remanded EB-3 Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 10, 2023 In Re: 5717087 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, a provider of telecommunications and other services, seeks to permanently employ the 
Beneficiary as director of quality assurance engineering. The company requests his classification 
under the employment-based, third-preference (EB-3) immigrant visa category as a professional. See 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). 
Prospective U.S. employers may sponsor noncitizens for permanent residence in this category to work 
in jobs requiring at least bachelor's degrees. Id. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner demonstrated neither the Beneficiary's possession of the minimum employment experience 
required for the offered position nor the job's availability to U.S. workers. The Director also found 
that the Beneficiary willfully misrepresented his experience. 
On appeal, the Petitioner bears the burden of establishing eligibility for the requested benefit by a 
preponderance of the evidence. See Matter Chawathe, 25 l&N Dec. 369,375 (AAO 2010). Exercising 
de novo appellate review, see Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we 
conclude that the record does not support the petition's denial based on the job's purported lack of 
availability to U.S. workers or the Beneficiary's alleged misrepresentation. But determination of his 
qualifying experience for the position requires additional evidence, and the Petitioner did not 
demonstrate its required ability to pay the position's proffered wage. We will therefore withdraw the 
Director's decision and remand the matter for entry of a new decision consistent with the following 
analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process. First, a prospective employer 
must apply to the U.S . Department of Labor (DOL) for certification that: there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and a noncitizen's employment in 
the position would not harm wages and working conditions of U.S. workers with similar jobs. Section 
212(a)(5)(A)(i) of the Act, 8 U.S.C . § 1182(a)(5)(A)(i) . 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. 
§ l 154(a)(l)(F); 8 C.F.R. § 204.5(1)(3)(i). Among other things, USCIS determines whether a 
noncitizen beneficiary meets the requirements of a DOL-certified position and a requested immigrant 
visa category. 8 C.F.R. § 204.5(1)(3)(ii)(C). 
Finally, if USCIS approves a petition, a beneficiary 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 that a beneficiary met all DOL-certified job requirements of an offered 
position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting 
Reg'l Comm'r 1977). 1 In evaluating a beneficiary's qualifications, USCIS must examine the job-offer 
portion of an accompanying labor certification to determine a position's minimum requirements. 
USCIS may neither ignore a certification term nor impose unstated requirements. See, e.g., Madany 
v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority for setting the 
content of the labor certification") ( emphasis in original). 
The Petitioner's labor certification states the minimum requirements of the offered position of director 
of quality assurance engineering as a bachelor of science degree in engineering and three years of 
experience in the "Job Offered." Experience in a job offered means experience performing "the major 
job duties of the job offered" as listed on a labor certification. Matter ofMaple Derby, Inc., 1989-
INA- l 85, *3 (BALCA May 15, 1991) (en bane). The Petitioner indicated on the labor certification 
that it will not accept experience in a related occupation. 
On the labor certification, the Beneficiary claimed almost 40 years of foll-time, qualifying experience. 
He stated that, from November 2000 until the filing of the labor certification application in March 
2005, he worked forl I, a U.S. business development corporation. He 
indicated! Iemployment of him as: a director, from November 2000 to December 2001; 
director of textile technology engineering operations, from December 2001 to August 2003; and vice 
president for engineering, from August 2003 to March 2005. 
The Beneficiary also stated that, from 1964 to 2000, he worked for two textile companies in Ecuador. 
He stated that[ !employed him as general manager from August 1964 to July 1966. 
He also indicated that, from July 1966 to November 2000,I I employed him as president. 
1 This petition's priority date is March 21, 2005, the date an office in DOL's employment service system 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). The application's filing predates the March 28, 2005 effective date of DOL's current labor 
certification regulations and case law interpreting the regulations. See Final Rule for Permanent Labor Certification 
Applications, 69 Fed. Reg. 77326, 77326 (Dec. 27, 2004). We will therefore cite DOL regulations and case law existing 
at the time of the application's filing. Decisions ofDOL's Board of Alien Labor Certification Appeals (BALCA) do not 
bind USCTS. See 8 C.F.R. § I 03.1 0(b) (requiring Department of Homeland Security employees to follow precedent cases 
of the Board oflmmigration Appeals (BIA) and U.S. Attorney General in proceedings involving the same issues). But 
USCTS may find BALCA decisions persuasive or defer to BALCA's interpretation ofDOL labor certification regulations. 
See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 152 (1991) (holding that an administrative 
agency should defer to the reasonable. regulatory interpretations of a sister agency authorized by Congress to promulgate 
the rules). 
2 
To support claimed qualifying experience, a petitioner must submit letters from a beneficiary's former 
or current employers. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must contain the employers' names, 
addresses, and titles, as well as descriptions of the beneficiary's experience. Id. "If such evidence is 
unavailable, other documentation relating to the alien's experience ... will be considered." 8 C.F.R. 
§ 204.5(g)(l ). 
A. The Beneficiary's U.S. Experience 
The Petitioner submitted letters from a former manager of I I the U.S. corporation that the 
Beneficiary says employed him from 2000 to 2005. Consistent with his attestations on the labor 
certification, the letters state the corporation's foll-time employment of him as: a director, from 
November 2000 to December 2001; director of textile technology engineering operations, from 
December 2001 to August 2003; and vice president of engineering, from August 2003 to March 2005. 
~--~!letters, however, do not demonstrate that the Beneficiary gained the requisite experience in 
the job offered in two of his three claimed positions at the company. As listed on the labor certification, 
the offered position's major duties include: "[f]ormulat[ing] and establish[ing] organizational policies 
and operating procedures for engineering system organizations;""[ d]evelop[ing], implement[ing], and 
coordinat[ing a] product assurance program to prevent or eliminate defects in new or existing 
engineering products;" and "[a]nalyz[ing], evaluat[ing], and present[ing] information concerning 
factors, such as business situations, production capabilities, manufacturing problems, economic 
trends, and design and development of new engineering products." A 2007 letter froml !former 
manager states that, as a director from November 2000 to December 2001, the Beneficiary "monitored 
the investments and operations of the company's textile industries, import and export and related 
financing, [and] determined operational procedures and goals." On appeal, the Petitioner contends 
that the duties listed in the letter "have a sufficient nexus" to those of the offered position listed on the 
labor certification. But a nexus is not enough. As previously indicated, the Petitioner must 
demonstrate the Beneficiary's performance of "the major job duties of the job offered" as listed on the 
labor certification. Matter o_fMaple Derby, Inc., 1989-INA-185, at *3. Contrary to the major duties 
of the offered position, the letter does not state the Beneficiary's development, implementation, and 
coordination of a product assurance program for engineering products, or his analysis, evaluation, or 
presentation of information regarding the design and development of new engineering products. Also, 
the record lacks evidence demonstrating how monitoring investments and the operations of importing, 
exporting, and financing match the offered position's duties. The letter therefore does not demonstrate 
that the Beneficiary gained the required qualifying experience in the job offered as al !director. 
The record also does not establish the Beneficiary's acquisition of qualifying experience as I~--~ 
vice president for engineering. Again, the offered position's major duties include: "[f]ormulat[ing] 
and establish[ing] organizational policies and operating procedures for engineering system 
organizations;" "[d]evelop[ing], implement[ing], and coordinat[ing] product assurance program to 
prevent or eliminate defects in new or existing engineering products;" and"[ a ]nalyz[ing], evaluat[ing], 
and present[ing] information concerning factors, such as business situations, production capabilities, 
manufacturing problems, economic trends, and design and development of new engineering products." 
A 2011 letter from I I former manager states that, as the company's vice president for 
engineering from August 2003 to March 2005, the Beneficiary "formulated policies and directed the 
operations of the real estate interest of the company." (emphasis added). The letter also states that he 
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"managed and supervised staff engaged in preparing lease agreements, recording rental receipts, and 
performing other activities necessary to the efficient management of the corporation's real estate 
holdings." We recognize that, like the offered position's job duties, the letter indicates the 
Beneficiary's formulation of policies and direction of operations. But, contrary to the offered 
position's job duties, the letter describes the policies and operations as involving real estate rather than 
"engineering system organizations" as stated on the labor certification. Also, contrary to the offered 
position's job duties listed on the labor certification, the letter does not indicate the Beneficiary's 
development, implementation, and coordination of a product assurance program for engineering 
products or his analysis, evaluation, or presentation of information regarding the design and 
development of new engineering products. Further, the letter indicates that the Beneficiary performed 
duties other than those of the offered position, such as managing and supervising staff in real estate­
related activities. The letter therefore does not demonstrate that the Beneficiary gained qualifying 
experience in the job offered as I lvice president for engineering. 
Contrary to the Director, however, we find sufficient evidence that the Beneficiary gained qualifying 
experience in the job offered asl Idirector of textile technology engineering operations from 
December 2001 to August 2003. In a 2007 letter, the company's former manager stated that, in this 
role, the Beneficiary: 
established the quality control system of all import and export of raw material and 
finished textile products, designed and implemented the engineering development 
programs to maximize productivity strategies; formulated and maintained the 
engineering operational procedures and goals and designed coordination schedules, 
production needs, and product assurance for engineering specifications. 
Consistent with the major duties of the offered position, the listed tasks indicate that the Beneficiary: 
formulated and established organizational policies and procedures; developed and implemented an 
engineering product assurance program; and designed and developed new engineering products. 
The Director found the letter unreliable, determining that it conflicts with other information. The letter 
states the Beneficiary's establishment of a quality control system, implementation of engineering 
development programs, maintenance of procedures and goals, and design of schedules, needs, and 
product assurance rgardinlg a textile business. But other records indicate that, from December 2001 
to December 2004, did not import or export any textile materials or products. 
We find that, in a 2011 affidavit, I I former manager sufficiently resolved this apparent 
inconsistency. He confirmed the Beneficiary's performance of the duties described in the prior letter. 
But he said that, in 2003, the company determined that "economic conditions did not warrant initiating 
full scale textile production in the United States." Thus, while the Beneficiary established the 
engineering systems, programs, and procedures for a textile business,! lnever engaged in the 
business. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve 
inconsistencies of record). 
While we credit the Beneficiary's qualifying experience as I I director of textile technology 
engineering operations, the record indicates his employment in that job for only about 20 months, from 
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December 2001 to August 2003. His work in the role therefore does not meet the requisite three years 
of qualifying experience required by the offered position. 
On appeal, the Petitioner contends that the Beneficiary also gained qualifying experience from August 
2003 to March 2005, while directing I lreal estate operations as vice president for engineering. 
The Petitioner notes that the affidavit of I I former manager states: "The company uses [the 
Beneficiary's] knowledge of applied industrial engineering as part of the company's total property 
management strategy (i.e., the company needs a person who can understand how to make the business 
run more efficiently and how to run the physical properties themselves)." 
But, as the labor certification states, the offered position's major duties include developing a product 
assurance program for "engineering products" and evaluating the design and development of "new 
engineering products." In contrast, the letter ofi !former manager states that, as vice president 
for engineering, the Beneficiary's activities involved real estate, not "engineering products." The 
record therefore does not demonstrate that, as I I vice president for engineering, he performed 
the offered job's major duties and gained the requisite experience. See Rosedale & Linden Park Co. 
v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (holding that, when determining a noncitizen's 
qualifications for an offered position, the immigration service "must examine the certified job offer 
exactly as it is completed by the prospective employer"). 
The Petitioner also contends that USCIS' conclusions erroneously conflict with the expert opinions in 
two independent evaluations it submitted. One of the evaluations, however, does not specifically 
address the Beneficiary's claimed qualifying experience. Rather, the evaluation, from a U.S. 
university professor of industrial and systems engineering, finds the Beneficiary's combination of 
education and experience equivalent to a U.S. bachelor's degree in industrial engineering. Thus, this 
evaluation does not specifically relate to the Beneficiary's experience for the offered position. 
The other evaluation, from a U.S. professor of business administration, asserts the Beneficiary's 
qualifying experience for the offered position and relates his prior job duties to those of the offered 
job. But the evaluation does not recognize the offered position's requirement for experience in the 
"Job Offered." On the labor certification, the company could have indicated its acceptance of three 
years of experience in a "Related Occupation," or in a "Related Occupation" or the "Job Offered." 
Instead, the Petitioner limited its acceptance to only experience in the "Job Offered." Thus, as 
previously indicated, the company must demonstrate the Beneficiary's performance of "the major job 
duties of the job offered" as listed on the certification. Matter o_fMaple Derby, 1989-INA-185 at *3. 
The evaluation's assertions that the Beneficiary's duties in his prior job relate to those of the offered 
position are therefore insufficient. See Matter o_f Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988) (holding that the immigration service may reject or afford lesser evidentiary weight to expert 
testimony that conflicts with other evidence or "is in any way questionable"). 
For the foregoing reasons, we conclude that the Petitioner has not demonstrated the Beneficiary's 
acquisition of the requisite qualifying experience in the job offered during! Iemployment of 
him in the United States. 
5 
B. The Beneficiary's Experience in Ecuador 
The Petitioner did not submit a letter from the 
Ecuadoran textile company that purportedly employed 
the Beneficiary from 1964 to 1966. But the record contains a 2007 letter from the other Ecuadoran 
textile company, I I where he claims to have served as president from July 1966 to November 
2000. Consistent with 8 C.F.R. § 204.5(1)(3)(ii)(A), the letter froml Ipurported former 
general manager describes the Beneficiary's job duties as president during that period. 
The Director, however, questioned the letter's validity. Citing online information, the Director found 
that, in 2003,I l"was liquidated." The employment verification letter for the Beneficiary on 
the company's stationery states the document's issuance in 2007, almost four years later. The Director 
therefore g_uestioned the letter's authenticity, concluding that the record did not demonstrate 
I !issuance of the document during the business's existence. 
The record, however, contains court documents indicating the Ecuadoran government's seizure of 
I I in 2008. The documentation, filed in a U.S. court under penalty of perjury, indicates 
I !existence and operations at the time of the seizure. The record therefore indicates the 
company's existence and operations at the time of the employment letter's issuance in 2007. Also, 
the record does not establish the reliability of the Director's online information about I I 
purported 2003 "liquidation." The Director described the information as "open source" material. But 
the Director did not provide an Internet address or printout of the information, depriving the Petitioner 
of an opportunity to review, explain, or rebut the adverse material. The online information does not 
cast enough doubt on the Beneficiary's claimed qualifying experience atl Ito support the 
petition's denial. 2 
In questioning the Beneficiary's claimed qualifying experience atl I the Director also cited "an 
undated and unsigned personal statement accompanyinf the beneficiary's curriculum [vitae]." The 
Beneficiary purportedly stated his job duties atl in the statement, which was submitted with 
a 2003 nonimmigrant visa petition for him. The Director found the job-duty descriptions to be "broad" 
and to "not necessarily reflect the duties [that the Beneficiary] listed on the labor certification." 
The statement, however, is unreliable. As the Director noted, it is neither dated nor signed. Thus, the 
statement and its contents warrant little evidentiary weight. The document is too unreliable to 
constitute an inconsistency in the Beneficiary's claimed qualifying experience atl I 
Court records submitted by the Petitioner provide the stron est support for the Director's doubts about 
the Beneficiary's claimed qualifying experience at from 1966 to 2000. The records suggest 
that, for nearly half the Beneficiary's claimed presidency at~--~ an Ecuadoran bank i I c=J- simultaneously employed him. Responding in 2009 to a Florida court complaint by an 
Ecuadoran government agency against him and his brother, the Beneficiary admitted serving as the 
bank's executive vice president from the mid- l 980s to December 1998.3 Thus, the Director found 
2 The Petitioner submits additional evidence on appeal indicating thatl !remained operating until 2008. 
3 The complaint sought a judgment against the Beneficiary and his brother, the bank's executive president, of at least $200 
million. On August 3, 2022, a Florida appeals court affirmed a summary judgment in the brothers' favor, finding that they 
do not owe Ecuador the claimed amount. See Fla. Third Distr. Ct. of Apps., "Search Opinions," 
https://www. 3 dca. flcourts. org/Opinions/. 
6 
that the Beneficiary's apparent simultaneous employment by the two companies undermined his 
claimed qualifying experience atl I 
As previously indicated, a petitioner must resolve inconsistencies with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N at 591. The record as currently 
constituted, however, does not sufficiently demonstrate an inconsistency in the Beneficiary's apparent 
simultaneous employment byl I We agree with the Director that, from the 
mid- l 980s to December 1998, the Beneficiary could not likely have worked for both companies at the 
same time on foll-time bases. Further, we agree that, if he simultaneously worked foll-time for both 
companies during that period, the inconsistency would cast doubt on his entire claimed tenure with 
I I Id. ("Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation 
of the reliability and sufficiency of the remaining evidence offered in support of the visa ~etition.") 
But the record does not indicate the number of hours the Beneficiary worked asl executive 
vice president. 
Because the Beneficia['s qualifications for the offered position appear to tum on his foll- or part-time 
employment status at Iwe will remand the matter for farther evidence. On remand, the 
Director should ask the Petitioner for a letter from the bank regarding its purported employment of the 
Beneficiary and the number of hours he worked. The Director should also provide the Petitioner with 
a reasonable opportunity to respond. If a letter from the bank is unavailable, the Petitioner must 
demonstrate the document's unavailability before USCIS may consider alternate evidence of the 
claimed qualifying experience. See 8 C.F.R. § 204.5(g)(l ). 
III. AVAILABILITY OF THE OFFERED POSITION 
Based on evidence of purported family relationships between the Beneficiary and the Petitioner's 
owners and directors, the Director found insufficient evidence of the offered position's availability to 
U.S. workers. See 20 C.F.R. § 656.20(c)(8) (2004) (requiring a labor certification employer to certify 
that "[t]he job opportunity has been and is clearly open to any U.S. worker"). We will withdraw this 
portion of the Director's decision. 
IV. THE ALLEGED MISREPRESENTATION 
The Director found that the Beneficiary willfully misrepresented his qualifying experience as~I--~ 
director of textile technology engineering operations on the labor certification application. We will 
also withdraw this finding. 
V. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record does not establish the Petitioner's ability to pay the 
offered position's proffered wage. A petitioner must demonstrate its continuing ability to pay a 
proffered wage, from a petition's priority date until a beneficiary obtains lawful permanent resident 
status. 8 C.F.R. § 204.5(g)(2). Because the Petitioner states its employment ofless than 100 people, 
evidence of its ability to pay must include copies of annual reports, federal tax returns, or audited 
financial statements. Id. 
7 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year, beginning with the year of a petition's priority date. If a petitioner did not annually 
pay a proffered wage or did not pay a beneficiary at all, users considers whether the business 
generated annual amounts of net income or net current assets sufficient to fund 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).4 
The labor certification states the proffered wage of the offered position of director of quality assurance 
engineering as $89,000 a year. As previously noted, the petition's priority date is March 21, 2005. 
The record lacks evidence that the Petitioner ever employed the Beneficiary. Thus, based solely on 
wages paid, the company has not demonstrated its ability to pay the proffered wage. 
The Petitioner submitted copies of its parent company's federal income tax returns. The returns 
contain the Petitioner's financial information for 2005, 2006, 2007, and 2009. But the record lacks 
required evidence of the company's ability to pay in 2008 and from 2010 through 2022. See 8 e.F.R. 
§ 204.5(g)(2) (requiring a petitioner to demonstrate its ability to pay "at the time the priority date is 
established and continuing until the beneficiary obtains lawful permanent residence"). 
Also, the Petitioner's financial evidence does not establish its ability to pay in 2005, 2006, 2007, or 
2009. While omitting the company's annual net income for 2005 and net current assets for 2007, the 
tax returns show the Petitioner's generation of negative amounts of net current assets in 2005 and net 
income in 2007. The records also show that, in 2006 and 2009, the company generated negative 
amounts of both net income and net current assets. 
Further, users records indicate that, after this petition's priority date, the Petitioner filed another 
immigrant petition for a different beneficiary. 5 A petitioner must demonstrate its ability to pay the 
proffered wage of each petition it files until a beneficiary obtains lawful permanent residence. 8 e.F.R. 
§ 204.5(g)(2). The Petitioner must therefore demonstrate its ability to pay the combined proffered 
wages of this and its other petition, from this petition's priority date until the other petition's 
beneficiary obtained lawful permanent residence. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. 
Mass. 2014) (affirming our revocation of a petition's approval where, at the time of the filing's grant, 
the petitioner did not demonstrate its ability to pay the combined proffered wages of multiple 
petitions). The record, however, lacks the proffered wage and priority date of the Petitioner's other 
petition, preventing users from determining the combined amount of proffered wages the company 
must demonstrate its ability to pay. 
For the foregoing reasons, the Petitioner has not demonstrated its ability to pay the proffered wage. 
On remand, the Director should notify the company of this evidentiary deficiency and afford the 
business a reasonable opportunity to respond with evidence, argument, or both. 
4 Federal courts have upheld USCTS' 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); Z-Noorani, Inc. v. Richardson, 950 F. Supp. 2d 1330. 
1345-46 (N.D. Ga. 2013). 
5 USCIS records identify the Petitioner's additional petition by the receipt number~-----~ 
8 
If supported by the record, the Director may notify the Petitioner of any other potential denial grounds 
beyond those regarding the Beneficiary's qualifying experience and the company's ability to pay the 
proffered wage. The Director, however, must provide the Petitioner with a reasonable opportunity to 
respond to all issues raised on remand. Upon receipt of a timely response, the Director should review 
the entire record and enter a new decision. 
VI. CONCLUSION 
The record does not support 
the petition's denial based on the job opportunity's purported lack of 
availability to U.S. workers or the Beneficiary's alleged misrepresentation of his qualifying 
experience. But determination of his qualifying experience for the offered position requires additional 
evidence, and the Petitioner has not demonstrated its continuing ability to pay the position's proffered 
wage. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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