dismissed EB-3 Case: Solar Energy

U.S. Citizenship 
and Immigration 
Services 
In Re: 12283150 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 29, 2021 
The Petitioner, a solar panel sales and installation business, seeks to employ the Beneficiary as a solar 
photovoltaic installer. It requests classification of the Beneficiary as a ski I led worker under the third 
preference employment-based immigrant visa category. Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This immigrant visa category 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 education, training, or experience. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary possessed the required experience for the offered position. 
The Petitioner bears the burden of establishing eligibility for the requested immigration benefit. See 
section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker usually follows a three-step process. First, the prospective employer 
must obtain a labor certification approval from the U.S. Department of Labor (DOL) to establish that 
there are not sufficient U.S. workers who are able, willing , qualified, and available for the offered 
position. Section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, the employer must submit the approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. § 1154. The 
immigrant visa petition must establish that the foreign worker qualifies for the offered position, that 
the foreign worker and the offered position are eligible for the requested immigrant visa category, and 
that the employer has the ability to pay the proffered wage. See 8 C.F.R. § 204.5. These requirements 
must be satisfied by the priority date of the immigrant visa petition. See 8 C.F.R. § 204.5(g)(2); Matter 
of Wing's Tea House, 16 l&N Dec. 158, 159 (Act. Reg'I Comm'r 1977). For petitions that require a 
labor certification, the priority date is the date on which the DOL accepted the labor certification 
application for processing. See 8 C.F.R. § 204.5(d). In this case, the priority date is June 21, 2019. 
Finally, if USCIS approves the immigrant visa petition, the foreign worker may apply for an immigrant 
visa abroad or, if eligible, for adjustment of status in the United States. Section 245 of the Act, 8 
U.S.C. § 1255. 
II. EXPERIENCE 
At issue in this case is whether the Beneficiary possessed the required experience for the offered 
position by the June 21, 2019 priority date. See Matter of Wing's Tea House, 16 l&N Dec. at 160. 
USCIS examines the job offer portion of the labor certification to determine a position's minimum 
requirements. We may neither ignore a term on the labor certification nor impose additional 
requirements. See Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). 
Here, section H.6 of the labor certification states that the solar photovoltaic installer position requires 
two years of experience in the offered position. Experience in an alternate occupation is not 
acceptable. The labor certification does not require any education, training, or specific skills. 
Section K of the labor certification states that the Beneficiary was employed bY~-----~as 
a solar energy technician from May 15, 2006 to June 30, 2015, working 45 hours per week.1 The 
record contains an employment experience letter froml lwhich states that the 
Beneficiary worked for the company as an apprentice from 2006-2008, as a solar energy technician 
from 2008-2012, and in the position of "project interpretations" from 2012-2015. 2 Therefore, at the 
outset there is an inconsistencr between the experience letter and the labor certification regarding the 
Beneficiary's position(s) with_ I and the experience letter also does not state how 
many hours per week that the Beneficiary worked for the company. 
After reviewing the petition, the Director issued a request for evidence (RFE). The RFE noted that a 
nonimmi rant visa a lication filed by the Beneficiary in 2014 stated that he was currently employed 
a as a sales consultant and was previously employed atl I 
.___ _ _.as an administrative agent. The RFE informed the Petitioner that the nonimmigrant visa 
application did not list any current or prior employment experience wit~ lor as a 
solar photovoltaic installer. The RFE instructed the Petitioner to address the inconsistencies between 
the petition and the nonimmigrant visa application regarding the Beneficiary's claimed employment 
experience. Specifically, the Director requested an explanation of the discrepancy as well as 
independent, objective evidence to support the explanation such as official tax or employment records. 
The Petitioner's RFE response contained a new employment letter from the~-----~stating 
that the Beneficiary worked as a subcontractor and that al I payments were made to the contractor who 
was responsible for paying the Beneficiary; a document purportedly acknowledging the receipt of 
12,000 Brazilian real byl I for services rendered from December 
2014 to February 2015; and a statement from the Beneficiary that he did not have a regular workload 
while working fa~ I but instead worked on a project-to-project basis as a contractor. 
The Beneficiary also claimed that he did not include his solar photovoltaic installer experience on the 
1 This decision does not address whether the solar energy technician position is in the same occupation as the offered 
position of solar photovoltaic installer. 
2 This is how the Petitioner's translator translated the Portuguese term interpreta9ao de projeto into English. 
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nonimmigrant visa application because the application form did not have a place to put a second job. 
The Director's decision denying the petition found that the RFE response did not adequately resolve 
the inconsistencies in the record regarding the Beneficiary's claimed experience and concluded that 
the Petitioner did not establish that the Beneficiary possessed at least 24 months of experience as a 
solar photovoltaic installer. 
On appeal, the Petitioner reiterates its claims on the RFE response. The appeal also contains a new 
letter from the owner of the Petitioner, claimin] that when the Petitioner hired the Beneficiary, it 
verified the Beneficiary's experience directly wit I. 3 
When, as in this case, there are inconsistencies or discrepancies in the record relating to a beneficiary's 
eligibility for the requested immigration benefit, the petitioner must resolve them with independent, 
objective evidence pointing to where the truth lies. See Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 
1988). Further, unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
The labor certification states that the Beneficiary was employed by,__ _____ ___,as a solar 
energy technician from May 15, 2006, to June 30, 2015, working 45 hours per week. The employment 
verification letter from I I instead states that the Beneficiary worked for the company 
in three different positions and does not state the hours worked per week. When the Director notified 
the Petitioner that this claimed employment was not listed on the Beneficiary's 2014 nonim
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igrant
1 visa application, the Petitioner claimed that the Beneficiary changed from an employee of 
I I to an independent contractor; that this solar technician work was not the Beneficiary's 
primary employment; that the nonimmigrant visa application did not have a space to put a second job; 
and that the Beneficiary's hours were sporadic based on the specific project. In short, the Petitioner's 
characterization of the Beneficiary's experience changed substantially once presented with the details 
of the Beneficiary's nonimmigrant visa application. And contrary to the Petitioner's assertions, the 
second employment letter from I does not claim that the Beneficiary was ever an 
employee of the company. Instead, the letter states that the Beneficiary worked for a third-party 
contractor. Further, the document that the Petitioner submitted with its RFE response for the receipt 
of 12,000 Brazilian real bJ~-----------~also does not resolve the inconsistency 
because the receipt only covers a three-month period and it does not specify what services were 
provided by the Beneficiary.4 
For these reasons, we conclude that the Petitioner has not resolved the multiple inconsistencies in the 
record of proceeding relating to the Beneficiary's claimed qualifying employment experience. 
Therefore, the submitted evidence does not establish that the Beneficiary possessed two years of 
experience as a solar photovoltaic installer by the priority date of the petition. 
3 Our decision in this case is limited to the evidence in the record at the time of the Director's unfavorable decision. See 
Matter of Soriano, 19 l&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 l&N Dec. 533 (BIA 1988). The Petitioner 
should have provided this letter with the RFE response. Even if we considered this letter on appeal, it would not have 
changed our decision. 
4 There is a website for a company named,__ ___ ~------~~------- which 
appears to specialize in sanitation and in the construction of tanks for the storage of water, sewage, chemicals, and other 
products. 
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111. CONCLUSION 
We affirm the Director's conclusion that the Petitioner has not established that the Beneficiary meets 
the minimum requirements of job offered as set forth on the labor certification. 
ORDER: The appeal is dismissed. 
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