remanded EB-3 Case: Insurance

U.S. Citizenship 
and Immigration 
Services 
MATTER OF LCJI-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB.3,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an insurance brokerage firm, seeks to employ the Beneficiary as an account supervisor. 
It requests classification of the _Beneficiary as an unskilled worker under the third preference 
immigration classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 
8 U.S.C. § 1153(b)(3)(A)(iii). This employment-based immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires less than 2 years of training or experience. 
The Director, Nebraska Service Center, denied the petition, finding that the record did not establish 
the Petitioner's ability to pay the Beneficiary the proffered wage. The Director also denied the 
petition pursuant to the regulation at 8 C.P.R. § 103.2(b)(l4), as the Petitioner had not provided 
other requested evidence. 
The matter is before us on appeal. The Petitioner asserts that it has submitted sufficient evidence to 
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establish its ability to pay in this matter and that the Director did not consider the totality of its 
circumstances in reaching his decision. It also provides evidence to overcome the Director's denial 
under 8 C.P.R.§ 103.2(b)(l4). 
Upon de novo review, we will withdraw the Director's decision and remand this matter to the 
Director for further action consistent with this opinion. 
I. LAW 
Employment-based immigration is generally a three-step process. First, a U.S. employer must 
obtain an approved ETA Form 9089, Application for Permanent Employment Certification (labor 
certification) from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). Next, the U.S. employer may file an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. 
§ 1154. Finally, if USCIS approves the immigrant visa petition, the foreign national may apply for 
an immigrant visa abro~d or, if eligible, adjustment of status in the United States. See section 245 of 
the Act, 8 U.S.C. § 1255. 
Matter of LCJI-S- Inc. 
By approving the labor certification in this case, DOL certified that there are insufficient U.S. workers 
who are able, willing, qualified, and available for the offered position. Section 212(a)(5)(A)(i)(I) of the 
Act. The DOL also certified that the employment of 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)(II) of the Act. 
In visa petition proceedings, USCIS determines whether a foreign national meets the job requirements 
specified in the underlying labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has authority to 
make preference classification decisions). 
II. ANALYSIS 
For the reasons discussed below, we will withdraw the Director's findings. However, we will also 
consider whether the Beneficiary has the experience required for the job offered and whether the 
Petitioner intends to employ the Beneficiary in the proffered position. 
A. Ability to Pay 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. 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, or audited financial statements. 
A petitioner must establish that its job offer to a beneficiary is a realistic one. Because the filing of a 
labor certification establishes a priority date for any immigrant petition later based on the labor 
certification, a petitioner must establish that the job offer was realistic as of the priority date and that the 
offer remains realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. 1 A petitioner's ability to pay the proffered wage is an essential element in evaluating 
whether ajob offer is realistic. See Matter o.fGreat Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 
1977); see also 8 C.F .R. § 204.5(g)(2). In evaluating wh~ther a job offer is realistic, USC IS requires a 
1 The priority date of a petition is the date that DOL accepts the labor certification for processing. See 8 C.F.R. 
§ 204.5(d). 
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Matter of LCJI-S- Inc. 
petitioner to demonstrate financial resources sufficient to pay a beneficiary's proffered wage, although 
the totality of the circumstances affecting the petitioning business will be considered if the evidence 
warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. at 612. 
To determine a petitioner's ability to pay the proffered wage, USCIS first examines whether a 
petitioner was employing the beneficiary as of the date on which the labor certification was accepted 
for processing by DOL and whether it continues to do so. If a petitioner documents that it has 
employed the beneficiary at a salary equal to or greater than the proffered wage, that evidence may 
be considered proof of its ability to pay. If a petitioner does not demonstrate that it employed and 
paid the beneficiary at an amount at least equal to the proffered wage during the required period, 
USC IS then examines the net income figure reflected on the petitioner's federal income tax returns, 
audited financial statements, or annual reports.2 If a petitioner's net income during the required time 
period does not equal or exceed the proffered wage, or when added to any wages paid to the 
beneficiary does not equal or exceed the proffered wage, USCIS will next review the petitioner's net 
current assets. 
In cases where neither a petitioner's net income nor its net current assets establish its ability to pay 
the proffered wage during the required period, USCIS may also consider the overall magnitude of its 
business activities. Matter of Sonegawa; 12 I&N Dec. at 612. In assessing the totality of a 
petitioner's circumstances, USCIS may look at such factors as the number of years it has been in 
business, its record of growth, the number of individuals it employs, abnormal business expenditures 
or losses, its reputation within its industry, whether the beneficiary is replacing a former employee or 
an outsourced service, or any other evidence it deems relevant. 
In the present case, the priority date of the visa petition is September 4, 2015, and the proffered wage is 
$75,000 per year. Therefore, the Petitioner must demonstrate its ability to pay the Beneficiary the 
annual wage of$75,000 from September 4, 2015, onward. 
In his decision, the Director concluded that the evidence of record established the Petitioner's ability 
to pay in 2015, but not in 2016. The Director's finding appears to have been based on his review of 
the three earnings statements submitted in response to _;:t request for evidence (RFE), which, he noted, 
reflected monthly wages of $4560 that did not equal or exceed the annual proffered wage of 
$75,000. 
Although we agree that the submitted earnings statements for the Beneficiary do not reflect that the 
Petitioner is currently paying her the annual proffered wage, a petitioner is not required to pay a 
beneficiary the proffered wage until such time as that beneficiary obtains lawful permanent resident 
2 Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing 
Tongatapu Woodcraft Hawaii, Ltd., 736 F.2d 1305); see also Chi-Feng Chang v. Thornburgh. 719 F. Supp. 532 (N.D. 
Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
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Matter of LCJI-S- Inc. 
status. Accordingly, the Director erred in relying on the Beneficiary's current wages to find that the 
Petitioner had not established its ability to pay in 2016. Due to the unavailability of documents 
relating to 2016 at the time the petition was filed on March 24, 2016, and at the time the Petitioner 
responded to the RFE, we can only evaluate the Petitioner's ability to pay the proffered wage in 
2015, the year ofthe priority date. 
As noted by the Director, the record demonstrates the Petitioner's ability. to pay in 2015. As such, 
the Petitioner has established its ability to pay the proffered wage from the September 4, 2015, 
priority date onward. Therefore, we will withdraw the Director's finding to the contrary. 
B. Unsigned Labor Certification 
The regulation at 8 C.F .R. § 204.5(1)(3) states that "[ e ]very petition under this classification [skilled 
workers, professionals, and other workers] must be accompanied by an individual labor certification 
from the Department of Labor." · 
The regulation at 20 C.F.R. § 656.17(a) states, in pertinent part, that: 
[a ]n employer who desires to apply for a labor certification on behalf of an alien must 
filed a completed Department of Labor Application for Permanent Employment 
Certification form . . . . Applications submitted by mail must contain the original 
signature of the employer, alien, attorney, and/or agent when they are received by the 
application processing center. DHS [Department of Homeland Security] will not 
process petitions unless they are supported by an original certified ETA Form 9089 
that has been signed by the employer, alien, attorney and/or agent. 
The regulation at 8 C.F .R. § 103 .2(b )(8)(ii) provides: 
(ii) Initial evidence. If all required initial evidence is not submitted with the benefit 
request or does not demonstrate eligibility, USCIS in its discretion may deny the 
benefit request for lack of initial evidence or for ineligibility or request that the 
missing initial evidence be submitted within a specified period of time as determined 
byUSCIS. 
In this case, the original certified labor certification filed with petition was not signed by the 
Petitioner, the Beneficiary, and the Petitioner's counsel. The Director informed the Petitioner of this 
deficiency in his April 1, 2016, request for evidence and, pursuant to 8 C.F.R. § 103.2(b)(8)(ii), 
requested the submission of copies of pages 8 and 9 of the labor certification with the original 
signatures of its president, counsel and the Beneficiary. In response, the Petitioner submitted a copy 
of the labor certification bearing only the signatures of its president and counsel. Noting that the 
submitted copy had not been signed by Beneficiary as requested, the Director denied the visa 
petition pursuant to 8 C.F .R. § 103 .2(b )(14 ), which, in part, states: "Failure to submit requested 
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Matter of LCJI-S- Inc. 
evidence which precludes a material line of inquiry shall be grounds for denying the benefit 
request." 
On appeal, the Petitioner apologizes for its "inadvertent" submission of the unsigned labor 
certification at the time of filing and provides a new copy of the labor certification, signed by all 
required parties, its president, its counsel, and the Beneficiary. In that the Director's RFE provided 
the Petitioner with the opportunity to sign the labor certification subsequent to the filing of the visa 
petition, we will accept the Petitioner's properly signed copy of the labor certification on appeal. 
Accordingly, we find the Petitioner to have submitted the signed and certified labor certification 
required by the regulation at 20 C.F.R. §_ 656.17(a) and, therefore, will also withdraw the Director's 
finding that the visa petition may be denied pursuant to 8 C.F .R. § 103 .2(b )( 14 ). 
C. Bene~ciary Qualifications 
Although the Beneficiary's qualifications for the job opportunity were not previously considered by 
the Director, our review of the record leads us to conclude that the Beneficiary may not rely on the 
qualifying employment she has claimed in Part K. of the labor certification to meet the requirements 
of the offered position. 
A petitioner must establish a beneficiary's possession of all the education, training, or experience 
stated on an accompanying labor certification by a petition's priority date. 8 C.F.R. § 103.2(b)(l), 
(12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); 
Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
Part H. of the labor certification states the following requirements for the offered position of account 
supervisor: 
H.4. 
H.4-B. 
H.5. 
H.6. 
H.6-A. 
H.7. 
H.8. 
H.9. 
H.10. 
H.10-A. 
H.1 0-B. 
H.l4. 
Education: Associate's. 
Major field of study: Accounting, finance. 
Training: None required. 
Experience in the job offered: Required. 
Number of months experience required: 12. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: None accepted. 
Foreign educational equivalent: Accepted. 
Experience in an alternate occupation: Accepted. 
Number of months experience required in alternate occupation: 12. 
Job title o(acceptable alternate occupation: Account executive, accountant. 
Specific skills or other requirements: Employer accepts any suitable 
combination of education, experience, and training consistent with H4 through 
H10 ofthe ETA 9089. 
Accordingly, to qualify for the offered position in this case, the Beneficiary must hold a U.S. 
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(b)(6)
Matter of LCJI-S- Inc. 
associate's or foreign equivalent degree in accounting or finance, and have 12 months of experience 
in the offered position of account supervisor, or, alternately, in the occupations of account executive 
or accountant. 
I 
Although the record establishes that the Beneficiary holds the required associate's degree, it does not 
also demonstrate that she has the 12 months of experience as an account supervisor,3 account 
executive, or accountant. 
In Part K of the labor certification, the Beneficiary claims the following employment experience: 
• Account executive, 
(date of labor certification's filing); 
• Account executive, 
2014;and 
from November 20, 2014, to the present 
from October 1, 2008, to September 15, 
• Accountant, , from May 1, 1991, to February 1, 1998. 
To establish a beneficiary's qualifying experience in employment-based immigration proceedings , 
the regulation at 8 C.F.R. § 204.5(g)(l) requires that: 
[E]vidence relating to qualifying experience or trammg 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. If such evidence is unavailable, other 
documentation relating to the alien's experience or training will be co~sidered . 
The Petitioner has submitted no letter from the to establish its employment of the 
Beneficiary as an accountant. Here, the only document that addresses the above requirements is a 
March 3, 2016, letter provided by the Petitioner's president, at the time of the visa 
petition's filing. Therefore, we will consider only whether the Beneficiary is qualified for the offered 
position based on her employment with the Petitioner as an account executive. 
We note that DOL regulations at 20 C.F.R. § 656.17 do not allow a b eneficiary to qualify for an 
offered position based on employment experience gained with a petitioner unless it is established 
that the work performed by the beneficiary was not "substantially comparable" to the job offered.4 
3 We note that the Petitioner answered "No" in response to the question in Part J.l8 . of the labor certification, "Does the 
alien have the experience as required for the requested job opportunity indicated in question H.6?" Accordingly , the 
Petitioner is not seeking to establish that the Beneficiary is qualified for the offered position based on 12 months of 
experience as an account supervisor. 
4 A definition of"substantially comparable " is found at 20 C.F.R. § 656.17: 
5) For purposes of this paragraph (i): 
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Matter of LCJJ-S- Inc. 
Our review of the record in this matter finds that the Petitioner checked "No" in response to the question 
in Part J .21 of the labor certification, which asks "Did the alien gain any of the qualifying experience 
with the employer in a position substantially comparable to the job opportunity requested?" Generally, 
if the answer to the question in Part J.21. of the labor certification is no, then experience with the 
employer may be used by a beneficiary to qualify for the offered position if that experience was not 
substantially comparable and the terms of the labor certification in Part H.1 0 allow applicants to 
qualify for the job opportunity through an alternate occupation. 
Here the labor certification deerris experience in the alternate occupations of account executive or 
accountant as acceptable. The question then is whether the Beneficiary's current job with the 
Petitioner is in fact not "substantially comparable" to the proffered position. 
Here, the duties of the offered position of account supervisor, as listed in Part H.ll of the labor 
certification, are as follows: 
Perform financial analytical work in the evaluation and management of the business 
operations and client management (25%). Direct and coordinate activities to oversee 
quality control and customer satisfaction (25% ), Lead, maintain and support client 
growth strategies contributing to increased agency performance ratings and 
incremental revenues (20%). Lead the professional development of new client 
services employees to provide guidance and support that drive the growth of the 
individual (10%). Participate in evaluation and measurement of business results and 
consumer insights (1 0% ). Perform financial data analysis and generate reports to 
address business needs ( 1 0% ). 
The duties of the Beneficiary's current position of account executive, as stated in Part K of the labor 
certification, include: 
Perform crucial decision making duties in domestic sales activities by negotiating 
contracts, formulating contract modifications and conducting business development 
(30%). Conduct market and demographic studies to seek new products and packages 
for clients (25%). Create and update sales analysis and market activity reports to 
summarize corporate activities (25%). Analyze and improve corporate strategies by 
developing new and innovative policies and strategies for the company (20%). 
(ii) A "substantially comparable" job or pos1t10n means a job or pos1t10n requmng 
performance of the same job duties more than 50 percent of the time. This requirement can 
be documented by furnishing position descriptions, the percentage of time spent on the 
various duties, organization charts, and payroll records. 
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(b)(6)
Matter of LCJI-S- Inc. 
Based on the above descriptions, the offered position of account supervisor and the Beneficiary's 
current job of account executive would appear sufficiently distinct to satisfy DOL regulation. 
Nevertheless, for the reasons that follow, we do not find the record to establish that the Beneficiary's 
experience with the Petitioner qualifies her for the offered position. 
In his March 3, 2016, letter, the Petitioner's president, states that his business is faced 
with "the challenge to keep up with the competitive world of the insurance services industry" and 
that he, therefore, wishes to "continue to employ [the Beneficiary] as an Account Executive." He 
follows this statement with a description of the Beneficiary's current duties,5 indicating that she will 
continue to perform these same duties if the visa petition is approved. At no point in his letter does 
mention the offered position of account supervisor or address the duties listed in Part H.11 
of the labor certification. Therefore, based on depiction of the offered position as a 
continuation of the Beneficiary's current duties, the record does not establish that the Beneficiary's 
experience with the Petitioner is not substantially comparable to the offered position, as described by 
the Petitioner. The Petitioner must resolve this inconsistency in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Accordingly, based on the inconsistencies presented regarding the duties of the offered 
position, pursuant to 20 C.F.R. § 656.17, it is not clear that the Beneficiary's employment as an 
account executive with the Petitioner may be used to provide her with the 12 months of experience 
required by the labor certification. 
As it is not clear that the Beneficiary may rely on her experience with the Petitioner to qualify for the 
offered position and the record contains no letter from documenting her 
employment as an accountant, the Petitioner has not demonstrated that the Beneficiary has the 12 
months of experience required by the labor certification. Therefore, although we have withdrawn the 
Director's decision in this matter, the petition cannot be approved as the record does not establish the 
Beneficiary's eligibility for the offered position. 
D. Petitioner's Intent to Employ the Beneficiary in the Offered Position 
Further, we also find March 3, 2016, letter to raise concerns as to whether the Petitioner 
intends to employ the Beneficiary under the terms of the labor certification. 
A labor certification is valid only for the particular job opportunity, the beneficiary, and the stated 
geographical area of intended employment. 20 C.F.R. § 656.30(c). A petitioner must intend to 
employ a beneficiary according to the terms of the labor certification accompanying . the visa 
petition. See Matter of lzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (upholding a visa 
5 We note that a September 12, 2014, employment verification statement signed by in support of a prior Form 
1-140, Immigrant Petition for Alien Worker, petition filed on behalf of the Beneficiary describes a 
different set of duties for the account executive position with the Petitioner that focus largely on financial analysis. In 
any future proceedings, the Petitioner will need to address these disparate descriptions of its employment of the 
Beneficiary as an account executive. 
8 
(b)(6)
Matter of LCJJ-S- Inc. 
petition denial where the petitioner did not intend to employ the beneficiary as a live-in domestic 
worker pursuant to the terms of the labor certification). 
Here, we find March 3, 2016, letter to cast doubt on the existence of the job opportunity 
described in the labor certification, i.e., that it represents a bonafide job offer. In light of 
previously noted statements, we do not find the record to establish that the Petitioner will employ the 
Beneficiary in the offered position of account supervisor, according to the terms of the labor 
certification. 
As the record does not establish that the Petitioner intends to employ the Beneficiary according to 
the terms of the labor certification, the petition may not be approved for this reason as well. 
III. CONCLUSION 
For the reasons already discussed, we withdraw the Director's decision. Nevertheless, the petition 
may not be approved, as the record does not demonstrate that the Beneficiary's employment 
experience qualifies her for thejob opportunity or that the Petitioner intends to employ her according 
to the terms of the labor certification. 
In visa 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. 
ORDER: The decision of the Director, Nebraska Service Center, is withdrawn. The matter is 
remanded to the Director, Nebraska Service Center, for further proceedings consistent 
with the foregoing opinion and for entry of a new decision. 
Cite as Matter of LCJI-S- Inc., ID# 43564 (AAO Feb. 3, 2017) 
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