sustained EB-3 Case: Home Healthcare

U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
identify& data deleted ta 
prevent clearly unwmted 
invasion of personal pri~cy 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
06 
FILE: Office: CALIFORNIA SERVICE CENTER Date: NAY 1 8 2006 
WAC 04 102 53517 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
$ 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 
 1153(b)(3) 
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. 
Robert P. Wiemann, Chief 
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 on appeal. The appeal will be sustained. 
The petitioner is a householder in a private residence. He seeks to employ the beneficiary permanently in the 
United States as a home health aid. 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 has not sustained the burden to demonstrate that the beneficiary had the 
minimum requirements at the time the request for labor certification was filed. The director denied the 
petition accordingly. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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 5 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slalled workers, 
professionals, or other workers must be supported by letters fkom 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. 
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. Comrn. 1977). 
Here, the Form ETA 750 was accepted on March 29, 2001. The proffered wage as stated on the Form ETA 
750 is $95.00 per day. The Form ETA 750 states that the position requires one month experience. 
On appeal, counsel submits a legal brief and additional evidence. 
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 ~abor;' an employment 
1 
 The Form G-235A prepared by the beneficiary identified her father and mother to be Philippines born 
Page 3 
agreement; an explanatory letter; the petitioner's personal U.S. Internal Revenue Service Form tax returns; 
and, a Certification dated April 19,2001 from a prior employer, Far East Home Care, of the beneficiary. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8 
C.F.R. $204.5(g)(2), the director requested on June 22, 2004, inter alia, pertinent evidence of the beneficiary's 
experience listed on the Form ETA 750. The director requested evidence of the beneficiary's prior experience 
"on the previous employer's letterhead showing the name and title of the person verifying this information." The 
director requested letters, contracts and pay statements and the number of hours worked each week. 
In response to the request for evidence of the petitioner's prior experience beginning on the priority date, 
petitioner submitted an undated certification from Far East Home Care; the petitioner's personal U.S. Internal 
Revenue Service Form tax return; and, a schedule of monthly expenses. 
The director repeated his request on September 7, 2004, of inter alia, pertinent evidence of the beneficiary's 
experience listed on the Form ETA 750 on the previous employer's letterhead showing the name and title of the 
person verifying the information. The director requested letters, contracts and pay statements and the number of 
hours worked each week. 
In response to the request for evidence of the petitioner's prior experience begnning on the priority date, inter 
alia, an explanatory letter from counsel that stated in part ". . . Unfortunately, her previous Employer, Far East 
Home Care, is unwilling to provide a new employment certification on their letterhead (no salient reason gven)." 
The director denied the petition on December 16, 2004, finding that the petitioner has not sustained the 
burden to demonstrate that the beneficiary had the minimum requirements at the time the request for labor 
certification was filed. 
On appeal, counsel asserts that the beneficiary's prior employment experience was documented and 
certification was submitted. Further, it is counsel's position, " . .. where an alien's prior experience is 
unavailable, based on factors outside the alien's control (i.e. previous employer out of business, remoteness of 
alien to previous experience in space and time, etc.), the Service should consider other evidence to prove this 
element [emphasis removed] . . . ." 
Counsel has submitted the following copies of the documents to accompany the appeal statement: a briec a 
G-28 Form; Form I-797C; the decision; the labor certification; a receipt notice; a Form 797 request for 
evidence dated June 22, 2004; an undated Certification from a prior employer; a Form 797 request for 
evidence dated September 7, 2004; an explanatory letter from dated November 22, 2004 from counsel; a 
Certification from Far East Home Care Inc. dated April 19, 2001; a Declaration of Employment from the 
beneficiary dated February 14, 2005; an employment verification dated December 3 1, 2004 from an certified 
nursing assistant; a Declaration of Em lo ment from a certified nursing assistant dated January 17, 2005; and, 
a Declaration of Employment frobdated January 3 1,2005 
No evidence was submitted to show that the petitioner employed the beneficiary. The beneficiary stated on 
that form she was employed by Far East Home Care, Inc. as a caregiver from April 2000 to July 2000. 
national citizens. 
Page 4 
Another 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, item 14 sets forth the 
minimum education, training, and experience that an applicant must have for the position of a home health aid. 
In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. 
........................................ 
Education 
Grade School Blank 
High School Blank 
College Blank 
College Degree Required Blank 
Major Field of Study Blank 
Training Blank 
Experience .................................... 
Yearmonths 01 1 
Related Occupation Blank 
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 home health aid. 
WORK EXPERIENCE 
NAME OF JOB 
Home Health Aid 
DATE STARTED 
Month - 05 [May] Year - 00 [2000] 
DATE LEFT 
Present [i.e. March 20,20011 
KIND OF BUSINESS 
Pnvate Residence 
Page 5 
DESCRIBE IN DETAIL DUTIES.. . 
Provide daily health care to a patient at home . . . . 
NO. OF HOURS PER WEEK 
40 
WORK EXPERIENCE 
NAME OF JOB 
Home Care Aid 
DATE STARTED 
Month - 04 [AprilIYear - 00 [2000] 
DATE LEFT 
Month - 04 [April] Year- 00 [200012 
KIND OF BUSINESS 
Pnvate Duty Nursing Care Provider 
DESCRIBE IN DETAIL DUTIES.. . 
Provide medical care to patients at their homes . . . . 
NO. OF HOURS PER WEEK 
40 
The beneficiary also stated that she was unemployed fi-om November 1997 to March 2000 on the labor 
certification. 
In this case the undated lob certification that the petitioner submitted with the petition to prove the beneficiary's 
work experience as a caregiver was given by noted as a case manager and admission 
coordinator. He stated that the beneficiary was employed by Far East Home Care from April 2000 to July 2000. 
He stated that the beneficiary worked on an assignment basis ''from one week at a time to several weeks" caring 
for elderly patients. No pay rate is given. 
A job certification dated April 19, 2001, was even by Director of Operations for Far East 
Home Care Inc. She also states that the beneficiary worked as a caregiver for this employer from April 2000 to 
July 2000. No description of her duties or pay rate is given. 
An affidavit made February 14,2005 by the beneficiary states that she was employed by Far East Home Care Inc. 
as a home care aidelcaregiver from April 2000 through July 2000 full time. 
of ~ontere~ Park, California contributed two statements for the beneficiary. 
 stated that 
he is a certified nursing assistant and in that employment capacity between the dates, 
 97 through 
January 30, 1998, worked with the beneficiary in her capacity as a live-in caregiver in a certain household. He 
stated that the beneficiary earned $100.00 each week there. 
2 
 This appears to be a mistake on the form. 
Page 6 
of Chatsworth, California contributed a statement for the beneficiary dated January 3 1, 2005. 
h He verified throug his statement of the beneficiary's " . . . employment for my 3 year old grandson . . . as a live-in 
caregver 40 hours a week, January 1,2001-April 3,2001 for which she was paid-$700.00 per month." 
There are employer's documents fiom two individuals in managerial capacities that both state the ben 
ed by Far East Home Care from April 2000 to July 2000. There are three statements from 
of Chatsworth, California, and, Frank Corral of Monterey Park, California that state the beneficiary 
has a total of approximately 5 months of job experience as a care gver. Based upon the totality of the job 
verifications submitted by the petitioner, credible independent objective evidence was submitted that the 
beneficiary had at least one-month job experience as a home health aid. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
§ 1361. The petitioner had 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.