remanded EB-3 Case: Jewelry

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington. DC 20529 
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PUBLIC COPY b6 
On 
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&,,, ,,.' Services 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 1-9 20% 
WAC 02 145 50443 
PETITION: 
 Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
~bbert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be remanded for further 
consideration. 
The petitioner is a jeweler. It seeks to employ the beneficiary permanently in the United States as a jeweler 
and precious stone and metal worker. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification approved by the Department of Labor, accompanied the petition. The director 
determined that the petitioner had not established that the beneficiary met the experience requirements as 
stated on the Form ETA 750. The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. 
The procedural history in this case is documented by the record and incorporated into ths decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's November 30, 2004 denial, the single issue in ths case is whether or not the 
beneficiary meets the requirements of the labor certification as of the priority date. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. 3 1153(b)(3)(A)(i), provides for the granting of preference 
classification to qualified immigrants who are capable, at the time of petitioning for classification under this 
paragraph, of performing slulled labor (requiring at least two years training or experience), not of a temporary 
or seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 3 204.5(1)(3) states, in pertinent part: 
(ii) Other documentation - (A) General. Any requirements of training or experience for 
skilled workers, professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a description of 
the training received or the experience of the alien. 
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied 
by evidence that the alien meets the educational, training or experience, and any other 
requirements of the individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information Pilot Program 
occupational designation. The minimum requirements for this classification are at least two 
years of training or experience. 
On appeal, counsel asserts that the petitioner has established that the beneficiary meets the experience 
requirement of the labor certification, and provides a confirmation letter, issued by the previous employer in 
support of her assertion. 
To be eligble for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date. The filing date of the petition is the initial receipt in the Department of 
Labor's (DOL'S) employment service system. Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. Cornrn. 
1977). In thls case, that date is March 12,200 1. 
Page 3 
As noted above, the ETA 750 in this matter is certified by DOL. Thus, at the outset, it is useful to discuss DOL's 
role in this process. Section 212(a)(5)(A)(i) provides: 
In general.-Any alien who seeks to enter the United States for the purpose of performing slulled 
or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to 
the Secretary of State and the Attorney General that- 
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified 
in the case of an alien described in clause (ii)) and available at the time of application for 
a visa and admission to the United States and at the place where the alien is to perform 
such skilled or unskilled labor, and 
(II) the employment of such alien will not adversely affect the wages and worlung 
conditions of workers in the United States similarly employed. 
According to the regulation at 20 C.F.R. 8 656.20(c), as in effect at the time of filing,' an employer applying for a 
labor certification must "clearly show" that: 
(1) The employer has enough funds available to pay the wage or salary offered the alien; 
(2) The wage offered equals or exceeds the prevailing wage determined pursuant to 5 656.40, 
and the wage the employer will pay to the alien when the alien begins work will equal or exceed 
the prevailing wage which is applicable at the time the alien begins work; 
(3) The wage offered is not based on commissions, bonuses or other incentives, unless the 
employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis; 
(4) The employer will be able to place the alien on the payroll on or before the date of the alien's 
proposed entrance into the United States; 
(5) The job opportunity does not involve unlawful discrimination by race, creed, color, national 
orign, age, sex, religon, handicap, or citizenship; 
(6) The employer's job opportunity is not: 
(i) Vacant because the former occupant is on strike or is being locked out in the 
course of a labor dispute involving a work stoppage; or 
(ii) At issue in a labor dispute involving a work stoppage; 
(7) The employer's job opportunity's terms, conditions and occupational environment are not 
contrary to Federal, State or local law; and 
I 
 Recently the Department of Labor has promulgated new regulations regarding the labor certification 
process. 
 These new regulations only apply to applications filed on or after the effective date of the 
regulations, March 28, 2005. Applications filed before March 28, 2005, such as the one before us, are to be 
processed and governed by the regulations quoted in this decision. 69 Fed. Reg. 77326-01 (Dec. 27,2004). 
(8) The job opportunity has been and is clearly open to any qualified U.S. worker. 
(9) The conditions of employment listed in paragraphs (c) (1) through (8) of thls section shall be 
sworn (or affirmed) to, under penalty of perjury pursuant to 28 U.S.C. 1746, on the Application 
for Alien Employment Certification form. 
The regulation at 20 C.F.R. 4 656.2 1(a) requires the ETA 750 to include: 
(I) A statement of the qualifications of the alien, signed by the alien; [and] 
(2) A description of the job offer for the alien employment, including the items required by 
paragraph (b) of this section. 
Finally, the regulation at 20 C.F.R. 8 656.24(b) provides that the DOL Certifying Officer shall make a 
determination to grant the labor certification based on whether or not: 
(1) The employer has met the requirements of this part. However, where the Certifylng Officer 
determines that the employer has committed harmless error, the Certifying Officer nevertheless 
may grant the labor certification, Provided, That the labor market has been tested sufficiently to 
warrant a finding of unavailability of and lack of adverse effect on U.S. workers. Where the 
Certifying Officer makes such a determination, the Certifying Officer shall document it in the 
application file. 
(2) There is in the United States a worker who is able, willing, qualified and available for and at 
the place of the job opportunity according to the following standards: 
(i) The Certifying Officer, in judgng whether a U.S. worker is willing to take the 
job opportunity, shall look at the documented results of the employer's and the 
Local (and State) Employment Service office's recruitment efforts, and shall 
determine if there are other appropriate sources of workers where the employer 
should have recruited or might be able to recruit U.S. workers. 
(ii) The Certifying Officer shall consider a U.S. worker able and qualified for the 
job opportunity if the worker, by education, training, experience, or a combination 
thereof, is able to perform in the normally accepted manner the duties involved in 
the occupation as customarily performed by other U.S. workers similarly employed, 
except that, if the application involves a job opportunity as a college or university 
teacher, or for an alien whom the Certifying Officer determines to be currently of 
exceptional ability in the performing arts, the U.S. worker must be at least as 
qualified as the alien. 
(iii) In determining whether U.S. workers are available, the Certifylng Officer shall 
consider as many sources as are appropriate and shall look to the nationwide system 
of public employment offices (the "Employment Service") as one source. 
(iv) In determining whether a U.S. worker is available at the place of the job 
opportunity, the Certifying Officer shall consider U.S. workers living or working in 
Page 5 
the area of intended employment, and may also consider U.S. workers who are 
willing to move from elsewhere to take the job at their own expenses, or, if the 
prevailing practice among employers employing workers in the occupation in the 
area of intended employment is to pay such relocation expenses, at the employer's 
expense. 
(3) The employment of the alien will have an adverse effect upon the wages and worlung 
condihons of U.S. workers similarly employed. In malung this determination the Certihng 
Officer shall consider such things as labor market information, the special circumstances of the 
industry, organization, andlor occupation, the prevailing wage in the area of intended 
employment, and the prevailing worlung conditions, such as hours, in the occupation. 
It is significant that none of the above inquiries assigned to DOL involve a determination as to whether or not the 
alien is qualified for the job offered. This fact has not gone unnoticed by the Federal Circuit Courts of Appeals: 
There is no doubt that the authority to make preference classification decisions rests with 
INS. 
 The language of section 204 cannot be read otherwise. 
 See Castaneda-Gonzalez v. 
INS, 564 F.2d 417, 429 (D.C. Cir. 1977). 
 In turn, DOL has the authority to make the two 
determinations listed in section 2 12(a)(14) [currently found at 212(a)(5)(A)(i)]. Id. at 423. 
The necessary result of these two grants of authority is that section 212(a)(14) determinations 
are not subject to review by INS absent fraud or willful misrepresentation, but all matters 
relating to preference classification eligibility not expressly delegated to DOL remain within 
INS' authority. 
Given the language of the Act, the totality of the legislative history, and the agencies' own 
interpretations of their duties under the Act, we must conclude that Congress did not intend 
DOL to have primary authority to make any determinations other than the two stated in 
section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of 
"matching" them with those of corresponding United States workers so that it will then be "in 
a position to meet the requirement of the law," namely the section 212(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on this decision, the Ninth 
Circuit Court of Appeals, which has jurisdiction over this matter, stated: 
[I]t appears that the DOL is responsible only for determining the availability of suitable 
American workers for a job and the impact of alien employment upon the domestic labor 
market. It does not appear that the DOL's role extends to determining if the alien is qualified 
for the job for which he seeks sixth preference status. That determination appears to be 
delegated to the INS under section 204(b), 8 U.S.C. 5 1154(b), as one of the determinations 
incident to the INS'S decision whether the alien is entitled to sixth preference status. 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9" Cir. 1983). The court relied on an amicus brief from the 
DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 212(a)(14) of 
the ... [Act] ... is binding as to the findings of whether there are able, willing, qualified, and 
Page 6 
available United States workers for the job offered to the alien, and whether employment of 
the alien under the terms set by the employer would adversely affect the wages and worlng 
conditions of similarly employed United States workers. The labor certifzcation in no way 
indicates that the alien offered the certz3ed job opportunity is qualzj2ed (or not qualijied) to 
perform the duties of that job. 
Id. at 1009 (emphasis added). 
 The Ninth Circuit reached a similar decision one year later in Tongatapu 
Woodcraft Hawaii, Ltd. v. Feldman: 
The Department of Labor ("DOL") must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not adversely 
affect the wages and working conditions of similarly employed domestic workers. Id. 
5 212(a)(14), 8 U.S.C. 5 1182(a)(14). The INS then makes its own determination of the 
alien's entitlement to sixth preference status. Id. 5 204(b), 8 U.S.C. 5 1154(b). See 
generally K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir.1983). 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
736 F. 2d 1305, 1309 (9th Cir. 1984). See also Black Const. Corn. v. I.N.S., 746 F.2d 503 (9th Cir. (Guam) 
1984) (rejecting argument that once employer's labor certifications had been approved by DOL it was error 
for INS to deny related immigrant petitions for failure to meet preference status requirements). 
The key to determining the job qualifications specified in the labor certification is found on Form ETA-750 
Part A. This section of the application for alien labor certification, "Offer of Employment," describes the 
terms and conditions of the job offered. It is important that the ETA-750 be read as a whole. The instructions 
for the Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job Duties. Do 
not duplicate the time requirements. For example, time required in training should not also 
be listed in education or experience. Indicate whether months or years are required. Do not 
include restrictive requirements which are not actual business necessities for performance on 
the job and which would limit consideration of otherwise qualified U.S. workers. 
Regarding the minimum level of education and experience required for the proffered position in this matter, 
Part A of the labor certification, as filled in by the petitioner, reflects the following requirements: 
Block 14: 
Experience: 
 Two years in the job offered. 
Block 15 ("Other Special Requirements") contains no information. To determine whether a beneficiary is 
eligible for a preference immigrant visa, CIS must ascertain whether the alien is, in fact, qualified for the 
certified job. In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the labor 
certification to determine the required qualifications for the position. CIS may not ignore a term of the labor 
certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 
I&N Dec. 401, 406 (Comm. 1986). See also, Madany, 696 F.2d at 1008; K.R.K. Iwine, Inc., 699 F.2d at 
1006; Stewart Infra-Red Commissary ofMassachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
Page 7 
As discussed above, the role of the DOL in the employment-based immigration process is to make two 
determinations: (i) that there are not sufficient U.S. workers who are able, willing, qualified and available to 
do the job in question at the time of application for labor certification and in the place where the alien is to 
perform the job, and (ii) that the employment of such alien will not adversely affect the wages and working 
conditions of similarly employed U.S. workers. Section 212(a)(5)(A)(i) of the Act. Beyond this, Congress 
did not intend DOL to have primary authority to make any other determinations in the immigrant petition 
process. Madany, 696 F.2d at 1013. As discussed above, CIS, not DOL, has final authority with regard to 
determining an alien's qualifications for an immigrant preference status. K.R.K Iwine, 699 F.2d at 1009 FN5 
(citing Madanv, 696 F.2d at 101 1-13). This authority encompasses the evaluation of the alien's credentials in 
relation to the minimum requirements for the job, even though a labor certification has been issued by DOL. 
Id. 
Additionally, where the job requirements in a labor certification are not otherwise unambiguously prescribed, 
e.g., by professional regulation, CIS must examine "the language of the labor certification job requirements" 
in order to determine what the petition beneficiary must demonstrate to be found qualified for the position. 
Madany, 696 F.2d at 1015. The only rational manner by which CIS can be expected to interpret the meaning 
of terms used to describe the requirements of a job in a labor certification is to "examine the certified job offer 
exactly as it is completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. 
Supp. 829, 833 (D.D.C. 1984) (emphasis added). CIS'S interpretation of the job's requirements, as stated on 
the labor certification must involve "reading and applying the plain language of the [labor certification 
application form]." Id. at 834 (emphasis added). CIS cannot and should not reasonably be expected to look 
beyond the plain language of the labor certification that DOL has formally issued or otherwise attempt to 
divine the employer's intentions through some sort of reverse-engineering of the labor certification. 
The petitioner initially provided a letter from the beneficiary's prior employer, Ghulam Hussain's Jewelers, 
maintaining that it employed the beneficiary as a diamond assorter-grader from January 1997 to May 1999. 
Then, in response to a request for evidence, the petitioner submitted a certification on Pakistan government 
paper and attested to by a local lawyer from the beneficiary's prior employer indicating that it employed the 
beneficiary as a diamond assorter-grader from January 1997 to January 1999. At that time, the petitioner also 
submitted a copy of the beneficiary's work identification card. The identification card does not give the 
beneficiary's dates of employment, but does show that she was employed by Ghulam Hussain's Jewelers. 
On appeal, the petitioner submits another verification letter from the beneficiary's prior employer, 
reconfirming the beneficiary's employment from January 1997 to May 1999. Counsel states that when the 
beneficiary requested another certification in response to an RFE, the employer made a clerical error 
indicating employment from January 1997 to January 1999. Counsel points out that, with the exception of the 
letter with the clerical error, the Form ETA 750B, the Form G-325, Biographic Information, and all other 
letters contain the correct information - the beneficiary worked for her prior employer from January 1997 to 
May 1999. Therefore, based on the initial evidence and the evidence presented on appeal, the AAO finds that 
the petitioner has established that the beneficiary met the experience requirements of the labor certification at 
the time of the priority date of March 12, 2001. However, there are additional issues that must be addressed 
before the AAO can consider the beneficiary as having met the requirements of the labor certification. These 
issues form the rationale behind the AAO's decision to remand. 
Page 8 
The first issue that must be clarified is whether the beneficiary is a family member of the owner of the 
petitioner. It appears that the beneficiary has been living at the same address as the petitioner's owner since 
2000. In addition, it appears that the beneficiary is the spouse of another employee of the petitioner, earning 
the same salary as the owner of the petitioner. 
Under 20 C.F.R. $5 626.20(~)(8) and 656.3, the petitioner has the burden when asked to show that a valid 
employment relationship exists, that a bona Jide job opportunity is available to U.S. workers. See Matter of 
Amger Corp., 87-INA-545 (BALCA 1987). A relationship invalidating a bonafzde job offer may arise where 
the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or through 
friendship." See Matter of Summart 374, 00-INA-93 (BALCA May 15, 2000). Where the person applying 
for a position owns the petitioner, it is not a bonafzde offer. See Bulk Farms, Inc. v. Martin, 963 F.2d 1286 
(9'h Cir. 1992) (denied labor certification application for president, sole shareholder and chief cheese maker 
even where no person qualified for position applied). In Matter of Silver Dragon Chinese Restaurant, 19 
I&N Dec. 401 (Comm. 1986), the commissioner noted that while it is not an automatic disqualification for an 
alien beneficiary to have an interest in a petitioning business, if the alien beneficiary's true relationship to the 
petitioning business is not apparent in the labor certification proceedings, it causes the certifying officer to fail 
to examine more carefully whether the position was clearly open to qualified U.S. workers and whether U.S. 
workers were rejected solely for lawful job-related reasons. That case relied upon a Department of Labor 
advisory opinion in invalidating the labor certification. The regulation at 20 C.F.R. 8 656.30(d) provides that 
[CIS], the Department of State or a court may invalidate a labor certification upon a determination of fraud or 
willful misrepresentation of a material fact involving the application for labor certification. 
Given that the beneficiary is living at the same address as the owner and that she is married to another 
employee earning the same salary as the owner, the facts of the instant case suggest that she too is a family 
member. The observations noted above suggest that further investigation, including consultation with the 
Department of Labor may be warranted, in order to determine whether any family or business relationship 
between the petitioner and the beneficiary represents an impediment to the approval of any employment- 
based visa petition filed by this petitioner on behalf of the this beneficiary. 
The second issue in this proceeding is whether the petitioner is a bona fide business allowed to legally operate 
under the laws of California. A review of the California Business Portal (http://kepler.ss.ca.aov/corpdata) 
indicates that Classic Jewelers is dissolved, and the Portal has no record of Abdul Jewelers. The record does 
not contain any evidence that either Classic Jewelers or Abdul Jewelers is allowed to legally operate under the 
laws of California. 
A third issue in this proceeding is the conflicting employer identification numbers (EIN) given by the 
petitioner on Form 1-140 and its tax returns. The EIN shown on the Form 1-140 shows the petitioner's tax 
number as 954597643, and the petitioner's 2001 tax return shows the EIN as 954847473. If the entity 
petitioning for the beneficiary (Form 1-140) and the entity shown on the tax return are one and the same, there 
would be no reason for the EIN to be different. 
The director must afford the petitioner reasonable time to provide evidence pertinent to the issue of the 
familial relationship between the beneficiary and the petitioner's owner, proof that the petitioner is allowed to 
Page 9 
operate under the laws of California, the reason for the conflicting EIN's, and any other evidence the director 
may deem necessary. The director shall then render a new decision based on the evidence of record as it 
relates to the regulatory requirements for eligibility. As always, the burden of proving eligbility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
ORDER: 
 The director's November 30, 2004 decision is withdrawn. The petition is remanded to the 
director for entry of a new decision, which if adverse to the petitioner, is to be certified to the 
AAO for review.