dismissed EB-3 Case: Stonemasonry

U.S. Citizenship 
and Immigration 
Services 
In Re : 17165355 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 22, 2021 
The Petitioner, a manufacturer and installer of stone products, seeks to employ the Beneficiary as a 
stonemason . The company requests his classification underthethird-preference ,immigrantvisacategory 
for skilled workers . See Immigration and Nationality Act (the Act) section 203(b X3XA)(i), 8 U.S.C. 
§ 1153(bX3XA)(i). 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner didn't establish the Beneficiary's possession of the minimum employment experience 
required for the offered position . 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 ( discussing the burden of proof); see also 
Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard of proof) . Upon de 
nova review, we find that the record doesn't demonstrate the Beneficiary's qualifying experience "in 
the job offered." We will therefore dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First , a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: ( 1) there are insufficient U.S. 
workers able , willing , qualified, and available for an offered position; and (2) the employment of a 
non citizen in the position will not harm wages and working conditions of U.S. workers with similar jobs. 
See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second , an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. 
Among other things, USCIS determines whether a noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally , if USCIS approves a petition, a designated noncitizen may 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. 
II. THE REQUIRED EXPERIENCE 
A petitioner must demonstrate a beneficiary's possession of all DOL-certified job requirements of an 
offered position by a petition's priority date. Matter a/Wing's Tea House, 16 I&N Dec. 158, 160 
(ActingReg'l Comm'r 1977). This petition's priority date is March 28, 2019, the date DOL accepted 
the accompanying labor certification application for processing. See 8 C.F.R. § 204 .5( d) ( explaining 
how to determine a petition's priority date). 
In assessing a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification to determine a position's minimum requirements. The Agency may 
neither ignore a certification term nor impose unstated requirements. See, e.g., Madany v. Smith, 696 
F.2d 1008, 1015 (D.C. Cir. l 983)(holdingthat "DOL bears the authority for setting the content of the 
labor ce1iification ") ( emphasis in original). 
The accompanying labor certification states that the offered position of stonemason requires neither 
education nor training. Rather, the position's only minimum requirement is two years of experience 
"in the job offered." The labor certification states that the Petitioner won't accept experience in an 
alternate occupation. On a labor ce1iification, experience "in the job offered" means experience 
performing the job duties of the offered position listed on the ce1iification. Matter ofSymbioun Techs, 
Inc., 2010-PER-O 1422, slip op. at *4 (BALCA Oct. 24, 2011) (citations omitted). 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained about 
10 years of full-time, qualifying experience. He stated that a masonry firm has employed him in the 
United States as a stonemason since March 2009. 
To support claimed qualifying experience, a petitioner must submit a letter from a beneficiary's 
employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must include the name, address, and title of the 
employer, and describe the beneficiary's experience. Id. 
The Petitioner didn't submit a letter from the Beneficiary's employer listed on the labor certification. 
Rather, the Petitioner submitted letters from a vice president of two U.S. general contractors. 1 The 
letters state the Beneficiary's full-time work for the companies as a stonemason since March 2009 and 
describe his duties. The letters also state that the contractors paid the Beneficiary's salary "through 
his own company," the masonry firm listed as his employer on the labor certification. 
Online, state records identify the Beneficiary as the sole, corporate officer of the masonry firm. See 
Office of the Ill. Sec'y of State, "Corporation/LLC Search/Certificate of Good Standing," 
https://apps.ilsos.gov/corporatellc/CorporateLlcController (last visited Sep. 13, 2021 ). The Petitioner 
also submitted copies of federal income tax returns of the firm, identifying the Beneficiary as its sole 
shareholder. 
1 The sta tioneiy of the first letter lists the name of only one general contractor. In response to the Director's notice of 
intent to deny the petition, however, the Petitioner submitted a second letter from the same sign a toiy on stationeiy listing 
the name ofanadditionalgeneral contractor at the same address. 
2 
Beneficiaries may gain qualifying experience through self-employment or employment by companies 
that they own. But proof of such experience must include more than the beneficiaries' own 
representations. For ex amp le, to demonstrate a noncitizen 's claimed experience as a self-employed 
roofing supervisor in labor certification proceedings, DOL required letters from his customers, 
invoices, and tax returns. Matter a/Whitfield Roofers, 2004-INA-00013, slip op. at **2-3 (BALCA 
Mar. 3, 2005). 2 
The letters from the general contractors appear to constitute independent corroboration of the 
Beneficiary's claimed experience with his firm. As the Director noted, however, USCIS records 
identify the letters' signatory as the Beneficiary's brother, who is also the spouse of the Petitioner's 
sole shareholder. 3 Because the signatory appears to have an interest in the petition's approval based 
on his family ties to the Beneficiary and the Petitioner's sole shareholder, the letters alone constitute 
unreliable evidence of the Beneficiary's qualifying experience. 
While a petitioner may submit a letter or affidavit that contains hearsay or biased information, such 
factors will affect the weight to be accorded the evidence in an administrative proceeding. Matter of 
D-R-, 25 I&N Dec. 445,461 (BIA 2011) (citations omitted). Probative evidence beyond a letter or 
affidavit may be required to resolve inconsistencies or discrepancies in the record. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). Ultimately, to determine whether a petitioner has established 
eligibility for a requested benefit by a preponderance of the evidence, USC IS must examine each piece 
of evidence - both individually and within the context of the entire record - for relevance, probative 
value, and credibility. Matter of Chawathe, 25 I&N Dec. at 3 7 6. 
The Director also found that documentation supporting the Beneficiary's application for adjustment 
of status undermines his firm's purported employment of him as a stonemason since March 2009. The 
Beneficiary's brother signed a July 2009 letter on the Petitioner's stationery stating that, at that time, 
he supervised the Beneficiary, a stone cutter employed foll-time by the Petitioner. 4 Also, in September 
2010, the Beneficiary's brother faxed a signed response to USCIS questions, indicatingthe Petitioner's 
full-time employment of the Beneficiary since December 2007. The documents' descriptions of 1he 
Beneficiary's employer and position in 2009and2010 differ from those listed on the labor certification 
and in the contractors' letters. The discrepancies cast doubt on the Beneficiary's claimed qualifying 
experience from 2009 to 2019. See Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988) (requiring a 
petitioner to resolve inconsistencies ofrecord with independent, objective evidence pointing to where 
the truth lies). 
On appeal, the Petitioner and Beneficiarydenythat evidence of his claimed experience conflicts. They 
state that, after March 2009 - when the Beneficiary's fom formed and began employing him as a 
stonemason - he simultaneously continued employment with the Petitioner for another two years as a 
2 DecisionsofDOL's Board of Alien Labor Certification Appeals (BALCA)don'tbindUSCTS. See8 C.F.R. § 103. lO(b) 
(requiring USCIS employees to follow precedent decisions ofonlytheBoard oflmmigration Appeals (BIA) and Attorney 
General in proceedings involving the same issues). But USCIS may find BALCAdecisions persuasive or defer to them. 
See Martin v. Occupational Safety & Health Review Comm 'n, 499 U.S. 144, 152 (1991) (requiting an administrative 
agency to defer to the reasonable, regulatory interpretationofa sister agency charged with issuing and enforcing the rule). 
3 Copies of the Petitioner's federal income tax retums for 2018 and 2019 identify the Beneficiary's sister-in-law as the 
company's sole shareholder. On the labor certification application, the Petitioner disclosed the family relationship. 
4 Although uncited by the DiI·ector, the Beneficiary's adjustment application also included paystubs indicating the 
Petitioner's full-time employmentofhirnfromApril2009to July 2009. 
3 
stone cutter "on an interim basis," including completing projects that he had previously started. But 
the Petitioner and Beneficiary state that, since 2011, his firm has exclusively employed him full-time 
as a stonemason. The Beneficiary and his brother state that the Beneficiary has sole responsibility for 
executing masonry projects, including reviewing designs, acquiring materials, installing stones, and 
making any necessary corrections. As proof, the Petitioner submits computer printouts of the general 
contractors' payments to the Beneficiary's fom from April 2009 to September 2020, and copies of tax 
and payroll records indicating his employment of him from 2011 through 2019. 
The Petitioner's evidence largely supports the Beneficiary's claimed employment by his firm, at least 
from 2011 through 2019. The printouts, described by the contractors' accountant as accurate, indicate 
that, during that period, the contractors paid the Beneficiary's firm a total of$783,978. Over the same 
period, the federal income tax returns of the Beneficiary's fom reflect total revenues of$ 840,050. The 
$56,072 difference between the contractors' payments and the revenue of the Beneficiary's firm 
indicates the contractors' generation of nearly all the firm's work during that period. Additionally, 
copies of individual federal income tax returns and IRS Forms W-2, Wage and Tax Statements, of the 
Beneficiary over the same period indicate his receipt of his firm's profits and an annual salary. A 
preponderance of evidence therefore demonstrates that the Beneficiary's firm employed him full-time 
from 2011 through 2019. 
The record, however, lacks sufficient, reliable evidence of the Beneficiary's required employment "in 
the job offered." Evidence of the Beneficiary's employment from2011 to 2019 as a stonemason- as 
opposed to as a stone cutter, for example - consists of only statements from himself, the Petitioner, 
and his brother. The Petitioner's president and the Beneficiary's brother have family ties to the 
Beneficiary. Their statements therefore do not reliably demonstrate his perf01mance of the job duties 
of the offered position of stonemason from 2001 through 2019. Also, the Beneficiary's statement is 
self-serving, requiring corroboration by independent, objective evidence, such as invoices and letters 
from customers, contractors, and coworkers other than his brother and the Petitioner. 
Therecorddoesn'testablish the Beneficiary's possession of the required experience in the job offered. 
We will therefore affirm the petition's denial. 
III. THE VALIDITY OF THE LABOR CERTIFICATION 
Although unaddressed by the Director, the record also doesn't establish the validity of the 
accompanying labor certification. 
Unless accompanied by an application for Schedule A designation or documentation ofa beneficiary's 
qualifications for a shortage occupation, a petition for a skilled worker must include a valid, individual 
labor certification from DOL. 8 C.F.R. § 204.5 (1)(3 )(i). A labor certification employer must have a 
valid federal employer identification number (FEIN). 20 C.F.R. § 656.3(1) (defining the term 
"employer"). This requirement combats fraud, as DOL verifies a FEIN to ensure that a labor 
certification employer is a "bona fide business entity." Final Rule for Permanent Labor Certification, 
69 Fed. Reg. 77326, 77329 (Dec. 27, 2004). 
The accompanying labor certification identifies the Petitioner as the Beneficiary's prospective employer 
not only by name and address, but also by FEIN. On appeal, the Petitioner states that it previously filed 
4 
a Form I-140 petition for the Beneficiary in 2006, offering him the position of stone cutter. Seel I I I The prior petition identifies the Petitioner hit the same name and Illinois address as this one. 
But the 2006 petition lists a different FEIN I than stated on this petition and its accompanying 
labor certificatio~ 1-
Online, state records indicate the registration of two corporations in Illinois under the Petitioner's name 
and address. See Office of the Ill. Sec'y of State, supra (last visited Sep. 13, 2021 ). One company 
formed in January 2004 and dissolved in May 2008. Id. The other formed in November 2008 and 
remains an active corporation. Id. The Form I-140, accompanying labor certification, and copies of 
the Petitioner's federal income tax returns for 2018 and 2019 indicate the company's formation in 
January 2004. We note that a corporation that receives a new state charter requires a new FEIN. IRS, 
"Do You Need a New EIN?" https://www.irs.gov/businesses/small-businesses-self-employed/do-you­
need-a-new-ein (last visited Sep. 9, 2021 ). Here, the Petitioner filed the 2006 petition for the 
Beneficiary using FEIN! L and filed this petition using a new FEIN, I I However, 
the Beneficiary's prior petition contains copies of federal income tax returns from 2004 through 2006 
in the Petitioner's name and address and listing FEINI I The tax returns therefore indicate 
that the U.S. Internal Revenue Service (IRS) issued FEINI !before the Petitioner's apparent 
incorporation in November 2008. The Petitioner must resolve inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591. 
Also, the Beneficiary'spriorpetition contains a copy ofa2003 federalincometaxreturn of a company 
with a slightly diff erentnamethan the Petitioner's and a different Illinois address. Online state records 
identify the Beneficiary's brother as this corporation's registered agent and sole corporate officer and 
indicate its formation in January 2001 and its dissolution in June 2005. See Office of the Ill. Sec'y of 
State, supra (last visited Sep. 13, 2021 ). The 2003 tax return lists the company's FEIN a~ I 
the same one used on the prior petition for the Beneficiary. Thus, the record also doesn't establish the 
FEIN of his first petitioner. 
In addition, USC IS records show other Forms I-140 filed by petitioners using the same name and address 
of the Petitioner on this petition but with different FEIN s. Like the prior filing for the Beneficiaty, one 
of the other petitions lists FEIN I. 5 The remaining three petitions reflect a third FEIN, □ 
I 1
6 
Because USCIS records link the Petitioner's name and address to multiple FEIN s, the record doesn't 
establish the validity of the FEIN listed on the labor certification accompanying this petition. Thus, 
contrary to 8 C.F.R. § 204.5(1)(3 )(i), the Petitioner has not demonstrated the petition's inclusion of a 
valid, individual labor ce1iification. To approve a petition, USCIS must determine that "the facts stated 
in the petition are true." Section 204(b) of the Act. A petition includes all its supporting evidence -
including a labor certification. 8 C.F.R. § 103.2(b )(1). Thus, USCIS can't approve this petition if the 
accompanying labor certification misrepresents the Petitioner's FEIN. 
5 USC IS records identify this petition by receipt numbd I 
6 USC IS records identify the remaining three petitions by the following receipt numbers:! l;,._I ___ _. 
~-~land I '--------' 
5 
The Director didn't notify the Petitioner of this additional, potential ground of denial. Thus, in any 
future filings in this matter, the company must explain the multiple FEINs linked to its name and 
address and submit independent, objective evidence that its valid FEIN matches the one on the labor 
certification, such as a copy of the IRS letter the company received assigning its FEIN. 
In the alternative, the Petitioner may demonstrate itself as a "successor-in-interest" of the employer 
listed on the labor certification. Under certain conditions, a successor of a labor ce1iification employer 
may use the employer's certification for immigration purposes. See Matter of Dial Auto Repair Shop, 
Inc., 19 I&N Dec. 481 (eomm'r 1986). A successor must acquire the rights and obligations needed 
to operate the labor certification employer's business or a discrete part of it. A successor must also: 
1) fully describe and document the transaction( s) by which it acquired all or a relevant part of the 
predecessor; 2) demonstrate that,exceptforthe change in employer, the job oppmiunityremains the same 
as stated on the labor certification; and 3) prove eligibility for the benefit request in all respects, including 
the abilities of it and the predecessor to continuously pay the proffered wage of the offered position from 
the petition's priority date onward. Id. at 482-83. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The Petitioner also hasn't demonstrated its ability to pay the proffered wage of the offered position. 
A petitioner must demonstrate its continuing ability to pay a position's proffered wage, from a 
petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.F.R. § 204.5(g)(2). 
Evidence of ability to pay must generally include copies of annual reports, federal tax returns, or 
audited financial statements. Id. 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date onward. If a petitioner did not annually pay the full 
proffered wage or did not pay a beneficiary at all, users examines whether the business generated 
annual amounts of net income or net current assets sufficient to pay any differences between the 
proffered wage and wages paid. If net income and net current assets are insufficient, users may 
consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter ofSonegawa, 
12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967).7 
The labor certification states the proffered wage of the offered position of stonemason as$ 75,005 a 
year. As previously indicated, the petition's priority date is March 28, 2019. At the time of the 
appeal's filing in November 2020, regulatory required evidence of the Petitioner's ability to pay in 
2020 was not yet available. Thus, for purposes of this decision, we will consider the company's ability 
to pay only in 2019, the year of the petition's priority date. 
The Petitioner doesn't claim to have employed the Beneficiary in 2019 and didn't submit any evidence 
of payments to him that year. Thus, based solely on wages paid, the Petitioner hasn't demonstrated 
its ability to pay the proffered wage. 
7 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts. LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Quality Truck & Trailer Repair, Inc. v. Johnson, No. 
l 3-cv-05527, 2014 WL 3906511, *3 (N.D. Ill. Aug. 11, 2014). 
6 
The Petitioner's federal income tax return for 2019 reflects net income of $422,242 and net current 
assets of $1,441,697. Both amounts exceed the annual proffered wage of $75,005. The record 
therefore appears to establish the Petitioner's ability to pay the proffered wage. 
The Petitioner's tax return for 2019, however, bears FEINI I the same FEIN listed on the 
Form 1-140 and accompanying labor certification. As previously discussed, the record doesn't 
establish FEINI I as the valid FEIN of the petitioning corporation. The Beneficiary's prior 
petition contains copies of tax returns indicating the FEIN's issuance before the Petitioner's apparent 
incorporation in November 2008. A petition must include evidence of the ability to pay of "the 
prospective United States employer." 8 C.F.R. § 204.5(g)(2). Because the 2019 tax return with FEIN 
I I may not apply to the Petitioner, the return doesn't demonstrate the company's ability to 
pay the proffered wage. The record also doesn't demonstrate the Petitioner's submissionofregulatmy 
required evidence of its ability to pay in 2019 in the form of copies of an annual report, federal tax 
return, or audited financial statements. Id. 
In addition, USCIS records indicate the Petitioner's filing of a Form 1-140 petition for another 
beneficiary. A petitioner must demonstrate its ability to pay the proffered wage of each petition it files 
until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). This Petitioner must 
therefore demonstrate its ability to pay the combined proffered wages of this petition and any others 
that were pending or approved as of its priority date or filed thereafter. See Patel v. Johnson, 
2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's approval where, as of 
the filing's grant, the petitioner didn't demonstrate its ability to pay the combined proffered wages of 
multiple petitions). 8 
USCIS records show that the Petitioner's other Fonn 1-140 petition was filed and approved after this 
petition's priority date of March 28, 2019, and that the other beneficiary hasn't obtained lawful 
permanent residence. 9 The Petitioner must therefore demonstrate its ability to pay the combined 
proffered wages of this and its other petition. The record lacks the proffered wage and priority date 
of the other petition. USCIS therefore can't calculate the total proffered wages the Petitioner must 
demonstrate its ability to pay. For this additional reason, the Petitioner has not demonstrated its ability 
to pay the proffered wage. 
In any future filings in this matter, the Petitioner must explain and document the applicability of the 
FEIN on the 2019 tax return to the petitioning corporation or submit otherregulatoryrequired evidence 
of the company's ability to pay the proffered wage that year. The Petitioner must also submit copies 
of an annual repmi, federal tax return, or audited financial statements for 2020. See 8 C.F.R. 
§ 204.5(g)(2) (requiring a petitioner to demonstrate its ability to pay from a petition's priority date 
"and continuing until the beneficiary obtains lawful permanent residence"). Additionally, the 
Petitioner must provide the proffered wage and priority date of its other petition. The company may 
submit additional evidence of its ability to pay, including proof of any wages paid to beneficiaries in 
8 The Petitionerneedn't demonstrate its ability to paytheproffered wages ofpetitions that it withdrew or, unless pending 
on appealormotion, that USCISrejected, denied, orrevoked. The Petitioner also needn't demonstrate its ability to pay 
proffered wages before the corresponding petitions' priority dates or after the dates their corresponding beneficiaries 
obtained lawful permanentresidence. 
9 USC IS records identify the other petition by receipt numberl I. 
7 
relevant years and materials supporting the factors stated in Sonegawa. See Matter ofSonegawa, 12 
I&NDec. at614-15. 
V. CONCLUSION 
The record on appeal doesn't establish the Beneficiary's qualifying experience in the job offered. We 
will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
8