remanded EB-3 Case: Nursing

identi~idaEade1db 
prevent clearly unwtu~~~~ted 
invasion of personal privacy 
PUmC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
n 
PETITION: Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 5 203(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. 
Robert 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 on appeal. The appeal will be remanded. 
The petitioner is a convalescent hospital. It seeks to employ the beneficiary permanently in the United States 
as a nursing assistant. As required by statute, the petition is accompanied by a Form ETA 750, Application 
for Alien Employment Certification, approved by the U. S. Department of Labor. The director determined 
that the petitioner had not established that it was the true employer of the beneficiary or that the petitioner had 
a fulltime position available for the beneficiary. The director denied the petition accordingly. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
The regulation at 8 C.F.R. fj 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 in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
The regulation at 8 CFR 9 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slulled 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. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. The petitioner must 
also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750 
Application for Alien Employment Certification as certified by the U.S. Department of Labor and submitted with 
the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comrn. 1977). 
Here, the Form ETA 750 was accepted on March 26, 2001.' The proffered wage as stated on the Form ETA 
750 is $1,938.34 per month ($23,260.08 per year). The Form ETA 750 states that the position requires three 
months of experience. 
On appeal, counsel submits a legal brief and additional evidence. 
1 
 It has been approximately five years since the Alien Employment Application has been accepted and the 
proffered wage established. According to the employer certification that is part of the application, ETA Form 
750 Part A, Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the 
employer] guarantee that, if a labor certification is granted, the wage paid 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." 
Page 3 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; U.S. Internal 
Revenue Service Form tax returns 2000, 2001 and 2002; and, copies of documentation concerning the 
beneficiary's qualifications as well as other documentation. 
The director requested additional 
 petitioner's employment offer to the beneficiary. In 
response counsel submitted a letter fio 
 administrator, stating that the petitioner will employ 
the beneficiary. 
The director issued a notice of intent to deny processing the petition on December 21, 2005. In the notice the 
director observed that the petitioner had multiple pending petitions. The director requested evidence of the 
petitioner's ability to pay for all petitions. The director also stated that the petitioner has not employed any of 
the then pending applicants (i.e. beneficiaries) or approved applicants since the 3rd quarter of 2004." Further, 
the director requested an explanation of why the petitioner has not employed "anyone" since the end of the 4" 
quarter of 2004. In summary, the director questioned, inter alia, whether or not the beneficiary2 (including 
those beneficiaries with other approved or pending petitions including those beneficiaries in possession of 
CIS Form 1-765 Employment Authorization Documents enabling them to work in the United States) would 
receive a permanent, full-time employment position? 
In response, the petitioner submitted an explanatory letter, and, the petitioner submitted U.S. federal tax 
returns that stated that the petitioner reported taxable incomes of $891,017.00, $658,814.00, and, $748,205.00 
for tax years 2001,2002, and 2003 respectively. 
Also submitted was a Mainstay Business Solutions ("Mainstay"), 2 Executive Circle, Suite 100, Irvine 
California letter dated January 5, 2006, that stated the petitioner is ". . . in an employment relationship with 
Mainstay Business Solutions." According to the letter, Mainstay Business Solutions " . . .pays the employees 
of ...[ the petitioner] and bills the same for the gross wages, employer taxes and related insurance. The 
payroll taxes are withheld and paid under Mainstay's Federal Employer Tax ID Number . . . ." 
Also submitted were California Employment Development Department (EDD) Form DE-6, Quarterly Wage 
Reports for all employees that were accepted by the State of California were submitted with a submittal sheet 
listing Mainstay Business Solutions as the employer. 
Also submitted was a job offer letter dated January 19, 2006, fro administrator, that the 
petitioner will employ the beneficiary as a certified nursing assistant at a salary of $1,938.34 per month. 
The director denied the petition on April 25, 2006, finding, inter alia, that the evidence submitted did not 
establish that it was the true employer of the beneficiary, and, that the petitioner did not establish by the 
evidence presented that it had a fulltime position available for the beneficiary at the time of filing the Alien 
2 
 According to the CIS Form G-325A dated February 18, 2004, submitted by the beneficiary (and 
- -. 
employment verification letters in the record), she had been employed as a care giver, and as a nurse assistant 
by the ~esidential Care Facility, Northridge, California, by Mr. Thousand 
Oaks, California, and by Professional Services, (SFO), Califo- to January 
2000, January 2000 to November, 2001, and November, 2001 to present time (i.e. February 18, 2004) 
respectively. According to the beneficlaw s 
' , 
2000, the beneficiary wages fron 
per year. 
Employment Application, that is the priority date. The director stated that the 1-140 employment-based 
petition is to provide the petitioner the ability to directly employ individuals outside the United States in 
positions determined to have shortages of qualified workers or in positions that are hard to fill. The director 
stated that Mainstay was a temporary staffing agency and that the direct employment and the intent to hire 
and control the beneficiary's employment was with Mainstay, not with the petitioner, although according to a 
Form G-325A in the record of proceeding, the beneficiary was employed from March 1995 through August 1, 
2003 with employers other than Mainstay or the petitioner. 
The director then stated that second party employment is a misrepresentation of the beneficiary's true 
employer and therefore a misrepresentation of a material fact of the beneficiary's visa approval. The director 
reiterated that the evidence submitted into the record established that Mainstay was the beneficiary's true 
employer in the instant petition. 
The director then cited section 212(a)(6)(c)(i) of the Act concerning fraud and misrepresentation of material 
facts and the effect of such acts on the admissibility of beneficiaries. The director also cited Matter of Estime, 
19 I&N Dec. 450 (BIA 1986, with regard to standard of proof required for issuing a notice of revocation, and 
Matter of Ho, 19 I&N Dec. 582(BIA 1988). 
On appeal, counsel asserts " ... [the] petitioner is a bona-fide employer who has been the underlying 
employer, with the ability to hire & fire and discipline employees; that should include the beneficiary." 
Counsel then provides notice that " . . . Mainstay [Business Solutions] has been terminated and Petitioner now 
directly hires employees including the beneficiary . . .." 
Counsel has submitted the following documents to accompany the appeal statement: an explanatory letter 
dated May 22, 2006 from counsel; a copy of the notice of decision dated April 27, 2006, in this matter; a 
statements from, Administrator dated May 1, and May 22, 2006; a letter dated May 1, 2006 sent 
by the petitioner to Mainstay Business Solutions; a statement by the beneficiary; and, an employment 
agreement between the petitioner and the beneficiary. 
On June 21, 2006, counsel submitted a brief in this matter together with a copy of the letter mentioned above 
from the petitioner to Mainstay Business Solutions and a copy of the notice of decision. 
Counsel contends that according to a statement given by dated May 1 1, 2006, Mainstay Business 
Solutions is an employment agency without the and terminate the employment 
of the employee beneficiary. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Counsel also contends, in various arguments, that it is the ability to control the details of the work that is 
evidence of an employer/employee relationship. Counsel asserts that "". . . [CIS] has not detailed the ability to 
control the details of the employer's work." We do not agreed that the scope of employment responsibilities 
between the petitioner and Mainstay Business solutions is relevant to the issue of whether or not petitioner 
has established that had not established that it was the true employer of the beneficiary or that the petitioner 
had a fulltime position available for the beneficiary. Since Mainstay is not a party to the labor certification or 
the petition such an agreement could not prove an employment between the petitioner and the beneficiary. As 
stated in this discussion, Mainstay's website stated that Mainstay was established in 2003. Based on this year 
of establishment, Mainstay could not possibly been the actual employer of the beneficiary as of the 2001 
priority date year. Counsel has provided no explanation for how it dealt with the beneficiary from the priority 
date to 2003. The petitioner failed to provide an employment agreement between the petitioner and the 
Page 5 
beneficiary required by the U.S. Department of Labor's (USDOL) regulation at 20 C.F.R. 9 656.21, et seq. as 
is discussed more completely within this discussion. 
Further, it is the petitioner's burden to establish by evidence that it is permanent full-time employer who will 
employ the beneficiary according to the terms of the labor certification. The burden of proof in these 
proceedings rests solely with the petitioner not CIS. Section 291 of the Act, 8 U.S.C. fj 1361. 
In determining the respective jurisdictions of the Department of Labor and the CIS, one may turn to the entire 
body of recent court proceedings interpreting the interplay of the agencies and strictly confining the final 
determination made by the Department of Labor. See Stewart Infi-a-Red Commissary, Etc. v. Coomey, 661 F.2d 
1 (1st Cir. 1981); Denver Tofu Company v. District Director, Etc., 525 F. Supp. 254 (D. Colo. 1981); and, 
Joseph v. Landon, 679 F.2d 113 (7th Cir. 1982). 
These cases recognize the labor certification process and the authority of the Department of Labor in this 
process stem from section 214(a)(14) of the Act, 8 U.S.C. 1182(a)(14). In labor certification proceedings, the 
Secretary of Labor's determination is limited to analysis of the relevant job market conditions and the effect, 
which the grant of a visa would have on the employment situation. The CIS, through the statutorily imposed 
requirement found in section 204 of the Act, 8 U.S.C. 1154, must investigate the facts in each case and, after 
consultation with the Department of Labor, determine if the material facts in the petition including the 
certification are true. 
In the present case, the "employment relationship" between Mainstay Business Solutions and the petitioner was 
not, according to the record of proceeding, disclosed during the labor certification process. 
Although the advisory opinions of other Government agencies are given considerable weight, CIS has 
authority to make the final decision about a beneficiary's eligibility for occupational preference classification. 
The Department of Labor is responsible for decisions about the availability of United States workers and the 
effect of a prospective employee's employment on wages and working conditions. The Department of Labor's 
decisions concerning these factors, however, do not limit the CIS'S authority regarding eligibility for 
occupational preference classification. Therefore, the issuance of a labor certification does not necessarily 
mean a visa petition will be approved. 
Since the beneficiary has not worked with the petitioner according to the letter statement, from Julita A. 
Javier, administrator in the record of proceeding, it is not clear why counsel's is making masterlservant, 
agency or scope of control contentions in this particular fact situation upon appeal.3 However such assertion 
begs the admission that counsel has made in her appeal statement mentioned above. Counsel has 
characterized the petitioner as "the underlying employer" in the relationship between Mainstay Business 
3 
 To recount the evidence submitted by the petitioner, and not at issue in this matter, Mainstay Business 
Solutions, 2 Executive Circle, Suite 100, Irvine California stated in a letter dated January 5, 2006, that the 
petitioner is ". . . in an employment relationship with Mainstay Business Solutions." According to the letter, 
Mainstay Business Solutions " . ..pays the employees of . . .[the petitioner] and bills the same for the gross 
wages, employer taxes and related insurance. The payroll taxes are withheld and paid under Mainstay's 
Federal Employer Tax ID Number." Counsel also stated that Mainstay Business Solutions does not the 
required licensing to exercise supervision in a nursing home and for that reason, "this alone negates the 
control test" that the petitioner has raised in counsel's brief. It is reasonable that Mainstay could employ the 
beneficiary to work in the petitioner's facility without requiring a nursing residence, operating license, since 
the petitioner would provide the license. 
Page 6 
Solutions and petitioner.4 Based upon what the petitioner has disclosed to date, we find at the time the Alien 
Employment Application was accepted Mainstay Business Solutions was intended to be the employer of 
record. 
To recount the evidence submitted by the petitioner, and not at issue in this matter, Mainstay Business 
Solutions, 2 Executive Circle, Suite 100, Irvine California stated in a letter dated January 5, 2006, that the 
petitioner is ". . . in an employment relationship with Mainstay Business Solutions." According to the letter, 
Mainstay Business Solutions " . . .pays the employees of . . .[the petitioner] and bills the same for the gross 
wages, employer taxes and related insurance. The payroll taxes are withheld and paid under Mainstay's 
Federal Employer Tax ID Number . . .." Further, on appeal, counsel stated and presented evidence that the 
petitioner has entered into an employment agreement with the beneficiary, dated May 2006, and that the 
agreement or relationship with Mainstay Business has been terminated as of May 1, 2006, approximately five 
years after the priority date. 
By the preponderance of the evidence submitted in this case, the petitioner had not established that the 
petitioner had a fulltime position available for the beneficiary. At the time of filing the Alien Employment 
Application (ETA 750A/B), by the evidence submitted as mentioned above, Mainstay Business Solutions was 
the alter ego of the petitioner in the employment relationship with the beneficiary. During the pendency of 
the appeal process, the petitioner terminated its contractual relationship with Mainstay Business Solutions on 
May 1, 2006. The fact that the petitioner has altered its scheme at this stage in the petition review process to 
eliminate Mainstay's role in the beneficiary's employment cannot change the fact that when the ETA 750 was 
filed and then accepted, the petitioner by a review of the evidence submitted did not employ the beneficiary at 
any time. 
The second issue in this case is the ability of the petitioner to pay the proffered wage for all beneficiaries for 
which petitions it has filed are pending. CIS electronic database records show that the petitioner filed 1-140 
petitions on behalf of approximately 67 other beneficiaries since 1996, with approximately one-half of that 
number approved. Although the evidence in the instant case indicated financial resources of the petitioner 
greater than the beneficiary's proffered wage, it would be necessary for the petitioner also to establish its 
ability to concurrently pay the proffered wage to any other beneficiary or beneficiaries for whom petitions 
have been approved or may be pending. Approximately 30 petitions are still in process, either pending or 
denied (denied petitions may be appealed, re-filled, or the labor certifications reused for other benefi~iaries).~ 
4 
 In the present case, the "employment relationship" as characterized by counsel, between Mainstay Business 
Solutions and the petitioner was not, according to the record of proceeding, disclosed during the labor 
certification process. The U.S. Department of Labor's (USDOL) regulation at 20 C.F.R. lj 656.21, et seq., 
regarding Applications for Alien Employment (Form ETA 750 A/B) required in pertinent part that that the 
petitioner (employerlapplicant therein) submit in the form or on its attachments " Two copies of the 
employment contract, each signed and dated by both the employer and the alien (not their agent) . . .", that a 
duplicate contract be furnished to the alien, and, any other "agreement or conditions not specified " ... on the 
Application for Alien Employment Certzjkation form." It is common industry practice to make the 
employment contract contingent upon the receipt of a right to work document within the United States. 
5 
 There is a statement dated May 22, 2006, by Julita Javier, in the record of proceeding, that stated that there 
are 22 1-140 petitions pending and "At $19,5510.44 [sic] annually, that would translate to a total of 
$429,229.69 annually." Ms. Javier stated that the tax returns submitted prove that the petitioner has the 
ability to pay the wages proffered. No wage data was submitted to substantiate this statement. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
Page 7 
When a petitioner has filed petitions for multiple beneficiaries, it is the petitioner's burden to establish its 
ability to pay the proffered wage to each of the potential beneficiaries. The record in the instant case contains 
no information about wages paid to other potential beneficiaries6 of 1-140 petitions filed by the petitioner, or 
about the priority dates of those petitions, or about the present employment status of those other potential 
beneficiaries. Lacking such evidence, the record in the instant petition would fail to establish the ability of 
the petitioner to pay the proffered wage to the beneficiary of the instant petition. The director issued a notice 
of intent to deny on December 21, 2005. In the notice the director observed that the petitioner had multiple 
pending petitions. The director requested evidence of the petitioner's ability to pay for all petitions. The 
petitioner has not submitted the requested information, that is employment information (i.e. start dates current 
status and wage information). Failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
No evidence was submitted by the petitioner of the proffered wages of each of the pending beneficiaries 
mentioned above. The AAO cannot by the evidence submitted determine whether or not the petitioner has the 
ability to pay the proffered wages of all beneficiaries. The petitioner failed to establish its ability to 
concurrently pay the proffered wage to any other beneficiary or beneficiaries for whom petitions have been or 
may be pending. 
No information was submitted why the petitioner did not employ the beneficiary from the date the beneficiary 
received her Employment Authorization Document through the auspices of the petitioner, or why the 
petitioner did not similarly employ other beneficiaries for whom it filed employment based petitions. 
No agreement was submitted in the record of proceeding between Mainstay Business Solutions and the 
beneficiary. 
No employment contract by both the employer and the alien (not its or their agent7) as of the priority date, 
February 2 1,200 1, was submitted in this case. 
No agreement was submitted in the record of proceeding between Mainstay Business Solutions and the 
petitioner other then a termination letter. As previously stated, although the director referred to a contract 
between Mainstay and the petitioner, the record of proceeding at the time of the director's decision does not 
contain this document that might outline the actual business relationship between the petitioner and Mainstay 
and the effective dates of any such relationship. 
Thus, the AAO will remand the case to the director and the director can undertake any procedural 
mechanisms or request any additional information or evidence including but not limited to a document (s) that 
would outline the business relationship between the petitioner and Mainstay with the effective dates of any 
such relationship and any other documents necessary to make an additional determination. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not met that burden. 
in these proceedings. Matter of Soflci, 22 I&N Dec. 15 8, 165 (Comm. 1998) (citing Matter of Treasure Craf2 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
6 
 There is an approximation statement stated in a "Declaration" made by Ms. dated May 22, 2006, 
found in the record of proceeding that a salary of $19,55 10.44 [sic] for 22 outstan mg -140 petitions equates 
to $429,229.69, but there is no substantiation for this approximation. 
7 
See 8 C.F.R. tj 656.21, et seq. 
ORDER: The appeal is remanded to the director.