remanded EB-3 Case: Plumbing

U.S. Citizenship 
and Immigration 
Services 
In Re : 14759511 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 16, 2022 
The Petitioner, a provider of plumbing and construction-related services, seeks to employ the 
Beneficiary as a plumber's assistant. The company requests his classification under the third-preference, 
immigrant visa category for skilled workers. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
After initially granting the filing, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that the Petitioner did not demonstrate the bona fides of the job 
opportunity. 
In revocation proceedings, the Petitioner bears the burden of establishing eligibility for the requested 
benefit by a preponderance of evidence. SeeMatterofHo, 19 I&NDec. 582,589 (BIA 1988) (citation 
omitted) (discussing the burden of proof); see also Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 
2010) (discussing the standard of proof). 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 skilled worker generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: ( 1) there are insufficient U.S. 
workers able, willing, qualified, and available foran offered position; and(2) employment of a non citizen 
in the position would not harm wages and working conditions of U.S. workers with similar jobs. See 
section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit an approved 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 noncitizen beneficiary meets the requirements of a 
DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, if USCIS approves a petition, a designated noncitizen 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. 
"[A]t any time" before a beneficiary obtains lawful permanent residence, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition's approval if the unexplained 
and unrebutted record at the time of the notice's issuance would have warranted the petition's denial. 
Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). If a NOIR response does not rebut alleged 
revocation grounds, USCIS properly revokes a petition's approval. Id. at 451-52. 
II. THE BONA FIDES OF THE JOB OPPORTUNITY 
We will withdraw the Director's finding that the Petitioner did not demonstrate the bonafides of the 
job opportunity. 
III. THE REQUIRED EXPERIENCE 
Despite the withdrawal of the revocation grounds, the record indicates USCIS' erroneous approval of 
the petition. The Petitioner did not demonstrate the Beneficiary's possession of the minimum 
employment experience required for the offered position. 1 
A petitioner must demonstrate a beneficiary's possession of 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). 2 In evaluating a beneficiary's qualifications, USCIS must examine the 
job-offer portion of an accompanying labor certification to determine a position's minimum 
requirements. 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 con tent of the labor certification") ( emphasis in original). 
The labor ce1iification states the minimum requirements of the offered position of plumber's assistant 
as two years of experience "in the job offered." Experience "in the job offered" means experience 
performing the key duties of an offered position as listed on a labor certification. See, e.g., Matter of 
Symbioun Techs., Inc., 2010-PER-01422, *2 (BALCA Oct. 24, 2011) (citations omitted). 3 The labor 
certification states that the position requires neither education nor training. 
On the labor ce1iification, the Beneficiary attested that, by the petition's priority date, he gained more 
than two years of full-time experience as a plumber's assistant. He stated that he worked for a U.S. 
1 The Director's decision discusses the Beneficiary's work histoty but does not expressly find insufficient evidence of his 
claimed, qualifying experience. 
2 This petition's priority date is June 8, 2018, the date DOL accepted the labor certification application for processing. See 
8 C.F.R. § 204.5(d)(explaininghowto determine a petition's priority date). 
3 Decisions of the Board of Alien Labor Certification Appeals (BALCA) do not bind USCIS. Rather, in proceedings 
involving the same orsimilarissues, DepartmentofHomeland Securityemployeesmust follow precedent decisions ofthe 
Attorney GeneralandBoard oflmmigration Appeals (BIA). 8 C.F.R. § I 03.1 0(b). USCTS, however, may find BALCA 
decisions to be persuasive. See also Martin v. Occupational Health and Safety Review Comm 'n, 499 U.S. 144, 156-58 
(1 991) (holding that an administrative agency should de fer to reasonable, regulatory interpretations of a sister agency 
charged by Congress with enforcing the rules). 
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plumbing company from January 2008 to April 2010. The Beneficiary did not list any other related 
experience on the labor certification application. 
To support claimed qualifying experience, a petitioner must submit a letter from a beneficiary's former 
employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must contain the employer's name, address, and 
title, and describe the beneficiary's experience. Id. 
Consistent with 8 C.F.R. § 204.5(1)(3)(ii)(A), the Petitioner provided a letter from the owner of the 
Beneficiary's claimed, former employer. The letter indicates that, from January 2008 to April 2010, 
the company "trained and educated" the Beneficiary on a full-time basis "about all plumbing aspects 
to complete plumbing work." The letter states that the Beneficiary "was not being rewarded or paid 
for his progress in education." 
The letter does not demonstrate the Beneficiary's qualifying experience for the offered position. First, 
the letter states that the Beneficiary was "trained and educated." The labor certification indicates that 
the position requires work experience, rather than education or training. The Petitioner has not 
demonstrated that the Beneficiary worked for the claimed, former employer, as opposed to receiving 
education or training. 
Second, even if the Beneficiary worked for the company from 2008 to 2010, the record would not 
demonstrate his qualifying experience. Unpaid work can constitute qualifying experience. Matter of 
B&B Residential Facility, 0l-INA-146 (BALCA July 16, 2002). But, as the NOIR notes, online 
government information indicates that the Beneficiary's purported former employer did not begin 
operations until 2014. See Ill. Sec'y of State, "Corporation/LLC Search/Certificate of Good 
Standing," https://apps.ilsos.gov/corporatellc/. Thus, the record would not have explained how the 
Beneficiary worked for a company that had yet to be established. See Matter ofHo, 19 I&N Dec. at 
591 (requiring a petitioner to resolve inconsistencies ofrecord with independent, objective evidence 
pointing to where the truth lies). 
The Petitioner's NOIR response included an updated letter from the owner of the Beneficiary's 
purported former employer. 4 He stated that the Beneficiary worked from January 2008 to April 2010 
for a prior business of his that dissolved in 2014. He said the company that issued the letter - the firm 
listed on the labor certification - incorporated in 2014 and "took over all clients and contracts" of the 
prior business. In verifying the Beneficiary's work with the prior business, the owner said that he 
inadvertently used the name of the current company. 
The Petitioner provided corporate documentation confirming the dissolution of the prior business, the 
incorporation of the current company, and the signatory's management of both entities. The record, 
however, lacks sufficient, independent evidence of the Beneficiary's work for the prior business during 
the claimed period. The Petitioner argues that the letters from the businesses' owner are sufficient 
because the Beneficiary did not receive compensation and therefore lacks payroll or income tax 
records documenting his work. The Petitioner states that the Beneficiary worked at the prior business 
4 In February 2020, the Petitioner filed an amended petition for the Beneficiary, which included the updated letter and 
other evidence in the company's NOIR response in these petition proceedings. USCIS denied the amended petition, but 
the Petitioner did not appeal that decision. 
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to obtain a plumber's apprentice license and then worked for himself as a plumber's assistant. The 
Petitioner provided copies of the Beneficiary's annual plumber's apprentice licenses from 2010 
through 2015. The Petitioner asserts that the Beneficiary could not have obtained the licenses "unless 
he had the requisite professional experience gained at [the prior business]." But, if the Beneficiary 
needed experience to obtain his apprentice plumber's licenses, he presumably submitted documentary 
evidence of his work to licensing authorities. The Petitioner has not explained whyithas not submitted 
copies of such evidence. The letters submitted to USCIS are insufficient to establish that the 
Beneficiary has the required experience. 
Moreover, the letters from the owner of the prior business do not establish the Beneficiary's experience 
"in the job offered." The job duties of the offered position include: supplying and holding 
materials/tools; cleaning work areas and equipment; perf 01ming "rough-ins;" repairing and replacing 
fixtures; locating and repairing leaking or broken pipes; mounting brackets and hangers; assisting in 
layout, assembly, and installation of piping; excavating and grading ditches; laying and joining pipe; 
and disassembling and removing damaged or worn pipes. The owner's letters do not detail specific 
duties that the Beneficiary performed. The letters therefore do not demonstrate the requisite 
experience "in the job offered." 
The Petitioner also argues that the Beneficiary gained qualifying experience after he stopped working 
for the prior business in 2010. The Petitioner states that the Beneficiary provided plumber's assistant 
services as an independent contractor until 2015, when he formed his own corporation. The Petitioner 
states that the Beneficiary continued working as his company's sole employee until January 2020. 
The Beneficiary, however, did not attest to experience after 2010 on the labor certification application. 
The Petitioner claims that the application omits the experience because the Beneficiary's prior work 
alone qualified him for the offered position. But the application's instructions required the listing of 
"all jobs the alien has held during the past 3 years" and "any other experience that qualifies the alien 
for the job opportunity." Thus, the omission from the labor certification application casts doubt on 
the Beneficiary's claimed, qualifying experience after 2010. See Matter a/Leung, 16 I&N Dec. 12, 
14 (Distr. Dir. 197 6), disapp 'd of on other grounds by Matter of Lam, 16 I&N Dec. 432, 434 (BIA 
1978) (finding a claim of additional qualifying experience by an application for adjustment of status 
to be unreliable where he did not state the experience on his labor certification application). 
The record contains a sworn statement from the Beneficiary and copies of his apprentice plumber 
licenses. But the record lacks independent, objective documentation that he worked as a plumber's 
assistant from 2010 to 2015. The Petitioner submitted copies of IRS Forms 1099, Miscellaneous 
Income, issued to the Beneficiary's company for 2015and2016. The Forms 1099, however, indicate 
that virtually all the revenues of the Beneficiary's company in those years came from his work for the 
Petitioner. DOL regulations bar a labor certification employer from relying on experience that a 
noncitizen gained with it, "including as a contract employee." 20 C.F.R. § 656. l 7(i)(3 ). An employer 
may use experience gained with it as a contractor if a non citizen gained the experience in a position 
substantially different than the offered position or the employer can demonstrate the impracticality of 
training a U.S. worker for the position. 20 C.F.R. § 656.l 7(i)(3)(i), (ii). The Petitioner, however, has 
not demonstrated that the regulatory exceptions apply. 
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The Petitioner also submitted copies of federal income tax returns of the Beneficiary's company for 
2015 through 2019. The tax returns, however, do not establish the company's receipt of revenues 
from customers other than the Petitioner. Also, the tax returns describe the Beneficiary's company as 
a "construction" business that provides "remodeling" services. Thus, the record does not sufficiently 
demonstrate that the Beneficiary gained qualifying experience in the offered position of plumber's 
assistant since 2010. See Matter of Ho, 19 I&N Dec, at 591 (requiring a petitioner to resolve 
inconsistencies of record). 
For the foregoing reasons, the Petitioner did not demonstrate the Beneficiary's possession of the 
minimum experience required for the offered position. We will therefore remand the matter. On 
remand, the Director should issue a new NOIR explaining the evidentiary deficiencies discussed 
above. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The Petitioner also did not establish its ability to pay the proffered wage of the offered position. A 
petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's priority 
date until a beneficiary obtains lawful pe1manent 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. 
The labor certification states the proffered wage of the offered position of plumber's assistant as 
$32,885 a year. As previously noted, the petition's priority date is June 8, 2018. Thus, at the time of 
the petition's approval in May 2019, the Petitioner had to demonstrate its ability to pay the proffered 
wage in 2018 and 2019. 
The Petitioner submitted a copy of its federal income tax return for 2017. The record, however, lacks 
regulatory required evidence of the company's ability to pay in 2018, the year of the petition's priority 
date, and 2019, the year of the petition's approval. The record therefore did not establish the 
Petitioner's ability to pay the proffered wage from the petition's priority date onward. 
On remand, the new NOIR should ask the Petitioner to provide copies of annual reports, federal tax 
returns, or audited financial statements for 2018 and 2019. The Petitioner may also submit additional 
evidence of its ability to pay, including proof of any wages it paid the Beneficiary in those years or 
documentation supporting the factors stated in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 
Comm'r 1967). 
If supported by the record, the new NOIR may include additional, potential revocation grounds. The 
Director, however, should afford the Petitioner a reasonable opportunity to respond to all issues raised 
on remand. Upon receipt of a timely response, the Director should review the entire record and enter 
a new decision. 
V. CONCLUSION 
We will withdraw the revocation of the petition's approval based on the bona .fides of the job 
opportunity. The Petitioner, however, did not demonstrate the Beneficiary's possession of the 
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minimum experience required for the offered position or the company's ability to pay the position's 
proffered wage. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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