remanded EB-3 Case: Construction

U.S .. CitiZenship 
and Immigration 
Services 
MATTER OF E-C-TSG LLC 
Non-Precedent Decision of the 
Administrativ~ Appeals Office 
.DATE: FEB.13,2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a construction company, seeks to employ the Beneficiary as an. electrician. It 
requests classification of the Beneficiary as a skilled worker ·under the third preference immigrant 
.classificatjon. Immigration and· Nationality Act (the Act) section 203(b)(3)(A)(i), . 8 U.S.C. 
§ 1 l 53(b)(3)(A)(i). This employment-based i~migrant classification allo~s a U.S. employer to 
sponsor a foreign national for lawful perma~ent resident st~tus t? work in a position that requires at 
least two years of training or experience. · ' 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner. has 
not established thatthe Beneficiary is qualified for the offered job. On appeal, the Petitioner asserts 
that the Director ignored evidence submitted to the record regarding the Beneficiary's prior work 
experience, and that the Beneficiary is qualified for the offered job. 
Upon de novo review, we will withdraw the Director's decision and reman~ the matter for entry of a 
new decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
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. See section 212(a)(5)(A)(i)(I)-(II) of 
the Act. Second, the employer files an immigrant visa ·petition with U.S. Citizenship 3:11d 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
· approves the petition, the foreign national applies 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. 
1 The priority date of a petition is the date the DOL acc~pted the labor certification for .processing, which in this case is 
June 18, 2014. See 8 C.F.R. § 204.5(d). · 
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Matier of E-C-TSG LLC 
II. BENEFICIARY'S QUALIFICATIONS 
A beneficiary must meet all of the requirements of the offered pos1t1on set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § l03.2(b)(l), (12); Matter of Wing·s Tea 
House, 16 l&N Dec. 158, 159 (Acting Reg'! Comm'r 1977). · In this case, the labor certification 
requires two years of experience in the job offered of electrician ; Experience in an alternate 
occupation is not acceptable. 
The labor certification states that the Beneficiary has the following experience: 
• As an electrician with the Petitioner from June 1, 2012, to June 17, 2014; and 
• As an electrician with ___________ , Georgia, from February 3, 2010, to 
May 31, 2012. 
Evi~ence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer, and a specific description of the 
duties performed by the beneficiary. See 8 C.F.R. §1204.5(1)(3). With the petition, the Petitioner 
submitted a letter dated October 15, 2013, from manag~r of 
stating that the Beneficiary was employed as an electrician from February 3, 2010, to May 31, 2012. 
In a notice of intent to deny (NOID), the Acting Director of the Nebraska Service Center informed 
the Petitioner that the owners of were contacted to verify the Beneficiary's 
employment. The owners stated that the Beneficiary assisted his father, who was an electrician for 
but that the Beneficiary was not an employee of l and that he 
did not carry an electrician's license. Based on this information ; the Acting Director informed the 
Petitioner that the information on the labor certification regarding the Beneficiary's prior experience 
appears to have been misrepresented. She also noted that electricians in Georgia must have a 
license, and that a search of the State of Georgia licensing board's website does not indicate that the 
Beneficiary ever held an .el1ectriciari.' s license in ,Georgia. Thus, the Acting Director stated that the 
Beneficiary is not qualified for the position because he does have two years of experience in the 
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offered job. The Acting Director stated that she planned to deny the petition, arid gave the Petitioner 
thirty days to submit evidence in support of the petition. 
In response to the NOID, the Petitioner submitted a new letter dat~d May 23, 2018, from 
manager of which states that the Beneficiary was employed full-time 
from February 3, 2010, to May 31 , 2012, "to assist in the electrician components of our installation 
projects as needed." states that the Beneficiary was paid in cash and that because he 
was under the supervision of a licensed electrician, he was not required to have an electrician's 
license. The Petitioner also provided a letter from . which states that the author is a 
licensed electrician in the Georgia and that the author supervised the electrical work of the 
Beneficiary from February 2010 to May 2012.2 __ states that under Georgia law; the 
2 The Petitioner also submitted confirmation of electrical contractor's license in Georgia. 
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Matter of E-C-TSG LLC 
Beneficiary was not required to have an electrician's license, and that the Beneficiary was working 
to obtain the four years of experience performing electrical work that is required to obtain an 
electrician's license in Georgia. Finally, the Petitioner provided a copy of Ga. Comp. R. & Regs. R. 
121-2-.0 l, which states that applicants 'for a Georgia electrical contractor license "must document a 
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minimum of 4 years experience in the electrical field ... [s]uch experience must be Primary 
Experience." "Primary Experience" involves "installation of electrical systems." Id. 
In his decision denying the petition, the Director described the new letter from but he 
did not detail why the letter and other evidence submitted by the Petitioner in response to the NOID 
failed to overcome the issues presented in the NOID. Instead, he simply stated "[i]t appears that 
there has been an attempt to hide and misrepresent the beneficiary [sic] qualifying experience." It is 
not clear from the decision that the Director properly considered the evidence submitted by the 
Petitioner in response to the NOID. Therefore, we will withdraw the Director's decision, and we 
will remand this matterfor further proceedings. 
III. ABILITY TO PAY THE PROFFERED WAGE 
The Director should determine on remand whether the Petitioner has the continuing ability to pay the 
proffered wage. The proffered wage is $79,435 per year. The petitioner must demonstrate its 
continuing ability to pay the proffered wage from the priority date until the Beneficiary obtains 
lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
In determining a petitioner's ability to pay, we examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. We also examine whether it had sufficient 
annual amounts of net income or net current assets to pay the proffered wage. If a petitioner's net 
income or net current assets are insufficient, we may also consider other evidence of its ability to pay 
the proffered wage. 3 
Although the labor certification states that the Petitioner employed the Beneficiary from 2012 
onward, the record does not contain the Beneficiary's IRS Forms W-2, Wage and Tax Statements, or 
Forms 1099-MISC, Miscellaneous Income, showing that the Petitioner paid the Beneficiary in any 
relevant year. 4 
The record does not contain regulatory-prescribed evidence of the Petitioner's ability to pay the' 
proffered wage in 2014. See 8 C.F.R. § 204.5(g)(2) (requiring submission of a petitioner's annual 
reports, federal tax returns, or audited financial statements from the priority date onward). Further, 
3 Federal courts have upheld our method of determining a petitioner's ability to,pay a proffered wage. See, e.g., Rive,: St. 
Donuts, llC v. Napolitano, 558 F.3d 111 , 118 ( I st Cir. 2009); Tongatapu Woodcrqft Ha,v .. ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rizvi 
v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), q[('d, 627 F. App'x 292, 294-295 (5th Cir. 
2015). . . . . 
4 The Petitioner's 2015 federal tax return shows that it paid a total of $8,000 in salaries and wages that year. While it 
also lists $466,150 for "contracted service" that year, it is not clear if that entry incudes payments to the Beneficiary. 
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Matter of E-C-TSG LLC ___, 
the record 1s m1ssmg information regarding another beneficiary of a Form 1-140 filed by the 
Petitioner. 
Where a petitioner has filed Form 1-140 petitions for multiple beneficiaries; it must demonstrate that its 
job offer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to each 
beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D.1fass. 
2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to pay 
multiple beneficiaries). USCIS records show that the Petitioner filed another Form 1-140 petition for 
the father of the current Beneficiary. Thus, the Petitioner must establish its ability to pay this 
Beneficiary as well as the beneficiary of its other Form 1-140 petition that was pending or filed after the 
priority date of the current petition.5 
The Petitioner must document the receipt number, name of the beneficiary, priority date, and 
proffered ,wage of the other petition, and indicate the status of the petition and the date of any status 
change {i.e., pending, approved, withdrawn, revoked, denied, · on appeal . or motion, beneficiary 
obtained lawful permanent resid~nce). To offset the total wage burden, the Petitioner may submit 
documentation showing that it paid wages to other beneficiary. To demonstrate that it has the ability 
to pay the Beneficiary and the other beneficiary, the Petitioner must, for each year at issue (a) 
calculate any shortfall between the proffered wages and any actual wages paid to the primary 
Beneficiary and its other beneficiary, (b) add· these amounts together to calculate the total wage 
deficiency, and (c) demonstrate that its net income or net current assets exceed the .total wage 
deficiency. 6 Without this information~ we cannot determine the Petitioner's ability to pay the combined 
proffered ~ages of all of its applicable beneficiaries."' 
IV. CONCLUSION 
The decision of the Director will be withdrawn. The matter is remanded to the Director for 
consideration of whether the Beneficiary has the required experience for the offered position, and 
whether the Petitioner has the continuing ability to pay the proffered wage. The Director may 
request any additional evidence considered pertinent. · Similarly, the Petitioner may provide 
additional evidence within a reasonable period of time to be determined by the Director. Upon 
receipt of all the evidence, the Director will review the entire record and enter a new decision. 
5 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not consid,ered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
6 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter ofSkirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
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Matter of E-C-TSG LLC 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter of E-C-TSG LLC, ID# 2607483 (AAO Feb. 13, 2019) 
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