sustained EB-3 Case: Childcare

idedfjling data deleted to 
went clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
FILE: 
U.S. Department of Homeland Security 
20 Mass, N.W. Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Date: MAY 1 8 2006 
EAC 04 030 52737 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
9 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. fj 1153(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 olginally 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, Vermont Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be sustained. 
The petitioner' is an individual with children. It seeks to employ the beneficiary permanently in the United 
States as a child's nurse also called child monitor on the labor certification cover letter. 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 the beneficiary has the requisite experience as stated on the labor certification and denied the petition 
accordingly. The director denied the petition accordingly. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. €j 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. § 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 tj 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 fi-om trainers or employers 
gving 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. Comm. 1977). 
Here, the Form ETA 750 was accepted on March 1, 2001. The proffered wage as stated on the Form ETA 
750 is $10.83 per hour ($22,526.40 per year). The Form ETA 750 states that the position requires three 
months experience. 
On appeal, counsel submits a legal brief and additional evidence. 
1 The correct spelling of the petitioner's name according to counsel is - 
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; a U.S. Internal 
Revenue Service Form tax return 2001;' a job offer letter a Domestic Service Agreement; an affidavit from 
made March 12, 2003; an affidavit from made March 11, 2003; and, an affidavit 
from the beneficiary made March 12,2003. 
Because the evidence submitted did not demonstrate that the beneficiary has the requisite three months work 
expenence, the director, on July 8, 2004, requested pertinent evidence. Consistent with the requirements of 8 
C.F.R. 204.5 8 (1)(3)(ii), the director requested that evidence of the beneficiary's expenence be in the form of 
letters from trainers or former 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. 
In response to the request for evidence, counsel stated in her letter dated September 29, 2004, "Letters from the 
former employers are unavailable .. ." without further elaboration. Counsel submitted an affidavit made 
September 25, 2004, from relatives of a former employer; four photos; and, an affidavit from the beneficiary 
made September 27,2004. 
The director denied the petition on December 17, 2004, finding that the evidence submitted did not establish 
that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
On appeal, counsel asserts that the former employer was unwilling to verify the beneficiary's work experience 
because of possible employer sanctions although the beneficiary worked there for about 11 months, and, for 
the petitioner, the "beneficiary has more than three months experience in housekeeping and nursing" prior to 
March 2001. Further, counsel cites Matter of Lendy Muller, 00-INA-125 (BALCA Sept 26, 2000) that 
counsel contends allows alternatives to letters from past employers in certain circumstances. 
Counsel has submitted the following documents to accompany the appeal statement: an explanatory letter 
dated January 12,2005; a letter from the petitioner; and, a letter from the beneficiary. 
The issue to be discussed in this case is whether or not the petitioner had established that the beneficiary has the 
requisite experience as stated on the labor certification petition. To be eligible for approval, a beneficiary must 
have the education and experience specified on the labor certification. See Matter of Wing's Tea House, 16 I&N 
Dec. 158 (Act. Reg. Comm. 1977). 
To determine whether a beneficiary is eligble for an employment based immigrant visa, Citizenship & 
Immigration Services (CIS) must examine whether the alien's credentials meet the requirements set forth in the 
labor certification. In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the 
labor certification to determine the required qualifications for the position. CIS may not ignore a term of the 
labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese 
Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 
1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 14, sets forth 
the minimum education, training, and experience that an applicant must have for the position of a child's nurse. 
' The adjusted gross income stated by the petitioner in the tax return was $171,600.00. 
In the instant case, item 14 describes the requirements of the proffered position as follows: 
.................................. 
14. Education 
Grade School Blank 
High School 4 
College Blank 
College Degree Required Blank 
Major Field of Study Blank 
Training Blank 
Experience ................................. 
YearsMonths 0/3 
........................ 
Related Occupation 
Specify Housekeeving or nursing 
YearsIMonths - 013 
In the instant case, the Application for Alien Employment Certification, Form ETA-750B, item 15, set forth 
work experience that an applicant listed for the position of child's nurse. 
15. WORK EXPERIENCE 
a. 
 NAME AND ADDRESS OF EMPLOYER 
NAME OF JOB 
Child's Nurse 
DATE STARTED 
Month - 1 1 [November] Year - 1997 
DATE LEFT 
Month - 09 [September] Year - 1998 
KIND OF BUSINESS 
Childcare 
. 
DESCRIBE IN DETAIL DUTIES.. 
... 
Observes and monitors play activities of children; 
NO. OF HOURS PER WEEK 
40 
1 5. WORK EXPERIENCE 
NAME OF JOB 
Housekeeper and Child Nurse 
DATE STARTED 
Month - 09 [September] Year - 1998 
DATE LEFT 
Month - 09 [September] Year- 1999 
KJND OF BUSINESS 
Child care and house keeper 
. 
DESCRIBE IN DETAIL DUTIES.. 
Page 5 
Plans, prepares, cooks, and serves meals and refreshments . . .. 
NO. OF HOURS PER WEEK 
50 
Along with the petition, the petitioner submitted an affidavit made March 12, 2003, from 
Plaines, Illinois, that she transported the beneficiary on a weekly basis to and from her employment - with 
at 833 Heatherstone Dnve, Schanmburg. Illinois 60173 where the beneficiary was employed as 
a child nurse from November 1997 to September 1998. 
Also submitted with the petition, a similar affidavit was March 
 - Rye, New York, 
stated that he assisted her with transportation to the residence of =Whitman, Hastings on Hudson, 
New York 10706 from September 1998 to August 1999. 
request for evidence, the petitioner submitted an affidavit made Septe 
, Hastings on Hudson, New York. The couple state they are relatives of 
New York 10706. They recount that they observed the beneficiary worlung in 
as a housekeeper and child nurse in 1998 and 1999. 
Further in response to the director's request for evidence, the petitioner submitted an affidavit made September 
27, 2004, from the beneficiary confirming the above and her information stated in the labor certification. As 
further confirmation the beneficiary submitted copies of four photos of the beneficiary with the children and the 
children's fathe 
 at Hastings on Hudson, New York. 
To support the appeal, the petitioner has submitted an undated letter stating that the beneficiary has been 
employed fulltime as a childcare monitor in his household since September 1999. 
A letter dated January 4, 2005, was submitted bqf Briarcliff Manor, New York, stating that the 
beneficiary worked for him as a housekeeper "for a couple of months in 1999." Further, he said that the 
beneficiary took care of his grandchildren. 
There is no inconsistencies in information provided by the beneficiary, and, there is credible evidence of her 
prior job experience as a child care monitor, child's nurse, and house keeper for the etitioner prior to the 
priority date, as well as correlative photographic evidence that she worked in household during 
the period stated as confirmed by witnesses by their direct observation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The petitioner has established that the beneficiary has the requisite experience as stated on the labor 
certification petition. The petitioner has met that burden. 
ORDER: The petition is sustained.