remanded EB-3 Case: Oil And Gas Software

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-C- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 30, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of software and services for the oil and gas industry, seeks to employ the 
Beneficiary as a geomechanics and stimulation specialist. It requests his classification under the 
third-preference immigrant category as a professional. Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(ii) , 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based, "EB-3" category 
allows a U.S. business to sponsor a foreign national for lawful permanent resident status to work in a 
job requiring at least a bachelor's degree. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the position's proffered wage. 
On appeal, the Petitioner submits additional evidence. It argues that the record demonstrates its 
ability to pay the proffered wage based primarily on expected financial support from its parent 
company. 
Upon de nova review, we will withdraw the Director's decision and remand the matter for entry of a 
new decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process . To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain 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). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for an offered position, and that employment of a foreign national will not harm wages 
and working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the labor certification with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. Among other things, USCIS determines whether a beneficiary meets the 
requirements of a DOL-certified position and the requested visa classification. If USCIS grants a 
petition, a foreign national may finally 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. 
Matter of S-C- Inc. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, federal tax 
returns, or audited financial statements. Id. 
Here, the accompanying labor certification states the proffered wage of the offered position of 
geomechanics and stimulation specialist as $135,658 a year. The petition's priority date is February 
26, 2018, the date DOL accepted the labor certification application for processing. See 8 C.F.R. 
§ 204.5(d) (explaining how to determine a petition's priority date). 
As evidence of its ability to pay the proffered wage, the Petitioner initially submitted a letter from its 
chief financial officer (CFO). A statement from a financial officer may demonstrate ability to pay if 
a petitioner employs at least 100 people. 8 C.F.R. § 204.5(g)(2). The letter from the Petitioner's 
CFO, however, indicates that the company employs only 70 people. The Director therefore properly 
issued a written request for additional evidence (RFE). 
As of the RFE's issuance in October 2018, required evidence of the Petitioner's ability to pay the 
proffered wage in 2018, the year of the petition's priority date, was not yet available. The Petitioner 
therefore submitted a copy of a 201 7 federal income tax return, which the Director used in 
determining the company's ability to pay. Following the pendency of this appeal, however, the 
Petitioner should be able to provide a requisite annual report, federal tax return, or audited financial 
statement for 2018. We will therefore remand the matter. 
Also, the 2017 tax return submitted by the Petitioner bears the name of its parent company and 
contains consolidated financial information of the parent, the Petitioner, and another subsidiary. 
Other entities or individuals, however, generally cannot demonstrate a petitioner's ability to pay a 
proffered wage. A petition must include "evidence that the prospective United States employer has 
the ability to pay the proffered wage." 8 C.F.R. § 204.5(g)(2) (emphasis added). This petition and 
its accompanying labor certification identify the Petitioner as the Beneficiary's prospective U.S. 
employer. Thus, unless the Petitioner submits its own federal tax return for 2018, or the tax return of 
the Petitioner's parent distinguishes the Petitioner's finances from those of the parent and the other 
subsidiary, the Petitioner may need to submit required evidence in a form other than a tax return. 
See Sitar Rest. v. Ashcroft, No. 02-30197-MAP, 2003 WL 22203713, *2 (D. Mass. Sept. 18, 2003) 
(holding "that nothing in the governing regulation, 8 C.F.R. § 204.5, permits the [immigration 
service] to consider the financial resources of individuals or entities who have no legal obligation to 
pay the wage"). 
In addition, USCIS records indicate the Petitioner's filing of immigrant pet1t10ns for other 
beneficiaries. A petitioner must demonstrate its ability to pay the proffered wage of each petition it 
files until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner 
here must therefore demonstrate its ability to pay the combined proffered wages of this petition and 
any others that were pending or approved as of this petition's priority date of February 26, 2018, or 
filed thereafter. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our 
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Matter of S-C- Inc. 
revocation of a petition's approval where, as of the filing's grant, a petitioner did not demonstrate its 
ability to pay the combined proffered wage of multiple petitions). 1 
USCIS records indicate the Petitioner's filing of at least five immigrant petitions for other 
beneficiaries that were pending or approved as of February 26, 2018. 2 Thus, on remand, the 
Director should ask the Petitioner to provide the proffered wages and priority dates of its other 
petitions. The Petitioner may also submit additional evidence of its ability to pay the combined 
proffered wages, such as proof of payments to applicable beneficiaries in 2018 and materials 
supporting the factors stated in Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). In 
addition, as previously indicated, the Petitioner must submit required evidence of its ability to pay in 
2018. 
III. THE REQUIRED EXPERIENCE 
Although unaddressed by the Director, the record also does not establish the Beneficiary's 
possession of the experience required for the offered position. A petitioner must establish that a 
Beneficiary meets all DOL-certified job requirements of an offered position by a petition's priority 
date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). In 
evaluating a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification. USCIS may neither ignore a certification term, nor impose 
additional requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding 
that "DOL bears the authority for setting the content of the labor certification") ( emphasis in 
original). 
Here, the labor certification states the mm1mum requirements of the offered pos1t10n of 
geomechanics and stimulation specialist as a bachelor's degree in petroleum engineering, electrical 
engineering, or mechanical engineering, plus two years of experience. Part H.14 of the labor 
certification, "Specific skills and other requirements," specifies that the required experience must 
include at least: two years of "field experience as a hydraulic fracturing engineer"; two years' 
experience with "fracture modeling and stress profiling using Fracpro PT or similar programs"; two 
years' experience using "Python, with fracture mechanics and fracture Theory, fracturing fluid 
systems and necessary laboratory testing requirements" and one year's experience "using CMG, 
Petrel or similar programs." 
The Beneficiary's educational qualifications are not at issue. On the labor certification, he attested 
that, by the petition's priority date and before joining the Petitioner in the offered position, he gained 
more than two years of foll-time qualifying experience. He stated that a U.S. oilfield services 
company employed him as a field engineer from March 2012 to November 2014. 
1 The Petitioner need not demonstrate its ability to pay proffered wages of petitions that it withdrew or, unless pending 
on appeal, that USCIS denied, revoked, or rejected. The Petitioner also need not demonstrate its ability to pay proffered 
wages before the priority dates of corresponding petitions, or after corresponding beneficiaries obtained lawful 
permanent residence. 
2 
USCTS records i<lrtity the other petr~~~l bv the foll awing rec,ipt numbers: 
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Matter of S-C- Inc. 
Pursuant to 8 C.F.R. § 204.5(1)(3)(ii)(A), the Petitioner submitted a letter from the Beneficiary's 
former employer in support of the Beneficiary's claimed, qualifying experience. Consistent with the 
information on the labor certification, the letter states that the company employed the Beneficiary 
full-time as a field engineer from March 2012 to November 2014 and describes his duties and skills. 
Contrary to Part H. 14 of the labor certification, however, the letter does not state that the 
Beneficiary gained two years of experience with Python, or, for at least one year, used CMG, Petrel 
or other similar programs. In a letter accompanying the petition, the Petitioner's human resources 
manager asserted that the Beneficiary meets all of the offered position's requirements. The 
Petitioner, however, has not demonstrated that its human resources manager has personal knowledge 
of the Beneficiary's experience from March 2012 to November 2014. The record therefore does not 
establish the Beneficiary's possession of the minimum experience required for the offered position 
by the petition's priority date. 
The Director did not notify the Petitioner of this evidentiary deficiency. Therefore, on remand, the 
Director should ask the Petitioner for additional evidence that, by February 26, 2018, the Beneficiary 
met the specific experience requirements stated in part H.14 of the labor certification. The Director 
should also provide the Petitioner with a reasonable opportunity to respond to this and the other 
issues raised on remand. Upon receipt of a timely response, the Director should review the entire 
record and enter a new decision. 
IV. CONCLUSION 
The record lacks required evidence of the Petitioner's ability to pay the proffered wage in 2018, the 
year of the petition's priority date. The record also lacks proffered wages and priority dates of 
immigrant petitions the company filed for other beneficiaries that were pending or approved as of 
this petition's priority date. In addition, the Petitioner has not demonstrated the Beneficiary's 
possession, by the petition's priority date, of the minimum experience required for the offered 
position. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter of S-C- Inc., ID# 5107916 (AAO July 30, 2019) 
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