sustained EB-3 Case: Marketing

identifying data deleted to 
prevent clearly unwarranted 
invasion of persozal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. § 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. 
dobe> P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition approval was denied by the Director, Texas Service Center, and 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is a corporation that operates a wholesale-prepaid phone card business. It seeks to employ the 
beneficiary permanently in the United States as a marketing representative. As required by statute, the 
petition is accompanied by a Form ETA 750, Application for Alien Employment Certification, approved by 
the Department of Labor. The director determined that the petitioner had not established that the beneficiary 
has the requisite experience two years of experience as stated on the labor certification petition and that the 
petitioner had not established that it has a business with a physical presence in the United States. The director 
denied the petition accordingly. 
On appeal, the counsel submits legal briefs and additional evidence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 regulation at 8 CFR €J 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 from 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. 
(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 this classification are at least two years of training or experience. 
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 U.S. Department of Labor 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 19, 2001.' The proffered wage as stated on the Form ETA 
750 is $5 1, 950.00 per year. The Form ETA 750 states that the position requires two years experience. 
1 
It has been approximately five years since the Alien Employment Application has been accepted and the proffered 
wage established. According to the employer certification that is part of the application, ETA Form 750 Part A, 
Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the employer] guarantee that, if a 
labor certification is granted, the wage paid to the alien when the alien begins work will equal or exceed the prevailing 
wage which is applicable at the time the alien begins work." 
Page 3 
With the petition, counsel submitted the following documents: the original Form ETA 750, Application for 
Alien Employment Certification, approved by the Department of Labor, and, copies of documentation 
concerning the petitioner and its finances. 
Relative to the beneficiary's qualifications and personal information, counsel submitted copies of the 
following documents: a letter from Moontac Hardware Services (1996) LTD, Nairobi, Kenya stating that the 
beneficiary was employed there as a marketing representative from January 1997 to September 1999; and, a 
complete copy of the beneficiary's Kenyan passport. 
The director requested on April 15, 2003, inter alia, the beneficiary's personal information including the 
biographic pages from the beneficiary's passport, and, the beneficiary's personal tax returns including W-2 Wage 
and Tax statements and 1099-MISC statements. 
The director also requested the petitioner's business lease agreement. 
In response to the above requests, counsel provided an explanatory letter and copies of the following documents: 
the petitioner's U.S. federal corporate tax returns for years 2000, 2001 and 2003; the petitioner's "Employers 
Quarterly Federal Tax Form" (Form-941) for tax year 2001; a commercial lease to Sky Telecom Inc., as 
lessee, with Tenant Acceptance ~orms;~ and, the beneficiary's passport information. 
The director determined that that the petitioner had not established that it has a business with a physical 
presence in the United States, and, further, that the petitioner had not established that the beneficiary has the 
requisite experience two years of experience as stated on the labor certification petition. 
On appeal counsel asserts that the director's decision to deny the petition is due to "misunderstandings, which 
are correctable." 
A brief was filed in this matter on March 22, 2004. Counsel sets forth the two issues in the case according to 
the findings of the director, and he asserts additionally that there is an issue whether the petitioner has a valid 
telephone number. The petitioner's telephone number is not at issue in this case. 
On appeal, counsel on March 22, 2004, submits copies of the following additional e~idence:~ the petitioner's 
US.-federal corporate tax returns for the years-2000, 2001 and 2002; a commercial lease agreement, 
commencing March 15, 2001, by doing business as Sky Tel Communications as tenants for 
leasehold space (i.e. #101) in the Reedy Plaza Shopping Center (i.e. 10375 [sic] Colonial Drive Orlando 
Florida with a lease extension to April 30, 2007; a "Memorandum of Marriage" stating that 
as married on January 19, 1993; a letter dated June 17, 2003, from the president (mm!m 
that the petitioner utilized Sky Tel Communications' lease space in that shopping center; an annual 
2 
 According to counsel, Sky Telecom Inc. and the petitioner are commonly owned corporations and the 
petitioner's has occupied and shared Sky Telecom Inc. leased premises. The president of the petitioner 
provided a letter dated June 17, 2003 confirming the above statement. He stated that the petitioner occupied 
the lease premises in Orlando, Florida since May 11, 1999, and, that date was also the date the petitioner was 
incorporated. 
3 
 Counsel's exhibit schedule in the brief does not coincide to the actual documentary exhibits submitted. The 
enumeration of the exhibits submitted with counsel's brief are listed as found in his submittal. 
Page 4 
dated February 16, 2004, stating that the space leased bys now designated #I35 and 
submitting a floor plan; approximately 29 documents that are bills, business space occupational licenses, 
ts, utility and tax bills addressed from or to the petitioner at 
002 and 2003; 12 photocopies of 
a letter dated February 18, 2004, 
d from that stated on the petition 
and labor certification; a computer printout from an Internet based information search engine 
information for the petitioner dated March 17 7, 2004; vendor invoices to the petitioner at the 
address in 2002 and 2003; telephone charges and numbers called and received from 
of the company found at the Internet site 
found in approximately ten invoices dat 
 1 classified ads for the petitioner; a profile 
an application for fictitious name for Blue 
Sky Telecom filed with the Florida Sec 
web site stating that Sky Telecom is located at 
ith the owner indicated as the petitioner; the la 
letter from Moontac Hardware Services (1996) LTD, Nairobi, Kenya dated February 17, 2004; and, a print-out 
of a web page stating in pertinent part that the official language ofthe Republic of Kenya is English. 
A second brief was filed in this matter on July 5, 2005. Counsel sets forth the two issues in the case 
according to the findings of the director and he asserts additionally, " ... The evidence established the 
Petitioner . . . is able to pay the proffered wage." The petitioner's ability to pay the proffered wage is not at 
issue in this case. 
On appeal, counsel on June 16, 2005, submits copies of the following additional evidence: the petitioner's 
tor information samples;" 
an statement for a "Past Auctions" held at 
 on February 12, 2005; a 
shop location address 
r printout from the Florida S 
we petitioner's "Principal Address" and "mailing address" is 
ma "Memorandum of Marriage" stating that1 
wth a filing receipt for the corporation's Articles of Incorporation as well as other 
documentary information;' BellSouth and Sprint -e listings referencing the 
I computer printout dated 
addressormation for the petitioner 
and "Sky Telecom;" a computer printout dated June 7, 2005, of the petitioner's web site pages; the labor 
certification; letters from Moontac Hardware Services (1996) LTD, Naifobi, Kenya dated June 24, 2002 and 
February 17, 2004, stating that the beneficiary was employed there as a marketing representative from 
January 1997 to September 1999; a computer printout of pages of the Republic of Kenya's website pages 
introduced to state that English is the official language of that country; and, various state sales tax licensing 
statements for various named corporations (one of the statements is a State of Georgia "Certificate of 
Registration" for "The Phone Card Warehouse," All American Stores Inc., Norcross Georgia). 
From a review of the record of proceeding the director utilized the address and telephone number given by the 
petitioner that were incorrect or stale. Further, the fact that the business premises given for a business address 
was leased by a separate, although affiliated corporation, further prevented an identification of the petitioner's 
tary of State, the petitioner's original 
Also, the present address is noted as 
Page 5 
business address in the State of Florida. By the evidence presented on appeal as above enumerated, we find 
that the petitioner has established that it has a business with a physical presence in the United States. 
The second issue to be determined 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 as of the petition's filing date, which is April 19, 2001. 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 marketing 
representative. In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education ................................. 
Grade School 
High School 
College 
College Degree Required 
Major Field of Study 
Training ................................... 
No. Yrs. 
No. Mos. 
Type of Training n/a 
Experience .............................................. 
No. Yrs. - 2 
No. Mos. - 0 
Related Occupation ..................................... 
Related Occupation (specifi) - n/a 
No. Yrs. - 0 
No. Mos. 0 
In the instant case, the Application for Alien Employment Certification, Form ETA-750 B, item 15, set forth 
work experience that an applicant listed for the position of marketing representative. 
15 (a.) WORK EXPEFUENCE 
NAME AND ADDRESS OF EMPLOYER 
Page 6 
Marketing Representative 
DATE STARTED 
Month - Oct. Year - 1999 
DATE LEFT 
Month 
- Present [i.e. April 17,200 11 
KIND OF BUSINESS 
Wholesales prepaid phone cards 
DESCRIBE 
IN DETAIL DUTIES.. . 
Research, evaluate market quotas through networlung telemarketing & prospecting; provide 
customer support; primary contact for account infield order processing; follow up support and 
detention education & providing new information on products and services; attend weekly 
meetings, reviewhnderstand company, industry management'clients. 
NO. OF HOURS PER WEEK 
40 
b. NAME AND ADDRESS OF EMPLOYER 
Moontac Hardware Services (1996) LTD,? 
Naiobi Kenya 
NAME OF JOB 
Marketing Representative 
DATE STARTED 
Month - Jan Year - 1997 
DATE LEFT 
Month - Sept Year 1999 
KIND OF BUSINESS 
Dealer General Hardwarehdustrial spares 
DESCRIBE IN DETAIL DUTIES.. . 
Managed inbound & outbound customer sales, provided technical assistance & application 
support, inventory control. Prepared & evaluated marketing reports, tools and equipment during 
and after marketing; educated & provided information of new products and services 
manufactured or imported. 
NO. OF HOURS PER WEEK 
40 
We find based upon the evidence submitted that the petitioner had established that the beneficiary has the 
requisite two years of experience as a Marketing Representative as stated on the labor certification petition. Two 
letters were provided by a prior employer, Moontac Hardware Services LTD of Naiobi, Kenya, that according to 
the regulation at 8 CFR 5 204.5(1)(3)(ii) gave the name, address, and title of the Kenyan employer, and a 
description of the training received or the experience of the alien as a marketing representative. 
By the evidence presented on appeal, we find that the petitioner has established that it has a business with a 
physical presence in the United States. 
the labor certification. The address stated on the 1-140 petition was 
either address was accurate. 
 = 
Page 7 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
4 1361. The petitioner has met that b~rden.~ 
ORDER: The appeal is sustained. 
The U.S. Department of Labor's (USDOL) regulation at 20 C.F.R. 8 656.21, et seq., regarding Applications 
for Alien Employment (Form ETA 750 AIB) required in pertinent part that that the petitioner 
(employer/applicants therein) submit "Two copies of the employment contract, each signed and dated by both 
the employer and the alien (not their agent) . . .", that a duplicate contract be furnished to the alien, and, any 
other "agreement or conditions not specified " ... on the Application for Alien Employment Certzjcation form 
. . .." There is no such employment contract in the record of proceeding. It is advisable to have available the 
employment contract with a copy given to the beneficiary.