remanded EB-3 Case: Landscaping

U.S. Citizenship 
and Immigration 
Services 
In Re: 21500527 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 18, 2022 
The Petitioner, a landscape contractor business, seeks to employ the Beneficiary as a maintenance 
working foreman. It requests classification of the Beneficiary as an "other" worker under the third 
preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 
8 U.S.C. § 1153(B)(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent residence a foreign national who is capable of performing 
unskilled labor that requires less than two years of training or experience and is not of a temporary or 
seasonal nature. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary possessed the requisite three months of experience per the ET A 9089, 
Application for Permanent Employment Certification (labor certification). On appeal the Petitioner 
asserts the Director misinterpreted the nature and purpose of the evidence. In support, the Petitioner 
submits a brief and additional documentation. 
The AAO reviews the questions in this matter de nova. Matter of Christa 's Inc. , 26 l&N Dec. 537, 
537 n.2 (AAO 2015). The Petitioner bears the burden of proof to establish eligibility for the requested 
benefit by a preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). Upon de nova review, we will remand this case to 
the Director for further consideration. 
I. LAW 
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). See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). 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)(l)-(1 I) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, 
the foreign national 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. ANALYSIS 
A. The Beneficiary's Experience 
The Director determined that the Petitioner had not demonstrated that the Beneficiary possessed the 
requisite three months of experience performing outdoor physical labor in the job offered. In its initial 
filing, the Petitioner provided a letter from I I which stated that the 
Beneficiary performed maintenance work for her from December 2018 to January 2019 and December 
2019 to January 2020. The Director explained that because this letter contained no specific dates for 
the specified time periods, it did not establish that the Beneficiary possessed the requisite three months 
of experience. Additionally, the Director noted that although the record contained the Beneficiary's 
statement concerning his self-employment work history, the Petitioner had not provided any evidence 
"to support [the Beneficiary's] work history beyond the letter submitted byl I I I Accordingly, the Director determined that the evidence did not establish that the Beneficiary 
met the minimum requirements for the position by the priority date of December 30, 2019. The 
priority date is determined by the date DOL 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). 
On appeal, the Petitioner contends that the Director misinterpreted the nature and purpose of the 
evidence. The Petitioner states that the letletter was meant to complement 
and corroborate the Beneficiary's self-employment claims rather serve as an employment verification 
letter. Further, the Petitioner states that is the Beneficiary's customer, 
not his employer. Nevertheless, we agree with the Director that without specific dates, it is possible 
to interpret its stated date range as less than three months of experience.1 
,.Q.o.._gQgeal, the Petitioner submits two additional customer letters. A letter from I 
states that the Beneficiary worked for him from November 25, 2019, to March 20, 2020, 
performing interior and exterior maintenance. The Petitioner also submits a customer letter from 
______ claiming that the Petitioner performed interior and exterior maintenance for her 
during the following time periods: 
• January 1, 2016, to March 30, 2016; 
• November 19, 2016, to March 30, 2017; 
• November 18, 2017, to March 30, 2018; 
• November 17, 2018, to March 30, 2019; and 
• November 25, 2019, to March 30, 2020. 
Per 8 C.F.R. § 204.5(d), we consider only experience gained as of the priority date. Accordingly, even 
if we considered the letter as a complement and corroboration of the Beneficiary's self-employment 
1 For instance, December 31, 2018, to January 1, 2019, and December 31, 2019, to January 1, 2020, would collectively 
represent only four days of experience. Furthermore, because the petition's priority date is December 30, 2019, any 
experience gained after December 30, 2019, would not be considered. 
2 
experience statement, _________ letter would represent only five work weeks of 
experience gained prior to the petition's priority date. Similarly, the most recent period of experience 
listed in the I letter would represent only five work weeks of experience gained 
as of the priority date.2 
Furthermore, neither letter indicates whether the Beneficiary's work was full- or part-time. While we 
acknowledge that these are customer letters, not employment letters, the Petitioner still must establish 
that the Beneficiary has the required experience. For instance, if the I isted experience derived from 
part-time work, the Beneficiary would need to demonstrate more than three months' duration of 
experience, as the three months of experience listed in the labor certification contemplates full-time 
experience. Here, the evidence suggests that the Beneficiary worked for both I I 
and during the November 25, 2019, to March 30, 2020, timeframe and 
as such, it is not apparent that the work for these or other customers was performed on a full-time 
basis. However, given that the duration of the period during whichl I claims the 
Beneficiary worked for her spanned more than three years, albeit intermittent and part-time, the 
evidence suggests that Beneficiary's experience in the aggregate totals at least three months of full­
time experience. 
B. Successor in Interest 
The Petitioner stated in its initial filing that its former name was a and that 
it changed its name to I I Although the Director did not address this issue, 
we conclude that the record contains insufficient evidence regarding this name change. We reviewed 
the Articles of lncor oration for and Articles of Organization for I I 
but these documents do not indicate that I I changed its but these documents 
name to ________ We acknowledge the Petitioner's statement that it submitted 
proof of the entity's name change; however, the Petitioner does not point to what specifically in the 
Articles of Incorporation, Articles of Organization, or other documents establishes the entity's name 
chan e. Moreover, the Petitioner has not addressed the usage of I I and I I 
in other documents in the record. An Illinois business entity search reveals that 
effected a name change in September 2020 and thatl I 
and _______ underwent "conversions." Nevertheless, this information does not 
establish that the entities are one in the same, rather than separate entities operating at the same address 
or organized by the same agent. Furthermore, this information does not resolve other discrepancies in 
the record concerning the petitioning entity's name. 
We acknowledge that the Federal Employee Identification Number (FEIN) on the 1-140 petition, the 
labor certification, and the 2018 tax return are consistent with each other; however, the name differs 
throughout other documentation.3 For instance, the Beneficiary's 2019 W-2 states that the Petitioner 
isl las does the labor certification, and the 2018 tax returns; however, the 1-
140 petition, filed in November 2020, contains the name I I Even if we were 
to assume that the entity's name changed prior to the 1-140 filing date, this would not explain why the 
2 In addition, we note that based upon their identical last names, _____ appears to be a relative of the 
Beneficiary's spouse. 
3 We also note that the 2017 1120S tax return contains the name and lists a different FEIN. 
3 
Petitioner's quarterly tax return for 2020 carries the name While these 
entities may be related or one in the same, the Petitioner must provide sufficient evidence to establish 
this. 
C. The Petitioner's 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. 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the petition's priority date onward. In support of its ability to pay the proffered 
wage, the Petitioner provided a letter on I I letterhead stating that 
has the ability to pay all costs and payroll expenses for employees hired under the PERM program." We 
note that the return address for this letter belongs to a third-party company the Petitioner hired to process 
its PERM applications.4 Although the letter is signed by the "Vice President of Finance," the letter does 
not indicate whether the signee is the Vice President of Finance for thel 11 I 
or t the third-party company. The Petitioner submitted the Beneficiary's 2019 W-2 forms indicating 
that paid the Beneficiary a wage higher than the proffered wage. In addition, we 
note that the Petitioner provided the first page of both lnternal Revenue Service 
(IRS) Forms 1120S, U.S. Income Tax Return for an S Corporation (1120S) for 2017 and an 1120S 
return for for 2018. In addition, the Petitioner provided the first page of IRS 
Form 941, Employer's Quarterly Federal Tax Return (941), for the first two quarters of 2020. The 
Petitioner states that its fiscal year runs from December 1 to November 30 and that therefore its 2017 tax 
return contains 2018 information, while its 2018 tax return contains information from 2019. Assuming 
the Petitioner does in fact operate on a December 1-November 30 fiscal year, the record reflects the 
following details: 
Tax Year Ordinary Business 
Income (Loss)5 
2017 $41,730 
2018 $691 
2019 not provided 
2020 not provided6 
4 Although the Petitioner may want this third-party agent to receive correspondence on its behalf, the Petitioner has not 
provided a valid Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative for its agent. 
5 This is found at line 21 on the 1120S. 
6 The Petitioner provided only the first page of quarterly returns for the first and second quarters of 2020. 
4 
Presumably, the Petitioner did not submit its 2019 federal tax return, purportedly containing December 
1, 2019, to November 30, 2020, information because its fiscal year would not have ended at the time the 
Petitioner filed the 1-140 petition on November 27, 2020. However, without the Beneficiary's 2020 W-
2, the Petitioner's 2019 federal tax return, or other probative evidence, the record currently does not reflect 
the Petitioner's continuing ability to pay. In view of the requirement to establish the Petitioner's 
continuing ability to pay the proffered wage, we will remand this matter for further consideration. The 
Director may request copies of the Petitioner's federal tax returns for 2019 and 2020 and any other 
documentation deemed relevant at his discretion in determining the Petitioner's ability to pay the 
proffered wage. 
D. The Validity of the Labor Certification 
Also unaddressed by the Director, we note that the underlying labor certification appears to contain 
scanned or electronic signatures from both the Beneficiary and the Petitioner. Therefore, this petition 
may not have been eligible for approval at filing if it was not accompanied by a valid labor 
certification. The regulation at 20 C.F.R. § 656.17 describing the basic labor certification process 
provides in pertinent part: 
(a) Filing applications. 
(1) .... Applications filed and certified electronically must, upon receipt of the 
labor certification, be signed immediately by the employer in order to be 
valid. 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 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. 
Although an ETA Form 9089 approved by DOL accompanied the petition, it appears to contain 
scanned or photocopied signatures for the Petitioner and Beneficiary. We acknowledge that the record 
contains a printout of guidance from the Office of Foreign Labor Certification (OFLC) concerning the 
issuance of electronic labor certifications. The electronic signature of the DOL certifying officer is 
therefore not a concern. We also acknowledge that the record contains a copy of a USCIS Public 
Engagement Division email addressing the validity of electronic signatures on the Form 1-140. We 
further acknowledge the section of the Form 1-140 instructions that recognizes the validity of 
electronic signatures. Finally, we are aware of the COVI D-19 flexibility in required signatures, which 
USCIS announced in a March 2020 news alert found at https://www.uscis.gov/news/alerts/uscis­
announces-flexi bi I ity-i n-subm itti ng-requ i red-signatures-duri ng-covid-19-national-emergency, as 
well as the USCIS policy manual that states USCIS accepts "[a]n original signature on the benefit 
request that is later photocopied, scanned, faxed, or similarly reproduced .... " 1 USCIS Policy Manual 
B.2(B), https://www.uscis.gov/policymanual. The validity of scanned, photocopied, or electronic 
signatures on USCIS forms and the validity of electronic signatures from the certifying DOL officer 
in approved labor certifications are not at issue. 
However, the Petitioner has not established that the above sources of guidance may be interpreted to 
mean that USCIS will accept scanned, photocopied, or electronic signatures of a petitioner, preparer, 
5 
or beneficiary on DOL's certified Forms ETA 9089. In other words, the approved labor certification 
that a petitioner provides must be the original per 20 C.F.R. § 656.17. Here, the Petitioner has not 
established that the record contains an original ETA Form 9089, at least in terms of the Petitioner and 
Beneficiary's signatures.7 Rather, it appears that although the Petitioner and Beneficiary may have 
signed the approved labor certification after printing it, the Petitioner provided a scanned or 
photocopied version of the original labor certification to USCIS instead of the original. Alternatively, 
it is also possible that electronic images of the Petitioner and Beneficiary's signatures were placed on 
the electronically approved labor certification before printing. Ultimately, the Director may wish to 
examine whether the petition was accompanied by a properly signed original labor certification. 
Ill. CONCLUSION 
The Petitioner has submitted additional evidence of the Beneficiary's experience, which the Director 
did not have an opportunity to review. Additionally, the issues of the labor certification's validity, as 
well as the petitioning entity's name and its continuing ability to pay the proffered wage were not 
previously addressed by the Director. Therefore, we will remand this case for further consideration. 
The Director may issue a request for any evidence that may be deemed relevant in his discretion. After 
the Petitioner's response is received, or the response period expires, the Director may issue a new 
decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further proceedings 
consistent with the foregoing analysis and for the entry of a new decision. 
7 The preparer's signature on the labor certification appears to be original. 
6