Page 1 of 32

AAO EB-3 Administrative Decisions of January 2012 By Joseph P. Whalen (August 24, 2012)

This compilation is comprised of non-precedential Decisions of USCIS’ Administrative Appeals Office (AAO), found posted on the agency’s website in the 3rd week of August 2012. Although they are dates in January 2012, the agency is required to redact personally identifying information (PII) unless there has been a waiver of the requirement or the decision were designated as precedent pursuant to the proscribed procedures (inapplicable to these posted items at the present time—but who knows what the future may bring in that regard?) Redaction by FOIA Unit employees may take several months, hence the delay.

These links are for Administrative Decisions dealing with AAO Decision “category” B6 - Skilled Workers, Professionals, and Other Workers1. The link indicates Date of Decision, the place that this one represent in the list for that date, i.e. SEQUENTIAL2 No., in the particular “category” and the basic INA§.

These decisions pertain to requests made on USCIS Form I-140, Immigrant Petition for Alien Worker for Alien Worker as EB-3 Skilled Worker, Professionals, or Other Workers pursuant to Section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3).

Notes: NSC = Nebraska Service Center. There are three more Service Centers: CSC for California, TSC for Texas and VSC for Vermont.

USCIS has well over 100 offices worldwide (? > 130?).

ATP means that the issue in this case is whether the petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. 1 While the website seems to differentiate two varieties of decisions in order to match the I-140 categories, they are really lumped all together in one place online. 2 Gaps exist in these sequential decisions. This is how they are posted online. I am guessing that there is a Master List at the agency and that some decisions are purposely and consciously held back for any of numerous reasons (could be in current litigation) (could have been reopened sua sponte due to a recent legislative amendment; or judicial or administrative precedent which controls the outcome). I don’t know or care why this is. I am just making an observation that what we see here is NOT all that got done at AAO to date—not by a long-shot.

Page 2 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Jan032012_01B6203.pdf APPEAL SUSTAINED

The TSC director determined that the petitioner failed to demonstrate that the beneficiary satisfied the minimum level of education stated on the labor certification, Form ETA 750, Application for Alien Employment Certification, approved by the United States Department of Labor (DOL). AAO disagreed, and overruled that evaluation of his 3-year Bachelor's degree from the University of Wales. The beneficiary does have a United States baccalaureate degree or a foreign equivalent degree, and, thus, does qualify for preference visa classification under section 203(b)(3)(A)(ii) of the Act. He also has the minimum level of education and experience required by the labor certification. The notable footnote 2 states: If the petition is approved, the priority date is also used in conjunction with the Visa Bulletin issued by the Department of State to determine when a beneficiary can apply for adjustment of status or for an immigrant visa abroad. Thus, the importance of reviewing the bona fides of a job opportunity as of the priority date is clear.

This case discusses degree equivalents and the agency’s reliance on the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO).

Jan032012_05B6203.pdf APPEAL DISMISSED

The NSC director determined that the petitioner failed to demonstrate that the beneficiary satisfied the minimum level of education or experience stated on the labor certification. The petitioner filed a motion to reopen or reconsider the director's decision. The director reopened the decision and determined that the petitioner satisfied the

Page 3 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

beneficiary's experience but that the petitioner did not demonstrate that the beneficiary had the minimum level of education stated on the labor certification. [The wording on the labor certification application itself defeated the evaluations submitted with the petition and with the Motion. The employer stated “4 years college” and “B.S. Degree”. Therefore, even if the 3-year degree is “equivalent”, that fact is irrelevant. The vacancy announcement advertised to the U.S. labor force appear to have been designed to fend off U.S. applicants and leave only a pool of in-house applicants such as this beneficiary.]

Because the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," from a college or university in the required field of study listed on the certified labor certification, the beneficiary does not qualify for preference visa classification under section 203(b)(3)(A)(ii) of the Act as a professional as he does not have the minimum level of education required for the foreign equivalent of a bachelor's degree.

Jan032012_06B6203.pdf APPEAL DISMISSED

NSC denied due to lack of ATP.

The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of a labor certification application establishes a priority date for any immigrant petition later based on it, the petitioner must establish that the job offer was realistic as of the priority date and that the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence.

The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N

Page 4 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Dec. 142 (Acting Reg'l Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, United States Citizenship and Immigration Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). This decision contains many useful case citations.

Jan042012_03B6203.pdf MOTION GRANTED, DENIAL & DISMISSAL RE-AFFIRMED

The employment based immigrant visa petition was denied by the Director, Texas Service Center. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the AAO on a motion to reopen and a motion to reconsider. The motions will be granted and the previous decisions of the director and the AAO will be affirmed. The petition will remain denied. Denied for lack of ATP. This case decision contains very useful “discussion” as follows: Matter of Sonegawa related to petitions filed during uncharacteristically unprofitable or difficult years but only in a framework of profitable or successful years. The petitioning entity in Sonegawa had been in business for over II years and routinely earned a gross annual income of about $100,000. During the year [1966] in which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old and new locations for five months. There were large moving costs and also a period of time

Page 5 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

when the petitioner was unable to do regular business. The Regional Commissioner determined that the petitioner's prospects for a resumption of successful business operations were well established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion design at design and fashion shows throughout the United States and at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere. In this matter, there are few facts and little evidence upon which to evaluate the petitioner's circumstances. As set forth above, the evidence submitted on motion is more relevant to the petitioner's operational existence rather than to the kind of outstanding reputational factors referenced in Sonegawa. As noted above, some of the evidence requires clarification, such the lack of explanation of the beneficiary's W-2 wages as reported on the sole proprietor's tax returns, the lack of submission of the sole proprietor's monthly recurring household expenses,7 and the lack of complete tax returns for the years 2007 through 20098 There is no indication that any unusual or unique business circumstances or reputational factors have been shown to be applicable in this case that parallel those described in Sonegawa, nor has it been established that 2004 was an uncharacteristically unprofitable year within a framework of profitable years for the petitioner.

Page 6 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

The AAO finds that the petitioner has not met its burden in establishing that it had continuing financial ability to pay the proffered wage as of the priority date. It is further noted that no new evidence or argument has been submitted on motion that would reverse the AAO' s previous finding in its August 20, 2010 decision that the petitioner has failed to establish its ability to pay the proffered wage and therefore the petition cannot be approved.

Jan042012_04B6203.pdf APPEAL DISMISSED

The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a dishwasher. As required by statute, a Form ETA 750, Application for Alien Employment Certification approved by the Department of Labor (DOL), accompanied the petition. The director determined that the petitioner had not established that the requirements set forth on the approved labor certification were consistent with the visa classification sought.

On appeal, the petitioner submits additional evidence relating to the petitioner's ability to pay the proffered wage and the beneficiary's employment experience and contends that the petition merits approval.

* * * * AAO concurs with the director's decision and additionally determines that the petitioner has failed to establish that it has had the continuing ability to pay the proffered wage and has failed to establish that the beneficiary possessed the requisite work experience.

Jan042012_05B6203.pdf APPEAL DISMISSED

The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a cook preparing Cantonese-Style dishes, As required by statute, the petition is accompanied by

Page 7 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

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 petition was based on a bona fide job offer but rather that a pre-existing familial relationship likely affected the labor certification process. The director denied the petition accordingly.

Jan042012_06B6203.pdf APPEAL DISMISSED

The NSC director determined that the petitioner had not established that the requirements set forth on the approved labor certification were consistent with the visa classification sought. The director also determined that the petitioner had failed to submit the initial evidence to establish that it had the ability to pay the proffered wage and failed to submit evidence to establish that the beneficiary possessed the requisite work experience, and denied the petition, accordingly.

The regulation at 8 C.F.R. § 204.5(1) states in pertinent part:

(4) Differentiating between skilled and other workers. The determination of whether a worker is a skilled or other worker will be based on the requirements of training and/or experience placed on the job by the prospective employer, as certified by the Department of Labor.

The petitioner sought visa classification (Part 2, paragraph e of I-140) of the beneficiary as a skilled worker (requiring at least two years of training or experience) under section 203(b)(3)(A)(i) of the Act. Section H, 4, 6, and 10 of the ETA Form 9089, do not require the applicant to have any formal education or training and require six months of work experience in the job offered of janitor or six months of experience as a maintenance worker.FN2

Page 8 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

FN2 If the petition is approved, the priority date is also used in conjunction with the Visa Bulletin issued by the Department of State to determine when a beneficiary can apply for adjustment of status or for an immigrant visa abroad. Thus, the importance of reviewing the bona fides of a job opportunity as of the priority date, including a prospective U.S. employer's ability to pay the proffered wage is clear. On appeal, with regard to the designation of the wrong visa category, counsel asserts that it was a scrivener's error and that the director could have issued a request for evidence for the missing evidence. It is noted that the regulation at 8 C.F.R. § 103.2(b)(8)(ii) clearly allows the denial of an application or petition, notwithstanding any lack of required initial evidence, if evidence of ineligibility is present. It further noted that neither the law nor the regulations compel the director to consider other classifications if the petition is not approvable under the classification requested or require the director to issue a request for evidence where evidence of ineligibility is present. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988).

Jan042012_07B6203.pdf APPEAL DISMISSED

The petitioner is a trucking business. It seeks to employ the beneficiary permanently in the United States as a diesel auto mechanic. 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 NSC director

Page 9 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition.

This one also addresses a successor-in-interest situation. It’s a long decision (14 pages) as are many of these in this compilation.

Jan042012_08B6203.pdf APPEAL DISMISSED

The petitioner is a dry cleaner. It seeks to employ the beneficiary permanently in the United States as an Assistant Manager. 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 TSC director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The director denied the petition accordingly.

As set forth in the director's August 14, 2008 denial, the single issue in this case is whether or not the petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence.

Jan042012_09B6203.pdf APPEAL DISMISSED

The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a cook preparing Cantonese-Style dishes. 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 petition was based on a bona fide job offer but rather that a pre-existing familial relationship

Page 10 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

likely affected the labor certification process. The director denied the petition accordingly. As set forth in the director's July 17, 2008 and September 9, 2008 denials, the primary issue in this case is whether or not the petition was based on a bona fide job offer and whether a preexisting familial relationship likely affected the labor certification process.

* * * * * Under 20 C.F.R. §§ 626.20(c)(8) and 656.3, the petitioner has the burden when asked to show that a valid employment relationship exists, that a bona fide job opportunity is available to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987). Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401 (Comm'r 1986), discussed a beneficiary's 50% ownership of the petitioning entity. The decision quoted an advisory opinion from the Chief of DOL's Division of Foreign Labor Certification as follows:

The regulations require a 'job opportunity: to be 'clearly open.' Requiring the job opportunity to be bona fide adds no substance to the regulations, but simply clarifies that the job must truly exist and not merely exist on paper. The administrative interpretation thus advances the purpose of regulation 656.20(c)(8). Likewise requiring the job opportunity to be bona fide clarifies that a true opening must exist, and not merely the functional equivalent of self-employment. Thus, the administrative construction advances the purpose of regulations 656.20.

Id at 405. Furthermore, a relationship invalidating a bona fide job offer may also arise where the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or through friendship." See Matter of Sunmart 374, 2000-

Page 11 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

INA-93 (BALCA May 15, 2000).

In this matter, the petitioner admits that the beneficiary is the nephew of the petitioner's owner. Although the petitioner claims in an affidavit to have conducted its recruitment in accordance with the DOL's procedures, the petitioner has not submitted any evidence establishing that this was a bona fide job opportunity available to U.S. workers. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Given the familial relationship between the parties, it is more likely than not that a bona fide job opportunity available to all qualified U.S. workers never existed.

Difficult browse for DOL Decisions at: http://www.dol.gov/appeals/decisions.htm#OALJ

Note: The above link allows browsing of Board decisions provided you know the issue date. However, if you’d like to do a text search across all available decisions, please click on the below link and select the appropriate check boxes on the right.

Easy search for DOL Decisions at: http://webapps.dol.gov/appeals/search/search.htm

[It’s not perfect but then what is?]

Jan042012_12B6203.pdf APPEAL DISMISSED

The petitioner is a convenience store. It seeks to employ the beneficiary permanently in the United States as a store manager-evening shift pursuant to Section 203(b)(3) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3). As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien

Page 12 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Employment Certification (Form ETA 750), approved by the United States Department of Labor (DOL). The director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition and continuing to the present. The director also determined that portability under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (Public Law 106-313) and section 204(j) of the Act, 8 U.S.C. § 1154(j) did not apply when adjudicating the petition.

This 14-page decision is worth reading so I won’t give it all away—you’ll have to work for it!

However, I will help you with footnote 5: 5 The AAO notes that after the enactment of AC21, USCIS altered its regulations to provide for the concurrent filing of immigrant visa petitions and applications for adjustment of status. This created a possible scenario wherein after an alien's adjustment application had been pending for 180 days, the alien could receive and accept a job offer from a new employer, potentially rendering him or her eligible for AC21 portability, prior to the adjudication of his or her underlying visa petition. A USC IS memorandum signed by William Yates, May 12, 2005, provides that if the initial petition is determined "approvable," then the adjustment application may be adjudicated under the terms of AC21. See Interim Guidance for Processing Form 1-140 Employment-Based Immigrant Petitions and Form 1-485 and H-IB Petitions Affected by the American Competitiveness in the Twenty-First Century Act ()f' 2000 (AC21) (Public Law 106-313) at 3. This memorandum was superseded by Matter of' AI Wazzan, 25 I&N Dec. 359 (AAO 2010), which determined that the petition must have been valid to begin with if it is to remain valid with respect to a new job.

Page 13 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Jan052012_05B6203.pdf APPEAL DISMISSED The BALCA Decision linked was found online at DOL’s website ion their Digest. Digest of PERM Decisions

of the Board of Alien Labor Certification Appeals

It appears that DOL is still working through things on their website and they have numerous and somewhat confusing search possibilities. Good Luck finding what you need from any of DOL’s five different Appellate Bodies!

The petitioner is a hospital. It seeks to employ the beneficiary permanently in the United States as a registered nurse. The petitioner applied for the beneficiary under a blanket labor certification pursuant to 20 C.F.R. § 656.5, Schedule A, Group I. See also 20 C.F.R. § 656.15. The director determined that the petitioner failed to properly post the position in accordance with 20 C.F.R. § 656.10(d)(1)...

They posted for 10 “consecutive days”. The AAO issued a Request for Evidence (RFE) to counsel and the petitioner on October 19, 2011, informing the parties that the AAO takes judicial notice3 of a recent decision of the Department of Labor's (DOL) Board of Alien Labor Certification Appeals (BALCA), In the Matter of Il Cortile Restaurant, 2010-PER-00683 (BALCA October 12, 2010). In that decision, BALCA concluded that the purpose of the notice requirement of 20 C.F.R. § 656.l0(d)(l)(ii) can be fulfilled when a Notice of Filing is posted for 10 consecutive days "when employees are on the worksite and [are] able to see the Notice of Filing." Id. at 4. BALCA also stated that "[a]s long as an employer has employees working on the premises on a Saturday, Sunday, or holiday, those days are business days for the purposes of complying with the Notice of Filing posting." Id. Although BALCA decisions are not binding on U.S. Citizenship and Immigration Services (USCIS), the AAO has in the past followed the DOL's definition of "business day" as used in 20 C.F.R. § 656.l0(d)(l)(ii) for purposes of considering whether a Notice of Filing complies with that regulation. [They did not respond!]

3 I would have said “Administrative Notice” rather than “Judicial Notice” but this will do.

Page 14 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Jan052012_08B6203.pdf APPEAL DISMISSED

The petitioner is a restaurant serving Indian-inspired dishes. It seeks to permanently employ the beneficiary in the United States as an Indian specialty cook, DOT job code 313.361-030 (Cook, Specialty, Foreign Food for hotels and restaurants). 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 denied the petition, finding that the Form ETA 750 accompanying the petition was not issued to the petitioner, but to a different entity.* The TSC director also found that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. * There is a fascinating discussion about the successor-in-interest issue. Reading the full decision would be time well spent!

Jan052012_09B6203.pdf APPEAL DIMISSED

This exceedingly badly bungled I-140 filing for a registered nurse is too interesting and informative to miss digesting all on your own. I will not spoil it for you. If you have any notion of filing for a nurse then you MUST read this first!

Jan062012_02B6203.pdf APPEAL SUSTAINED

The petitioner is a general contractor in the construction industry. It seeks to employ the beneficiary permanently in the United States as an "ornamental design sculptor." As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). The director determined that the petitioner had not established that the beneficiary had 48 months of experience in the proffered position, an ornamental design

Page 15 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

sculptor, as required by the ETA Form 9089. The director denied the petition accordingly.

***** As set forth in the director's August 12, 2008 denial, the issue in this case is whether or not petitioner established that the beneficiary met the experience requirements of the ETA Form 9089 as of the priority date.

***** The petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated on its labor certification application, as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Acting Reg'l Comm'r 1977). Here, the labor certification application was accepted on December 16, 2005.

***** The beneficiary needed to have 48 months (four years) experience in this trade. He had somewhere in the neighborhood of 25 years and somebody at Texas Service Center wouldn’t believe it was “qualifying experience” because it was characterized, that is-labeled or described, slightly differently here and there.

***** The director denied the petition as the evidence did not show that "Monumental Art Style" would encompass four years of experience as an "Ornamental Design Sculptor" or duties similar to those set forth on the ETA Form 9089.

PURE SEMANTIC NONSENSE!

Jan092012_01B6203.pdf APPEAL DISMISSED

The petitioner is a sprinklers firm. It seeks to employ the beneficiary permanently in the United States as a lawn sprinklers installer. As required by statute, the petition is accompanied by a Form

Page 16 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

ETA 750, Application for Alien Employment Certification, approved by the United States Department of Labor (DOL). The TSC director determined that the petitioner had not established that it had the continuing ability to pay (ATP) the beneficiary the proffered wage beginning on the priority date of the visa petition. The director denied the petition accordingly.

Jan092012_02B6203.pdf APPEAL DOSMISSED

The petitioner is a barber shop/beauty salon. It seeks to employ the beneficiary permanently in the United States as a barber. As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). The TSC director determined that the petitioner had not established that it had the continuing ability to pay (ATP) the beneficiary the proffered wage beginning on the priority date of the visa petition. The director denied the petition accordingly.

Jan102012_02B6203.pdf APPEAL DISMISSED

The petitioner is a farm. The petitioner seeks to classify the beneficiary as a maintenance and repair worker. ATP issue is key but here is an interesting footnote (#6). Counsel is citing Ranchito Coletero, 2002-INA-104 [should be 105] (2004 BALCA), for the premise that entities in an agricultural business regularly fail to show profits and typically rely upon individual or family assets. Counsel does not state how the United States Department of Labor's (DOL) Board of Alien Labor Certification Appeals (BALCA) precedent is binding on the AAO. While 8 C.F .R. § 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the administration of the Act,

Page 17 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

BALCA decisions are not similarly binding. Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.F .R. § 103.9(a). Moreover, Ranchito Coletero deals with a sole proprietorship and is not directly applicable to the instant petition, which deals with a multi-member limited liability company. [In the Matter of:] Ranchito Coletero, 2002-INA-105 (BALCA Jan. 8, 2004) (en banc).

Jan102012_03B6203.pdf APPEAL DISMISSED

The petitioner is a commodities trading business. It seeks to employ the beneficiary permanently in the United States as a database administrator pursuant to sections 203(b)(3)(A)(i) and (ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § I 153(b)(3)(A)(i) and (ii). As required by statute, a labor certification accompanied the petition. Upon reviewing the petition, the director determined that the petitioner failed to demonstrate that the beneficiary satisfied the minimum level of education stated on the labor certification. The TSC director determined that the beneficiary's three-year bachelor's degree in commerce from the University of Mumbai in India combined with other credentials could not be accepted as a foreign equivalent degree to a four-year U.S. bachelor's degree in computer systems management, financial information systems, business, or related field. The AAO issued a request for evidence (RFE) on October 18, 2011 of the petitioner's intent concerning the actual minimum educational requirements of the proffered position. The AAO explained that it consulted a database that did not equate the beneficiary's credentials to a U.S. baccalaureate degree and the evidence in the

Page 18 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

record of proceeding as currently constituted did not support a determination that the petitioner intended the actual minimum requirements of the proffered position to include alternatives to a bachelor degree such as the credentials held by the beneficiary. The AAO solicited evidence of how the petitioner expressed its actual minimum educational requirements to the United States Department of Labor (DOL) during the labor certification process. In the RFE, the AAO specifically alerted the petitioner that failure to respond to the RFE would result in dismissal since the AAO could not substantively adjudicate the appeal without the information requested. The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(l4). Because the petitioner failed to respond to the RFE, the AAO is dismissing the appeal.

Jan102012_04B6203.pdf APPEAL DISMISSED

The preference visa petition was denied by the Director, Nebraska Service Center. The appeal was dismissed by the Administrative Appeals Office (AAO). Counsel to the petitioner filed a motion to reopen the AAO's decision in accordance with 8 C.F.R. § 103.5. The motion will be granted, and the appeal will be dismissed on its merits.

[This is a welcome approach.] The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a specialty cook, Mexican. .... Lacks ATP.

* * * * *

Page 19 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

It is noted that the AAO determined that the petitioner had demonstrated its ability to pay the proffered wage for 2004 and 2005, but had failed to show its ability to pay the proffered wage for 2001, 2002, 2003, and 2006. Therefore, on motion the issue is whether or not the petitioner has established its ability to pay the proffered wage for the relevant years. The AAO further determined that the petitioner had filed multiple immigrant petitions, and that the petitioner failed to establish that the beneficiary is qualified to perform the duties of the proffered position with two years of qualifying employment experience.

Jan102012_05B6203.pdf APPEAL DISMISSED

The petitioner is a wholesale/retail jewelry business. It seeks to employ the beneficiary permanently in the United States as an import/export manager. Lacks ATP.

* * * * * If, as in this case, the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage throughout the designated period, then USCIS will next examine the net income figure ret1ected on the petitioner's federal income tax return, without consideration of depreciation or other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010) etc.... Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D.

Page 20 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Texas 1989); K.CP. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly showing that the petitioner paid wages in excess of the proffered wage is insufficient.

Jan102012_06B6203.pdf APPEAL DISMISSED

The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a chef. ... As set forth in the director's June 18,2008 denial, at issue in this case is whether or not the petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence.

* * * * * The successor must prove the predecessor's ability to pay the proffered wage as of the priority date and until the date of transfer of ownership to the successor. In addition, the petitioner must establish the successor's ability to pay the proffered wage in accordance from the date of transfer of ownership forward. 8 C.F.R. § 204.5 (g)(2); see also Matter of Dial Auto, 19 I&N Dec. at 482.

Jan102012_07B6203.pdf APPEAL DISMISSED

The petitioner is a marketing services and graphic designs business. It seeks to permanently employ the beneficiary in the United States as a web content designer. ... As set forth in the director's March 20, 2008 denial, the issue in this case is whether the petitioner has established its ability to pay (ATP) the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence.

Page 21 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

This case has a lengthy discussion of substitutions of beneficiaries and the procedural history of the DOL rules, lawsuits, memos, etc... It is worth checking out just for the citations and website addresses alone, but the discussion is good too. But wait, there is much more. For instance, in this matter, the beneficiary indicated in the Form ETA 750B that he is an "owner/investor" in the petitioner's business. Accordingly, it is more likely than not that the offer is not bona fide. An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).

Jan102012_08B6203.pdf APPEAL DISMISSED

The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a cook. ... As set forth in the director's August 2, 2011, denial, the single issue in this case is whether or not the petitioner had the ability to pay (ATP) the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. The instant petition is the second Form 1-140 the petitioner has filed using the same labor certification. The first one was denied on May 25, 2010, and was not appealed.

Jan102012_10B6203.pdf APPEAL DISMISSED

The petitioner is a retail jewelry store. It seeks to employ the beneficiary permanently in the United States as a jeweler to sections 203(b)(3) of the

Page 22 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3). As required by statute, a labor certification accompanied the petition. Upon reviewing the petition, the director determined that the petitioner failed to establish that a bona fide job offer was extended to the beneficiary which was open to all qualified U.S. workers, and denied the petition accordingly. The petitioner filed a motion to reopen and reconsider. The director found that the grounds to overcome the original decision had not been overcome and affirmed the denial. The petitioner appealed this decision.

Jan102012_11B6203.pdf APPEAL DISMISSED

The employment-based preference visa petition was denied by the Director, Texas Service Center. The Administrative Appeals Office (AAO) rejected the subsequently filed appeal. The matter is now again before the AAO as a motion to reopen and motion to reconsider pursuant to 8 CF.R. § 103.5. The motion to reopen and reconsider is denied. The appeal remains rejected. This one goes deep into proper procedures which in this instance the petitioner and counsel failed to follow from the start.

Jan102012_12B6203.pdf REMNANDED TO TREAT AS A MOTION TO REOPEN AND RECONSIDER

The record indicates that the service center director issued the decision on December 4, 2008. It is noted that the service center director properly gave notice to the petitioner that it had 33 days to file the appeal. Neither the Immigration and Nationality Act nor the pertinent regulations grant the AAO authority to extend this time limit.

Page 23 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Although counsel dated the Form I-290B January 5, 2009, it was not received by the service center until January 7, 2009, or 34 days after the decision was issued. Accordingly, the appeal was untimely filed. The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the Texas Service Center. See 8 C.F.R. § 103.5(a)(1)(ii). The matter will therefore be returned to the director. If the director determines that the late appeal meets the requirements of a motion, the motion shall be granted and a new decision will be issued. Note that AAO did not express an opinion which probably means that very little actual adjudication resources were wasted doing the Service Center’s task for it.

Jan112012_02B6203.pdf DENIAL WITHDRAWN, CASE REMANDED FOR FURTHER PROCESSING, INVESTIGATION AND A NEW DECISION

The employment-based immigrant visa petition was denied by the Director, Texas Service Center. The director subsequently denied a motion to reconsider. The matter is now before the AAO on appeal. The AAO withdraws the director's decision and remands the case for further investigation and review and entry of a new decision. See footnote 3 for a discussion of the potential applicability of Matter of Sonegawa.

Page 24 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Jan112012_03B6203.pdf APPEAL DISMISSED

The petitioner is a graphics company. It seeks to employ the beneficiary permanently in the United States as a sign erector/fabricator. As required by statute, the petition is accompanied by a labor certification application 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 with three years of qualifying employment experience, as required by the labor certification.

* * * * * Also provided with the initial petition was an employment verification letter from [NAME REDACTED] documenting the beneficiary's experience as a welder in Colombia. The letter does not provide any dates of employment and docs not document any experience as a sign erector/fabricator. This experience was also not listed on Form ETA 750. In Matter of Leung, 16 I&N Dec. 2530 (BIA 1976), the Board's dicta notes that the beneficiary's experience, without such fact certified by DOL on the beneficiary's Form ETA 750B, lessens the credibility of the evidence and facts asserted.

MATTER OF LEUNG (The Holding Only): In Section 245 Proceedings - A-20078143

Decided by District Director September 8, 1976

(1) Applicant entered the United States as a nonimmigrant visitor for pleasure on September 7, 1970, and was authorized to remain until May 3, 1971, but did not depart. In August 1971 he accepted employment as a Chinese specialty cook, and obtained a labor certification pursuant to section 212(a)(14) of the Immigration and Nationality Act based on experience gained in that employment. Subsequently, a sixth-preference visa petition was approved in his behalf pursuant to section 203(a)(6) of the Act. On October 12, 1973 the instant section 245 application was filed.

Page 25 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

(2) Under 8 CFR 214.1(c), an alien temporary visitor for pleasure as defined in section 101(a)(15)(B) of the Act may not accept any employment. Applicant was thus in violation of United States immigration laws and the total work experience upon which the labor certification and adjustment application were based was obtained while applicant was in the United States unlawfully. (3) Even though the applicant is statutorily eligible, the grant of an application for adjustment of status is a matter of discretion and administrative grace, and the applicant has the burden to show that discretion should be exercised in his behalf. See Matter of Arai, 13 I. & N. Dec. 494; Matter of Ortiz-Prieto, 11 I. & N. Dec. 317. In the absence of unusual or outstanding equities, an application for adjustment of status under section 245 of the Act which is supported by a labor certification predicated upon employment experience gained while applicant was in the United States unlawfully will be denied as a matter of discretion. [Quite a few additional cases address invalidation of work experience gained in unlawful status and still others address “administrative grace”.]

Jan112012_04B6203.pdf APPEAL DISMISSED

The petitioner is a medical provider. It seeks to employ the beneficiary permanently in the United States as a staff accountant. ... As set forth in the director's July 18, 2008 denial, the primary issue in this case is whether the petitioner has the ability to pay (ATP) the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. Additionally, [t]The record does not contain a letter complying with the applicable regulatory provisions that demonstrates that the beneficiary has the qualifying employment experience. The branch marketing manager failed to specify the job duties performed by the beneficiary and whether or not the beneficiary was employed full-time.

Page 26 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

8 C.F.R. § 204.5(l)(3)(ii)(A). Additionally, the inconsistencies found in the record regarding the beneficiary' s dates of employment require clarification and explanation through objective supporting evidence. Without this specific information, the AAO is unable to determine whether the beneficiary was qualified to perform those duties as of the filing date of the Form ETA 750. For this additional reason, the appeal will be dismissed.

Jan112012_05B6203.pdf APPEAL DISMISSED

The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a kitchen supervisor. ... As set forth in the director's denial, the issue in this case is whether the petitioner has the ability to pay (ATP) the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. I direct your attention to footnote 6: Regardless, even if the AAO were to take into consideration all the. above factors asserted by counsel these would be insufficient to demonstrate the petitioner's ability to pay the proffered wage as USCIS electronic records indicate that the petitioner's sister corporations have filed additional immigrant petitions. If the instant petition were the only petition filed by the petitioner, the petitioner would be required to produce evidence of its ability to pay the proffered wage to the single beneficiary of the instant petition. However, where a petitioner has filed multiple petitions for multiple beneficiaries simultaneously, the petitioner must produce evidence that its job offers to each beneficiary are realistic, and therefore that it has the ability

Page 27 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

to pay the proffered wages to each of the beneficiaries of its pending petitions, as of the priority date of each petition and continuing until the beneficiary of each petition obtains lawful permanent residence. See Matter of Great Wall, 16 I&N Dec. at 144-145 (petitioner must establish ability to pay as of the date of the job offer). See also 8 C.F R. § 204.5(g)(2).

Jan112012_06B6203.pdf APPEAL DISMISSED

The petitioner seeks to permanently employ the beneficiary in the United States as psychotherapist and to classify her as a professional pursuant to section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (3) (A) (ii). The Director denied the petition on the ground that the evidence of record failed to establish that the beneficiary's academic degree from Argentina is equivalent to a master's degree in psychology from an institution of higher education in the United States, as required by the terms of the labor certification. A timely appeal was filed, accompanied by a brief from counsel. On November 8, 2011, the AAO sent a Notice of Intent to Dismiss and Request for Evidence (NOID/RFE) to the petitioner, with a copy to counsel. The AAO referred to an additional resource - the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) - as indicating that the beneficiary's educational credential in Argentina - a Licenciada en Psicoiogia - is comparable to a bachelor's degree in the United States. The petitioner was requested to reconcile this information with its claim that the beneficiary's education is comparable to a U.S. master's degree. In addition, the petitioner was

Page 28 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

requested to submit detailed information and evidence about every other petition it had filed for permanent employees (Form 1-140 petitions) and temporary workers (Form 1-129 petitions), as well as evidence of its ability to pay the proffered wage of every such beneficiary. The petitioner was afforded 45 days to respond to the NOID/RFE with additional evidence, and was advised that if no response was received the appeal would be dismissed without further discussion. The petitioner did not respond within the 45-day period specified in the NOID/RFE (or any time since then). If a petitioner fails to respond to a request for evidence by the required date, the petition may be summarily denied as abandoned, denied based on the record, or denied for both reasons. See 8 C.P.R. § 103.2(b)(l3)(i). The AAO alerted the petitioner that failure to respond to the NOID/RFE would result in dismissal since the appeal could not be substantively adjudicated without the documentation requested. As provided in 8 C.F.R. § 103.2(b)(14), the failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. In this case, the petitioner has not responded to the NOID/RFE of November 8, 2011, despite the AAO's warning that failure to respond would result in dismissal of the appeal without further discussion. Accordingly, the appeal will be dismissed. Giving up was the right move. If they had persisted, there would likely have been harsh consequences. A finding of misrepresentation? Not sure about actual fraud. However, by giving up they can always say it was an “honest mistake”.

Page 29 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Jan112012_07B6203.pdf DENIAL WITHDRAWN, CASE REMANDED FOR FURTHER ACTION

The petitioner is a hospital, and seeks to employ the beneficiary permanently in the United States as a registered nurse pursuant to section 203(b)(3) of the Immigration and Nationality Act (the Act). 8 U.S.C. § 1153(b)(3).

* * * * * The petitioner has applied for the beneficiary under a blanket labor certification pursuant to 20 C.F.R. § 656.5. Schedule A, Group I. See also 20 C.F.R. § 656.15.

* * * * * The PWD submitted with the petition is dated January 8, 2007, with a validity date to July 1. 2007. The filing date of the Schedule A application is July 31, 2007. Accordingly, the PWD was not valid at the time of filing. On appeal, the petitioner argues that the PWD need only be valid as of the date of the posting, as the date of posting is the date that the petitioner "begins recruitment." This argument is rejected. Schedule A applications, by definition, do not involve recruitment for the job offered, and, even in the regular labor certification process, the posting does not constitute recruitment. Instead, for a Schedule A case, the PWD must he valid as of the date of filing. Nonetheless, on appeal, the petitioner submitted another PWD dated June 11, 2007, with a validity date of 90 days. Therefore, the PWD submitted on appeal was valid as of the filing date of the instant Schedule A application. Accordingly, based on the new PWD provided on appeal. The director's decision on this issue is withdrawn. [Of course, there is more value in this decision than presented in this brief excerpt. It is worth reading.]

Page 30 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Jan112012_08B6203.pdf APPEAL DISMISSED

Another cook, and once again it is an ATP issue.

Jan122012_02B6203.pdf APPEAL DISMISSED

The petitioner is an individual. It seeks to employ the beneficiary permanently in the United States as a private household cook .... the petitioner had failed to establish its continuing ability to pay the beneficiary the proffered wage. * * * * The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). On November 22, 2011, the AAO issued a Notice of Derogatory Information. The notice informed the according to public records of the State of Florida, the entity that filed the labor certification, [NAME REDACTED] was dissolved. See http://www.sunbiz.org (accessed November 21, 2011). The notice also notified the petitioner that its dissolution is material to whether the job offer, as outlined on the immigrant petition filed by this organization, is a bona fide job offer. Moreover, any such concealment of the true status of the organization by the petitioner seriously compromises the credibility of the remaining evidence in the record. See Matter of Ho, 19 I&N Dec. 582,586 (BIA 1988)(stating that doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.) It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. See Id.

Page 31 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

Jan132012_01B6203.pdf APPEAL DISMISSED

The petitioner is a laser cutting company. It seeks to employ the beneficiary permanently in the United States as a Sales Engineer (Mechanical). .... As set forth in the director's May 21, 2009 denial, the primary issue in this case is whether the beneficiary possessed the required education for the offered position as set forth in the ETA Form 9089. However, the AAO has identified an additional ineligibility which will be discussed infra. An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).

Jan132012_02B6203.pdf APPEAL DISMISSED

The petitioner is a medical office owned and operated by [NAME REDCTED]. The petitioner seeks to employ the beneficiary permanently in the United States as a medical and health services manager and to classify him as a professional...

* * * * * The Director denied the petition on the grounds that the petitioner failed to establish (1) its ability to pay the proffered wage and (2) that the beneficiary meets the work experience requirements of the labor certification.

* * * * * Counsel submitted two briefs and AAO addressed multiple points, here is only a snippet.

* * * * * As previously noted, the petitioner is a sole proprietorship. This type of business does not exist as an entity apart from the individual owner. See Matter

Page 32 of 32

LINK TO DECISION & OUTCOME/RESULT

REMARKS & EXCERPTS

of United Investment Group, 19 I&N Dec. 248, 250 (Comm'r 1984). Therefore, the sole proprietor's adjusted gross income, assets and personal liabilities are also considered as part of the petitioner's ability to pay. Sole proprietors report income and expenses from their businesses on their individual federal tax return (Form 1040) each year. The business-related income and expenses are reported on Schedule C and are carried forward to the first page of the tax return. Sole proprietors must show that they can cover their existing business expenses as well as pay the proffered wage out of their adjusted gross income or other available funds. In addition, sole proprietors must show that they can sustain themselves and their dependents. See Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill 1982), affd, 703 F.2d 571 (7th Cir. 1983). [It was affirmed without a single word of comment. No point in looking at it—but if you MUST, aff’d link works.]

Jan172012_03B6203.pdf APPEAL DISMISSED

The petitioner is a rental real estate company. It seeks to employ the beneficiary permanently in the United States as a computer project manager. ....

As set forth in the director's May 20, 2009 denial, the issue in this case is whether or not the petitioner has established that it has the ability to pay (ATP) the proffered wage. On appeal, we have identified an additional issue of whether the petitioner demonstrated that the beneficiary had the required experience as of the priority date. This is a 14-page decision.

Jan182012_01B6203.pdf APPEAL DISMISSED

The petitioner was the U.S. District Court for the District of Nevada. ... EDGE shot down the beneficiary’s degree as only a 2 to 3 year certificate. AAO sent an RFE about it that went unanswered!