dismissed EB-3 Case: Sports Science

MATTER OF K-F-C-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 23, 2016 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a non-profit youth soccer training club, seeks to employ the Beneficiary as director of 
exercise physiology. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant 
classification allows a U.S. employer to sponsor a foreign national for lawful permanent resident 
status to work in a position that requires at least2 years of training or experience. 
The Director, Texas Service Center, denied the petition. The Director determined that the Petitioner 
did not establish that the Beneficiary met the minimum requirements for the proffered position. The 
matter is now before us on appeal. The Petitioner asserts that the Beneficiary is qualified for the 
proffered position because the Director erred in not recognizing experience gained after the priority 
date of the labor certification and requiring additional information regarding the experience that is 
not required by the regulation. Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved 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, U.S. Citizenship and Immigration Services (USCIS) 
must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, 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. 
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), approved by the DOL, accompanies the instant petition. By approving the labor 
certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, 
and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified 
that the employment of a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of the Act. 
In these visa petition proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
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Matter of K-F-C-
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that the immigration 
service has authority to make preference classification decisions). 
The priority date of this petition, which is the date the DOL accepted the labor certification for 
processing, is January 23,2014. 1 See 8 C.F.R. § 204.5(d).-
A. Beneficiary Qualifications. 
The beneficiary must meet all of the requiremetlts of the offered position set forth on the labor 
certification by the priority date ofthe petition. 8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's 
Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); see also Matter of Katigbak, 14 
I&N Dec. 45,49 (Reg'l Comm'r 1971). 
In the instant case, the labor certification states that the offered position has the following minimum 
requirements: 
H.4. Education: Bachelor's degree in sports science. 
H.5. Training: None required. 
H.6. Experience in the job offered: 36 months. 
H.7. Alternate field of study: Exercise science. 
H.8. Alternate combination of education and experience: None accepted. 
H.9. Foreign educational equivalent: Accepted. 
H.1 0. Experience in an alternate occupation: 36 months as a soccer coach at an elite 
soccer club. 
H.14. Specific skills or other requirements: Spanish fluency is strongly preferred to 
be able to communicate effectively with the families of athletes in the area 
who are primarily Spanish-speaking. 
Part J of the labor certification states that the Beneficiary's highest level of education related to the 
offered position is a master's degree in sports sciences from the Ohio, 
completed in 2012. The record of proceedings contain a copy of the Beneficiary's 2012 master of 
science degree in education and transcripts from the reflecting that he holds a 
master's , degree in physical education-sports science/coaching. Accordingly, the Petitioner has 
established that the Beneficiary obtained at least a bachelor's degree in sports science or exercise 
science before the priority date. 
1 The priority date is used to calculate when the beneficiary of the visa petition is eligible to adjust his or her status to 
that of a lawful permanent resident. See 8 C.F.R. § 245.1 (g). 
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Matter of K-F-C-
Part K of the labor certification states that the Beneficiary qualifies for the offered position based on 
experience as: 
• A coach with a residential sports training center in Florida, from 
May I, 2007, to August 15,2007 (40 hours per week). 
• A player with the Ohio, from August 1, 2007, to May 15, 2010 
(20 hours per week). 
• A coach with Ohio, from January 1, 2009, to December 
21, 2012 (15 hours per week). 
• A graduate assistant with the Ohio, from August 1, 2011, to 
December 
21, 2012 (20 hours per week). 
• A coach with a residential soccer program m 
New Zealand, from January 1, 2013, to June 30, 2013 (40 hours per week). 
• A 
soccer camp coach with a youth soccer academy in 
Mexico, from July I, 2013, to July 31, 2013 (30 hours per week). 
The regulation at 8 CF.R. § 204.5(1)(3) provides: 
(ii) Other doc,umentation-
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a 
description ofthe training received or the experience of the alien. 
The record contains the following documentation regarding the Beneficiary's experience with 
• An October 18, 2011, experience letter from 
letterhead. 
• An April 7, 2013, experience letter from 
head of European operations, on letterhead. 
• A June 18, 2015, experience 
letter from 
head coach, on 
high performance academy coach & 
head coach, on letterhead. 
The letters are inconsistent regarding the Beneficiary's dates of employment, job title, and duties. 
indicates that the Beneficiary was employed as a coach, while both of 
letters indicate that the Beneficiary was an intern. indicates that the Beneficiary's duties 
were in relation to football operations on and off the field with much of his duties related to front­
office work such as "monitoring the website and social media," "assisting academy staff in 
techllical and tactical sessions," "daily monitory of full-time academy players issuing GPS's," and 
"coding of individual video highlights of players." However, describes the 
Beneficiary's duties as solely on the field 
as a coach. does not provide specific dates 
for the Beneficiary's employment, indicating that he was employed for the past 3 months (July 2011 
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(b)(6)
Matter of K-F-C-
to October 2011) which differs from the labor certification on which the Beneficiary claimed to 
work for from January 1, 2013, to June 30, 2013. letters are inconsistent 
regarding the Beneficiary's 
dates of employment by stating alternatively that he was employed from 
February through May 2013, and January 2013 through April 12, 2013. In all cases, the letters 
indicate that the Beneficiary was employed for only 3 months, rather than the 6 months 
claimed on 
the labor certification. We note that the record contains a letter from stating that the 
Beneficiary visited the as a football coach with from February 24, 2013, 
to March 16, 2013. However, was not the Beneficiary's employer or trainer. 
The record contains two letters from former assistant director for 
regarding the Beneficiary's experience with The March 15, 2013, 
experience letter indicates that the Beneficiary only "played for" and was not 
employed in any capacity by However, June 11, 2015, letter is ambiguous as it 
states that he coached, as well as "worked with" the Beneficiary from May to August of 2001, 2002, 
and 2003. Neither letter explicitly states that the Beneficiary was a coach or describes the 
Beneficiary' s duties. Further, the dates provided by differ from the dates of May 1, 
2007, to August 15, 2007, provided by the Beneficiary on the labor certification. 
The record contains two July 24, 2013, experience letters from head men's soccer 
coach, 
on letterhead regarding the Beneficiary's experience with the 
The letters indicate that the Beneficiary was coached by for four seasons and 
was also his student assistant from August 2011 to December 2012. However, the letter does not 
provide specific dates or hours for the Beneficiary's work experience. Additionally, it is unclear 
whether the Beneficiary's work as a student assistant was in the proffered job of director of exercise 
physiology or as a soccer coach at an elite soccer club as required by the terms of the labor 
certification. 
The remaining evidence regarding the Beneficiary's experience includes recommendation letters that 
do not testify to specific work experience or relate to experience that occurred after the priority date 
of the labor certification. 
On appeal, the Petitioner asserts that the Beneficiary's experience up to the time the Form I-140, 
Immigrant Petition for Alien Worker, was filed should be considered in qualifying him for the 
proffered position because the regulation at 8 C.F.R. § 204.5(1)(2) states that a "skilled worker 
. means an alien who is capable, at the time of petitioning for this classification, of performing skilled 
labor." However, a petitioner must demonstrate that, on the priority date, the beneficiary had the 
qualifications stated on its labor certification application, as certified by the DOL and submitted with 
the instant petition. Wing's Tea House, 16 I&N Dec. at 158. 
The Petitioner contends that Wing's Tea House does not apply to the Beneficiary because the decision 
relies heavily upon an old version of the regulations that stated the filing date of a petition is the priority 
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Matter of K-F-C-
date of the labor certification? In Wing's Tea House, the Acting Regional Commissioner discussed 
Katigbak, 14 I&N Dec. at 45, and highlighted the reasoning behind the requirement that education or 
experience must be gained before the priority date: the beneficiary should not receive a priority date at a 
point in time when he or she is not qualified to perform the duties of the proffered position. Wing's Tea 
House, 16 I&N Dec. at 160. The same reasoning applies to the instant case. The Petitioner does not 
cite to any precedent to support its assertion that, under the current regulations, a Beneficiary may count 
experience gained between filing of the labor certification and the Form I -140 as qualifying experience. 
Accordingly, the Beneficiary may only qualify for the proffered position through experience gained 
before the priority date of the labor certification. 
On May 3, 2016, we issued a notice of intent to dismiss and request for evidence (NOID/RFE) 
giving the Petitioner an opportunity to address the inconsistencies noted above. We requested that 
the Petitioner resolve the inconsistencies with independent, objective evidence. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
On July 27, 2016, the Petitioner responded to our NOID/RFE, asserting that the requested evidence 
was additional information not required by regulations. As described above, the inconsistencies are 
material as to whether the letters are credible evidence of the Beneficiary's experience. Id. The 
information that we requested regarding the dates and hours of the Beneficiary's employment are 
necessary in the instant case because the labor certification indicates that the Beneficiary was 
employed on a part-time basis. The plain language of the labor certification requires 36 months of 
full-time experience. Accordingly, the specific dates of the Beneficiary employment, as well as the 
hours he worked, are material to establishing whether the Beneficiary obtained 36 months of full­
time experience before the priority date. 
The Petitioner states that, despite its diligent efforts, it has been unable to obtain additional letters or 
other documentation from ~the Beneficiary's employers. The Petitioner asserts that the 
documentation it submitted satisfies the regulatory requirements and sufficiently establishes that the 
Beneficiary has the requisite experience for the proffered position. As discussed above, due to the 
unresolved inconsistencies in the experience letters, the Petitioner has not established that the 
Beneficiary meets the experience requirements for the proffered position. 
2 
The priority date is the date the DOL accepted the labor certification for processing. As noted in Wing's Tea House, the 
former regulation at 8 C.F.R. § 204.l(c)(2) stated that "the filing date ofthe petition ... shall be the date the request for 
certification was accepted for processing by any office within the employment service system of the [DOL]." Wing's Tea 
House, 16 I&N Dec. at 159. In Wing's Tea House, although the Form 1-140 was filed on December II, 1975, the filing 
date of the petition pursuant to former C.F.R. § 204.l(c)(2) was August 12, 1974, the date the DOL accepted the 
underlying labor certification for processing. Under current regulations, the "priority date of any petition filed for 
classification under section 203(b) of the Act which is accompanied by an individual labor certification from the [DOL] 
shall be the date the request for certification was accepted for processing by any office within the employment 
service system of the [DOL]." 8 C.F.R. § 204.5(d). 
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Matter of K-F-C-
B. Ability to Pay and Status as an Exempt Organization 
Although not addressed by the Director, we find that the Petitioner has not established its ability to 
pay the proffered wage. In response to our NOID/RFE, the Petitioner notes that we addressed issues 
that were not grounds upon which the Director denied the petition. However, we may deny an 
application or petition that fails to comply with the technical requirements of the law even if the 
Service Center does not identify all of the grounds for denial in the initial decision. See Spencer 
Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that we conduct 
appellate review on a de novo basis). 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in 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. 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 the Service. 
The 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 a job offer is realistic, USCIS requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality 
of the circumstances affecting the petitioning business will be considered if the evidence warrants such 
consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS will 
first examine whether the petitioner employed and paid the beneficiary during that period. If the 
petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. If the petitioner does not establish that it employed 
and paid the beneficiary an amount at least equal to the proffered wage during that period, USCIS 
will next examine the net income figure reflected on the petitioner's federal income tax return, 
without consideration of depreciation or other expenses. If the net income the petitioner 
demonstrates it had available during that period, if any, added to the wages paid to the beneficiary 
during the period, if any, do not equal the amount of the proffered wage or more, USCIS will review 
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Matter of K-F-C-
the petitioner's net current assets. Net current assets are the difference between the petitioner's 
current assets and current liabilities.3 
On the ETA Form 9089, the Beneficiary does not claim to have worked for the Petitioner. The 
proffered wage as stated on the ETA Form 9089 is $15 per hour or $31 ,200 per year (based on a 40-
hour work week). 
In support ofits ability to pay the proffered wage, the Petitioner submitted unaudited 2013 and 2014 
profit and loss statements as well as bank statements from March 31, 2014, to July 31, 2014. In 
response to our NOID/RFE, the Petitioner submitted its 2012 to 2015 tax returns and 2013 to 2015 
unaudited balance sheets. The Petitioner's reliance on unaudited financial records such as the profit and 
loss statements and balance sheets is misplaced. The regulation at$ C.P.R. § 204.5(g)(2) makes clear 
that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered 
wage, those financial statements must be audited. Unaudited financial statements are the 
representations of management. The unsupported representations of management are not reliable 
evidence and are insufficient to demonstrate the ability to pay the proffered wage. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). As there is no 
accountant's report accompanying the profit and loss statements or the balance sheets, we cannot 
conclude that they are audited statements and we cannot, therefore, find them to be reliable evidence 
of the Petitioner's ability to pay. 
Likewise, reliance on the balances in the Petitioner's bank account is also misplaced. While the 
· regulation at 8 C.P.R. § 204.5(g)(2) allows additional material "in appropriate cases," the Petitioner 
has not demonstrated why the documentation specified at 8 C.P.R. § 204.5(g)(2) is inapplicable or 
otherwise paints an inaccurate financial picture. Bank statements show the amount in an account on 
a given date, and cannot show the sustainable ability to pay a proffered wage. Further, the Petitioner 
did not submit evidence to demonstrate that the funds reported on its bank statements reflect 
additional available funds that are not reflected on its tax returns. 
The Petitioner's tax returns reflect $22,551 and $74,773 in net income for 2014 and 2015, respectively. 
Accordingly, the Petitioner has established that it had the ability to pay the proffered wage through net 
income in 2015, but not in 2014. In any future filings, the petitioner should submit its audited 
statement of financial position (balance sheet) to establish its net current assets. 
USCIS may also consider the overall magnitude of the petitioner's business activities in its 
determination of the petitioner's ability to pay the proffered wage. See ]vfatter ofSonegawa, 12 I&N 
3 According to Barron's Dictionary of Accounting Terms 117 (3'd ed. 2000), "current assets'' consist of items having (in 
most cases) a life of one ·year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and 
accrued expenses (suchas taxes and salaries). /d. at 118. 
(b)(6)
Matter of K-F-C-
Dec. 612 (Reg'l Comm'r 1967). USCIS may consider such factors as the number of years the 
petitioner has been doing business, the established historical growth of the petitioner's business, the 
overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, 
the petitioner's reputation within its industry, whether the beneficiary is replacing a former employee 
or an outsourced service, or any other evidence that USC IS deems relevant to the petitioner's ability 
to pay the proffered wage. On the petition, the Petitioner asserts that it was formed in 2000 and 
employs 18 employees. On appeal, it states that it has sponsored multiple soccer tournaments since 
2012 and that it is an ongoing, viable business. While its revenues and salaries have steadily 
increased since 2012, the Petitioner did not submit any evidence of its activities prior to 2012 to 
establish its historical growth since 2000. 
According to a July 12, 2000, IRS letter submitted by the Petitioner, was 
granted a 501(c)(3) tax exemption with federal employment identification number (FEIN) 
In response to our NOID/RFE, the Petitioner asserts that it took the initial steps to create a 
corporation, but never finished the process and eventually filed articles of termination, but that it 
continued to exist and still exists as an unincorporated association. However, Tennessee Secretary 
of State records show that was incorporated on October 30, 2003, was 
subsequently administratively dissolved/revoked on August 19, 2005, and later filed articles of 
termination on September 17, 2008. An entity that incorporates and dissolves should be issued a 
new FEIN. See Do You Need a New EIN?, IRS, www.irs.gov/businesses/small-businesses-self­
employed/do-you-need-a-new-ein (accessed August 11, 2016). According to the Internal Revenue 
Service (IRS) letter granting exempt status, in order to maintain its status as an exempt organization, 
was required to inform the IRS of any change in method of operation, name 
or address, and each new FEIN. 
Furthermore, in our NOID/RFE, we informed the Petitioner that the IRS's exempt organizations select 
check indicates thatthe exempt status of has been revoked because it did not 
file IRS Form 990, Return of Organization Exempt From Income Tax, or IRS Form 990-N electronic 
notice 
(e-postcard) for three consecutive years. See EO Select Check, IRS, w\vw.irs.gov/charities-non­
profits/exempt-organizations-select-check (accessed August 11, 20 16). In response, the Petitioner 
asserts that it inadvertently overlooked the filing of the Forms 990, but that it has since rectified that 
omission. However, as of the date of this decision, the IRS' exempt organizations select check still 
indicates that the exempt status of is revoked and, despite our request to do so, 
the Petitioner did not submit the corresponding tax transcripts or certified copies of its Forms 990 to 
establish that the returns were actually received and processed by the IRS. These issues must be 
addressed in any future filings. 
Based on the totality of the circumstances in this case, the Petitioner has not established its 
continuing 
ability to pay the proffered wage from the priority date. 
II. CONCLUSION 
In summary, the Petitioner has not established that the Beneficiary meets the minimum requirements 
8 
Matter of K-F-C-
for the proffered position. The Director's decision denying the petition is affirmed. The record also 
does not establish the Petitioner's continued ability to pay the proffered wage from the priority date 
onwards. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; lvfatter of Brantigan, 11 I&N Dec. 493 
(BIA 1966); Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been 
met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofK-F-C-, ID# 16995 (AAO Aug. 23, 2016) 
9