ThePetitioner,aproviderofhealthcarestaffing,seekstoemploytheBeneficiaryasadministrator. The company requests his classification under the second-preference, immigrant visa category for members oftheprofessionsholdingadvanceddegreesortheirequivalents. SeeImmigrationandNationalityAct (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A).
The Director of the Nebraska Service Center denied the petition and dismissed the Petitioner's following motion to reconsider. The Director concluded that the company did not demonstrate the Beneficiary's qualifications for the offered position.
The Petitioner bears the burden ofestablishing eligibility for the requested benefit by a preponderance ofevidence. Seesection291oftheAct,8U.S.C.§1361(discussingtheburdenofproof);seealso Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard ofproof). Upon de nova review, we will withdraw the Director's decision and remand the matter for entry of a new
Employment-Based Immigration
Immigration as an advanced degree professional generally follows a three-step process. First, a prospective employer must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. workers able, willing, qualified, and available for an offered position; and (2) the employment of a noncitizen in the position would not hann wages and working conditions ofU.S. workers with similarjobs. See section 212(a)(5) ofthe Act, 8 U.S.C. § 1182(a)(5).
Second, an employer must submit an approved labor certification with an immigrant visa petition to USCIS. See section 204 of the Act. Among other things, USCIS determines whether a noncitizen AnattorneysubmittedaFonnG-28,EntryofAppearance,onbehalfoftheBeneficiary. TheBeneficiary,however,is not an "affected party" who is eligible for representation in this matter. See 8 C.F.R. § 103 .3(a)(l)(iii)(B) (defining the term "affected party" as excluding beneficiaries). U.S. Citizenship and Immigration Services (USCIS) treats beneficiaries asaffectedpartiesonlyif: theirpetitionsareinrevocationproceedings;theyqualifyto"port''tonewjobsundersection 204(j)oftheAct,8U.S.C.§ ll54(j);andtheyproperlyrequestedtodoso. Matter~fV-S-G-Inc.,AdoptedDecision2017- 06,slip op.at *14 (AAONov.11,2017). decision consistent with the following analysis. p. 2 beneficiary meets the requirements of a certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(k). Finally, if USCIS approves a petition, a noncitizen may apply for an immigrant visa abroad or, if eligible,"adjustmentofstatus"intheUnitedStates. Seesection245oftheAct,8U.S.C.§1255.
The Job Requirements
A petitioner must demonstrate a beneficiary's possession ofall DOL-certified, job requirements ofan offeredpositionby a petition's priority date. Matter ofWing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). This petition's priority date is December 31, 2015, the date DOL accepted the accompanying application forlabor certification. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date).
When assessing a beneficiary's qualifications, USCIS must examine the job-offer portion of an accompanying labor certification to determine a position's minimum requirements. USCIS may neither ignore a certification term nor impose unlisted requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. l 983)(holding that "DOL bears the authority for setting the content of the labor ce1iification") (emphasis in original).
The accompanying labor certification states the minimum educational requirements of the offered position of administrator as a U.S. bachelor's degree, or a foreign equivalent degree, in science, an "equivalent" field, or "natural health science." The certification also indicates that the position requires five years of progressive, post-baccalaureate experience in the offered position, as a "rehab director," or in an "equivalent" occupation.
On the labor certification, the Beneficiary attested that, by the petition's December 2015 priority date, an Indian college awarded him a bachelor's degree in natural health science. He also stated that, by his September2015 startdateofemploymentwiththePetitioner,he gainedmorethan 10yearsoffull-time, qualifying experience with rehabilitation companies in the United States. the following, prior employment: The Beneficiary listed
- About two years, eight months as a healthcare administrator for c=], from February 2013 to September 2015; '-------------'
- Aboutfiveyears,onemonthasarehabdirectorfo.________________.from January 2008 through January 2013;
- Aboutoneyear,eightmonthsasarehabdirectorfo'---~-------------1fromApril 2006 through December 2007; and
- Abouttenmonthsasarehabdirectorfor'------------~fromJune2005to April 2006.
Employers can't rely on experience that beneficiaries gained with them, unless the noncitizens acquired the experience in positions substantially different than the offered ones or the employers can demonstrate the impracticality oftraining U.S. workers for the positions. 20C.F.R. § 656.17(i)(3). ThePetitionerdoesn'tassertthattheBeneficiarygained qualifying experience with it.
A. TheRequiredExperience
To support claimed, qualifying experience, a petitioner must submit letters from a beneficiary's former employers. 8 C.F.R. § 204.5(g)(l). The letters must include the employers' names, titles, and addresses, and descriptions ofthe beneficiary's experience. Id. The Petitioner submittedletters from all four of the Beneficiary's purported fom1er employers, as well as copies of supporting payroll and tax records.
The Director, however, found the evidence to be inconsistent.Inconsistencies in the record See Matter o fHo, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies ofrecord with independent, objective evidencepointingtowherethetruthlies). TheDirectornotedthat,consistentwiththeBeneficiary's attestation on the labor ce1iification, the letter froml Istates the company's full-time employment of him from February 2013 to Se tember 2015. But, with an application for adjustment of status, the Beneficiary submitted a prior 1 er stating his October 2012 start date with the company. The Director also noted that.___ _ _.s most recent letter states the Beneficiary'sannualsalarythroughouthiscompanytenureas$90,000. CopiesoftheBeneficiary's IRS Forms W-2, Wage and Tax Statements, indicate that the company paid him $99,230.60 in 2014, $67,102.71 in 2015, but only $46,919 in 2013.
Thepayrollandtaxrecordsdonotincludel Idocumentsfor2012. Apreponderanceofevidence thereforeindicatesthatj ldidnotbeginemployingtheBeneficiaryuntil2013. Thepayamount on the 2013 Form W-2 ($46,919) suggests that the Beneficiary did not work full-time forl Ithat year in the $90,000-a-yearposition of health care administrator. The pay amount on the 2015 W-2 ($67,102.71) supp01is the company's full-time employment of the Beneficiary as administrator until Septemberthatyear. Buthisindividualfederaltaxreturnfor2015 statestotalwagesofonly$48,064. The inconsistent wage amounts on the Beneficiary's Form W-2 and tax return cast doubt that he worked nine months forI Iin 2015 on a full-time basis. For immigration purposes, part-time experience equals less than full-time experience. Valuation of part-time experience involves consideration of weekly hours worked and the duration of the employment. See Matter of1 Grand Express, 2014-PER-00783 (BALCA Jan. 16, 2018) (equating 29.5 months ofpart-time experience to about 18.5 months offull-time experience based on multiplication ofthe employment's duration (29.5 months)by0.625,representing25/40weeklyhours). Thus,withoutadditionalexplanationorevidence of the Beneficiary's weekly hours and duration of employment in 2013 and 2015, the Petitioner has not demonstratedhis acquisition ofmore than one year (2014) offull-time, qualifying experience with II
The letter from Ifor whom the Beneficiary purportedly worked from January 2008toJanuary2013,statesthecompany'semploymentofhimonlyuntilSeptember2012. Payroll and tax records, however, constitute independent, objective evidence of the Beneficiary's dates of employment and document his work forl luntil January 2013. See Matter ofHo, 19 I&N Dec. at 591 (requiring petitioners to resolve inconsistencies with independent, objective evidence). The information on these records also agrees with the infonnation on the Beneficiary's individual TherecordshowstheBeneficiary'sfilingofajointtaxreturnin2015withhisspouse. Thetaxreturndoesnotinclude copies ofForms W-2 for the Beneficiary orhis spouse. p. 4 federalincometaxreturnsfortherelevantyears. Apreponderanceofevidencethereforedemonstrates the Beneficiary's workfo~ lfrom January2008 to January 2013.
During that period, however, online government records indicate that the Beneficiary did not wotk in the claimed, qualifying position o f rehab director. I I's annual, corporate report for 2007 lists the Beneficiary as the corporation's sole officer, indicating his role as president, secretary, treasurer, and director. Mich. Dep't of Licensing & Regulatory Affairs (LARA), Corps. Online Filing Sys., "Searchforabusinessentity,"https://cofs.lara.state.mi.us/SearchApi/Search/Search(lastvisitedAug. 23,2021). AlsoJ l'sNovember2008applicationfora"certificateofassumedname"bears a signature in the Beneficiary's name and identifies him as the company's president. Id.
,...___ _ ___,I filed a Fmm I-140 petition for the Beneficiary, which USCIS approved then revoked. In revocation proceedings,! !claimed that the Beneficiary worked for it only as rehab director. The company's owner stated that the 2007 annual report listing the Beneficiary as the company's sole officer"was an error." But! ldidnotexplainhowthepurported error occurred. The company also did not explain the Beneficiary's signature, name, and presidential title onl l's 2008 application for an assumed name. See Matter o f Ho, 19 I&N Dec. at 591 (requiring a qetitioner to resolve inconsistencies of record). We recently issued a remand in theI Jrevocation proceedings. See In Re: 17624I97 (AAO Aug. 10, 2021). Thus, the nature of the Beneficiaiy's I
January 2008 to January 2013.
The letters from the Beneficiary's two other purported former employers-~-.,,....---------' a n d ~ - - - - - - - - - - - ' - together indicate that the Beneficiary gained qualifying experience of about two and a half years, from June 2005 to December 2007. Thus, even combined with one year of qualifying experience withl ,Ithe letters would not demonstrate the Beneficiary's possession of the requisite five years of qualifying experience.
Also, evidence identifies the Beneficiary's same brother-in-law as a principal ofbothl I and I I Copies of annual corporate registrations list the brother-in-law as Is chief executive officer (CEO) and chief financial officer in 2005 and its sole officer from 2008 through 2012. Ga. Corps. Div., "Business Search," https://ecorp.sos.ga.gov/ employment wit~
In addition, in federal court an affidavit attestin that Iremains unresolved. roceedings initiated by the U.S. government, the Beneficiary provided was either owned b or affiliated with his brother-in-law. D . USCIS records also confom the family relationship and, in the petition revocation ~p_r_o-ce~edings I Iadmitted it. The family relationship and the brother-in-law's potential influence o J ~ - - - ~ s management cast doubt on the objectivity and reliability of the company's employment letter for the Beneficiary. For this additional reason, the record does not establish the Beneficiary's claimed work in the qualifying position of rehab director for the five-year period from 4 State, online records indicate that~I- - - - ~ ~ didn't file an annual registration in 2007. registration was unavailable online. Id. BusinessSearch (last visited Aug. 23, 2021 ). bears the brother-in-law's signature and identifies him as the company's president.
I An August 2001
The company's 2005
The April 2006 letter from I p. 5 a p p l i c a t i o n f o r " c e r t i f i c a t e o f a s s u m e d n a m e " a n d a M a r c h 2 0 0 4 " c e r t i f i c a t e o f t e r m i n a t i o n o f assumed name" also bear the brother-in-law's signature and identify him, respectively, asl ~s CEO and administrator. Mich.Dep'tofLicensing&RegulatoryAffairs,Corps.OnlineFilingSys.,"Searchfor a business entity," https://cofs.lara.state.mi.us/SearchApi/Search/Search (last visited Aug. 23, 2021 ); see also United States v. Rathod, Nos. 19-1385/1453, slip op. at * 1 (6th Cir. Sep. 10, 2020) (identifying the Beneficiary's brother-in-law as a principal ofl ~-The Petitioner submitted copies ofpayroll and tax records supporting the Beneficiary's claimed dates of employment with! Iand I But these records do not corroborate his claimed positions and job duties with the companies. Because of the Beneficiary's family relationship with his brother-in-law, the record doesn't reliably establish the claimed, qualifying nature of the Beneficiary's positions from June 2005 to December 2007.
The Petitioner further submitted letters and copies of payroll and tax records from two purported former employers of the Beneficiary in India who were omitted from the labor certification. The Director concluded that the Beneficiary's purported tenures with these hospitals - totaling about four years and 10 months, from January 1998 to November 2002 - conflict with his claimed, full-time college studies from 1996 to 2003. But we discount the claimed, foreign experience for a more fundamental reason: a copy ofthe Beneficiary's college diploma shows that he gained the purported, qualifyingexperiencebeforereceivinghisbachelor'sdegreeinMarch2003. Thus,theemployment wouldn't constitute post-baccalaureate experience as the offered position and requested immigrant visacategoryrequire. See8C.F.R. §204.5(k)(2)(identifyingtheequivalentofanadvanceddegreeas 5 abachelor'sdegree"followedby"atleastfiveyearsofprogressiveexperienceinthespecialty). Also, the Petitioner has not explained the omission ofthe purpmied foreign qualifying experience from the laborce1iificationapplication. SeeMatterofLeung, 16 I&NDec. 12, 14-15 (Distr. Dir. 1976), disapp 'd o fon unrelated grounds by Matter o fLam, 16 I&N Dec. 432,434 (BIA 1978) (discounting an adjustment applicant's testimony of qualifying experience where he did not attest to the employment on his labor certification application).
The Director didn't inform the Petitioner of the Beneficiary's apparent family relationship with a principal of three ofhis purported former employers or the inconsistent evidence regarding the nature of his claimed position withl ISee 8 C.F.R. § 103.2(b)(16)(i) (requiring USCIS, before issuing an adverse decision, to notify a petitioner of derogatory information of which the business is unaware). WewillthereforewithdrawtheDirector'sdecisionandremandthematter.
On remand, the Director should notify the Petitioner of the derogatory information and evidentiaiy inconsistencies undermining the Beneficiary's claimed, qualifying experience. The Director should A beneficiary may gain qualifying, post-baccalaureate experience before a degree's issuance if a record contains a copy ofa provisionalcertificate from a college oruniversitydemonstratingthe noncitizen's completionofallsubstantive, degree requirements and the school's approval of the degree. Matter o{O-A-, Inc., Adopted Decision 2017-03, slip op. at *4 (AAO Apr. 17, 2017). The Petitioner submitted a copy o f a provisional certificate that the Beneficiary's college issued to him in June 2001. The cetiificate states the Beneficiary's passage of an examination after his final year of study. But, contra1y to O-A-'s requirements, the ce1iificatedoesnot demonstmtehis completion o f all substantive degree requirements ortheschool'sapprovalofthedegree. Also,acopyoftheBeneficiary's"collegerecord"statesthat,afterthreeyearsof study,hisbaccalaureateprograminnaturalhealthsciencerequiredsuccessfulcompletionofa one-yearinternship. p. 6 also afford the company a reasonable opportunity to explain the discrepancies and submit additional evidence. B. TheRequiredEducationalCredentials
The Director also questioned the authenticity of the Beneficiary's educational documents. The Director found that a signature in the Beneficiary's name on a copy of his April 2002, college "statement o f marks" does not match the signatures in his name on the labor certification, his purported On appeal, the Petitioner asserts that the Director's decision doesn't sufficiently describe the alleged discrepancies in the signatures or explain how the purported inconsistencies cast doubt on the Beneficiary'sclaimed,educationalqualifications. ThePetitionerstatesthatUSCIS "failedtoofferthe rational connection between facts and judgment required."
The Petitioner also submits a written opinion from a forensic handwriting expert. We do not generally consider evidence on appeal if, in the proceedings below, a petitioner received notice ofthe required evidence and an opp01iunity to submit it. Matter o fSoriano, 19 I&N Dec. 764, 766 (BIA 1988). The record, however, shows that, before issuing her decision, the Director didn't infonn the Petitioner of her doubts about the Beneficiary's educational documents. We will therefore accept the expert opinion on appeal as evidence. The opinion concludes that the same person signed the Beneficiary's name on USCIS must "explain in writing the specific reasons for denial." 8 C.F.R. ~ 103.3(a)(l)(i). The Director's decision does not establish that she based the petition's denial on the Beneficiary's educational qualifications. The decision states that the Beneficiary's educational documents are "in question" and ultimately concludes that "the evidence does not establish that the beneficiary met the minimum requirements for the position." But the decision finds the alleged conflict between the dates of the Beneficiary's claimed employment in India and his university education indicative only ofthe likelihood that he did not work for the claimed foreign employers. The decision does not specify that the record lacks sufficient evidence of the Beneficiary's claimed educational credentials.
On remand, the Director should review the expert opinion and prior evidence regarding the Beneficiary'seducationaldocuments. IftheDirectorfindstherecordinsufficienttodemonstratethe Beneficiary's educational qualifications for the offered position, her new decision must state so and explain the specific reasons for the denial on that ground.
Ability to Pay the Proffered Wage
Although unaddressed by the Director, the record also doesn't establish the Petitioner's required ability to pay the proffered wage ofthe offered position. theotherinSeptember2002. Thedecisiondoesn'tspecifywhichpassportsignaturetheDirectorquestions. driver's license, or his purported passport. the college marks statement, the labor certification, and the driver's license.
The record contains copies ofsignatures in the Beneficiaiy's name on two passports: one issued in Januaiy 2010; and The opinion does not consider the signature in the Beneficiaiy's name in eitherof the passports. p. 7 A petitioner must demonstrate its continuing ability to pay a position's proffered wage, from a petition'sprioritydateuntilabeneficiaryobtainslawfulpermanentresidence. 8C.F.R.§204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, federal tax returns, or audited financial statements. Id.
The petition included a copy of the Petitioner's federal income tax return for 2015. The record, however, lacksregulatoryrequired evidenceofthe Petitioner's ability to paythe profferedwage in the followingyears. See8C.F.R.§204.5(g)(2)(requiringapetitionertodemonstrateitsabilitytopaya proffered wage from a petition's priority date "and continuing until the beneficiary obtains lawful permanent residence").
Thus, on remand, the Director should also ask the Petitioner to submit copies of its annual reports, federal tax returns, or audited financial statements for 2016 through 2020. The company may submit additional evidence of its ability to pay, including proof of wages it paid the Beneficiary in relevant years or materials supporting the factors stated in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967).
If supported by the record, the Director may infmm the Petitioner of any additional, potential grounds ofdenial. TheDirector,however,mustprovidethecompanywithareasonableoppmiunitytorespond to allissuesraisedonremand. Uponreceiptofatimelyresponse,theDirectorshouldreviewtheentire record and enter a new decision.
Conclusion
Based on derogatory infmmation and evidentiary inconsistencies previously undisclosed to the Petitioner, the record does not establish the Beneficiary's qualifying experience for the offered position. Thecompanyalsodidnotdemonstrateitscontinuingabilitytopaytheposition'sproffered wage.
ORDER: ThedecisionoftheDirectoriswithdrawn. Thematterisremandedforentryofanew decision consistent with the foregoing analysis.