remanded EB-3 Case: Manufacturing

U.S. Citizenship . 
and Immigration 
Services 
MATTER OF K-M-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 13,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETJTlON: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a manufacturer of plastic extrusion and blow molding machines, seeks to employ the 
Beneficiary as a chief executive. It requests classification of the Beneficiary as a professional under 
the third preference immigrant classification. Immigration and Nationality Act (the Act), 
section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Acting Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 
had not established eligibility for the classification sought. The Director also denied the Petitioner's 
change of classification request to the skilled worker category. 1 
On appeal, the Petitioner asserts that it made a clerical error by selecting the professional 
classification on the petition, and that its change of classification request may be granted because the 
petition was still pending when the request was made. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for funhcr 
proceedings consistent with our opinion and for the entry of a new decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the U.S. Depa11ment of Labor (DOL) 2 See section 
2l2(a)(5)(A)(i) of the Act, 8 U.S.C. § ll82(a)(5)(A)(i). By approving the labor cel1ification, the DOL 
cel1ifies that there arc insuff1cient 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 2l2(a)(5)(A)(i)(l)-(ll) of 
1 
Section 203(b)(3)(A)(i) or the Act. 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 at least two years of training or 
experience. 
2 The priority date of a petition is the date the DOL accepted the labor certification for processing. which in this case is 
May 13,2015. See 8 C.F.R. ~ 204.5(d). 
Mauer of K-M-. Inc. 
the Act. Second, the employer files an immigrant visa pet1t10n 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 applies 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. CHANGE OF CLASSIFICATION 
In Part 2.1.e. of the Fonn 1-140, Immigrant Petition for Alien Worker, the Petitioner specified that the 
petition was being tiled for a professional. On the labor certification, the Petitioner stated the 
following requirements: a bachelor's degree in engineering or business: 12 months of training in the 
tield of engineering: and 180 months experience in the job offered. No alternate combination of 
education and experience is acceptable, and experience in an alternate occupation is not acceptable. 
A foreign educational equivalent is acceptable. 
In response to the Director's request for evidence, the Petitioner stated that it made a clerical error on 
the visa classification request, and asked to have the classification category of the petition changed 
to the skilled worker classification, which requires two years of training or experience (Part 2.1.f. of 
the Form 1-140). 
In his decision, the Director denied the requested change of classification because "USCIS has already 
commenced with adjudication of this case" and detennined that the Petitioner had not established 
eligibility for the classitication sought. On appeal, the Petitioner, through counsel, again asserts that a 
clerical error was made on the Form 1-140, which was meant to be filed for a skilled worker rather 
than a professional. The Petitioner further states that the Director's decision provides no basis for 
the conclusion that it has not established eligibility for the benefit sought. 
The USC IS website gives the following instructions with regarding to correcting an error: 
When we accept your Form 1-140 for processing, we create an electronic record and 
mail a Form 1-797, Receipt Notice, to you and the representative on the Form G-28. 
The receipt notice will indicate the visa category that you requested on Part 2 of the 
Form 1-140. Make sure this category is correct. If it is not correct (for example, if 
you or USC IS has made a clerical error), immediately call the USC IS Contact Center 
at 800-375-5283 or 800-767-1833 (TTY) to request that we change the visa 
classilication before making a decision on your form. 
Although you may request that we change the visa classification to correct a clerical 
error in Part 2 of the form, we will make the final determination about whether to 
change the visa classification based on everything in your case. If we deny your 
Form 1-140 because you are ineligible for the requested visa category, we will also 
deny any related application that you filed with it (for example, Form 1-485, Form 1-
765, Form 1-131). 
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Maller t?lK-M-. inc. 
We cannot change the vis a category if we have al ready made a deci sion on your Form 
1-140. 
Pet ilion Filing and Proces .... ·ing Procedur es for Form 1-140. Immigrant Petition for Ali en Worker, 
l1ttps://www. uscis. gov/forms/petition-fi I ing-and-processing -procedures- form-i-140-i mmigrant­
pelition- a\ien-workcr (last visited Mar. 23, 2018). 
Ther efore, USCIS guidanc~.: permits a petiti oner to request a change of classification prior 'to 
adjudication to correct a clerical error in Part 2 of the Form I-140. Further , USCIS guidance states 
that the determination regarding whether to change the visa preference clas sification will be made by 
USCIS based on "everything in [a petitione r' s] case." The Director gave no explanati on as to why 
the Petit ioner did not establish eligibility in this case. We will withdraw the Director 's decision m1d 
remand the matter to the Director for entry of a new decision addressing the merits of the Form 1-140 
under the skilled worker classification . However , as discussed below , we note that the record does not 
establish the Beneficiary 's posses sion of the qualifications required by the labor certificati on and does 
not demonst rate the Petitioner's ability to pay the proflered wage. 
III. BENEFICIARY'S QUALIFICA T!ONS 
The Petitioner has not established that the Beneficiary possessed the qualifications for the offered 
job as o f the priority date. A beneficiary must meet all of the requirements of the otTered position set 
forth on the labor certification by the priority date of the petition. 8 C.F.R. § 103.2(b)(I), (12); 
Maller (~l Wing ·s Tea House, 16 I&N Dec . 158, 159 (Acting Reg' I Comm ' r 1977). The regulation at 
8 C.F.R. § 204 .5(1)(3)(ii)(B) states: 
If the petition is tor a skilled worker, the petition must be accompanied by evidence 
that the alien meets the educa tional, training or experience, and any other 
requirements of the [labor certitica tion]. The minimum requirements for this 
clas sification are at least two years of training or experience. 
The determination of whether a petition may be approved for a skille d worker is based on the 
requirements of the job offered as set forth on the labor certification. See 8 C.F .R. § 204.5(1)(4). The 
labor certification must require at least two years of training and/or experience. Relevant post­
secondary education may be considered as training. See 8 C.F.R. § 204.5(1)(2). 
As noted above, the labor certification requires a bachelor's degree in engineering or business; 12 
months of training in the fl eld of engineering ; and 180 months experience in the job oftered. No 
alternate combination of education and experience is acceptable , and experience in an alternate 
occupation is not accep table . A foreign educational equivalent is acceptable . 
': 
The labor certification state s that the Beneficiary qualifie s for the o ffered position based on a 
bachelo r' s degree in eng ineering completed in 1975 issued by in the United 
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Maller(?{ K-A4-. Inc. 
Kingdom; and experience as President of the Petitioner in New Jersey from October I, 20 10, to 
August 3 I , 20 16. 
The record does not contain transcripts evidencing the Beneficiary' s education or trammg at 
Instead, it contains the following certificates: an Ordinary National 
Certificate 111 Engineering indicating that the Beneficiary completed a part-time course at 
in I 975; a Certificate in Jndustrial Management issued by the 
admined as an associate lo 
that the Beneficiary completed 
in 1981 ; a certificate indicating that that the Beneficiary was 
in 1981; and a certi ticate indicating 
an intermediate command and staff course at the 
, in 2007. These certificates do not evidence 
the Beneficiary's bachelor's degree in engineering or business, or his 12 months of training in the 
field of engineering , as required by the labor certification. 8 C.F.R. § 204.5(1)(3)(ii)(B). 
The Petitioner submitted two evaluations related to the Beneficiary's credentials. The first evaluation 
·was prepared by It concludes that based on the Beneficiaris 13 years and 7 
· months of employment experience in business administration with an emphasis on marketing, his 24 
post-secondary education credits, and his "high level theoretical and practical understanding of Business 
Administration with an emphasis in Marketing," the Beneficiary has "attained the equivalent of a U.S. 
Bachelor of Business Administration with an emphasis in Marketing equal to that of an individual who 
has a U.S. degree in the major." 
The second evaluation was prepared by for 
The evaluator concludes that the Beneficiary "through 
24 credits of university study and over 13 years of professional experience in Marketin g, has 
achieved professional recognition of having attained the equivalent of a U.S. Bachelor of Business 
Administration with an emphasis in Marketing equal to that of an individual "':ho has a U.S. 
Bachelor's degree in the major." 
The labor certification does not pen11it a lesser degree, a combination of lesser degrees, and/or a 
quantifiable amount of work experience, such as that possessed by the Beneficiary.3 A U.S. bachelor's 
degree usually requires four years of university studies. tl,fatter of Shah, 17 l&N Dec. 244, 245 
(Comm' r 1977). The terms of the labor certilication require a U.S. bachelor's degre e in engineering 
or business, or a foreign equivalent degree. The Beneficiary does not possess s uch a degree. The 
labor certitication specitically provides that no alternate combination of education and experience is 
acceptable.4 
3 In evaluating a beneficiary·s qualifications for an offered po sition, USCIS mu~t examine the job offer portion of a labor 
certification to detennine the position's minimum requirements. USCJS may neither ignore a tenn of the labor 
certification, nor impose additional requirements. See, e.g .. Madany v. Smith, 696 F.2d 1008, I 01 5 (D.C. Cir. 1983} 
(stating that the " DOL bears the authority for setting the content of the labor certification"). 
4 On appeal. the· Petitioner asserts that the skilled worker category does nor require a degree. While this statement is tme, 
the labor certification in this case requires a degree. The Petitioner also asserts that the skilled worker category permits 
an equivalency based on education and experience. However, the labor certification in this case does not allow for a 
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Mauer of K-M-. Inc. 
The Petitioner did not establish that. the Beneficiary met the mmnnum educational and training 
requirements of the offered position set forth on the labor certification by the priority date. 
Regarding the labor certiftcation's requirement of 180 months of experience in the job offered, 
evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer, and a specific description of the 
duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). 
The Petitioner did not submit a Jetter veri(ving the Beneficiary's employment with it. Instead, it 
submitted the Beneficiary's employment agreement dated August I, 20 I 0, for the position of President 
of the Petitioner. The agreement does not verity· the dates of the Beneficiary's employment and it does 
nor describe his duties. See id. 
Further. a labor certification employer cannot rely on experience that a foreign national gained with it, 
unless the experience was in a job substantially different than the oll"ered position or the employer 
demonstrates the impracticality of training a U.S. worker for the offered position. 20 C.F.R. 
§ 656.17(i)(3). For these purposes, a job is substantially different !rom an otrered position if it requires 
performance of the same job duties Jess than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii). 
On the labor certification at Part .1.21., the Beneticiary attested that he gained qualifying experience 
with the Petitioner in a substantially comparable job. The Petitioner has not demonstrated the 
combination of education and experience. Further, on appeal, the Petitioner states that the Ke!fogg language about 
degree equivalency is not required. The term ''Kellngg language" is taken from the following holding of the Board of 
Alien Labor Cenification Appeals (BALCA) 
[W]here the alien does not meet the primary job requirements. but only potentially qualifies for the job 
because the employer has chosen to list alternative job requirements, the employer·s alternative 
requirements are unlawfully tailored to the alien's qualifications ... unless the employer has indicated 
that appi(cants with any suitable combination of education. training or e.xperience are acceptable. 
Mauer of Kellogg, 94-lNA-465, *6 (BALCA Feb. 2, 1998) (en bw1e). The DOL regulation at 20 C.F.R. § 
656.17(h)(4)(ii) codifies BALCA ·s ruling and states as follows: 
(i) Alternative experience requirements must be substantially equivalent to the primary requirements of 
the job opportunity for which certification is sought: and 
(jj) H the alien bencliciary already is employed by the employer, and the alien does not meet the 
primary job requirements and only potentiatly qualifies for the job by virtue of tile employer's 
alternative requirements. certification will be denied unless the application states that any suitable 
combination of education, training. or e.xperience is acceptable. 
In this case. there are no alternative job requirements. The primary requirements include a bachelor"s degree in 
engineering or business: 12 months of training in the field of engineering~ and 180 months experience in the job offered. 
No alternate combination of education and experience is acceptable. and experjence in an alternate occupation is not 
acceptable. 
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lvfatrer of K-il.-1-. Inc. 
impracticality of training a U .S. worker for the offered position. Thus , the record therefore does not 
support the Petitioner's usc of experience that the Beneticiary gained with it. 
The record contains an experi ence letter from statin g that it employed the 
Benefici ary as a marketing and business development manager at 
from October 1998 to February 1999; that the Benefici ary served as division 
manage r from March l999 to October 2004 ; that he served as division manager of 
from October 2004 to December 2005; that he served as general manager of a 
subsidiary from January 2006 to December 2007; that he served as President of 
from .January 2008 to May 2009; and that he served as area manager of 
from June 2009 to August 2009 . However , none of these positions were listed on the 
labor certit1cation. The omission of the Benet1ciary's claimed . experience from the labor 
ce rtificat ion application casts doubt on the experience's validi ty. See Matter ofLe ung , 16 l&N Dec . 
12, 14-15 (Distr . Dir. 1976) , d;sapproved (~f on another ground by .'vfaller qf Lam, 16 l&N Dec. 432 
(BIA 1978) (finding a foreign nat ional's claim of qual ifying experience to lack credibility where he 
omitted the ex perience from a labor certification application). Further , even if we accept the letter as 
e vidence of the Beneficiary's experience, the letter does not verify the Benefici ary's 180 months ( 15 
years) of experience as a chief executive as required by the labor certification. Thus, the Petitioner 
has not established that the Beneficiary has the experience required for the olfered job. 
The Petitioner has not estab lished that the Beneficiary possessed the qualitication s required by the 
labor certification as of the priority date . 
IV. ABILITY TO PAY THE PROFFERED \VAGE 
T he Petitioner has not established its cont inuing ability to pay the protfer ed wage from the petition 's 
priority date onward. The proffered wage is $187,199 per year. The regulati on at 8 C.F .R. 
§ 204 .5(g)(2) states in pertinent part: 
Abilily of prmpectiv e employer 10 pay wage. Any petitiOn filed by or for an 
employment-based immigr ant which requires an offer of empl oyment 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 obtain s l<nvful 
permanen t residence. Evidence of this ability shall be either in the form of copies or 
annual reports, federal tax return s, or audited tinancial statements . 
In determining a petitioner's ability to pay, \:ve first ~?<amine whether it paid a benefic iary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage , we nex t examine whether it had sufticient annua l amounts of net income or net 
current assets to pay the difference between the proffered wage and the wage s paid , if any. If a 
Mauer of K-M-. luc. 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage5 
The record docs not demonstrate that the Petitioner has paid the Beneficiary any wages from the 
priority date onward. The record also does not contain any regulatory-prescribed evidence of the 
Petitioner's ability to pay the proffered wage from the priority date in 20 I 5 onward. 6 As such, the 
Petitioner has not established its continuing ability to pay the proffered wage from the petition's 
priority date in 20 I 5 onward. 
V. CONCLUSION 
The decision of the Director rejecting the Petitioner's request to change the immigrant visa 
classit1cation will be withdrawn. The matter is remanded to the Director for consideration of the 
petition under the skilled worker classiftcation, including whether the Benel1ciary possesses the 
required qualifications for the otTered job, and whether the Petitioner has the ability to pay the 
proffered wage from the priority date onward. The Director may request any additional evidence 
considered pertinent. Similarly, the Petitioner may provide additional evidence within a reasonable 
period of time to be determined by the Director .. Upon receipt of all the evidence, the Director will 
review the entire record and enter a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and tor the entry of a new decision. 
Cite as Matter of K-.M-. Inc, ID# 917449 (AAO Apr. 13, 201 8) 
;. Federal courts have upheld our method of determining a petitioner"s ability to pay a proffered wage. See. e.g.. River S1. 
Domlls, LLC v. Napolitano, 558 F.Jd II L ll8 (1st Cir. 2009); Tongatapu Woodcraft Naw., Ltd. v. Feldman. 736 F.2d 
1305. I 309 (9th Cir. \984); Esrrada-Hemundez V, Holder, -- r_ Supp, 3d--, 2015 WL 3634497. *5 (S.D. Cal. 20 15); Ri:vi 
v Der,·t rfHo/1/e/andSec., 37 F Supp 3d 870,883-84 (S.D. Tex. 2014), ajf'd, --fed. Appx. --.2015 WL, 5711445. *I 
(5th Cir. Sept. 30, 2015). 
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The record c~ntains the Petitioner's reviewed t3nancial statements covering tax years endir1g December 31.1013, and 
December 31. 2014. These statements do not cover the priority date year. Further, where a petitioner relies on financial 
statements to demonstrate lts abllity to pay the proffered wage, the financial statements must be audited. 8 C.F.R. 
§ 204.5(g)(2). An audit is conducted in accordance with generally accepted auditing standards to obtain a reasonable 
assurance that the financial statements of the business are free of material misstatements. The accountant"s report that 
accompanies the Petitioner's financial statements states that they are reviewed statements. as opposed to audited 
statements. The report also states that the financial statements are the representations of management and the accountant 
expresses no opinion pertinent to their accuracy. The unsupported representations of management are not reliable 
evidence and are insufticient to demonstrate the ability to pay the proffered wage. 
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