remanded EB-3 Case: Television Production

MATTER OF C-S- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 2L 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which describes itself as a Hispanic television production company, seeks to employ 
the Beneficiary as a film editor. It requests classification of the Beneficiary as a skilled worker under 
the third preference immigrant classification. See Immigration and Nationality Act (the Act), section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 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 2 years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's ability to pay the Beneficiary the proffered wage. 
The matter is before us on appeal. The Petitioner contends that it has complied with U.S. 
Citizenship and Immigration Services' (USCIS ') regulations governing ability to pay and submits 
additional evidence in support of the visa petition. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for further 
action consistent with the following opinion. 
I. LAW 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor 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). Next, USCIS must approve an immigrant visa petition. See 
section 204 of the Act, 8 U.S.C. § 1154. Finally, the foreign national must 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. 
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), approved by DOL, accompanies the petition. By approving the labor 
certification, DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and 
available for the offered position. Section 212(a)(5)(A)(i)(I) ofthe Act. The DOL also cetiifies that the 
employment of a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(U) of the Act. 
Matter ofC-S- LLC 
In visa petition proceedings, users determines whether a foreign national meets the job requirements 
specified in the underlying labor certification and the requirements of the requested inm1igrant 
classification. See section 204(b) of the Act (stating that users must approve a petition if the facts 
stated in it are true and the foreign national is eligible tor the requested preference classification); see 
also. e.g. Tongatapu Woodcraft Haw.. Ltd. v. Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984); 
Madanyv. Smith, 696 F.2d 1008, 1012-13 (D.C. eir. 1983) (both holding that USeiS has authority to 
make preference classification decisions). 
11. ANALYSIS 
The initial issue before us in this matter is whether the Petitioner has established its ability to pay the 
Beneficiary the proffered wage. Additionally, although it was not addressed by the Director, we will 
consider whether the record establishes that the Beneficiary has the employment experience required 
by the labor certification. 
A. Petitioner's Ability to Pay 
The Petitioner must demonstrate that it has the ability to pay the Beneficiary the proffered wage 
from the priority date of the petition onward. The priority date of a visa petition is the date that DOL 
accepted the underlying labor certification for processing. 8 C.F.R. § 204.5(d). In general, 8 e.F.R. 
§ 204.5(g)(2) requires annual reports, federal tax returns, or audited financial statements as evidence 
of a petitioner's ability to pay the proffered wage. That regulation further provides: "In a case where 
the prospective United States employer employs 100 or more workers, the director may accept a 
statement from a financial officer of the organization which establishes the prospective employer's 
ability to pay the proffered wage." 
In the present case, the priority date of the visa petition is March 5, 2015, and the labor certification 
reflects a proffered wage of $81,714. At the time the record was under review by the Director, evidence 
of the Petitioner's ability to pay in 2016 was not yet available. As such, we will consider only the 
Petitioner's ability to pay in 2015, the year of the priority date. The Petitioner submitted the 
Beneficiary's Form W-2 for 2015, which reflects that it paid him wages of $85,504.08, nearly $3,800 
more than the proffered wage. The Petitioner also submitted a letter from its treasurer stating that it 
employs over 100 workers and that it has the ability to pay the Beneficiary the proffered wage. 1 Based 
on the record, we find the Petitioner to have submitted sut1icient evidence to establish its ability to pay 
the Beneficiary the protiered wage fi·om the March 5, 2015, priority date onward. 
In that we have found the record in this matter to demonstrate the Petitioner's ability to pay, we will 
withdraw the Director's decision. We will not, however, approve the visa petition as, tor the reasons 
that follow, the record does not establish the Beneficiary's qualifications for the offered position. 
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The number of employees claimed is supported by the Petitioner's Form 941: Employer's Qua11erly Federal Tax 
Return. 
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Matter of C-S- LLC 
B. Beneficiary Qualifications 
A petitioner must establish a beneficiary's possession of all the education, training, or experience 
stated on an accompanying labor certification by a petition's priority date. 8 C.F.R. § 1 03.2(b )(1 ), 
(12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'! Comm'r 1977); 
Matter o[Katigbak, 14 I&N Dec. 45,49 (Reg'] Comm'r 1971). 
Here, Part H. of the labor certification requires the Beneficiary to have 24 months of experience in 
the offered position of film editor or in a related post production position with novellas. In Part K. 
of the labor certification, the Beneficiary lists the following employment experience: 
• Editor-drama, [Petitioner], full-time from April 27, 2011, to the present (date of labor 
certification's filing); and 
• Dir/Editor-post production, full-time from October 22, 
1980, to 
October 30,2010. 
To establish a beneficiary's work experience in employment-based immigration proceedings, the 
regulation at 8 C.F.R. § 204.5(g)(l) requires that: 
[E]vidence relating to qualifying experience or training shall be in the form of 
letter(s) from current or former employer(s) or trainer(s) and shall include the name, 
address, and title of the writer, and a specific description of the duties performed by 
the alien or of the training received. If such evidence is unavailable, other 
documentation relating to the alien's experience or training will be considered. 
To establish that the Beneficiary has the 24 months of qualifying experience required by the labor 
certification, the Petitioner has submitted a copy of a statement from the director of engineering at 
The director states that employed the Beneficiary as a director of 
post-production from October 22, 1980, to October 30, 2010. However, while submitted statement 
confirms the dates of the Beneficiary's employment with it does not satisfy the 
requirements at 8 C.F.R. § 204.5(g)(l) as the director provides no description of the duties 
performed by the Beneficiary during the period of his employment. Therefore, the record does not 
establish that the Beneficiary has the 24 months of qualifying employment required by the labor 
certification and the visa petition cannot be approved. 
III. CONCLUSION 
For the reasons discussed, we withdraw the Director's denial of the petition. Nevertheless, the 
petition may not be approved, as the record does not demonstrate that the employment experience 
claimed by the Beneficiary qualifies him for the job opportunity. As the Beneficiary's experience 
was not previously considered by the Director, we will remand this matter for his consideration and 
the issuance of a new decision. 
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Matter ofC-S- LLC 
Prior to reaching his decision, the Director should request additional evidence from the Petitioner 
regarding the Beneficiary's qualifying employment experience. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofC-S- LLC, ID# 142243 (AAO Mar. 21, 2017) 
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