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More EB3 AAO Decisions posted for 2012 Jan-Aug

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  • 1. More EB3 AAO Decisions Posted for 2012 - Jan 18th through Aug 8th Compiled by Joseph P. Whalen (October 24, 2012)Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8U.S.C. § 1153(b)(3)(A)(i), provides for the granting of preferenceclassification to qualified immigrants who are capable, at the time ofpetitioning for classification under this paragraph, of performing skilledlabor (requiring at least two years training or experience), not of atemporary nature, for which qualified workers are not available in theUnited States.Section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(3)(A)(ii), alsoprovides for the granting of preference classification to qualifiedimmigrants who hold baccalaureate degrees and are members of theprofessions.Section 203(b)(3)(A)(iii) of the Act, 8 U.S.C. § 1153(b)(3)(A)(iii), providesfor the granting of preference classification to qualified immigrants who arecapable, at the time of petitioning for classification under this paragraph, ofperforming unskilled labor, not of a temporary or seasonal nature, forwhich qualified workers are not available in the United States.To be eligible for approval, a beneficiary must have all the education,training, and experience specified on the labor certification as of thepetitions priority date. See Matter of Wing’s Tea House, 16 I&N 158 (Act.Reg. Comm. 1977). The priority date of the petition is March 25, 2005,which is the date the labor certification was accepted for processing by theDOL. See 8 C.F.R. § 204.5(d).FNFN If the petition is approved, the priority date is also used in conjunctionwith the Visa Bulletin issued by the Department of State to determine whena beneficiary can apply for adjustment of status or for an immigrant visaabroad. Thus, the importance of reviewing the bona fides of a jobopportunity as of the priority date is clear. Page 1 of 41
  • 2. Link and Outcome Remarks/Excerpts/CommentsJan182012_02B6203.pdf The petitioner is a restaurant and catering APPEAL DISMISSED business. It seeks to employ the beneficiary permanently in the United States as a cook. As required by statute, the petition is accompanied[Page 4 is missing from the by a Form ETA 750, Application for Alien posted decision.] Employment Certification, 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 continuing onward. The director denied the petition accordingly. The record shows that the appeal is properly filed, 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 directors June 10, 2008 denial, the 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.Jan182012_03B6203.pdf Essentially the same as the above decision. APPEAL DISMISSED 3 On appeal, counsel cites to Maysa v. DOL, 1998 INA 259 (May 21,1999) for the proposition that the petitioner does not have to pay the proffered wage until the beneficiarys Form 1-485 Application to Register Permanent Residence or Adjust Status is approved. While this is a correct statement. That the petitioner is not required to pay the beneficiary the proffered wage until permanent residence is obtained, 8 C.F.R. § 204.5(g)(2) requires that the petitioner establish its ability to pay the proffered wage from the priority date onward. From Maysa: Page 2 of 41
  • 3. Link and Outcome Remarks/Excerpts/Comments Furthermore, in Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C. Cir. 1989), the Court held that section 656.20(c)(2) is forward looking, and that the prevailing wage is determined as of the date the Department of Labor reviews the application and issues the certification. The Immigration and Naturalization Service, on the other hand, is concerned that an employer is able to pay the wage at the time certification is first sought, since visa priority is established by that date.Jan182012_04B6203.pdf The directors decision to revoke the approval of Revocation Withdrawn, the petition is withdrawn. However, the petition is currently unapprovable for the reasons discussed Case Remanded above, and therefore the AAO may not reinstate for further processing the approval of the petition at this time. Because and the petition is not approvable, the petition is a New Decision remanded to the director for issuance of a NOIR and new, detailed decision which, if adverse to the petitioner, is to be certified to the AAO for review. See:http://www.slideshare.net/BigJoe5/beta ncur-et-al-v-roark-et-al-8192011 Jan192012_01B6203.pdf No brief of evidence in 36 months afterSUMMARILY DISMISSED filing.Jan192012_04B6203.pdf Sloppy processing by Counsel. APPEAL REJECTED ASUNTIMELY, RETURNED TO REVIEW FORPOTENTIAL AS MOTIONJan232012_01B6203.pdf The directors decision is withdrawn; however, the Withdrawn, petition is currently unapprovable for the reasons discussed above, and therefore the AAO may not Case Remanded approve the petition at this time. Because the for further processing petition is not approvable, the petition is and remanded to the director for issuance of a new, a New Decision detailed decision which, if adverse to the petitioner, is to be certified to the Administrative Page 3 of 41
  • 4. Link and Outcome Remarks/Excerpts/Comments Appeals Office for review. * * * * * Although it is possible that the petitioner had the ability to pay the proffered wage from the priority date in March 2005 and continuing to the present, USCIS records indicate that the petitioner has filed more than 600 petitions since the petitioners establishment in 2000, including 1- 129 petitions and 1-140 petitions. The petitioner would need to demonstrate its ability to pay the proffered wage for each 1-140 beneficiary from the priority date until the beneficiary obtains permanent residence. See 8 C.F.R. § 204.5 (g)(2). Further, the petitioner would be obligated to pay each H-IB petition beneficiary the prevailing wage in accordance with DOL regulations, and the labor condition application certified with each H-1B petition. See 20 C.F.R. § 655.715 24 * * * * * 24 The petitioner in this case was the subject of an investigation by the DOL in accordance with the H-I B provisions of the Act. See generally 20 C.F.R. § 655 related to Temporary Employment of Aliens in the United States; and 8 C.F.R. § 214.2(h) provisions related to H-IB nonimmigrants. If DOL determines that there has been a violation of 20 C.F.R. § 655, then under 20 C.F.R. § 655.855(c), USCIS shall not approve a petition during the debarment period.Jan232012_02B6203.pdf Filed by beneficiary’s attorney. APPEAL REJECTEDJan252012_01B6203.pdf As set forth in the directors September 16, APPEAL DISMISSED 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 Page 4 of 41
  • 5. Link and Outcome Remarks/Excerpts/Comments beneficiary obtains lawful permanent residence.Jan252012_02B6203.pdf There were significant discrepancies in APPEAL DISMISSED two different I-140s for the same beneficiary. The instant case decision was from an appeal of the revocation of the 2nd I-140 approved just prior to discovery of the earlier I-140.Jan252012_03B6203.pdf The matter will therefore be returned to the APPEAL REJECTED 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. As the appeal was untimely filed, the appeal must be rejected. Petitioner appears to have gone out of business and no brief was submitted in 31 months of pendency of appeal.Jan262012_02B6203.pdf The director determined that the petitioner had APPEAL DISMISSED not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. Additionally, the director determined that the petitioner failed to establish that the beneficiary had the minimum experience needed for the position. The director denied the petition accordingly.Jan262012_03B6203.pdf The director determined that the petitioner had APPEAL DISMISSED not established that it had the continuing ability to pay the beneficiary the proffered wage beginning[There were further issues concerning on the priority date of the visa petition. petitioner’s validity as an employer.]Jan262012_04B6203.pdf The AAO conducts appellate review on a de novo APPEAL DISMISSED basis. See Soltane v. DO}, 381 F.3d 143, 145 (3d Cir. 2004). Page 5 of 41
  • 6. Link and Outcome Remarks/Excerpts/Comments On November 18,2011, this office notified the petitioner that according to the records maintained by the Georgia Secretary of State, the petitioner is not compliant with the states corporation laws, and is possibly administratively dissolved and no longer in operation. See Georgia Secretary of State website. http://corp.sos.state.ga.us/corp/soskb/Corp.asp? 279349 (accessed January 4, 2012). There was no response.Jan262012_05B6203.pdf On November 3,2011, this office notified the APPEAL DISMISSED petitioner that according to online restaurant reviewer, Yelp, and the petitioners own website, AS MOOT the petitioner is no longer in operation. * * * * * Counsel for the petitioner sent a letter to the AAO, received on December 27,2011, stating the petitioner was no longer in business.Jan272012_01B6203.pdf As set forth in the directors February 23, 2009 APPEAL DISMISSED denial, the issue in this case is whether or not the beneficiary satisfied the minimum level of education stated on the Form ETA 750. On Appeal, the AAO has identified additional grounds of ineligibility as will be discussed in this decision. Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3) (A)(ii), provides for the granting of preference classification to qualified immigrants who hold baccalaureate degrees and are members of the professions.2 * * * * * 2 The Form ETA 750 as certified, which requires a bachelors degree and 2 years of experience in the job offered or a related occupation, prevents analyzing the proffered position as a skilled worker pursuant to section 203(b)(3)(A)(i) of the Act, 8 U.S.C: § 1153(b)(3)(A)(i). Page 6 of 41
  • 7. Link and Outcome Remarks/Excerpts/CommentsJan302012_01B6203.pdf Here, the Form ETA 750 was accepted on April 10, APPEAL SUSTAINED 2001. The proffered wage as stated on the Form ETA 750 is $14.22 per hour ($29,577.60 per year). The Form ETA 750 states that the position requires two years of training in culinary arts/cooking or two years of experience as a cook. Upon review of the entire record, including evidence submitted on appeal and in response to a Notice of Intent to Deny (NOIR) issued by the AAO, the AAO concludes that the petitioner has established that it is more likely than not that the petitioner had the continuing ability to pay the beneficiary the proffered wage from the priority date (April 10, 2001) onward. The record reflects, and the petitioners tax returns show, the ability to pay the proffered wage from 2003 through 2010 based upon the petitioners net current assets, which significantly exceed the proffered wage in those years. While the petitioners tax returns do not establish its ability to pay the proffered wage in 2001 and 2002 based upon the petitioners net income or net current assets, a totality of the circumstances establish that it is more likely than not that the petitioner had the continuing ability to pay the proffered wage in those years. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). The petitioners net income is only $4,696.60 less than the full proffered wage in 2002 and only $8,495.60 less in 2001. According to the Form 1-140, the petitioner has been in business since July 25, 1992/ almost 20 years, and employed 15 workers as of the filing of the petition. Under these circumstances, the appeal shall be sustained and the petition shall be approved.Jan302012_02B6203.pdf The AAO issued a request for evidence and notice APPEAL DISMISSED of derogatory information (RFE/NDI), and afforded the petitioner an opportunity to provide evidence in further support of the petition.[This is a MUST Read case! * * * * * Even when caught red- As set forth in the directors December 7, 2009handed, they persist in their denial, the primary issue in this case is whether the petitioner has demonstrated that the lies! Incredible audacity Page 7 of 41
  • 8. Link and Outcome Remarks/Excerpts/Comments shown here!] beneficiary is qualified to perform the duties of the proffered position. The director determined that the petitioner has not established that the beneficiary is qualified to perform the duties of the proffered position, as the record did not establish that he has two years of work experience qualifying him for the job offered. The director further determined that, based upon an investigation conducted by United States and Immigration Services (USCIS) in India, the employment letter from [RECATED] which was submitted as evidence of the beneficiarys employment experience, appeared to be fabricated. The director noted that the evidence received from the petitioner in response to his Notice of Intent to Deny (NOID) was in stark contrast to the results of the USCIS investigation of the beneficiarys alleged former employer. * * * * * The AAO finds that the petitioner and the beneficiary willfully misled the DOL and USCIS on elements material to its eligibility for a benefit sought under the immigration laws of the United States. The labor certification application is invalidated pursuant to 20 C.F.R. § 656.30(d) based on the petitioners and the beneficiarys willful misrepresentation.Feb082012_01B6203.pdf DISCUSSION: The preference visa petition and APPEAL DISMISSED a subsequent motion to reopen were denied by the Director, Texas Service Center, and are now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The directors decision will be affirmed in part and withdrawn in part. The petitioner is a consulting firm and software applications developer. It seeks to employ the beneficiary permanently in the United States as a computer systems analyst. * * * * * As set forth in the directors May 15, 2008 and subsequent June 24, 2008 denials, the issues in this case are whether or not the petitioner has the ability to pay the proffered wage as of the priority Page 8 of 41
  • 9. Link and Outcome Remarks/Excerpts/Comments date and continuing until the beneficiary obtains lawful permanent residence and whether or not the beneficiary had the experience required by the certified labor certification as of the priority date... * * * * * USCIS may consider the overall magnitude of the petitioners business activities in its determination of the petitioners ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Regl Commr 1967). The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about $100,000. During the year 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 when the petitioner was unable to do regular business. The Regional Commissioner determined that the petitioners 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 petitioners 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 Commissioners determination in Sonegawa was based in part on the petitioners sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to the petitioners financial ability that falls outside of a petitioners net income and net current assets. USCIS may consider such factors as the number of years the petitioner has been doing business, the established historical growth of the petitioners business, the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the petitioners reputation within its industry, whether the beneficiary is replacing a former employee or an Page 9 of 41
  • 10. Link and Outcome Remarks/Excerpts/Comments outsourced service, or any other evidence that USCIS deems relevant to the petitioners ability to pay the proffered wage. * * * * * In the instant case, the evidence in the record does not support such a finding. The petitioner has marginal revenues and a small number of employees. The petitioner has only been in business for eight years, and there is no evidence to establish its historical growth or reputation in its industry. In addition, according to USCIS records, the petitioner has filed additional nonimmigrant petitions in the same priority date year as the beneficiary (2004). Therefore, the petitioner is also obligated to pay each H-1B petition beneficiary the prevailing wage in accordance with DOL regulations, and the labor condition application certified with each H-1B petition. See 20 C.F.R. § 655.715. Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage.Feb092012_03B6203.pdf During the adjudication of the appeal, the AAO APPEAL DISMISSED issued a request for evidence (RFE) on December 2, 2011, concerning the actual minimum educational requirements of the offered position, the petitioners ability to pay the proffered wage, whether the petitioner is a business in good standing, whether a new company is now a successor-in-interest to the petitioner, and requesting evidence documenting the beneficiarys qualifying experience. FN1 The AAO also solicited evidence of the beneficiarys credentials and evidence of how the petitioner expressed its actual minimum educational requirements to the U.S. Department of Labor during the labor certification process. 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 Page 10 of 41
  • 11. Link and Outcome Remarks/Excerpts/Comments 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)(14). As of the date of this decision, the AAO has not received a response to the RFE. Because the petitioner failed to respond to the RFE, the AAO is dismissing the appeal. _________ FN1 The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004).Feb092012_07B6203.pdf As set forth in the directors April 18, 2008 APPEAL DISMISSED decision, 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. ___________ FN6 We note that the purpose of the instant visa category is to provide employers with foreign workers to fill positions for which U.S. workers are unavailable. If the petitioner is, as a matter of choice, replacing U.S workers with foreign workers, such an action would be contrary to the purpose of the visa category and could invalidate the labor certification. Even though this consideration does not form the basis of the decision on the instant appeal, we decline to accept [REDACTED’s] statement as credible.Feb092012_11B6203.pdf In his decision the Director noted that theDENIAL WITHDRAWN, beneficiary had already been granted lawful permanent resident (LPR) status on April 4, 1997 CASE REMANDED for as a spouse of a U.S. citizen (IR6). Since the NEW DECISION instant petition encompasses a benefit and an immigrant visa that had already been accorded to the beneficiary, and finding no statutory or regulatory authority to approve a petition in this circumstance, the Director concluded that the beneficiary was ineligible for classification under section 203(b )(3)(A)(i) of the Act and denied the petition. Page 11 of 41
  • 12. Link and Outcome Remarks/Excerpts/Comments While the Director was wrong in the legal analysis, approval is likely barred due to the beneficiary having obtained his LPR status (IR-6 spouse of a USC) based on a bigamous marriage. His deliberate fraud in concealing the earlier marriage in false statements during the original adjustment and a denied naturalization application is likely correct under INA § 204(c).Feb102012_01B6203.pdf As set forth in the directors September 3, 2008 APPEAL DISMISSED denial, the 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.Feb102012_05B6203.pdf As set forth in the directors October 3, 2008 APPEAL DISMISSED denial, the 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.Feb102012_09B6203.pdf As set forth in the directors May 6, 2008, denial, APPEAL DISMISSED 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.Feb102012_11B6203.pdf In this case, the labor certification indicates that APPEAL DISMISSED there is no education or training required for the offered position, but twelve months of experience in the job offered of kosher cook is required. However, the petitioner requested the skilled worker classification on the Form 1-140. There is no provision in statute or regulation that compels United States Citizenship and Immigration Services (US CIS) to readjudicate a petition under a different visa classification in response to a petitioners request to change it, once the decision has been rendered. 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. Page 12 of 41
  • 13. Link and Outcome Remarks/Excerpts/Comments 169, 176 (Assoc. Comm. 1988). Further, the AAO does not find that the director was obliged to solicit the petitioner to confirm its choice of visa classifications. The regulation at 8 C.F.R. §§ 103.2(b)(8)(i) and (ii) clearly allow the denial of an application or petition, notwithstanding any lack of required initial evidence, if evidence of ineligibility is present.) FN3 __________ FN3 8 C.F.R. § 103.2(b) provides in relevant part: (8) Request for Evidence; Notice of Intent to Deny --(i) Evidence of eligibility or ineligibility. If the evidence submitted with the benefit request establishes eligibility, USCIS will approve the benefit request, except that in any case in which the applicable statute or regulation makes the approval of a benefit request a matter entrusted to USCIS discretion, USCIS will approve the benefit request only if the evidence of record establishes both eligibility and that the petitioner or applicant warrants a favorable exercise of discretion. If the record evidence establishes ineligibility, the benefit request will be denied on that basis. (ii) Initial evidence. If all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS. Counsel claimed that they mistakenly checked the wrong box on the I-140 and asked for the petition to be amended and adjudicated under the correct classification. This request was refused because the petition as submitted showed clear ineligibility and thus was denied outright. No second bite at the apple is afforded. It has been my personal experience that to0 many petitions are filed for something for which neither the position nor beneficiary qualify in the hopes of “getting lucky”. I do believe that that practice was Page 13 of 41
  • 14. Link and Outcome Remarks/Excerpts/Comments part of the reasoning in changing the regulation to allow for a direct denial when required initial evidence was missing. Previously, a request to change classification was easier to make and receive because no final decision had been issued and if initial evidence was missing, and RFE had to be issued. That situation no longer exists.Feb132012_01B6203.pdf DISCUSSION: The employment-based APPEAL DISMISSED preference visa petition was initially approved by the Director, Vermont Service Center. The director served the petitioner with notice of intent to revoke (NOIR) the approval of the petition. In a Notice of Revocation (NOR), the director revoked the approval of the Form 1-140, Immigrant Petition for Alien Worker (Form 1-140) with a finding of fraud. Upon motion and reconsideration, the director affirmed the decision to revoke the approval of the petition with a finding of fraud. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.Feb132012_02B6203.pdf As set forth in the directors December 2,2008 APPEAL DISMISSED denial, the issues in this case are: (1) 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, (2) whether or not the petitioner has resolved the inconsistencies in the record regarding the beneficiarys actual employer, and (3) whether or not the petitioner has resolved the inconsistencies in the record regarding its EIN. * * * * * In sum, the petitioner has not established that it had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence, it has not resolved the inconsistencies in the record regarding who will be the beneficiarys actual Page 14 of 41
  • 15. Link and Outcome Remarks/Excerpts/Comments employer, and it has not resolved the inconsistencies in the record regarding its EIN. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.Feb132012_04B6203.pdf As set forth in the directors May 31, 2008 denial, APPEAL DISMISSED the 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.Feb132012_05B6203.pdf DISCUSSION: On November 22, 2002, United APPEAL DISMISSED States Citizenship and Immigration Services (USCIS), Vermont Service Center (VSC), received an Immigrant Petition for Alien Worker, Form 1-140, from the petitioner. TheWhile certain findings-of-fact employment-based immigrant visa petition waswere withdrawn and several initially approved by the VSC director on Januaryminor procedural errors were 20, 2004. However, the Director of the Texasmade enough valid facts and Service Center ("the director") revoked the conclusions survived a full approval of the immigrant petition on April 30, 2009, and the petitioner subsequently appealed de novo review on the the directors decision. The petition is now beforemerits to warrant dismissal the Administrative Appeals Office (AAO) on of this appeal. appeal. The appeal will be dismissed. The petitioner is a cleaning company.FN1 It seeks to permanently employ the beneficiary in the United States as a bookkeeper pursuant to section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (3) (A)(i). As required by statute, the petition is submitted along with an approved Application for Alien Employment Certification (Form ETA 750). As noted above, the petition was initially approved in January 2004, but the approval was revoked in April 2009. The director found that: (a) the beneficiary did not qualify for the position offered, and (b) the petitioner did not follow the Department of Labor (DOL) recruitment requirements and that it obtained the approval of the Form ETA 750 by fraud or by material misrepresentation. Accordingly, the director Page 15 of 41
  • 16. Link and Outcome Remarks/Excerpts/Comments revoked the approval of the petition under the authority of 8 C.F.R. § 205.1. _____ FN1 In the Form 1-140 petition and Form ETA 750, the petitioner states that his business type is cleaning company; however, the petitioners website [REDACTED] states that the petitioner is a full service dry cleaner, specializing in cleaning, restoring and preserving wedding gowns, bridal gowns, christening gowns, delicate and antique fabrics (last accessed January 9, 2012). * * * * * Though not raised by counsel, as a procedural matter, the AAO finds that the regulation at 8 C.F.R. § 205.1 is not the proper authority to be used to revoke the approval of the petition in this instant proceeding, since that regulation only applies to automatic revocation. Under 8 C.F.R. § 205.1(a)(3)(iii), a petitions approval is automatically revoked if (A) the labor certification is invalidated pursuant to 20 C.F.R. § 656; (B) the petitioner or the beneficiary dies; (C) the petitioner withdraws the petition in writing; or (D) if the petitioner is no longer in business. Here, the labor certification has not been invalidated; neither the petitioner nor the beneficiary has died; the petitioner has not withdrawn the petition; nor has the petitioner gone out of business. Therefore, the approval of the petition cannot be automatically revoked. The directors erroneous citation of the applicable regulation is withdrawn. Nonetheless, as the director does have revocation authority under 8 C.F.R. § 205.2, the directors denial will be considered under that provision under the AAOs de novo review authority. I feel it is worth mentioning that AAO has found a “harmless error” and is utilizing its de novo authority to carry out its agency review function by moving forward with this substantive review rather than remand needlessly. Page 16 of 41
  • 17. Link and Outcome Remarks/Excerpts/CommentsFeb132012_06B6203.pdf The petitioner is a retail home furnishing store. It APPEAL DISMISSED seeks to employ the beneficiary permanently in the United States as a buyer assistant. 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 it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition and that the offer was bona fide. The director denied the petition accordingly. * * * * * As set forth in the directors August 18, 2008 denial, the issues in this case are 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 and whether the offer was bona fide. In addition, we have identified an additional issue on appeal as to whether the petitioner presented evidence that the beneficiary had the experience required by the terms of the labor certification.Feb132012_08B6203.pdf The petitioner is a restaurant. It seeks to employ APPEAL DISMISSED the beneficiary permanently in the United States as an Indian Specialty Cook. 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 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. The record shows that the appeal is properly filed, 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. Page 17 of 41
  • 18. Link and Outcome Remarks/Excerpts/Comments As set forth in the directors September 18, 2008 denial, the 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.Feb142012_02B6203.pdf The petitioner is a horse stable. It seeks to employ APPEAL DISMISSED the beneficiary permanently in the United States as a horse groomer. 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 it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The director also determined that the petitioner failed to establish that the beneficiary is qualified for the proffered position. The director denied the petition accordingly. The record shows that the appeal is properly filed, 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 directors September 10,2008 denial, the first 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 petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of a Form ETA 750 establishes a priority date for any immigrant petition later based on the Form ETA 750, 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 petitioners ability to pay the proffered wage is an essential element in Page 18 of 41
  • 19. Link and Outcome Remarks/Excerpts/Comments evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 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 beneficiarys 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. Comm. 1967).Feb142012_03B6203.pdf As set forth in the directors December 15, 2010 APPEAL DISMISSED denial, 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. * * * * * The AAO recognizes that the petitioner has been in business since 2004 and its predecessor had been in business since 1974. Nevertheless, the evidence submitted does not reflect a pattern of significant growth or the occurrence of an uncharacteristic business expenditure or loss that would explain its inability to pay the proffered wage from the priority date. In addition, no evidence has been presented to show that the petitioner has a sound and outstanding business reputation as in Sonegawa. Unlike Sonegawa, the petitioner has not submitted any evidence reflecting the companys reputation or historical growth since its inception in 2004. Nor has it included any evidence or detailed explanation of the corporations milestone achievements. Counsel states that the petitioner "suffered for a couple years from serious medical issues." However, this does not explain why the petitioner did not have the ability to pay the proffered wage from 2001, 2002, and 2006 through 2009. Furthermore, the fact that the petitioner had no receipts in 2009, filed its "final return" with the IRS, and completed Form 966, Corporate Dissolution or Liquidation, it appears Page 19 of 41
  • 20. Link and Outcome Remarks/Excerpts/Comments that the petitioner has ceased conducting business. Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage.Feb172012_01B6203.pdf DISCUSSION: On May 6; 2002, United StatesDENIAL WITHDRAWN, Citizenship and Immigration Services (USCIS), Vermont Service Center (VSC), received an CASE REMANDED for Immigrant Petition for Alien Worker, Form 1-140, NEW DECISION from the petitioner. The employment-based immigrant visa petition was initially approved by the VSC director on September 4, 2002. However, the Director of the Texas Service Center ("the director") revoked the approval of the immigrant petition on April 24, 2009, and the petitioner subsequently appealed the directors decision. The petition is now before the Administrative Appeals Office (AAO) on appeal. The directors decision will be withdrawn. The appeal will be remanded to the director for further action, consideration, and the entry of a new decision. * * * * * .... The director determined that the petitioner did not engage in an authentic recruitment effort for U.S. workers and had obtained the approval of the Form ETA 750 by fraud or by willfully misrepresenting material facts. Accordingly, the director revoked the approval of the petition under the authority of 8 C.F.R. § 205.1. * * * * * Preliminarily, as a procedural matter, the AAO finds that 8 CF.R. § 205.1 only applies to automatic revocation and is not the proper authority to be used to revoke the approval of the petition in this instant proceeding. .... * * * * * In his brief, counsel draws the AAOs attention to a recent opinion issued by the. United States Court of Appeals for the Second Circuit, Firstland Intl, Inc. v. Ashcroft, 377 F.3d 127 (2d Cir. 2004). In that opinion, the court in Firstland interpreted the third and fourth sentence of section 205 of the Act, 8 U.S.C: § 1155 (2003), to render the Page 20 of 41
  • 21. Link and Outcome Remarks/Excerpts/Comments revocation of an approved immigrant petition ineffective where the beneficiary of the petition did not receive notice of the revocation before beginning his journey to the United States. Firstland, 377 F.3d at 130. Counsel asserts that the reasoning of this opinion must be applied to the present matter and accordingly, that USCIS may not revoke the approval because the beneficiary did not receive notice of the revocation before departing for the United States, since he was already in the United States when the director issued the revocation. According to the Form G-28 submitted on appeal, the petitioner is located in South Dennis, Massachusetts, an area within the jurisdiction of the First Circuit Court of Appeals. The holding in the Second Circuit Court of Appeals, therefore, is not binding in this case; but even if this case did arise in the Second Circuit, First and is no longer a binding precedent. On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 (S. 2845). See Pub. L. No. 108-458, 118 Stat. 3638 (2004). Specifically relating to this matter, section 5304(c) of Public Law 108- 458 amends section 205 of the Act by striking "Attorney General" and inserting "Secretary of Homeland Security" and by striking the final two sentences. Section 205 of the Act now reads: The Secretary of Homeland Security may, at any time, for what [she] deems to be good and sufficient cause, revoke the approval of any petition approved by [her] under section 1154 of this title. Such revocation shall be effective as of the date of approval of any such petition. Furthermore, section 5304( d) of Public Law 108- 458 provides that the amendment made by section 5304(c) took effect on the date of enactment and that the amended version of section 205 applies to revocations under section 205 of the Act made before, on, or after such date. Page 21 of 41
  • 22. Link and Outcome Remarks/Excerpts/Comments Accordingly, the amended statute specifically applies to the present matter and counsels Firstland argument no longer has merit.Feb212012_01B6203.pdf DISCUSSION: On September 27, 2002, United APPEAL DISMISSED States Citizenship and Immigration Services (USCIS), Vermont Service Center (VSC), received an Immigrant Petition for Alien Worker, Form 1- 140, from the petitioner. The employment-based immigrant visa petition was initially approved by the VSC director on August 18, 2004. The director of the Texas Service Center ("the director"), however, revoked the approval of the immigrant petition on May 13, 2009, and the petitioner subsequently appealed the directors decision to revoke the petitions approval. The appeal will be dismissed. The AAO will also invalidate the Form ETA 750, Application for Alien Employment Certification. See also: Abdelwahab v. Frazier, 578 F.3d 817 (8th Cir. 2009)Feb212012_02B6203.pdf The director determined that the petitioner failed APPEAL DISMISSED to follow the U.S. Department of Labor (DOL) recruitment procedures. The director also found that the beneficiary did not have the required experience as a cook as of the priority date. For these reasons, the director revoked the approval of the petition under the authority of 8 C.F.R. § 205.1. * * * * * Preliminarily, as a procedural matter, the AAO finds that the director erred in revoking the approval of the petition under the authority of 8 C.F.R. § 205.1. The regulation at 8 C.F.R. § 205.1 only applies to automatic revocation and is not the proper authority to be used to revoke the approval of the petition in this instant proceeding. Under 8 C.F.R. § 205.1(a)(3)(iii), a petition is automatically revoked if (A) the labor certification is invalidated pursuant to 20 C.F.R. § 656; (B) the petitioner or the beneficiary dies; (C) the petitioner withdraws the petition in writing; or (D) if the petitioner is Page 22 of 41
  • 23. Link and Outcome Remarks/Excerpts/Comments no longer in business. Here, the labor certification has not been invalidated; neither the petitioner nor the beneficiary has died; the petitioner has not withdrawn the petition; nor has the petitioner gone out of business. Therefore, the approval of the petition cannot be automatically revoked. The directors erroneous citation of the applicable regulation is withdrawn. Nonetheless, as the director does have revocation authority under 8 C.F.R. § 205.2, the directors denial will be considered under that provision under the AAOs de novo review authority. One of the issues raised on appeal is whether the director adequately advised the petitioner of the basis for revocation of approval of the petition. :* * * * * The AAO finds that while the director appropriately reopened the approval of the petition by issuing the NOIR, the directors NOIR was deficient in that it did not specifically give the petitioner notice of the derogatory information specific to the current proceeding. In the NOIR, the director questioned the beneficiarys qualifications and indicated that the petitioner had not properly advertised for the position. The NOIR neither provided nor referred to specific evidence or information relating to the petitioners failure to comply with DOL recruitment or to the beneficiarys lack of qualifications in the present case, The director did not state which recruitment procedures were defective. Without specifying or making available evidence specific to the petition in this case, the petitioner can have no meaningful opportunity to rebut or respond to that evidence. See Ghaly v. INS, 48 F. 3d 1426, 1431 (7th Cir. 1995). Because of insufficient notice to the petitioner of derogatory information, the directors decision will be withdrawn. The petition will remain revoked, however, as the petitioner has not established that the beneficiary was qualified to perform the services of the occupation as of the priority date and that the petitioner had the ability to pay, as more fully discussed below. Page 23 of 41
  • 24. Link and Outcome Remarks/Excerpts/CommentsFeb222012_01B6203.pdf The director of the Texas Service Center ("the APPEAL DISMISSED director") concluded that the petitioner did not follow the U.S. Department of Labor (DOL) recruitment procedures, since it failed to submit copies of the in-house postings. The director also determined that the petitioners previous counsel, [REDACTED*] , paid for and created the job advertisement and thus impermissibly participated in the consideration of U.S. applicants for the job. For these reasons, the director found fraud/material Misrepresentation relating to the labor certification process against the petitioner and revoked the approval of the petition under the authority of 8 C.F.R. § 205.1. __________ *Folks in this business know who it was!Feb222012_02B6203.pdf The petitioner is a hair salon and spa. It seeks to APPEAL DISMISSED employ the beneficiary permanently in the United States as a hair stylist. 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 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.Feb222012_07B6203.pdf DISCUSSION: The preference visa petition was APPEAL DISMISSED denied by the Director, Texas Service Center. The petitioner filed a motion to reopen and reconsider. The director affirmed the decision on motion and the petition remained denied. The petitioner appealed and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petitioner is a marine contracting company. It seeks to employ the beneficiary permanently in the United States as a supervisory mechanic. As required by statute, the petition is accompanied by ETA Form 9089, Application for Permanent Employment Certification, approved by the Page 24 of 41
  • 25. Link and Outcome Remarks/Excerpts/Comments United States Department of Labor (DOL). The director determined that the petitioner failed to establish that the beneficiary had the requisite experience as of the date the labor certification was filed. The director denied the petition accordingly.Feb272012_01B6203.pdf The petitioner is a legal and tax service provider. FN1 It seeks to employ the beneficiary permanently APPEAL DISMISSED in the United States as an administrative assistant. 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 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. FN1 It is noted that counsel and the petitioner share the same address, her revenue is included among the figures reported for the petitioners sales transactions and counsel is listed as a shareholder on the tax returns. Therefore, the petitioner is self-represented. It is further noted that counsel and the beneficiary share the same surname. 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). A relationship invalidating a bona fide job offer may 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, 00-INA-93 (BALCA May 15, 2000). When or if further filings are submitted, the petitioner must address the issue of the beneficiarys relationship, if any, and establish that a valid bona fide job offer exists. Page 25 of 41
  • 26. Link and Outcome Remarks/Excerpts/CommentsFeb272012_12B6203.pdf The petitioners assertions and evidence MOTION GRANTED, submitted on motion do not overcome the grounds of denial in the directors August 12,DENIAL and DISMISSAL 2009 decision and the AAOs March 10, 2011 AFFIRMED decision. The petitioner failed to establish that it had the continuing ability to pay the proffered [Page 2 is missing.] wage from the priority date through the present or that the beneficiary possesses the experience required by the terms of the labor certification. Therefore, the petition cannot be approved. * * * * * The motion to reopen is granted and the decision of the AAO dated March 11, 2011 is affirmed. The petition remains denied.Mar062012_01B6203.pdf The petitioner, through counsel, filed an appeal on APPEAL DISMISSED October 21, 2008, contending that the petitioner had established its ability to pay the proffered wage and had established that the beneficiary possesses the required experience. The AAO issued a Notice of Derogatory Information (NDI) and a Notice of Intent to Deny (NOID) on January 5, 2012. The AAO conducts appellate review on a de novo basis. The AAOs de novo authority is well recognized by the federal courts. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). On January 5, 2012, this office notified the petitioner that according to the records at the website maintained by the state of New York, the petitioners business status is currently dissolved. A copy of the online state of New York website report was sent to the petitioner with the AAOs NDIINOID. (accessed December 21,2011). This office also notified the petitioner that if it is currently dissolved, this is material to whether the job offer, as outlined on the immigrant petition filed by this organization, remains a bona fide job offer. In addition to informing the petitioner of the effect that its status may have on the appeal, the AAO requested additional information Page 26 of 41
  • 27. Link and Outcome Remarks/Excerpts/Comments relevant to the petitioners ability to pay the proffered wage if it elected to respond to the NDIINOID and the business was still an active entity. It is noted that any 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 Ro, 19 I&N Dec. 582, 586 (BIA 1988)(stating that doubt cast on any aspect of the petitioners 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. This office allowed the petitioner 45 days in which to provide evidence that the records maintained by the state of New York were not accurate and that the petitioner remains in operation as a viable business or was in operation during the pendency of the petition and appeal. More than 45 days have passed and the petitioner has failed to respond to this offices notice with the requested information and with a certificate of good standing or other proof that the petitioner remains in operation as a viable business or was in operation from the priority date onwards. Thus, the appeal will be dismissed as abandoned.FN2 __________ FN2 Additionally,as noted in the notice of derogatory information, even if the appeal could be otherwise sustained, the petitions approval would be subject to automatic revocation pursuant to 8 C.F.R. § 205.1(a)(iii)(D) which sets forth that an approval is subject to automatic revocation without notice upon termination of the employers business in an employment-based preference case. Page 27 of 41
  • 28. Link and Outcome Remarks/Excerpts/CommentsMar092012_01B6203.pdf DISCUSSION: The Director, Nebraska Service MOTION GRANTED, Center denied the immigrant visa petition and the Administrative Appeals Office (AAO) dismissed aDENIAL and DISMISSAL subsequent appeal. The matter is again before the AFFIRMED AAO on motion to reconsider. The motion to reconsider will be granted. The prior decision of the AAO will be affirmed. The petition remains denied. The petitioner provides management services for the medical profession. It seeks to employ the beneficiary permanently in the United States as an accounts supervisor. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien Employment Certification (priority date - January 21, 2003), approved by the United States Department of Labor (the 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. The director denied the petition accordingly. * * * * * The petitioner states in its motion to reconsider that the AAO erred in application of Matter of Sonegawa, 12 I&N Dec. 612 (Regl Commr 1967) and in denying its appeal on the grounds that "the wages paid by the petitioner during each year of the requisite period are those associated with a small business enterprise." The petitioner further states on motion that the matter should be remanded to the director "to permit the petitioner an opportunity to submit evidence regarding its historical growth for the period preceding the priority date." * * * * * .... Counsel misinterprets the AAOs decision. Rather, for purposes of Sonegawa, in consideration of evidence beyond wages paid, net income, and net current assets, such evidence of historical growth for even a few years before the priority date would be useful in consideration of the petitioners totality of the circumstances. The petitioner tendered no additional evidence with its motion concerning its continuing ability to pay the Page 28 of 41
  • 29. Link and Outcome Remarks/Excerpts/Comments proffered wage from the priority date onward. The petitioner did not seek to supplement its brief and later submit any evidence in support of its motion. Therefore, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage. Based on the foregoing, the petitioner has not established in its motion to reconsider its ability to pay the proffered wage from the priority date onward. The AAOs May 17, 2010 decision will not be disturbed.Mar092012_06B6203.pdf The petitioner is a roofing contractor. It seeks to APPEAL DISMISSED employ the beneficiary permanently in the United States as a roofer. 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 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.Mar122012_01B6203.pdf The petitioner seeks to classify the beneficiarySUMMARILY DISMISSED pursuant to section 203(b)(3) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3) as a forklift driver. The director determined that the petitioner failed to demonstrate a continuing ability to pay the proffered wage beginning on the priority date, as well as failed to establish that the petitioner was the successor-in-interest to the entity on the certified labor certification. On appeal, counsel merely stated that requested evidence had been previously submitted and that additional copies will be submitted along with an appeal brief. Page 29 of 41
  • 30. Link and Outcome Remarks/Excerpts/Comments Counsel dated the appeal April 4, 2009. As of this date, almost three years later, the AAO has received nothing further, and the regulation requires that any brief shall be submitted directly to the AAO. 8 C.F.R. §§ 103.3(a)(2)(vii) and (viii).Mar262012_01B6203.pdf On appeal, counsel submits a brief and claims that APPEAL DISMISSED at the time the petitioner filed the labor certification, the beneficiary was qualified as an unskilled worker, and at the time of the approval of the labor certification, the beneficiary was qualified as a skilled worker. Counsel further claims that the "primary factor to be considered is the beneficiarys progression from an unskilled worker to a skilled worker." Counsel requests that the AAO credit the beneficiarys experience as a skilled worker, and in the alternative, to either approve the petition as an unskilled worker and/or modify Part 2 of the petition to that of an unskilled worker. The regulation at 8 C.F.R. § 204.5(1) provides 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. In this case, the labor certification indicates that there are no education, training or experience requirements for the proffered position. However, the petitioner requested the skilled worker classification on the Form 1-140. There is no provision in statute or regulation that compels United States Citizenship and Immigration Services (USCIS) to readjudicate a petition under a different visa classification in response to a petitioners request to change it, once the decision has been rendered. A petitioner may not make material changes to a petition in an effort to make Page 30 of 41
  • 31. Link and Outcome Remarks/Excerpts/Comments a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Commr 1988).Mar282012_02B6203.pdf DISCUSSION: The Director, Texas Service APPEAL DISMISSED Center, denied the employment-based immigrant visa petition. The matter is now before the as MOOT Administrative Appeals Office on appeal. The appeal will be dismissed. The petitioner seeks to employ the beneficiary permanently in the United States as an automotive master mechanic. The director determined the petitioner had not established it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date. United States Citizenship and Immigration Services records reflect that on October 26, 2010, the beneficiary became a lawful permanent resident of the United States. Because the beneficiary is now a permanent resident, further pursuit of the matter at hand is moot. ORDER: The appeal is dismissed based on the aliens adjustment to lawful permanent resident status.Apr022012_01B6203.pdf The directors decision denying the petition APPEAL DISMISSED concludes that the beneficiary did not possess a U.S. bachelors degree or foreign equivalent as required by the terms of the labor certification. * * * * * At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOLs role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides: Any alien who seeks to enter the United States for the purpose of performing skilled Page 31 of 41
  • 32. Link and Outcome Remarks/Excerpts/Comments or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that- (I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit courts: There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the two determinations listed in section 212(a)(14).2 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(14) determinations are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS authority. * * * * * Page 32 of 41
  • 33. Link and Outcome Remarks/Excerpts/Comments Given the language of the Act, the totality of the legislative history, and the agencies own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212(a)(14) determinations. Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d at 1008, the Ninth Circuit stated: [I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOLs role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b), 8 U .S.C. § 1154(b), as one of the determinations incident to the INSs decision whether the alien is entitled to sixth preference status. K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following: The labor certification made by the Secretary of Labor . . . pursuant to section 212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing, qualified, and available United States workers for the job offered to the alien, and whether employment of the alien under the Page 33 of 41
  • 34. Link and Outcome Remarks/Excerpts/Comments terms set by the employer would adversely affect the wages and working conditions of similarly employed United States workers. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job. (Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating: The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the aliens performance of the job will not adversely affect the wages and working conditions of similarly employed domestic workers. Id. § 212(a)(14), 8 U.S.C § 1182(a)(14). The INS then makes its own determination of the aliens entitlement to sixth preference status. Id. § 204(b), 8 U.S.C § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir.1983). The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). Therefore, it is the DOLs responsibility to determine whether there are qualified U.S. workers available to perform the offered position, and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, and whether the offered position and beneficiary are eligible for the requested employment-based immigrant visa classification. Page 34 of 41
  • 35. Link and Outcome Remarks/Excerpts/CommentsApr022012_03B6203.pdf The petitioner is an auto service company. It seeks APPEAL DISMISSED to employ the beneficiary permanently in the United States as an automotive mechanic. 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 ETA Form 9089 failed to demonstrate that the job requires a professional or skilled worker (requiring at least two years training or experience) and, therefore, the beneficiary cannot be found qualified for classification as a professional or skilled worker. The director denied the petition accordingly. * * * * * U.S. Citizenship and Immigration Services (USCIS) must examine "the language of the labor certification job requirements" in order to determine what the job requires. Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). The only rational manner by which USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is to examine the certified job offer exactly as it is completed by the prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCISs interpretation of the jobs requirements, as stated on the labor certification must involve reading and applying the plain language of the alien employment certification application form. See id. at 834. The instant Form 1-140 was filed on June 30, 2009. On Part 2.e. of the Form 1-140, the petitioner indicated that it was filing the petition for a professional (at a minimum, possessing a bachelors degree or a foreign degree equivalent to a U.S. bachelors degree) or a skilled worker (requiring at least two years of specialized training or experience). * * * * * Since the minimum requirements, as stated on the ETA Form 9089, are a high school diploma and 2 months of experience in the job offered, the Page 35 of 41
  • 36. Link and Outcome Remarks/Excerpts/Comments petitioner has not established that the ETA Form 9089 supports a professional or a skilled worker.Apr032012_01B6203.pdf DISCUSSION: The preference visa petition was APPEAL DISMISSED denied by the Director, Texas Service Center, and the petitioner appealed this denial to the Administrative Appeals Office (AAO). The AAO initially dismissed the appeal and then subsequently sua sponte reopened the matter. The matter is again before the AAO on appeal. The appeal will be dismissed. * * * * * The AAO issued a Notice of Sua Sponte Reopening, Notice of Derogatory Information, and Request for Evidence (NSSRI NDIIRFE) to counsel and the petitioner on December 23,2011, informing the parties that a review of the website at https://ourcpa.cpa.state.tx.us/coaJindex.html, accessed on November IS, 2011, revealed that the petitioner, Falanthi, Inc., D/B/A Vasos Bar-B-Q, was not in good standing. The AAO informed the parties that if the petitioner was no longer an active business, the petition and its appeal to this office have become moot.FN1 In which case, the appeal would be dismissed as moot. ..... * * * * * In response, the petitioner submits sufficient evidence, including a certificate of good standing from the state of Texas and tax documents, to establish that it is currently an active business. .... * * * * * In the instant case, no evidence has been presented to show that the petitioner has a sound and outstanding business reputation as in Sonegawa. Nor has the petitioner included any evidence or detailed explanation of the corporations milestone achievements or accomplishments. In addition, the petitioner has neither claimed nor provided any evidence demonstrating that it suffered any uncharacteristic business losses that prevented its continuing ability to pay the beneficiary the proffered wage as of the priority date. Further, no Page 36 of 41
  • 37. Link and Outcome Remarks/Excerpts/Comments evidence has been presented to show that the petitioners owner is willing and able to sacrifice or forego past, present, or future compensation to pay the beneficiarys proffered wage. The AAO cannot conclude that the petitioner has established that it had the continuing ability to pay the proffered wage of the beneficiary since the priority date. Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage. ______ FN1 Where there is no active business, no legitimate job offer exists, and the request that a foreign worker be allowed to fill a position listed in such a petition has become moot. Additionally, even if an appeal could be otherwise sustained, the petitions approval would be subject to automatic revocation pursuant to 8 C.F.R. § 205.1(a)(iii)(D) which sets forth that an approval is subject to automatic revocation without notice upon termination of the employers business in an employment based preference case.Apr032012_02B6203.pdf The petitioner describes itself as a computer APPEAL DISMISSED hardware and software marketing company. It seeks to employ the beneficiary permanently in the United States as a Network Systems & Data Administrator. The petitioner requests classification of the beneficiary as a professional or skilled worker pursuant to section 203(b)(3)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A). * * * * * The directors decision denying the petition concludes that the beneficiary did not possess a U.S. bachelors degree or foreign equivalent as required by the terms of the labor certification. * * * * * Therefore, a petition for a professional must establish that the occupation of the offered position is listed as a profession at section 101 (a)(32) of the Act or requires a bachelors degree as a minimum for entry; the beneficiary possesses Page 37 of 41
  • 38. Link and Outcome Remarks/Excerpts/Comments a U.S. bachelors degree or foreign equivalent degree from a college or university; the job offer portion of the labor certification requires at least a bachelors degree or foreign equivalent degree; and the beneficiary meets all of the requirements of the labor certification. * * * * * As noted by the director, the degree evaluations from Foundation for International Services, Inc. used an equivalence to determine that three years of experience equaled one year of college to conclude that the beneficiary had achieved the equivalent of a U.S. four-year bachelors degree in computer information systems, but that regulatory-prescribed equivalence applies to non- immigrant HIB petitions, not to immigrant petitions. See 8 C.F.R. § 214.2(h)(4)(iii)(D)(5).Apr032012_03B6203.pdf The petitioner seeks to classify the beneficiarySUMMARILY DISMISSED pursuant to section 203(b )(3) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3), as a professional or a skilled worker. The director determined that the petitioner failed to demonstrate a continuing ability to pay the proffered wage beginning on the priority date. On appeal, counsel merely stated that a brief and evidence would be submitted within 30 days of the Notice of Appeal, which was received by USCIS on May 5, 2009. Counsel dated the appeal April 21, 2009. As of today, almost three years later, the AAO has received nothing further, and the regulation requires that any brief shall be submitted directly to the AAO. 8 C.F.R. §§ 103.3(a)(2)(vii) and (viii).Apr052012_02B6203.pdf DISCUSSION: On December 14, 2001, United APPEAL REJECTED States Citizenship and Immigration Services (USCIS), Vermont Service Center (VSC), received an Immigrant Petition for Alien Worker, Form 1-140, from the petitioner. The employment-based immigrant visa petition was initially approved by the VSC director on February 2, 2002. However, the Director of the Texas Page 38 of 41
  • 39. Link and Outcome Remarks/Excerpts/Comments Service Center ("the director") revoked the approval of the immigrant petition on May 23, 2009, and the petitioner subsequently appealed the directors decision. The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected pursuant to 8 C.F.R. § 103.3(a)(2)(v)(A)(1). The AAO will invalidate the alien employment certification, Form ETA 750. * * * * * On December 27, 2011, the AAO issued a Request for Evidence and Notice of Derogatory Information (RFE/NDI) noting that the petitioning company [REDACTED] located in been closed and was no longer an active business since 2005. Specifically, the AAO states, "If the original petitioning business has been dissolved and is no longer an active business, the petition and its appeal to this office have become moot." * * * * * Because the petitioner has failed to respond and provide documentary evidence as requested, we conclude that the labor certification, the petition, and the appeal were all not filed by an authorized person of the company. Therefore, the appeal must be rejected pursuant to 8 C.F.R. § 103.3(a) (2)(v)(A)(1).Apr122012_01B6203.pdf DISCUSSION: The Director, Texas Service APPEAL REJECTED as Center, denied the immigrant visa petition. The matter is now before the Administrative Appeals UNTIMELY Office (AAO) on appeal. The appeal will be CASE REMANDED for rejected as untimely filed. The AAO will return theConsideration as MTRR matter to the director for consideration as a motion to reopen and reconsider. * * * * * 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. Page 39 of 41
  • 40. Link and Outcome Remarks/Excerpts/CommentsAug082012_01B6203.pdf The petitioner is an apparel manufacturing firm. APPEAL DISMISSED It seeks to employ the beneficiary permanently in the United States as a computer systems analyst. As required by statute, a Form ETA 750, FN1 Application for Alien Employment Certification approved by the Department of Labor (DOL), 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. ______ FN1 After March 28, 2005, the correct form to apply for labor certification is the Form ETA 9089. See 20 C.F.R. § 656.17(a)(l). * * * * * To be eligible for approval, a beneficiary must have all the education, training, and experience specified on the labor certification as of the petitions priority date. See Matter of Wings Tea House, 16 I&N 158 (Acting Regl Commr 1977). Here, the Form ETA 750 was accepted for processing on March 24, 2005.FN3 The Immigrant Petition for Alien Worker (Form 1-140) was filed on April 19, 2007. The job qualifications for the certified position of computer systems analyst are found on Form ETA 750 Part A. Item 13 describes the job duties to be performed as follows: Analyze & review existing information systems & design & develop management informatin [sic] systems, design & develop net enabled modules for inventory & order management systems, online import shipment tracking system, online distribution tracking system utilizing SQL PLUS, PL-SQL, HTML, DHTML & Java programming. Implementation experience in Oracle financials software, develop user interface utilizing developer 2000. design relational database management systems utilizing Oracle & design customize reports utilizing Forms 6i & Reports 6i & utilize SQL *Loader to import & export data from database to report writer. Design & release detailed functional & technical specifications for reports, program modifications & data mapping for inbound & outbound interfaces, prepare flowcharts & diagrams to Page 40 of 41
  • 41. Link and Outcome Remarks/Excerpts/Comments illustrate sequence of steps program must follow & to describe logical operations involved, direct & participate in various aspects of life cycle of a system including analysis, design programming, testing, maintenance & support .. Write documentation to describe program development, logic, coding & corrections & extended objects & third party components, test & develop applications for software quality assurance including Windows & Windows NT. Develop manuals for users to describe steps to be followed for installation & system requirements, trouble-shooting· techniques. Assists users to solve operating problems & monitor performance of program after implementation & modifies according to user requirements. Regarding the minimum level of education and experience required for the proffered position in this matter, Part A of the labor certification reflects the following requirements: Block 14: Education (number of years) Grade school [blank] High school [blank] College X College Degree Required Bach. Deg./Equivalent Major Field of Study Compo Sci/Mgmt. Info. System Experience: Job Offered 2 years (or) Related Occupation· [blank] Block 15: Other Special Requirements [blank] As set forth above, the proffered position requires a Bachelors degree or equivalent in Computer Science or Management Information Systems and two years of experience in the job offered. The labor certification did not provide any alternative to the education or experience requirements found in Block 14. * * * * * The beneficiary does not meet the minimum requirements for the offered position as set forth on the labor certification. Page 41 of 41