sustained EB-3 Case: Floor Covering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
WAC 04 133 53901 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 3 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 originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition 
will be approved. 
The petitioner is a floor covering company. It seeks to employ the beneficiary permanently in the United 
States as a supervisor. As required by statute, the petition is accompanied by a Form ETA 750, Application 
for Alien Employment Certification, approved by the United States Department of Labor (DOL). The 
director determined that the petitioner had not established that the beneficiary is qualified to perform the 
duties of the proffered position. The director denied the petition accordingly. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's February 15, 2005 denial, the single issue in this case is whether or not the 
petitioner has demonstrated that the beneficiary is qualified to perform the duties of the proffered position. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1153(b)(3)(A)(i), 
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 skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. 
The petitioner must 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 DOL and submitted with the 
instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornrn. 1977). Here, the Form ETA 
750 was accepted on April 26,2001. 
The MO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal1. 
 On appeal, 
counsel submits a brief and a copy of the certified Form ETA 750. Other relevant evidence in the record 
includes a letter dated January 13, 2005 from the petitioner indicating that the beneficia has worked for the 
petitioner since February 1996 a letter dated January 15, 2005 from 
 indicating that the 
beneficiary worked for Mr. 
 as a floor covering installer from February 1994 to 
dated January 17, 2005 from 
3 
indicating that the beneficiary worked fo 
as a floor covering installer 
 rom 
 ep em er 1990 to February 1994, a letter dated 
petitioner indicatGg that the beneficiary has worked for 
 er as a floor covering installer since 
Februa 
 1996 an affidavit dated February 17,2004 from 
for Mrm 
indicating that the beneficiary worked 
as a floor coverin installer from February ebruary 1996, a avit dated 
February 17, 2004 frowndicating that the beneficiary worked for Mr. 
 as a floor 
covering installer from September 1990 to February 1994. The record does not contain any other evidence 
relevant to the beneficiary's qualifications. 
I 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). 
Page 3 
On appeal, counsel asserts that the director misread the requirements listed on the Form ETA 750. He states 
that the labor certification application clearly indicates that two years of experience is required on the job 
offered of supervisor or four years in the related occupation of floor covering installer. He asserts that the 
beneficiary met the minimum requirements of the position with his over four years of experience as a floor 
covering installer. 
To determine whether a beneficiary is eligible for an employment based immigrant visa, Citizenship and 
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. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Comtnissary 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 and 15, set 
forth the minimum education, training, and experience that an applicant must have for the position of supervisor. 
In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education 
Grade School N/A 
High School N/ A 
College N/A 
College Degree Required blank 
Major Field of Study blank 
The applicant must also have two years of experience in the job offered or four years of experience as a floor 
covering installer.* The duties of the job offered are delineated at Item 13 of the Form ETA 750A and since ths 
is a public record, will not be recited in this decision. Item 15 of Form ETA 750A does not reflect any special 
requirements. 
The beneficiary set forth his credentials on Form ETA-750B and signed his name under a declaration that the 
contents of the form are true and correct under the penalty of perjury. On Part 15, eliciting information of the 
beneficiary's work experience, he represented that he worked as a floor covering installer for 
Service from September 1990 to February 1994, that he worked as a floor covering installer for mz:2 
Service from February 1994 to February 1996, and that he worked for the petitioner as a floor covenng installer 
from February 1996 to the date he signed the Form ETA-750B. He does not provide any additional information 
concerning his employment background on that form. 
The record of proceeding also contains a Form G-325, Biographic Information sheet submitted in connection with 
the beneficiary's application to adjust status to lawful permanent resident status. On that form under a section 
eliciting information about the beneficiary's employment for the last five years, he represented that he had 
2 
 Item 14 of Form ETA 750A permits an employer to list alternative experience requirements. An employer 
may specify alternative experience or qualification requirements on the labor certification application, 
provided the alternative requirements and primary requirements are substantially equivalent to each other with 
respect to whether the applicant can perform the proposed job duties in a reasonable manner. Matter of 
Francis Kellogg, 94-INA-465 (BALCA 1998)(en banc). 
Page 4 
worked for the petitioner as a floor installer from February 1996 to the date he signed the Form G-325A on 
March 3 1,2004 above a warning for knowingly and willfully falsifying or concealing a material fact. 
The regulation at 8 C.F.R. 9 204.5(1)(3) provides: 
(ii) Other documentation- 
(A) General. Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters from trainers or 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. 
(B) Skilled workers. 
 If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for thls 
classification are at least two years of training or experience. 
The evidence submitted by the petitioner demonstrates that the beneficiary worked fo 
covering installer from February 1994 to February 1996, that he worked as a floor 
Carpet Service from September 1990 to February 1994, and that he worked for the petitioner as a floor covmng 
installer from February 1996 through January 2005. The petitioner provided documentation of his prior work 
experience as required by 8 C.F.R. 9 204.5(1)(3). Item 14 of the Form ETA 750A clearly provides that the 
applicant must have two years of experience in the job offered or four years of experience as a floor covering 
installer. The preponderance of the evidence demonstrates that the beneficiary acquired over four years of 
experience as a floor covering installer from the evidence submitted into this record of proceeding. Thus, the 
petitioner has demonstrated that the beneficiary is qualified to perform the duties of the proffered position. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 136 1. The petitioner has met that burden. 
ORDER: 
 The appeal is sustained. The petition is approved.