dismissed EB-3 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-R-E-S-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 27,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a real estate data and software provider, seeks to employ the Beneficiary as a senior 
software engineer. It requests classification of the Beneficiary as a professional under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § 1152(b)(3)(A)(ii). This employment-based immigrant classification 
allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful permanent 
resident status. 
The Director of the Nebraska Service Center denied the visa petition, concluding that the record did 
not establish that the Beneficiary had the qualifying experience required by the labor certification. 
The Director also denied the Petitioner's subsequent motion to reopen as he found it did not meet the 
regulatory requirements for a motion. The Petitioner appealed the Director's decision to this office. 
We dismissed the appeal, affirming the Director's finding that the record did not establish that the 
Beneficiary had the experience required by the labor certification. 
On motion to reopen, the Petitioner submits new evidence in support of its claim that the Beneficiary 
acquired the necessary qualifying experience with his previous employers. 
Upon review, we will deny the motion to reopen. 
I. LAW 
A. Employment-Based Immigration 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved ETA Form 9089, Application for Permanent Employment Certification (labor 
certification) from the U.S. Department of Labor DOL.1 See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position. See 
1 The priority date of a petition is the date that the DOL accepts the labor certification for processing: See 8 C.F.R. 
§ 204.5(d). 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. 
.
Matter of V-R-E-S-, LLC 
section 212(a)(5)(A)(i)(I) of the Act. The DOL also certifies that the employment of a foreign 
national in the position will not adversely affect the wages and working conditions of domestic 
workers similarly employed. See section 212(a)(5)(A)(i)(II) of the Act. Next, the employer may file 
an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 
204 of the Act, 8 U.S.C. § 1154. Finally, ifUSCIS approves the immigrant visa petition, 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. 
B. Motion to Reopen 
A motion to reopen is based on documentary evidence of newfacts. 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. 
II. ANALYSIS 
A. Beneficiary Eligibility 
To establish that a beneficiary is qualified to perform the duties of an offered position, a petitioner 
must demonstrate that the beneficiary has met all of the requirements set forth in the labor 
certification as of the priority date of the petition, which in this case is July 23, 2014. 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 
. 2 
reqmrements. 
In the present matter the labor certification requires the Beneficiary to have a U.S. bachelor's or 
foreign equivalent degree in computer science, information technology, or a related field, and 60 
months of experience in the offered position of senior software engineer. On appeal, we found the 
Beneficiary's four-year bachelor of engineering degree from the (India) to 
satisfy the educational requirements of the labor certification, but dismissed the appeal because 
neither the Beneficiary's experience with the Petitioner as a senior software engineer nor his 
previous employment provided him with the required 60 months of experience. 
On motion, the Petitioner does not renew its claim that its employment of the Beneficiary qualifies 
him for the offered position. Instead, it seeks solely to establish that the Beneficiary acquired the 60 
months of qualifying experience while working for his previous employers and submits what it 
describes as updated reference letters in support of this claim, including: a statement from the 
director of a statement from the human resources manager 
of and a statement from the senior vice president 
for operations at For the reasons that follow, we do 
not find this evidence to support the Petitioner's claim. 
2 
See Madany 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 Irifra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d I (I st Cir. 1981 ). · 
2 
.
Matter of V-R-E-S-, LLC 
First, the employment experience reflected in. the newly submitted letters does not total the 60 
months required by the labor certification. The letter from the director of states that his 
company employed the Beneficiary from March 7, 2005, until June 10, 2006, a period of 15 months 
and 3 days. The statement from the human resources manager of reflects the dates of the 
Beneficiary's employment as June 12, 2006, to July 14, 2009, a period of 37 months and 2 days. 
The statement from the senior vice president for operations at indicates that the 
Beneficiary worked for his firm from July 28, 2009, until October 16, 2009, a period of 2 months 
and 18 days. These perio_ds of employment, which do not differ from those claimed by the Petitioner 
on appeal, total 54 months and 23 days, and, therefore, do not demonstrate that the Beneficiary has 
the 60 months of experience claimed by the Petitioner on motion. 
We also do not find the record to establish the experience reported by these letters, even if it totaled 
60 months, to be qualifying employment. The statement from the Petitioner's general counsel, 
submitted in response to the Director's request for evidence (RFE), indicates that he finds the 
Beneficiary's prior employmentat to provide him with 37 months of qualifying experience. 
Although the general counsel also notes the Beneficiary's employment with and he 
makes no similar claim with regard to the experience the Beneficiary gained with these businesses as 
being qualifying employment. We further observe that in his statement, the director of does 
not state that the Beneficiary was employed throughout his employment with the company as a 
software programmer, only that he was working as one at the tirpe he left.3 The human resources 
manager at makes a similar clarification regarding her company's employment of the 
Beneficiary. In her letter, she states only that he was employed as a software engineer at the time he 
left, raising questions regarding the Petitioner's claim that all 37 months of the Beneficiary's 
employment at was in the offered position. Accordingly, the letters submitted on motion do 
not establish that, as claimed by the Petitioner, all of the Beneficiary's employment with his previous 
employers is qualifying experience. · 
Finally, we question whether the experience statements that the Petitioner has submitted on motion 
are genuine. The three new letters and statements bear the same dates and signatures as the 
experience letters provided by the Petitioner in response to the RFE. However, unlike the previous 
submissions, the letters submitted on motion list the duties performed by the Beneficiary, raising 
questions as to why they were not provided in response to the RFE, which specifically asked the 
Petitioner for experience letters describing the Beneficiary's duties. More questions are created by 
the differences we have noted in the letters submitted on motion and those provided in response to 
the request for evidence, differences that are difficult to understand in letters signed. by the same 
individual and dat,ed the same day. These anomalies include the differing sizes of the business logos 
that appear on these letters, the differing type fonts, and the shifting positions of letterhead elements. 
Finally, the signatures on all three of the letters submitted on motion do not appear to be original, but 
to be copies of the signatures found on the experience letters previously submitted by the Petitioner. 
Therefore, even if the letters submitted by the Petitioner on motion reflected 60 months of qualifying 
. 3 We note that another letter from the director at submitted at the time of filing ang in response to the Director's 
RFE indicates that his company employed the Beneficiary as a trainee programmer from March 7, 2005, until May 31, 
2005, and as a software programmer from June 1, 2005, until June I 0, 2006. 
3 
Matter of V-R-E-S-, LLC 
employment, we would not find them to establish the Beneficiary's qualifications for the offered 
position. 
For the reasons discussed, the reference letters submitted by the Petitioner do not overcome our 
decision on appeal that the record does not establish the Beneficiary's qualifications for the offered 
position. Therefore, we will deny the motion to reopen and affirm the dismissal of the appeal. 
B. Ability to Pay 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
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 either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
A petitioner must establish that its job offer to a beneficiary is a realistic one. Because the filing of a 
labor certification application establishes a priority date for any immigrant petition later based on the 
labor certification, a petitioner must establish that the job offer was realistic as of the priority date 
and that the offer remains realistic for each year thereafter, until the beneficiary obtains lawful 
permanent residence. A petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg'l 
Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether ajob offer is realistic, USCIS 
requires a petitioner to demonstrate financial resources sufficient to pay a beneficiary's proffered 
wage, although the totality of the circumstances affecting the petitioning business will be considered 
if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l 
Comm 'r 1967). 
In the present case, the priority date of the visa petition is July 23, 2014, and the proffered wage is 
$116,000 per year. Therefore, the Petitioner must demonstrate its ability to pay the Beneficiary the 
annual wage of$116,000 from July 23, 2014, onward. 
In our dismissal of the appeal, we informed the Petitioner that the record did not contain the 
evidence necessary to establish its ability to pay the proffered wage and that "in any future filings in 
this matter, [it] must submit copies of annual reports, federal tax returns, or audited financial 
statements from 2014 onward pursuant to 8 C.F.R. § 204.5(g)(2)." On motion, the Petitioner 
submits only an audited financial statement for 2014 and does not indicate that its 20 15 statement is 
unavailable or that it cannot provide one of the other types of financial evidence required by 
regulation. In the absence of this evidence, we cannot find that the Petitioner has the ability to pay. 
For this reason as well, the visa petition cannot be approved. 
4 
Matter of V-R-E-S-, LLC 
III. CONCLUSION 
We previously dismissed the Petitioner's appeal, finding that the record did not establish that the 
Beneficiary had the experience required by the labor certification. ·On a motion to reopen, the 
Petitioner has not overcome our prior finding. The Petitioner has also not established. its ability to 
pay the Beneficiary the proffered wage from the priority date onward. 
ORDER: The motion to reopen is denied. 
Matter ofV-R-E-S-, LLC, ID# 267056 (AAO Apr. 27, 2017) 
5