dismissed EB-3 Case: Special Education / Sports

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. II, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a school for children with special needs, seeks to employ the Beneficiary as director 
of sports activities. It requests his classification under the third-preference, immigrant category as a 
professional. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. 
§ 1153(b)(3)(A)(ii). This employment-based, "EB-3" category allows a U.S. employer to sponsor a 
foreign national with a bachelor's degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that 
contrary to the requirements of the offered position and the requested classification, the Petitioner 
did not establish the Beneficiary's possession of a U.S. bachelor's degree or a foreign equivalent 
degree. On appeal, we atlirmed the decision. See Matter o{G-A-. Inc., ID# 745127 (AAO Oct 27, 
2017). 
The matter is now before us on the Petitioner's motion to reconsider. The Petitioner asserts that we 
erred in rejecting its "amended" petition, which seeks to classify the Beneficiary not as a 
professional, but as a skilled worker. See Section 203(b)(3)(A)(i) of the Act (allocating visas for 
qualified immigrants with at least two years of training or experience). 
Upon review, we will deny the motion. 
I. MOTION TO RECONSIDER 
A motion to reconsider must establish that, based on the record at that time, our decision misapplied 
law or policy. 8 C.f.R. § 103.5(a)(3). A motion to reconsider must be supported by a pertinent 
precedent or adopted decision, statutory or regulatory provision, or statement of U.S. Citizenship and 
Immigration Services (USC IS) or Department of Homeland Security policy. We may grant a motion 
that satisfies these requirements and demonstrates eligibility for the requested immigration benefit 
II. THE AMENDED PETITION 
The Petitioner asserts that case law does not support our rejection of its amended pettlion. ln 
declining to consider the Beneficiary's classification as a skilled worker, we cited Ma/ler o{lzummi, 
22 I&N Dec. 169 (Assoc. Comm'r 1998), an immigrant investor case holding that a petitioner may 
Maller of G-A-. Inc. 
not materially change a petition after its filing in an effort to overcome deficiencies. See section 
203(b)(5)(A) of the Act (allocating visas for qualified immigrants who seek to engage in new 
commercial enterprises in the United States). The Petitioner, however, notes that, in lzummi, we 
barred revisions to an investment plan because the changes stemmed from agreements entered into, 
and guidance issued, alter the petition's filing. !d. at 175. Unlike in lzummi, the Petitioner argues 
that consideration of the Beneficiary as a skilled worker would not change existing facts, including 
the job requirements of the offered position and the Beneficiary's qualifications. 
lzummi based its holding on the rule that a petitioner must establish its eligibility as of a petition's 
filing. !d. at 175-76 (citations omitted): see also 8 C.F.R. § 103.2(b)(l) (requiring a petitioner to 
establish eligibility as of the filing of a benefit request). As the Petitioner argues, our consideration 
of the Beneficiary as a skilled worker would not revise evidence of record. But the criteria for the 
petition's adjudication would materially change. The change also would be an attempt to overcome 
deficiencies in the original petition, which requested professional classification. Thus, we lind that 
lzummi supports our rejection of the Petitioner's amended petition. Moreover, the Petitioner does 
not cite any case law endorsing an acceptance of its amendment to consider the Beneficiary as a 
skilled worker. 
The Petitioner also asserts that USClS policy supports consideration of the amended classification. 
The Petitioner cites online information stating that, after a petition decision, the Agency bars a 
petitioner trom changing a requested visa category. The Petitioner notes that it requested a new 
classification before the Director's decision, in response to his request for evidence. 
The online USCIS information states: 
When we accept your Form 1-140 for processing, we create an electronic record and 
mail a Form 1-797, Receipt Notice, to you and the representative on the Form G-28. 
The receipt notice will indicate the visa category that you requested on Part 2 of the 
Form 1-140. Make sure this category is correct. If it is not correct (for example, if 
you or USClS has made a clerical error), immediately call the USClS Contact Center 
at 800-3 75-5283 or 800-767-1833 (TTY) to request that we change the visa 
classification before making a decision on your 'form. 
Although you may request that we change the visa classification to correct a clerical 
error in Part 2 of the form, we will make the final determination about whether to 
change the visa classification based on everything in your case. 
USCIS, "Petition Filing and Processing Procedures for Form 1-140," https://www.uscis.gov/forms/ 
petition- tiling-and-proccssi ng-proced ures- form-i -140-immigrant -petition-alien-worker (last visited 
Mar. 29, 2018). 
Thus, a petitioner may request a classification change before a decision is issued in order to correct a 
clerical error. Here, the Petitioner does not demonstrate, or even assert, that its initial request for the 
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Maller rifG-A-. Inc. 
Beneficiary's classification as a professional was inadvertent.. Rather, in response to the Director's 
request for evidence, which identified the Beneficiary's ineligibility for professional classification, 
·the Petitioner stated: 
You explain that for the purpose of USCIS classification 203(b)(3)(A)(ii) 
professional, the education requirement can only be established by a degree fi·om an 
accredited institution of higher education. You would, however, be able to qualify 
him as a skilled worker under 203(b)(3)(A)(i). Since the Department of Labor found 
the applicant qualified, the issue is with the USCIS classification. We, therefore, are 
enclosing an amended 1-140 requesting the approval of the 1-140 under the skilled 
worker category. We trust this should resolve your objection. 
It is clear from the Petitioner's statement that the initial request for classification as a professional 
was not a clerical error or otherwise inadvertent. Our rejection of the Petitioner's amended petition 
therefore does not violate USC IS policy. 
Finally, the Petitioner asserts that "[i]f the [visa) category is changed, the issue is resolved in the 
beneficiary's favor." As indicated in our appellate decision, however, a beneficiary must not only 
qualify for a requested classification, but he or she must also meet the job requirements of an offered 
position as stated on an accompanying labor certification. Here, we could not approve an amended 
petition for the Beneficiary as a skilled worker because he does not meet the job requirements of the 
accompanying certification. See Matter of Wing's Tea House, 16 l&N Dec. 158, 160 (Acting Reg'! 
Comm'r 1977) (requiring a petitioner to establish a beneficiary's possession of all Department of 
Labor (DOL)-certified job requirements). 
In evaluating a beneficiary's qualifications, USC1S must examine the job offer portion of a labor 
certification to determine a position's minimum requirements. USCIS may neither ignore a 
certification term, nor impose additional requirements. See. e.g .. Madany v. Smilh. 696 F.2d I 008, 
1015 (D.C. Cir. 1983) (holding that the "DOL bears the authority for setting the con/en/ of the labor 
certification") (emphasis in original). 
Here, the labor cenitication application asked the Petitioner to state the minimum educational level 
required for the offered position. Rather than indicating "None," "High School," or "Other," the 
Petitioner selected "Bachelor's" degree. Asked if there is an acceptable, alternate combination of 
education and experience, the Petitioner indicated ·"No." Therefore, the plain language of the job 
offer portion of the certification states that the position requires at least a bachelor's degree. It does 
not allow a potential applicant to qualify with work experience alone. See. e.g .. SnapNames.Com. 
Inc. v. Chert off: No. CV -06-65-MO, 2006 WL 3491005, *7 (D. Or. Nov. 30, 2006) (holding that 
"where the plain language of [the labor certification) requirements docs not support the petitioner's 
asserted intent, the agency does not err in applying the requirements as written"). 
As the Petitioner concedes, the Beneficiary lacks a U.S. bachelor's degree or a foreign equivalent 
degree. Rather, the Petitioner asserts his possession of a baccalaureate equivalency based entirely on 
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Mauer of G-A-. Inc. 
employment experience. The record therefore does not establish his qualifications for the offered 
position. Thus, although the Beneficiary's credentials qualify for skilled-worker classification, we 
would deny an amended petition requesting that category because he does not meet the job 
requirements of the accompanying labor certification. 1 
For the foregoing reasons, the record does not establish our misapplication of law or policy m 
rejecting the Petitioner's amended petition. We will therefore af1irm our appellate decision. 
Ill. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed on appeal, 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 proffered wage, !rom a petition's 
priority date until a beneficiary obtains lawful permanent residence 2 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited linancial statements. Jd. 
Here, the labor certilication states the proffered wage of the offered position of director of sports 
activities as $29,806 a year. Contrary to 8 C.F.R. § 204.5(g)(2), however, the Petitioner did not 
submit required evidence of its ability to pay the protTered wage. The Petitioner submitted copies of 
the personal, income tax returns of its owner/president for 2015, the year of the petition's priority 
date. But these returns do not reflect the finances of the petitioning corporation. As a corporation, 
the Petitioner constitutes a separate, legal entity from its owner/president. See. e.g .. Maller of' 
Aphrodile !nvs .. Lid, 17 l&N Dec. 530, 531 (Comm'r 1980) (citation omitted) (explaining that a 
corporation is a distinct, legal entity from its shareholders). 
The Petitioner asserted that IRS Forn1 Schedule C, Profit or Loss From Business, part of the tax 
returns of iis owner/president, includes the c01npany's finances for 2015. Schedule C, however. 
states financial information about a limited liability company (LLC) with a different federal 
employer idcntilication number than the petitioning corporation. See also N.Y. Dcp't of State, Div. 
of Corps., State Records & UCC, https://www.dos.ny.gov/corps/bus_entity_search.html (last visited 
Mar. 30. 20 18) (listing the Petitioner and the LLC as separate entities). Thus, Schedule C does not 
' ' 
reflect the Petitioner's finances for 2015. The record therefore lacks required evidence of the 
1 The Petitioner notes that another section of the labor certification indicates the Beneficiary's lack of a bachelor's degree 
and contends that in certifying the labor certification, DOL found the Beneficiary qualified for the position. However, it 
is DOL's rcsponsibilily 10 delennine whelher there are qualified U.S. workers available to perform lhe offered posilion. 
and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. II is USC IS' 
responsibility to determine if lhe Beneficiary qualifies for the offered position, and whether the offered position and the 
Beneficiary arc eligible for the requested employment-based immigrant visa classification. See, e.g .. Madany. 696 F.2d 
at 1015. '/'ongatapu Woodcraft Hawaii. Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). 
2 This petition's priorily date is April 28, 2015, the date the DOL accepted the accompanying labor ccrtilicalion 
application for processing. See 8C.F.R. § 204.5(d) (explaining how to determine a petilion's priority date). 
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Malter of G-A-. Inc. 
Petitioner's ability to pay. See Sitar Rest. v. Ashcroft, No. Civ.A02-30 197-MAP, 2003 WL 
22203713 *2 (D. Mass. Sept. 18, 2003) (holding that "nothing in the governing regulation, 8 C.F.R. 
§ 204.5, permits [USCIS] to consider the financial resources of individuals or entities who have no 
legal obligation to pay the wage"). 
In any future filings in this matter, to establish its ability to pay the proffered wage, the petitioning 
corporation must submit copies of its annual reports, federal income tax returns, or audited financial 
statements for 2015, 2016, and, if available, 2017. 
IV. CONCLUSION 
The Petitioner's motion to reconsider does not ·establish that our rejection of its amended petition 
misapplied law or policy. The motion also lacks support from a pertinent precedent or adopted 
decision, statutory or regulatory provision, or agency policy statement and does not establish 
eligibility for the benetit sought. 
ORDER: The motion to reconsider is denied. 
Cite as Maller of G-A-. Inc., 10# 1208273 (AAO Apr. II, 2018) 
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