dismissed EB-3 Case: Tailoring

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-&J-I-T-L-F-C-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : JAN. 31, 2020 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a cleaners and tailors business, seeks to employ the Beneficiary as a garment fitter 
(gowns). It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant category. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i) . This employment-based "EB-3" 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 least two years of training or experience. 
The Director of the Texas Service Center denied the petition on two grounds: (1) that the petition 
was not accompanied by an original labor certification properly certified by the Department of Labor 
(DOL) , and (2) that the evidence submitted by the Petitioner was insufficient to establish that the 
Beneficiary had the requisite experience to meet the terms of the labor certification application and 
to qualify for skilled worker classification. The Petitioner filed a motion to reopen , which the 
Director dismissed . 
On appeal the Petitioner asserts that its labor certification application was properly certified by the 
DOL and that the evidence of record includes an employment verification letter which assertedly 
establishes that the Beneficiary meets the experience requirement of the labor certification and 
qualifies for skilled worker classification. 
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. 
Upon de nova review , we will withdraw the Director's finding that the instant petition is not 
accompanied by a valid labor certification. We will affirm the Director's finding that the Petitioner 
has not established that the Beneficiary has the requisite experience to meet the terms of the labor 
certification and to qualify for classification as a skilled worker. We also find that the Petitioner has 
not established its continuing ability to pay the proffered wage from the priority date onward . 
Accordingly, we will dismiss the appeal. 
Matter of D-&J-I-T-L-F-C-
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ l 182(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 and that 
employing a foreign national in the position will not adversely affect the wages and working 
conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the 
petition, the foreign national 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. ANALYSIS 
A. Procedural History 
The current petition is the fourth Form 1-140, Immigrant Petition for Alien Worker 1-140 etition, 
filed by this Petitioner on behalf of the Beneficiary. The first (Receipt Number ~------~ was filed in April 2003, accompanied by correspondence from the Petitioner's counsel (with the 
DOL and USCIS) indicating that the original labor certification had been lost and that a duplicate 
copy had not been provided by the DOL. The petition was denied by the Vermont Service Center 
Director in August 2005 on the ground that the petition was not accompanied by an individual labor 
certification from the DOL as required by the regulation at 8 C.F.R. § 204.5(1)(3)(i). 
The Petitioner filed an appeal, and we issued a decision in July 2007 withdrawing the Director's 
decision. After reviewing the evidence of record - including written correspondence among the 
Petitioner, the DOL, and USCIS; a photocopy of the uncertified Form ETA 750, Application for 
Alien Employment Certification (ETA 750), bearing a DOL receipt date of November 17, 1997; 
handwritten notes of the DOL certifying officer stating that the application was certified on 
September 22, 2000; and documentation of the Petitioner's attempts to obtain a duplicate copy of the 
labor certification from the DOL - we found that the labor certification application was duly 
certified by the DOL, that the priority date of the petition was November 17, 1997, 1 and that the 
petition should be addressed on the merits. We proceeded to dismiss the appeal on the ground that 
the evidence of record did not establish the Petitioner's continuing ability to pay the proffered wage 
from the priority date onward. 
1 The priority date of a petition, as indicated, is the date the underlying labor certification application is filed with the 
DOL. See 8 C.F.R. § 204.S(d). The Petitioner must establish that all eligibility requirements for the petition have been 
satisfied from the priority date onward. 
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Matter of D-&J-I-T-L-F-C-
The Petitioner filed a second I-140 petition (Receipt Numberl I) in January 2007, 
prior to our decision on the appeal of the first I-140 petition. The petition was accompanied by a 
copy of the completed labor certification application before its filing with and certification by the 
DOL. Despite our decision in July 2007 in which we recounted the evidence showing that the labor 
certification application was filed with the DOL in November 1997 and certified by the DOL in 
September 2000, the Director of the Nebraska Service Center denied the second I-140 petition in 
August 2009 on the ground that it was not accompanied by a valid labor certification. 
The Petitioner filed a third I-140 petition (Receipt Numbd ~ in December 2014, 
accompanied by evidence that a labor certification application had been filed with the DOL in 
November 1997 and certified by the DOL in September 2000. In a request for evidence (RFE) the 
Nebraska Service Center recognized November 17, 1997, as the priority date of the petition, and 
requested additional evidence of the Petitioner's ability to pay the proffered wage from that date up 
to the present. The Petitioner did not respond to the RFE, however, and the petition was denied on 
the basis of abandonment in June 2015. 
The instant I-140 petition, the Petitioner's fourth, was filed in November 2017. It was accompanied 
(like the second I-140 petition) by a copy of the completed labor certification application prior to its 
filing with and certification by the DOL and evidence of the Petitioner's ongoing efforts to obtain a 
duplicate labor certification from the DOL. The Petitioner also submitted information obtained from 
the DOL through the Freedom of Information Act (FOIA) which includes a screenshot verifying 
pertinent data elements of the labor certification. The Director issued an RFE for additional 
documentation of the Petitioner's ability to pay the proffered wage. Following the Petitioner's 
response to the RFE, the Director issued a notice of intent to deny (NOID) advising that the petition 
could not be approved without an original labor certification from the DOL and additional evidence 
that the Beneficiary had two years of qualifying experience as required on the ETA 750. After 
receiving the Petitioner's response to the NOID the Director denied the petition on the grounds set 
forth in the NOID. 
Thus, the petition was denied on the grounds that it was not accompanied by an original labor 
certification and that the Beneficiary's qualifying work experience was not adequately documented. 
The Director made no finding with respect to the Petitioner's ability to pay the proffered wage. 
B. Labor Certification Issue 
In general, every petition for skilled worker classification "must be accompanied by an individual 
labor certification from the Department of Labor." 8 C.F.R. § 204.5(1)(3)(i). In this case, based on 
the evidence submitted, we find that the Petitioner filed an ETA 750 with the DOL on November 17, 
1997, and that this application was certified by the DOL on September 22, 2000. 2 
2 The record indicates that the Petitioner has made repeated attempts over the years to obtain a duplicate labor 
certification from the DOL. 
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Matter of D-&J-I-T-L-F-C-
Based on the circumstances in this case, we conclude that the petition is supported by a valid labor 
certification. Accordingly, we will withdraw the Director's finding to the contrary. 
C. Beneficiary's Experience 
To qualify for classification as a skilled worker a beneficiary must have at least two years of training 
or experience. See 8 C.F.R. § 204.5(1)(3)(ii)(B). A beneficiary must also meet the specific 
educational, training, experience, or other requirements of the labor certification. Id. All 
requirements must be met by the petition's priority date. See Matter of Wing's Tea House, 16 I&N 
Dec. 158, 159 (Acting Reg'l Comm'r 1977). With respect to the evidentiary requirements, the 
regulation at 8 C.F.R. § 204.5(g)(l) provides as follows: 
Evidence relating to qualifying experience or training shall be in the form of letter( s) 
from current or former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties performed by the alien 
or of the training received. 
In this case the labor certification requires two years of experience as a garment fitter (gowns). In 
the "Work Experience" section of the labor certification, two such jobs are listed for the Beneficiary. 
The first was with~----------------------~ in I I 
Colombia, from September 1982 to July 1985. The second was with the Petitioner, where the 
Beneficiary's employment began in June 1989 and was ongoing at the time the labor certification 
application was filed in 1997. The evidentiary package SUP, the Petitioner's initial 1-140 
petition in 2003 included a letter dated October 27, 1997, from General Manager, on 
the letterhead of I I in I .___ __ ____. stated that the 
Beneficiary was employed by the company as a full-time garment fitter from September 1982 to July 
1985 and described his job duties. This letter was not submitted in support of any of the Petitioner's 
subsequent 1-140 petitions. Instead, starting with its response to an RFE in the second 1-140 petition 
and continuing with the current petition, the Petitioner has submitted a different letter as evidence of 
the Beneficiar 's emplo ent experience. The letter is datedl I May 14, 2009, and signed 
b who identified herself as the manager of I I . I I stated that she employed the Beneficiary as a garment cutter from 
~M_a_r_c_h_1_9_8_3-to-J-un~e 1985. The job withl . I is not listed in the "Work Experience" 
section of the labor certification, even though the ETA 750 specifically instructed that any 'jobs 
related to the occupation for which the alien is seeking certification" should be listed. We also note 
that the Beneficiary's alleged dates of employment at~-----~ overlap with his dates of 
employment atl las asserted in the earlier submitted letter from that business. 
In the decision denying the current petition the Director focused exclusively on the 2009 letter from 
which was the only evidence of the Beneficiary's employment experience 
submitted in this proceeding. The Director noted that the Beneficiary's employer and dates of 
employment, as asserted in that letter, were inconsistent with the name of the employer and dates of 
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Matter of D-&J-I-T-L-F-C-
employment stated in the ETA 750. The Director also noted that the 2009 letter did not indicate the 
address of the business,.__ _____ __,, and whether the Beneficiary was a full-time employee. 
The Director concluded that the 2009 letter from'--------~ did not demonstrate that the 
Beneficiary met the experience requirement of the labor certification. 
The Petitioner has not submitted any further evidence of the Beneficiary's employment history on 
appeal. Therefore, the only document before us in the current proceeding is the letter from I I I I asserting that the Beneficiary was employed by I I as a garment cutter 
from March 1983 to June 1985. The Petitioner has not remedied the deficiencies in this letter -
specifically, the lack of a business address and no information about whether the Beneficiary worked 
full-time - that were mentioned in the Director's decision. In addition, the letter does not provide a 
specific description of the Beneficiary's job duties. Thus, the "employment verification" letter does 
not comply with the substantive requirements of 8 C.F.R. § 204.5(g)(l ), which include a specific list 
of the job duties Qerformed and the address of the employer. As previously discussed, the alleged 
employment with I I was not listed on the labor certification, as it should have been 
if the Beneficiary actually worked for that business, and the dates of employment overlap with those 
of the earlier alleged employment with.__ ______ ~from September 1982 to July 1985. The 
failure to list work experience on a labor certification lessens the credibility of the claimed 
experience and supporting evidence. See Matter of Leung, 16 I&N Dec. 2530 (BIA 1976). 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Attempts to explain or reconcile such inconsistencies will not suffice without 
competent evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of 
the petitioner's remaining evidence. See id. As discussed above, the Petitioner has not submitted 
independent objective evidence to resolve the inconsistencies in the record regarding the 
Beneficiary's employment history. In particular, the Petitioner has not established that the 
Beneficiary gained any qualifying experience with I ~ which is the only experience 
for which evidence has been submitted in this proceeding. 
Based on the foregoing analysis, we conclude that the Petitioner has not established that the 
Beneficiary had at least two years of qualifying experience as a garment fitter by the priority date of 
November 17, 1997. 
D. Petitioner's Ability to Pay the Proffered Wage 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it 
has the ability to pay the proffered wage stated on the labor certification. As provided in the 
regulation at 8 C.F.R. § 204.5(g)(2): 
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, 
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Matter of D-&J-I-T-L-F-C-
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 [USCIS]. 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date of the petition onward. In this case the proffered wage is 
$12.50 per hour ( or $25,750 per year based on a standard work year of 2,080 hours) and the priority 
date is November 17, 1997. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
The record in this proceeding indicates that the Beneficiary has been employed by the Petitioner 
continuously since the priority date year of 1997. The evidence includes copies of the Beneficiary's 
Forms W-2, Wage and Tax Statements, for every year from 1997 to 2017 (except 1998, for which a 
copy of the Beneficiary's federal income tax return, Form 1040EZ, has been submitted). These 
documents show that the Beneficiary's gross pay from the Petitioner was less than the proffered 
wage in the years 1997-1999, 2001, 2003, 2004, and 2006-2008. Therefore, the Petitioner has not 
established its continuing ability to pay the proffered wage from the priority date onward based on 
wages paid to the Beneficiary year by year. 
If a petitioner does not establish that it has paid the beneficiary an amount equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or audited 
financial statements(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, the petitioner would ordinarily be considered able to pay the proffered 
wage during that year. 
The record in this proceeding includes partial copies of the Petitioner's federal income tax returns 
for each of the years 1997-2017. The tax returns show that the Petitioner had net income 3 and/or net 
3 For the years 1997-2005 the Petitioner filed its federal income tax returns as a C corporation on Form 1120. For a C 
corporation net income (or loss) in those years was recorded on page 1, line 28, of the F01m 1120. For the years 2006-
2017 the Petitioner filed its federal income tax returns as an S corporation on F01m 1120S. If an S corporation has 
income exclusively from a trade or business, USCIS considers its net income (or loss) to be the figure for "Ordinary 
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Matter of D-&J-I-T-L-F-C-
current assets4 that were sufficient to cover the difference between the proffered wage and the wages 
paid to the Beneficiary in the years 1998, 1999, 2001, 2003, 2004, and 2006, but not in 1997, 2007, 
and 2008. For those latter three years, the Petitioner had no net income and no net current assets.5 
In fact, the tax returns recorded net losses of $32,833 in 1997, $63,835 in 2007, and $766 in 2008, 
and net current liabilities of $37,645 in 1997, $290 in 2007, and $22,127 in 2008. Thus, for the 
years 1997, 2007, and 2008 the Petitioner has not established it ability to pay the proffered wage 
based on a combination of wages paid plus net income or net current assets. 
users may also consider the totality of the Petitioner's circumstances, including the overall 
magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Sonegawa, 12 I&N Dec. 612. users may, at its discretion, consider evidence 
relevant to the petitioner's financial ability that falls outside of its net income and net current assets. 
We 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 petitioner's reputation within its 
industry, the overall number of employees, whether the beneficiary is replacing a former employee 
or an outsourced service, the amount of compensation paid to officers, the occurrence of any 
uncharacteristic business expenditures or losses, and any other evidence that users deems relevant 
to the petitioner's ability to pay the proffered wage. 
In this case, the Petitioner states that it began operations in 197 6 and had 10 employees at the time 
this petition was filed in 2017. Previous I-140 petitions in 2007 and 2014 also claimed 10 
employees, while the initial I-140 petition in 1997 did not provide an employee figure. The 
Petitioner's tax returns over the 12-year time period of 1997 through 2008 (encompassing the first 
and last years for which the Petitioner's ability to pay the proffered wage is still at issue) show that 
gross receipts were fairly static, rising gradually from $1,820,312 million in 1997 to $2,049,731 in 
2008. Thus, the Petitioner does not appear to have experienced significant growth during that time 
period, and has submitted no evidence regarding its reputation in the industry. There is no evidence 
in the record of any uncharacteristic expenditures by the Petitioner in the years 1997, 2007, or 2008. 
While the tax returns recorded substantial compensation of officers in each of those years, there is no 
evidence in the record that any officers were willing and able to commit any of their compensation 
to cover the balance between the proffered wage and the wages actually paid to the Beneficiary 
during those years. Based on the record before us we conclude that the totality of its circumstances 
does not demonstrate the Petitioner's continuing ability to pay the proffered wage from the priority 
date of November 17, 1997, up to the present. 
business income (loss)" on page 1, line 21, of the Form 1120S. However, if there are relevant entries for additional 
income, credits, deductions or other adjustments from sources other than a trade or business, they are reported on 
Schedule K of the Form 1120S, and the corporation's net income or loss will be found in line 18 of Schedule K 
("Income/loss reconciliation"). 
4 For a corporation net current assets (or liabilities) are the difference between its current assets, entered on lines 1-6 of 
Schedule L, and its current liabilities, entered on lines 16-18 of Schedule L. 
5 For the years 2007 and 2008, as an S corporation, the Petitioner's net income (or loss) was the figure in line 18 of 
Schedule K. 
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Matter of D-&J-I-T-L-F-C-
III. CONCLUSION 
The Petitioner has established that the instant petition is supported by a valid labor certification. 
However, the Petitioner has not established that the Beneficiary had the requisite two years of 
experience by the priority date to meet the terms of the labor certification and to qualify for the 
requested classification of skilled worker. Nor has the Petitioner established its continuing ability to 
pay the proffered wage from the priority date onward. The appeal will be dismissed for the above 
stated reasons, with each considered an independent and alternative basis for the decision. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-&J-I-T-L-F-C-, ID# 6249901 (AAO Jan. 31, 2020) 
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