remanded EB-3 Case: Automotive Services

MATTER OF B-P-A-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 5, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a service station and retail store, sought to employ the Beneficiary as an auto service 
station manager. It requested classification of the Beneficiary as a skilled worker or professional under 
section 203(b)(3)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A). The 
petition was approved in the professional category that allows a U.S. employer to sponsor a 
professional with a baccalaureate degree for lawful permanent resident status. See 
section 203(b)(3)(A)(ii) of the Act. 
The Director of the Vermont Service Center initially approved the petition, but the Director of the 
Texas Service Center subsequently revoked the petition's approval with a tinding of fraud. The 
Director cited numerous discrepancies regarding the Beneficiary's experience that were brought to 
light through an overseas investigation and concluded that the Beneficiary's experience letters are 
fraudulent. 
On appeal, the Petitioner states that the Director did not have "good and sufficient cause" to revoke 
the approval of the petition. 
Upon de novo review, we will remand the matter to the Director for further proceedings consistent 
with the following opinion. 
I. LAW 
A. The Employment-Based Immigrant Petition Process 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain an approved labor certification from the U.S. Department of Labor (DOL). 1 See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(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 domestic workers similarly employed. Section 212(a)(5)(A)(i)(I)-(II) of the 
1 The date the labor certification is filed, in cases such as this one, is called the "priority date." 
Matter()[ B-P-A-, Inc. 
Act. Second, the employer may file an immigrant visa petttwn 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. 
B. Revocation of Approval 
Section 205 of the Act, 8 U.S.C. § 1155, provides that "[t]he Attorney General [now Secretary, 
, Department of Homeland Security], may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition approved by him under section 204." A director's 
realization that the petition was approved in error may be good and sufficient cause for revoking the 
approval. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). 
II. ANALYSIS 
The Director revoked the petition's approval based on a finding that the evidence of the 
Beneficiary's experience was fraudulent. However, we need not reach the finding of fraud, as the 
record does not establish the Beneficiary's eligibility for the offered position in the first place. For 
example, it appears that the Beneficiary lacks the experience and education required by the terms of 
the labor certification. As such, we will remand the matter to the Director to consider the issues of 
eligibility that we discuss below. 
A. Education and Experience Requirements of the Labor Certification 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. See Matter of Wing's Tea House, 16 I&N Dec. 158, 
159 (Act. Reg. Comm. 1977). In this case, the Form ETA 750, Application for Alien Employment 
Certification (labor certification) states the following requirements: 
EDUCATION 
College: 4 years. 
College Degree Required: BA or BS. 
Major Field of Study: Business Administration or related field. 
TRAINING: None Required. 
EXPERIENCE: Two (2) years in the job offered. 
OTHER SPECIAL REQUIREMENTS: 2 years minimum retail management 
experience preferred. 
Thus, the job offers requires four years of college and a bachelor's degree in business administration 
or a related field. But the labor certification states that the Beneficiary only completed government 
high school and secondary school, and does not reflect that the Beneficiary attended college or a 
university and completed a bachelor's degree. 
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Matter of B-P-A-, Inc. 
In addition, we note that the labor certification requires two years of experience in tlw job offered, 
i.e., as an auto service station manager. Yet no evidence exists that the Beneficiary has two years of 
experience as an auto station manager. Even assuming that the Beneficiary's claimed experience 
was not fraudulent, an issue that we do not address here, none of the claimed experience was as an 
auto service station manager, and therefore does not qualify the Beneficiary, for the proffered 
position. 
B. Ability to Pay the Proffered Wage 
The Petitioner must demonstrate its ability to pay the proffered wage as of the priority date and 
continuing until the Beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). 
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, 144 (Acting Reg'l Comm'r 1977). 
Because of the length of time from the initial approval of the Form l-140 petition until the present, 
we will remand the matter to the Director to determine whether the Petitioner has the continuing 
ability to pay the Beneficiary's proffered wage. The Director may request any additional evidence 
considered pertinent, and the Petitioner may provide whatever additional evidence it wishes within a 
reasonable period of time that the Director specifies, regarding both its ability to pay and the nature 
of the Beneficiary's qualifications. Upon receipt of all the evidence, the Director will review the 
entire record and enter a new decision. 
III. CONCLUSION 
For the foregoing reasons, the matter will be remanded to the Director for consideration of whether the 
Beneficiary has the required two years of experience in the job offered and a four-year bachelor's 
degree. The Director may also address whether the Petitioner has the ongoing ability to pay the 
proffered wage. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofB-P-A-, Inc., ID# 163581 (AAO Apr. 5, 2017) 
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