remanded EB-3 Case: Data Analysis

U.S. Citizenship 
and Immigration 
Services 
In Re : 2 3 4 7 5199 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 1, 2022 
The Petitioner , a wholesale trade company , seeks to employ the Beneficiary as a product data analyst 
It requests classification of the Beneficiary as a professional under the third preference immigrant 
classification. Immigration and Nationality Act (the Act) , section 203(b)(3)(A)(ii) , 8 U.S.C. 
§ 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition concluding that the Beneficiary 's 
experience with the petitioning employer cannot meet the experience requirement for the job offered. 
More specifically, the Director determined that the Petitioner had provided incorrect information on 
the labor certification relating to the Beneficiary's experience in the position offered. 
In these proceedings , it is the Petitioner ' s burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review , we will withdraw the Director 's 
decision and remand the matter for entry of a new decision consistent with the following analysis. 
I. LAW 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL) . Section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able , willing, qualified, and available for a 
position. Id. Labor certification also indicates that the employment of a noncitizen will not harm 
wages and working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position , an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). Section 204 of the 
Act, 8 U.S.C . § 1154. Among other things , USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a foreign national may finally apply for an immigrant visa abroad or, if eligible, 
adjustment of status in the United States. Section 245 of the Act, 8 U.S.C. § 1255 . 
II. ANALYSIS 
On Part Hof ETA Form 9089, the Petitioner indicated thattheposition of product data analyst requires 
a bachelor's degree in "operations research or [a] related field" and 12 months of experience in the 
position offered. Experience in an alternate occupation is not acceptable. 
Question J .21 on ETA Form 90 8 9 asked: "Did the [Beneficiary] gain any of the qualifying experience 
with the [petitioning] employer in a position substantially comparable to the job opportunity 
requested?" The Beneficiary answered "NA" (not applicable), rather than "Yes" or "No." 
On section K of ETA Form 9089, the Beneficiary indicated that he had worked in the proffered 
position, product data analyst, with the Petitioner from April 2018 onward. The Beneficiary did not 
list any other job experience. 
The Director asked the Petitioner to submit evidence to show that the Beneficiary met the minimum 
experience requirement for the position at the time the Petitioner filed ETA Form 9089 in December 
2019. In response, the Petitioner submitted tax and payroll documentation to establish the 
Beneficiary's past employment with the company. The Petitioner stated: 
[O]ur company .... allowed [the Beneficiary] to use his experience ... [at] our 
company from April 3, 2018 to Dec. 26, 2019. The reason is that it was infeasible for 
our company to train an [sic] US worker to qualify for the position. 
We fully explained to the Department of Labor through the audit response to the DOL 
about the infeasibility to train an US worker. ... 
If we employ an US worker who does not have any experience for the position of 
Product Data Analyst, he will be spending at least about three months to six months to 
learn by himself or herself the computerized logistics system which [the Beneficiaty] 
established. 
The Director denied the petition, stating: "the work experience that the beneficiary gained with [the 
petitioning] organization in the position of Product Data Analyst cannot be used to satisfy the 
experience requirement on the labor certification." 
On appeal, the Petitioner asserts that the "NA" answer to question J.21 on the ETA Form 9089 should 
not negate DO L's asserted acceptance of the Beneficiary's past experience in the position offered. 
Typically, a Beneficiary cannot rely on experience gained while working for the petitioning employer 
in the position offered. See 20 C.F.R. § 656.17 (i)(3). The employermustestablish that the beneficiaty 
possessed the minimum required experience at the time of hiring. The Director appears to have relied 
upon this regulation in denying the petition, although the Director did not cite the regulation. The 
Petitioner contends that it qualifies for an exception to this rule, if the employer can demonstrate that 
it is no longer feasible to train a worker to qualify for the position. 20 C.F.R. § 656.17(i)(3)(ii). The 
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Petitioner asserts that it established to DO L's satisfaction, via its "audit response ," that the job offer 
in this proceeding qualifies for this exception. 1 
The record as it now stands does not contain documentation from DOL to support the Petitioner 's 
claims regarding the nature of DOL's audit of the ETA Form 9089 related to experience with the 
employer. Therefore , we will remand the matter so that the Director can specifically request this 
evidence and afford the Petitioner an opportunity to corroborate its assertions . The burden is on the 
Petitioner to meet all eligibility requirements. 
III. CONCLUSION 
The record must be developed in order to substantiate the Petitioner's assertions about the nature and 
inquiry of the audit of ETA Form 9089 to determine whether the Beneficiary's experience can be 
considered, and if consequently, he meets the experience requirement of the labor certification in 
conformity with 8 C.F.R. § 204.5(1)(3)(ii)(A). 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
1 The Petitioner has not denied that the Beneficiary 's experience is "substantially comparable" to the proffered position. 
See 20 C.F.R . § 656.17(i)(5)(ii) . 
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