The Petitioner seeks to employ the Beneficiary as a big data engineer. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. Immigration and Nationality Act section 203(b)(2), 8 U.S.C. § l l53(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not establish that it made a bona fide job offer to the Beneficiary or that it intends to employ the Beneficiary in the offered position. The Director also determined that the Petitioner did not intend to employ the Beneficiary in a permanent, full-time position.
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's decision and remand the matter for entry of a new decision.
The Employment-Based Immigration Process
Employment-based immigration generally follows a three-step process. First, an employer obtains an approved labor certification from the U.S. Department of Labor (DOL).
Act, 8U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed. See section 212(a)(5) of the Act. Second, the employer files animmigrantvisapetitionwithU.S.CitizenshipandImmigrationServices(USCIS). Seesection204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, the foreign national applies for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255.
The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is October 12, 2018. See 8 C.F.R. § 204.S(d).
See section 212(a)(5) of the
The Bona Fides of the Job Offer
A business may file a petition if it is "desiring and intending to employ [a foreign national] within the United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a beneficiary under the terms and conditions specified in an accompanying labor certification. See Matter of lzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, contrary to the terms of the accompanying labor certification, the petitioner did not intend to employ the beneficiary as a domestic worker on a foll-time, live-in basis); see also Matter ofSemerjian, 11 I&N Dec. 751, 752 (Reg'l Comm'r 1966) (immigrant with approved professional worker petition must show bona fide intent to engage in his profession in the U.S.). to employ a beneficiary in a bona fide position at the time of filing. See Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). For labor certification purposes, the job offer must be for permanent, foll-time work. See 20 C.F.R. § 656.3; see also 20 C.F.R. § 656.lO(c)(l0).
The labor certification and the petition indicate that the Petitioner is located i~ IMichigan. The Petitioner attested on the petition and the labor certification that it intends to employ the Beneficiary in the permanent, foll-time position of big data engineer a t ' - - - - - - - ~ inl IFlorida. Specifically, on the labor certification, it states that the work will be performed as follows:
H. Job Opportunity Information (Where work will be performed)
1. Primary worksite (where work is to be performed) address 1
'----------------------~ FL.__I~
Similarly, on the petition, the Petitioner stated that the worksite location would be as follows: Part 6. Worksite Location
For Item Numbers 9.a. - 9.e., provide the address where the person will work if different from the address provided in Part 1. FL~I- ~ for evidence (RFE), the Director noted that the address where the Beneficiary will work inI ,I Florida, is not the same as the Petitioner's address. He stated that it is not evident that the Beneficiary will be working for the Petitioner. The Director also indicated that the Petitioner operates a personnel staffing business that employs workers on a temporary basis. He requested evidence relating to the Beneficiary's employment, including copies of any contracts relating to the Beneficiary's 9.a.-9.e.
'-------------------------' Thelaborcertificationdoesnotindicatethatthejobrequirestraveltoanyotherworksites. Inarequest In Matter ofSemerjian, the Regional Commissioner considered an immigrant visa petition which had been filed by the beneficiary on his own behalf The district director denied the petition after determining that the petitioner/beneficiary had failed to establish that he intended to pursue the profession upon which the petition was based, that of a mechanical engineer. On appeal, the Regional Commissioner considered the Congressional intent of the Act with regard to qualified immigrants who are members of the professions and concluded that the beneficiary must have "a bona fide purpose or intent to work in the United States in his qualifying endeavor." Id. at 754.
A petitioner must establish this intent p. 3 employment. In response to the RFE, the Petitioner provided a letter fromI an employment agreement between the Petitioner and the Beneficiary; and the Beneficiary's pay statements.
In his denial decision, the Director found inconsistencies in documents relating to the Beneficiary's start date with the Petitioner. pay statements indicate that the Beneficiary started work with the Petitioner on April 3, 2018; his employment agreement with the Petitioner was signed January 29, 2019; and the letter from I Iindicates that work began on March 12, 2018.Inconsistencies in the record The Director stated that the employment agreement should have been signed prior to the priority date, because eligibility must be established at the time of filing. Based on the inconsistencies in the Beneficiary's start date with the Petitioner, the Director concluded that the Petitioner did not establish that it made a bona fide job offer to the Beneficiary or that it intends to employ the Beneficiary in the offered position.
On appeal, the Petitioner asserts that it is not required to provide an employment agreement between it and the Beneficiary, and that it has met the statutory requirements for the requested classification. It cites several cases for the proposition that beneficiaries can be qualifying permanent employees of staffing and recruiting companies. It further asserts that the payroll documents and employment agreement establish that the Petitioner is the Beneficiary's employer; that the Petitioner intended to employ the Beneficiary at the time the petition was filed; and that its intention to employ the Beneficiary continues.
Although the Director noted inconsistencies in the evidence relating to the Beneficiary's start date with the Petitioner, he did not clarify how the inconsistencies in record regarding the Beneficiary's start date in nonimmigrant status relate to the bonafides of the job offer or the Petitioner's intention The Director indicated that the labor certification and the Beneficiary's to employ the Beneficiary in the offered position on a permanent, full-time basis. detailed below, we will withdraw the Director's decision and remand the matter to the Director to request additional evidence of the bonafides of the job offer and evidence that the Petitioner intends to employ the Beneficiary in the offered position on a permanent, full-time basis.
As previously noted, the Petitioner must intend to employ the Beneficiary in a bona.fide position under the terms of the labor certification. appears to include three entities: the Petitioner,! _and I IIt a the Petitioner, a Michigan limited liability company, has a contractual relationshi with to provide staffing related toI Iservices agreement with._________. Florida.
Here, the chain of emfloyment related to the offered position ears that Inconsistencies in the record can raise serious concerns about the veracity of a petitioner's assertions. Doubt cast on any aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in support ofthevisapetition. MatterofHo,19T&NDec.582,591(BIA1988).
The Petitioner was not required to employ the Beneficiary prior to filing the labor certification. The labor certification states that the requirements of the offered job are a master's degree in TT or any engineering degree, and 12 months of experience in the job offered or in any substantially similar position to the offered job. However, other evidence in the record indicates that the job requires only a bachelor's degree, and that no experience is required. Thus, based on inconsistencies in the record, it is not clear that the job requires a professional holding an advanced degree.
See 8 C.F.R. § 204.5{k){4)Ci).
DOL's regulations require an employer to give notice of the filing of the application for permanent 7 employment certification, to conduct required pre-filing recruitment including placing a job order and advertisements, and to prepare a recruitment report as part of a pre-filing recruitment effort. The job order and advertisements must be placed in the area of intended employment. Id. Newspaper advertisements must also provide "a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought" and "indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity." 20 C.F.R. § 656.17(±)(4). On remand, the Director should request the Petitioner's notice of filing and recruitment to clarify the bonafides of the job offer and to confirm how and where the job was advertised to U.S. workers. The documentation should have apprised U.S. workers that the job opportunity is located inl IFlorida, as this was the primary worksite listed on the labor certification.
The Petitioner requested a prevailing wage determination (PWD) pursuant to the provisions of 20 C.F.R. § 656.40. The labor certification indicates the prevailing wage tracking number and the PWD date of September 27, 2018. The prevailing wage was determined by considering the "wages of workers similarly employed in the area of intended employment," as that job was described by the 10 As noted, the Petitioner must intend to employ the Beneficiary in the offered position on a permanent, full-time basis. In his decision, the Director noted that the employment agreement between the Petitioner and the Beneficiary states that the Petitioner intends to employ the Beneficiary for a "temporary period." Thus, the Director found that the Petitioner did not demonstrate its intention to employ the Beneficiary on a permanent, full-time basis. On appeal, the Petitioner asserts that the employment agreement references the Beneficiary's nonimmigrant employment. It asserts that it is not required to provide an employment agreement with specific language regarding continued employment. The Petitioner asserts that it intends to employ the Beneficiary in the offered position on a permanent, full-time basis.
The employment agreement submitted by the Petitioner in response to the RFE is inconsistent with the Petitioner's assertion on appeal that it intends to employ the Beneficiary on a permanent, full-time basis. The Petitioner must resolve inconsistencies in the record with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). While the employment agreement may have been executed in anticipation of the Beneficiary's temporary, nonimmigrant employment, the record does not contain independent, objective evidence of the Petitioner's intent to employ the Beneficiary on a permanent, full-time basis for the position and locationofworkcertified. Id. Instead,therecordindicatesthattheworkatl Imaybe extended for three years, but the extension may be denied and the work may be cancelled at any time with at least 10 days' notice. Termination of the project extension or cancellation of the work would 20 C.F.R. § 656.lO(d) . 8I
The Director should request a copy of the Petitioner's Petitioner on the application for the PWD.
PWD to further clarify the bona fides of the job offer and to confirm that the wage was determined based on proposed employment inl IFlorida, as indicated by the terms of the certified labor certification.
end the full-time work certified in the labor certification. A petitioner must establish eligibility for a requested benefit as of a petition's filing and continuing throughout its adjudication. 8 C.F.R. § 103.2(b)(l). On remand, the Director should request independent, objective evidence demonstrating that the Petitioner intends to employ the Beneficiary on a full-time, permanent basis.
In sum, as set forth above, we will withdraw the Director's decision and remand the matter to the Director to request additional evidence of the bona fides of the job offer and evidence that the Petitioner intends to employ the Beneficiary in the offered position on a permanent, full-time basis.
Ability to Pay
The Director should determine on remand whether the Petitioner has the continuing ability to pay the proffered wage. The proffered wage is $55.00 per hour ($114,400 per year based on a 40-hour work 11 week).
Without this information, we cannot determine the Petitioner's ability to pay the combined deficiency. proffered wages of all of its applicable beneficiaries.
Accordingly, on remand, the Director should request evidence of the Petitioner's ability to pay the combined proffered wages of all of its applicable beneficiaries. The Petitioner may also submit additional materials in support ofthe factors discussed in Matter ofSonegawa, 12 I&N Dec. 612, 614- 15 (Reg'l Comm'r 1967), which permits USCIS to consider the totality of the circumstances affecting ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.