as follows: 
Job title Employer name Employer address Stati date End date --
Programmer/ analyst December 2005 May 2006 
I Illinois 
The Beneficiary also listed his last occupation abroad on the Form G-325A as follows: 
Job title Employer name Employer address Start date End date 
Programmer/ Ireland December 2003 March 2005 
technical support 
The Beneficiary's employment claims on the Fonn G-325A relating to and 
are not consistent with the employers and dates of employment that he claimed on the 
labor certification. Moreover, the end date of May 2006 is inconsistent with the July 13. 2006, end date 
that the Beneficiary listed on the labor certification and 
the June 2006 reflected in 
statement. Finally, the Beneficiary claimed on the Form G-325A that he lived in Ireland 
from September 2003 to August 2005, which contradicts his claim on the labor certification to have 
gained qualifYing experience as a computer technician in India from June 2003 to July 2004. 
After an interview with USCIS on May 6, 2013, and in response to a related RFE, the Beneficiary 
submitted a letter dated May 17, 2013, in which he asserted that he had worked at ' 
[sic]" from March 2006 to May 2006,'' and included an Intemal Revenue Service (IRS) Form 
W-2 Wage and Tax Statement as evidence that he was paid $4,000 for these claimed months of work. 
The Beneficiary's statement that he worked for for two to three months 
between March 2006 and May 2006 is inconsistent with the claim on the Form G-325A to have worked 
there from December 2005 to May 2006, and is also inconsistent with his experience claims on the 
labor certification. 
We informed the Petitioner ofthe above derogatory infom1ation in a notice of intent to dismiss (NOID) 
the appeal, and the Petitioner 
responded with a statement from the Beneficiary and additional evidence. 
In his new statement, the Beneficiary maintains that his employment history as reflected on the labor 
certification is accurate. The Beneficiary claims that he tried to file his Fonn I-485, Application to 
Register Permanent Residence or Adjust Status, and supporting evidence as quickly as possible after the 
U.S. Department of State issued a visa bulletin in June 2007, advising of a huge jump in the cut-off date 
for third employment preference visas for Indian nationals. The Beneficiary asse1is that because he was 
in a rush to file his Form G-325A, it "contains substantial errors and ... [he] did not catch them all 
before signing" and submitting it, and that certain periods of his employment for 
(i.e., before March 2006 and after May 2006) are undocumented because they did not pay him with 
4 
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Matter of V-, Inc. 
money. For example, according to the Beneficiary, when he stopped working for 
clients in May 2006, he continued to work in-house f(x the company solely tor meals and lodging 
until July 2006. The Beneficiary states that any information on the Form G-325A that is inconsistent 
with his representations on the labor certification must be due to the misunderstanding of ''whoever 
completed" the Form G-325A at the law finn that formerly represented him. Similarly, the Beneficiary 
denies recollection of the May 2013 letter and contends that the letter and other documents with 
contradictory information discussed in our NOID "were all prepared by [his t(mner] lawyers." 
The Beneficiary's claim to have provided incorrect infonnation on his Form G-325A because of his 
rush to tile is not supported by other information in his Fonn I-485 and supporting documents. The 
Beneficiary's Form I-485 record shows that when USCIS interviewed him on May 6. 2013, the 
interviewing officer made handwritten amendments to the Form G-325A to show the Beneficiary's 
employment and residences from 2009 to the date of interview, but there are no notations reflecting that 
the Beneficiary sought to amend other employment and residence intorn1ation that he now claims is 
incorrect. 
Moreover, the Beneficiary does not identify an individual whom he claims incorrectly completed the 
Form G-325A and May 2013 letter on his behalf, nor does he include, tor example, a letter from his 
former attorneys confirming that contradictory employment information in the May 2013 letter and 
Form G-325A is based on a misunderstanding and should be attributed to them rather than the 
Beneficiary. To the extent that the Beneficiary may be suggesting that contradictory. and therefore 
derogatory, information is the fault of his prior attorneys, his assertion that one or more unidentified 
attorneys is responsible does not satisfy the requirements for establishing a claim of ineffective 
assistance of counsel. Cf Matter (?lLozada, 19 I&N Dec. 637 (BIA 1988), a.frd, 857 F.2d 10 (1st Cir. 
1988) (requiring an appellant to meet certain criteria when tiling an appeal based on inetlective 
assistance of counsel). Consequently, the record reflects that the Beneficiary provided contradictory 
information on the Form G-325A and May 2013 letter, and 
the Petitioner's response to our NOID. as 
discussed below, does not resolve the inconsistencies between those documents and the claims made on 
the labor certification. 
In response to our NOID, the Petitioner includes previously submitted documents from 
offering the Beneficiary a permanent position as computer programmer or technical support in 
August 2004. However, this document is not accompanied by any other evidence establishing the 
duration ofthe Beneficiary's employment with and does not resolve the inconsistent 
end date provided on the labor certification and Form G-325A. The letter also docs not address whether 
the Beneficiary was already working tor them in another position or on a temporary or probationary 
basis prior to August 2004, as claimed on the Fonn G-325A. which if true contradicts the Beneficiary's 
claimed employment with The Petitioner also submits a letter from 
stating that the Beneficiary worked at in India from 
June 2003 until July 2004. However, given the inconsistencies regarding the dates of employment this 
letter, unaccompanied by additional documentary evidence. such as pay stubs establishing the duration 
of the Beneficiary's employment, is insufficient to establish the claimed experience. A petitioner 
must resolve inconsistencies in the record with independent objective evidence pointing to where 
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Matter of V-, Inc. 
the truth lies. Matter (~! Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Consequently, without 
additional, objective evidence of the Beneficiary's prior employment the two employment letters are 
not sufficient to resolve the contradictory information. 
Finally, the Petitioner provides a police certificate from the in Ireland, 
stating that the Beneficiary was not convicted of any crime while residing in Ireland. In his statement 
the Beneficiary claims that this certificate shows he was not in Ireland prior to August 2004. Although 
the police certificate lists the Beneficiary's former residence in and 
the dates of August 14. 
2004, to August 14, 2005, there is no additional infonnation showing that the 
independently verified the Beneficiary's place and dates of residence without relying solely on the 
Beneficiary's representations. The Beneficiary also includes a copy of his passport, claiming that it 
shows his first entry to Ireland was in August 2004, and therefore establishes that he could not have 
been working for in Ireland prior to that date. However. the document appears to be 
a partial copy of the Beneficiary's passport because the first numbered page begins on page 10 and the 
entire copy consists of 32 pages, whereas the shortest passport issued by the Consular. Passport & Visa 
Division of the Ministry of External Affairs in India is 36 pages? Consequently, this additional 
evidence from the Beneficiary is not suflicient to establish that he first entered Ireland in August of 
2004. 
Accordingly, based on the above conflicting information about the Beneficiary's employment history, 
the Petitioner has not submitted sufficient evidence to establish that the Beneficiary has the qualifying 
experience required tor the position of programmer analyst or for classification as a skilled worker. 
III. ABILITY TO PAY 
Although not addressed by the Director, the record also does not establish the Petitioner's ability to pay 
the proffered wage. A petitioner must demonstrate its continuing ability to pay a proftered wage. from 
a petition's priority date until a beneficiary obtains lawful pem1anent residence. 8 C.F.R. 
§ 204.5(g)(2). 3 Evidence of ability to pay must include copies of annual reports. federal income tax 
returns, or audited financial statements. !d. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date. If a petitioner did not annually pay the full protlered 
wage, USCIS considers whether it generated sufficient annual amounts of net income or net cunent 
assets to pay any difference between the proffered wage and 
the wages paid. If net income and net 
2 Fee Structure, http://passportindia.gov. in/ AppOnlineProject/onlineHtml/feeDocument.html (last visited on October 26, 
2017). 
3 This petition's priority date is the date the DOL received the accompanying labor certification for processing. S'ee 
8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
Matter qf V-, Inc. 
current assets are insufficient, USC IS may also consider other factors affecting a petitioner's ability to 
pay a proffered wage. See Matter ofSonegawa. 12 I&N Dec. 612, 614-15 (Reg'] Comm 'r 1967).-+ 
Here, the accompanying labor certification with a priority date of November 16. 2006. states the 
proffered wage of $4 7,466 per year. The record contains tax returns for 2006 through 2012. but does 
not contain a form of regulatory required evidence for any subsequent year. 5 
The Petitioner submitted Forms W-2 for the Beneficiary from 2006 to 2014. From 2007 through 2014. 
the Petitioner paid the Beneficiary in excess of the profTered wage; however. in 2006 the Petitioner paid 
the Beneficiary less than the profTered wage. According to the Petitioner's tax returns from 2006, it had 
sufficient net income to cover the ditTerence between the proffered wage and the wages paid. However. 
where a petitioner has filed I-140 petitions for multiple beneficiaries. it must demonstrate that its job 
offer to each beneficiary is realistic. and that it has the ability to pay the proffered wage to each 
beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson. 2 F. Supp. 3d 108. 124 (D. Mass. 
2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to pay 
multiple beneficiaries). USCIS records show that the Petitioner filed multiple 1-140 petitions for other 
beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of the other I-140 petitions that were pending or filed after the priority date of the current 
petition.6 We only consider the other beneficiaries for any year that the Petitioner has not paid the 
Beneficiary a salary equal to or greater than the prof1ered wage. 
In any future filing in this matter, the Petitioner must document the receipt numbers. names of 
beneficiaries, priority dates, and proffered wages of these other I-140 petitions. and indicate the status of 
each petition and the date of any status change (i.e., pending, approved. withdrawn. revoked. denied. on 
appeal or motion, or beneficiary obtained lawful pern1anent residence). To offset the total wage burden, 
the Petitioner may submit documentation showing that it paid wages to other beneficiaries. Absent such 
information, we cannot find that the Petitioner had the ability to pay in 2006. If the Petitioner pursues 
this matter, it must also submit a form of regulatory required evidence of its ability to pay from 2013 
onward 7 and evidence of its ability to pay this Beneficiary and the beneficiaries of its other 1-140 
petitions from 2015 to present. 
4 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. S'ee. e.g, River St. 
Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Estrada-Hernande::: v. Holder. I 08 F. Supp. 3d 936, 942-43 
(S.D. Cal. 2015); Rivzi v. Dep 't of Homeland Sec., 37 F. Supp. 3d 870. 883-84 (S.D. Tex. 20 14). afrd. 627 Fed. App'x 
292 (5th Cir. 20 15). 
5 We note the submission of a 2013 audited financial statement, but the company named in the document is not the 
Petitioner. The Petitioner has not explained this discrepancy. 
6 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn. revoked, or denied without a 
pending appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf ofthe other beneficiary. 
7 The record contains regulatory required evidence of the Petitioner's ability to pay in the form of tax returns for 2006 to 
2012. 
Matter of V-, Inc. 
IV. CONCLUSION 
The record does not establish the Beneficiary's possession of the experience required for the otlered 
position and the requested classification. 
ORDER: The appeal is dismissed. 
Cite as Matter of V-. Inc., ID# 527147 (AAO Nov. 28, 2017)