remanded EB-3 Case: Tennis Coaching

U.S. Citizenship 
and Immigration 
Services 
In Re : 15840600 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 7, 2021 
The Petitioner seeks to employ the Beneficiary as a tennis coach . It requests her classification under the 
third-preference, immigrant category for members of the professions. See Immigration and Nationality 
Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b )(3XA)(ii). 
The Director of the Texas Service Center denied the petition. Crediting the Beneficiary's claimed 
part-time employment experience at half the value of full-time experience , the Director concluded that 
the Petitioner did not demonstrate the Beneficiary's possession of the minimum experience required 
for the offered position. 
The Petitioner appeals the decision and bears the burden of establishing eligibility for the requested 
benefit by a preponderance of evidence. See section291 of the Act, 8 U.S.C . § 1361 (discussing the 
burden of proof); see also Matter of Chawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the 
standard of proof). 1 Upon de nova review , we will withdraw the Director's decision and remand the 
matter for the entry of a new decision consistent with the following analysis . 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process. First, a prospective employer 
must file an application with the U.S. Department of Labor (DOL) requesting certification that: (1) 
there are insufficient U.S . workers able , willing, qualified, and available for the offered position; and (2) 
the employmentofa noncitizenwillnotharmwages andworkingconditionsofU.S. workers with similar 
jobs . See section 212(a)(5) of the Act, 8 U .S.C. § 1182(aX5). 
Second, the 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 beneficiary meets the requirements of the certified 
position and the requested immigrant visa category. 
1 Shortly after filing the appeal , the Petitioner submitted a motion to reconsider , which the Director dismissed. This appeal 
does not challenge the motion decision . 
Finally, if USCIS approves the petition, a designated noncitizen beneficiary 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. 
II. THE REQUIRED EXPERIENCE 
A petitioner must demonstrate a beneficiary's possession of all DOL-ce1iified 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). This petition's priority date is July 28, 2017, the date DOL accepted 
the accompanying labor certification application for processing. See 8 C.F.R. § 204.5( d) ( explainmg 
how to determine a petition's priority date). 
When assessing a beneficiary's qualifications for an offered position, USCIS must examine the job­
offer portion of an accompanying labor certification to determine the position's minimum job 
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 content of the labor certification") ( emphasis in original). 
The accompanying labor certification states the minimum requirements of the offered position of 
tennis coach as a U.S. bachelor's degree in sports management and one year of experience "in the job 
offered." 
The labor certification states that, from 2011 to 201 7, the Beneficiary worked part-time at various 
tennis clubs and academies in the United States and in her home country of Romania. 2 To support 
claimed qualifying experience, a petitioner must provide letters from a beneficiary's former 
employers. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must include the employers' names, addresses, 
and titles, and descriptions of the beneficiary's experience. Id. 
The Petitioner submitted letters from two of the Beneficiary's purported former employers in 
Romania. Consistent with the infonnation on the labor certification, a letter from a tennis club states 
its employment of the Beneficiary for 30 hours a week as a tennis professional for about seven months, 
from December 2016 to July 201 7. Another tennis club wrote that it employed her for 30 hours a 
week as head tennis pro for about three months a year, from May to August, in 2010, 2011, 2012, and 
2013. The Petitioner did not submit letters from any of the Beneficiary's other claimed former 
employers. 
A. Conve1iing Paii-Time Employment Experience to Full-Time Experience 
The Director found the two submitted letters insufficient to demonstrate the Beneficiary's possession 
of the requisite one year of full-time, qualifying experience. The Director found that full-time 
experience must reflect work of at least 3 5 hours a week. DOL Field Memorandum No. 48-94, Barbara 
Ann Fanner, Admin'r for Reg'l Mgmt., Policy Guidance on Alien Labor Certification Issues, 2 (May 
16, 1994). Also, citing a decision of DO L's Board of Alien Labor Ce1iification Appeals (BALCA), 
2 The Beneficiazy also attested on the labor certification that, on her college tennis team from 2011 to 2014, she played 
and assisted the coach. 
2 
the Director found that a noncitizen's part-time experience equates to half the amount of full-time 
experience. 3 Mattera/Cable Television Labs ., Inc ., 2012-PER-00449 slip op. at *2 (BALCA Oct. 23, 
2014). Thus, crediting only half of the Beneficiary's days of part-time employment stated in the 
letters, the Director concluded that the Beneficiary worked the equivalent of about284, full-time days, 
less than one year or 365 days. 
On appeal, the Petitioner agrees that the offered position requires at least one year of full-time 
experience. But the company argues that we should reject the Director's valuation of the Beneficiary's 
part-time experience because the Director did not follow any applicable law, regulation, or policy. 
The Petitioner also calls the Director's method "illogical," as it values part-time employment at 50% 
of full-time work whether a beneficiary's weekly hours totaled 34 or just one. 
The Petitioner agrees that full-time employment must reflect at least 35 hours of work a week. 4 In 
valuing the Beneficiary's part-time experience, however, the company focuses not only on the lengfu 
of her employment but also on the number of hours she worked. Multiplying 35 hours a week times 
52 weeks a year, the Petitioner reasons that one year of full-time employment requires at least 1,820 
hours of work. The company argues that the letters from the Beneficiary's two former employers 
document her employment for 3 0 hours a week over 81 total weeks. Thus, the Petitioner contends 
that the Beneficiary worked 2,430 hours , more than the required 1,820 hours for one year of full-time 
employment. 
We agree with the Petitioner's methodology. The company reasonably relies not only on the length 
of a noncitizen's employment but also on the number of hours he or she worked. As the Petitioner 
argues , its method more fairly values the part-time experience of noncitizens who worked disparate 
numbers of hours . 
We note , however, that the letter from the tennis club that employed the Beneficiary in multiple years 
states part-time employment that she omitted from the labor certification. The letter states that, in 
addition to her employment in 2011, 2012, and 2013, the Beneficiary worked part-time from May to 
August in 2010. The omission of the Beneficiary's purported 2010 employment from the labor 
certification application casts doubt on the experience. A petitioner must resolve inconsistencies of 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). Also, claimed experience is less reliable when a beneficiary omits it from 
a labor certification. Matter of Leung , 16 I&N Dec. 12, 14-15 (BIA 1976), disapp 'd of on other 
grounds by Matter of Lam , 16 I&N Dec. 432 , 434 (BIA 1978). Nevertheless, the submitted letters 
3 BALCA decisions do not bind users . Rather, users need only follow decisions of the Attorney General and Boan:1 of 
rmmigrationAppeals (BIA) in proceedings involving the same issue or issues. 8 C.F.R. § 103.1 0(b). Nevertheless , users 
generally defers to DOL 's reasonable interpretation oflaborce1iificationrules , as Congress authorized DOL to administer 
the la borcertification process . See Martin v. Occupational Safe ty &Health Review Comm 'n, 499 U.S. 144, 150-59 (1991) 
(holding that an administrative agency should defer to the reasonable regulatory interpretations of another agency 
authorized by Congress to enforce the rules at issue). 
4 The Petitioner cites theDOLregulationat 20C.F.R. § 655.5 , which defines the term "full-time" as "35 or more horns of 
work per week." Thatregulation , however, does not apply to the labor certification process for p ermanent employment of 
immigrants in the United States . Rather , the rule applies only to the labor certification process "for 
the temporary employment of non immigrant foreign workers in the H-2B nonimmigrant classification." 20 C.F.R 
§ 655.1 (b )(emphasis added). The Director's citation to the 1994DOLmemois therefore more relevant to this matter. 
3 
otherwise document the Beneficiary's possession of 69 weeks of experience at 30 hours a week, 
showing that her part-time employment equates to more than one year of full-time work. 
When evaluating a noncitizen's part-time experience in labor certification proceedings, the DOL has 
also considered the number of hours worked. Adjudicating a labor certification application for a 
graphic designer, DO L's Certifying Officer calculated the equivalency of the noncitizen's paii-time 
experience by multiplying her length of employment (29 .5 months) by 0.625, or 25/40, representing 
her employment for 25 hours of a typical 40-hour, work week. Matter of 1 Grand Express, 2014-
PER-00783, slip op. at *4 (BALCA Jan. 16, 2018). 
Cable Television Laboratories, the BALCA case cited by the Director, does not necessarily conflict 
with the valuation method in 1 Grand Express. In Cable Television Laboratories, the BALCA panel 
found the non citizen's 16 months of part-time work equivalent to eight months of full-time 
employment. Matter of Cable Television Labs., Inc., supra, slip op. at *2. The decision, however, 
does not disclose how many hours the noncitizen's part-time employment entailed. Id. During the 
16-month period, the noncitizen may have worked 20 hours of a typical 40-hour work week, and the 
panel may have multiplied the noncitizen's length of employment by 0.5. Thus, when valuing the 
noncitizen's part-time employment, the panel in Cable Television Laboratories may have also 
considered his number of hours. 
For the foregoing reasons, we conclude that the Director erred in valuing the Beneficiary's part-time 
experience by disregarding the number of weekly hours she worked. Nevertheless, for the following 
reasons, the Petitioner has not demonstrated the Beneficiary's possession of sufficient qualifying 
experience in the offered position. 
B. The Nature of the Experience 
The labor certification states that the offered position requires at least one year of experience "in the 
job offered." On a labor certification application, the term "in the job offered" means experience 
performing the key duties of the offered position listed on the application. See, e.g., Matter of 
Symbioun Techs., Inc., 2010-PER-01422, slip op. at *4 (BALCA Oct. 24, 2011) (citations omitted). 
The labor certification describes the job duties of the offered position of tennis coach as: coaching a 
player on stroke production, match strategy, mental and fitness training, motivational techniques, and 
match play advice, applying knowledge of national and international rules and regulations; arranging 
tournament and travel schedules; accompanying the player to tournaments in accordance with budget 
and competition difficulty; and advising parents on the player's technical, mental, and physical 
development. s 
The letter from the Beneficiary's most recent former employer states that she "competed as a Tennis 
Professional from December 12th 2016 to July 28th 201 7, where she competed playing professional 
tennis, and coaching players of all levels (approximately 30 hours weekly)." The letter does not 
document that the Beneficiary's "coaching" duties included perfonnance of the primary job duties of 
5 The job duties on the labor certification also indicate the offered position's need for: "US PTR or PT A" certification; 
and "collegiate andprofessionallevel playing experience." Based ona copy of the Beneficiary's certificate, "PTR''stands 
for the Professional Tennis Registry. "PTA" appears to refer to the U.S. Professional Tennis Association. The Petitioner 
submitted sufficient evidence to demonstrate the Beneficiary's satisfaction of these additional requirements. 
4 
the offered position. Also, the letter does not detail how much time she spent "coaching," as opposed 
to "playing," tennis during the seven-month period. The letter is unclear whether she spent 30 hours 
a week coaching, or 30 hours a week coaching and playing professional tennis. The letter therefore 
does not demonstrate that she gained sufficient, qualifying experience "in the job offered." With 
insufficient evidence of the Beneficiary's claimed qualifying experience from December 2016 to July 
2017, the letter from her other f mmer employer does not document her possession of the minimum 
experience required for the offered position. 
The Director did not notify the Petitioner of the evidentiary deficiency regarding the nature of the 
Beneficiary's part-time experience from December 2016 to July 2017. See 8 C.F.R. § 103.2(b)(l 6)(i) 
(requiring USCIS to notify a petitioner of material, derogatory information of which it may not be 
aware and to afford it an oppmiunity to respond). We will therefore remand the matter. On remand, 
the Director should inform the Petitioner of the deficiency and advise the company of its need to 
submit additional evidence of the Beneficiary's claimed, qualifying experience. 
III. THE BONA FIDES OF THE JOB OFFER 
Although unaddressed by the Director, the record also does not establish the bona fides of the job 
offer. A business may file a Fmm 1-140 petition if it is "desiring and intending to employ [a 
noncitizen] within the United States." Section 204( a )(1 )(F) of the Act. A petitioner must intend to 
employ a beneficiary under the terms and conditions of an accompanying labor certification. See 
Matter of Izdebska, 12 l&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, 
contrary to the terms of an accompanying labor certification, the petitioner did not intend to employ 
the beneficia1y as a domestic worker on a full-time, live-in basis). 
On the petition and accompanying labor certification, the Petitioner attested to its intention to employ 
the Beneficiary in the permanent, full-time position of tennis coach. The Petitioner stated that it would 
employ her at the company's current, principal place of business inl I Florida. As previously 
indicated, the position's job duties include coaching a tennis player on stroke production, match 
strategy, mental and fitness training, motivational techniques, and match play advice, applying 
knowledge of national and international rules and regulations. These duties indicate the position's 
likely need for access to a tennis court. 
The record, however, does not establish that the Petitioner's place of business includes a tennis court. 
Online, ~overnment records identify the property as containiJ' a "warehouse" in an industrial area. 
I (Fla.) Clerk of Court, "Property Records," https://ww lorg/records/property-records 
(last visited May 4, 2021 ). The government records, as well as on line satellite photographs, do not 
indicate a tennis court on the site. 
Also, on the Form 1-140, the Petitioner described itself as a "Wholesaler/Distributor/ Athlete Sponsor." 
But the company submitted a copy of its federal income tax return for 2016 stating that the firm 
provides "sales & installation" of "floor tiles." See Matter of Ho, 19 l&N Dec. at 591 (requiring a 
petitioner to resolve inconsistencies of record). The record neither explains why a floor-tiling 
company would intend to employ a tennis coach, nor establishes that the company's place of business 
likely includes a tennis court. 
5 
Further, online government records indicate that, in 2008, the Petitioner sold the property on which it 
does business to a sports management company .I l(Fla.) Clerk of Court, supra. USCIS records 
identify the son of the married coup le who owns the Petitioner as a principal of the sports management 
company. Also, on the labor certification application, the Beneficiary attested that she previously 
worked an internship at the sports management company, serving as a "Tennis 
Instructor/Coach/Trainer." Thus, the record suggests the Beneficiary's employment in the offered 
position by the sports management company, rather than by the Petitioner. 
For the foregoing reasons, the record does not establish the Petitioner's intention to employ the 
Beneficiary in the offered position. See section 204(b) of the Act (authorizing USCIS to "determine 
that the facts stated in the petition are true"). On remand, the Director should ask the Petitioner to 
explain the inconsistencies in the job offer and submit additional evidence of the company's intention 
to employ the Beneficiary in the offered position. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The evidence of record also does not establish the Petitioner's ability to pay the proffered wage of the 
offered position. A petitioner must demonstrate its continuing ability to pay the proffered wage fmm 
a petition's priority date until the 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. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date. If a petitioner did not annually pay a beneficia1y the 
full proffered wage or did not pay a beneficia1y at all, USCIS considers whether the business' net 
income or net current assets is sufficient to pay any difference between the proffered wage and the 
actual wages paid to the beneficiary. If net income and net current assets are insufficient, USCIS may 
consider other factors affecting a petitioner's ability to pay the proffered wage. See Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 6 
The labor certification states the proffered wage of the offered position as $20.22 an hour, or 
$36,800.40 a year based on a 35-hour work week. As previously indicated, the petition's priority date 
is July 28, 2017. 
The Petitioner does not claim to have employed the Beneficiary and did not submit any evidence that 
it paid her wages. Thus, based solely on wages paid, the record does not establish the Petitioner's 
ability to pay the proffered wage. 
As previously indicated, the Petitioner submitted a copy of its federal income tax return for 2016. The 
record, however, lacks evidence of the company's ability to pay in 2017, the year of the petition's 
priority date, or thereafter. The Petitioner therefore has not established its continuing ability to pay 
the proffered wage from the petition's priority date onward. 
6 Federa 1 courts have upheld USCIS's method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, LLCv. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Z-Noorani.Inc. v. Richardson, 950F. Supp. 2d 1330, 
1345-46 (N.D. Ga.2013). 
6 
Also, USCIS records indicate the Petitioner's filing of a Form I-140 petition for another beneficiary. 
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 other 
petitions it filed that were pending or approved as of this petition's priority date or filed thereafter. 
See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's 
approval where, at the time of the filing' s grant, the petitioner did not demonstrate its ability to pay 
the combined proffered wages of multiple petitions). 7 
USCIS records indicate that, as of this petition's priority date of July 28, 2017, the Petitioner's other 
petition was pending and that its beneficiary ultimately obtained lawful permanent residence in 2018. 8 
The Petitioner must therefore demonstrate its ability to pay the combined proffered wages of this and 
its other petition in 2017 and 2018. 
On remand, the Director should request copies of: the Petitioner's annual reports, federal tax returns, 
or audited financial statements for2017,2018, 2019, and2020; the proffered wage of its other petition; 
and proof of any wages it paid the beneficiaries in relevant years. The Petitioner may also submit 
additional evidence ofits ability to pay, including materials supporting the factors stated in Sonegawa. 
If supported by the record, the Director may notify the Petitioner of any other potential grounds of 
denial. The Director must afford the company 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 
The Director erred in valuing the Beneficiary's part-time experience at only half the amount of full­
time employment. But the Petitioner has not demonstrated the Beneficiary's possession of the 
requisite experience in the job offered, the bonafides of the job offer, or the company's continuing 
ability to pay the 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. 
7 A petitioner need not demonstrate its ability to pay the proffered wages of petitions that it withdrew or that USCTS 
rejected, denied, orrevoked(unlessappeals remain pending). A petitioner also need not demonstrate its ability to pay the 
proffered wages of petitions before their corresponding priority dates or after their corresponding beneficiaries obtained 
lawful permanent residence. 
R USC IS records identify the other petition by the receiptnumber._l _____ ___, 
7