U.S. Citizenship and Immigration Services

MATTER OF C-F-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 4, 2016

APPEAL OF NEBRASKA SERVICE CENTER DECISION

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, an operator of a fruit and vegetable farm, seeks to permanently employ the Beneficiary as an agricultural manager. It requests classification of the Beneficiary as a skilled worker under the third preference immigrant category. See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). This category allows a U.S. employer to sponsor a foreign national with at least 2 years of training· or experience for lawful permanent resident status.

On August 20, 2011, the Director, Nebraska Service Center, denied the petition. The Director concluded that the record did not establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward.

The matter is now before us on de novo, appellate rev.iew. Because the appellate record does not demonstrate the Petitioner's continuing ability to pay the proffered wage, we will dismiss the appeal. The record also does not establish the Beneficiary's possession of the experience required for the offered position, or the bona fides of the job opportunity and the job offer. 1

I. LAW AND ANALYSIS

A. USCIS' Role in the Employment-Based Immigration Process

Employment-based immigration is generally a three-step process. First, an employer must obtain an approved labor certification from the DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, USCIS must approve an immigrant visa petition. See section 204 of the Act. Finally, a foreign national must apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255.

1 Beginning on February 1, 2013, we held these proceedings in abeyance while we consulted with the U.S. Department of Labor (DOL) regarding the validity of the accompanying ETA Form 9089, Application for Permanent Employment Certification (labor certification). See section 204(b) of the Act, 8 U.S.C. § 1154(b) (requiring U.S. Citizenship and Immigration Service (USCIS) to consult DOL when adjudicating immigrant petitions); see also 8 C.F.R. § 103.2(b)(l8) (authorizing USCIS to withhold adjudication of a petition pending an investigation regarding eligibility for a requested benefit). Our decision in this matter does not preclude further action on the labor certification by the DOL.

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Matter ofC-F-, Inc.

By approving the accompanying labor certification in the instant case, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position of agricultural manager. See section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified that the employment of 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)(A)(i)(II).

In these proceedings, we must decide whether the Beneficiary meets the requirements of the offered position certified by the DOL. We must also determine whether the Petitioner and Beneficiary otherwise qualify for the requested classification. See, e.g., Tongatapu Woodcraft Haw., Ltd. v Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984) (holding that the immigration service "makes its own determination of the alien's entitlement to [the requested] preference status").

B. The Petitioner's Ability to Pay the Proffered Wage

A petitioner must demonstrate its ability to pay a proffered wage from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.P.R. § 204.5(g)(2). Evidence of ability to pay must include copies of annual reports, federal tax returns, or audited financial statements. !d.

In the instant case, the accompanying labor certification states the proffered wage of the offered position of agricultural manager as $21.47 perj hour, or $44,657.60 per year for a 40-hour work week. The petition's priority date is May 22, 2008, the date the DOL accepted the accompanying labor certification application for processing. See 8 C.P.R. § 204.5(d). .

In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full proffered wage each year from a petition's priority date. If a petitioner did not pay the full proffered wage each year, we next examine whether it generated sufficient annual amounts of net income or net current assets to pay any difference between the wages paid and the proffered wage. If net income and net current asset amounts are insufficient, we may also consider the totality of the circumstances of a petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967)_2

In the instant case, the record contains copies of IRS Forms W-2, Wage and Tax Statements, indicating the Petitioner's annual payments of $30,000 to the Beneficiary from 2008 through 2010. The amount on each Form W-2 does not equal or exceed the annual proffered wage of $44,657.60. The record therefore does not demonstrate the Petitioner's ability to pay the proffered wage based on the wages it paid the Beneficiary.

2 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (1st Cir. 2009); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-43 (S.D. Cal. 2015). Rivzi v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 292 (5th Cir. 2015).

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But we credit the wages paid to the Beneficiary. The Petitioner therefore need only demonstrate an ability to pay the differences between the annual proffered wage and the amounts it paid the Beneficiary from 2008 through 2010, or $14,657.60 per year.

The record before the Director closed on March 29, 2011, with her receipt of the Petitioner's response to her request for evidence. The Petitioner's response did not include copies of its annual report, federal tax return, or audited financial statements for 2010.

A corporation must file a federal income tax return by the 15th day of the third month after the end of its fiscal year. See Internal Revenue Serv., Publication 509 Tax Calendars, at http://www.irs.gov/publications/p509/ ar02.html (accessed Sept. 13, 2016). The record indicates that the Petitioner's fiscal year is a calendar year. Therefore, the Petitioner's 2010 federal income tax return was due on March 15; 2011, before the March 29, 2011, RFE response deadline. The record on appeal does not contain a copy of the Petitioner's 2010 federal tax return, other acceptable evidence of its ability to pay that year, or an explanation of the omission.

The unexplained absence of required evidence of the Petitioner's ability to pay warrants the appeal's dismissal. But even if we excused the omission of required evidence for 2010, the record does not establish the Petitioner's ability to pay in 2008 or 2009.

The Petitioner's tax returns reflect annual net income amounts of -$27,142 in 2008 and -$7766 in 2009. The annual net income amounts do not equal or exceed the $14,657.60 differences between the annual proffered wage and the amounts paid to the Beneficiary in 2008 and 2009. The record therefore does not demonstrate the Petitioner's ability to pay the proffered wage based on net mcome.

The Petitioner's tax returns reflect year-end, net current asset amounts of -$4560 in 2008 and $3991 in 2009. The annual net current asset amounts do not equal or exceed the $14,657.60 differences between the annual proffered wage and the amounts paid to the Beneficiary in 2008 and 2009. The record therefore does not demonstrate the Petitioner's possession of sufficient net current assets to pay the proffered wage.

Thus, based on examinations of the wages the Petitioner paid the Beneficiary, its net income, and its net current assets, the record does not establish its continuing ability to pay the Beneficiary the proffered wage from the petition's priority date onward.

The Petitioner notes that it need only demonstrate an ability to pay the proffered wage from the petition's priority date of May 22, 2008. See 8 C.F.R. § 204.5(g)(2). Thus, the Petitioner asserts that it need only show an ability to pay the "pro-rated" portion of the 2008 proffered wage that accrued after May 22, or $27,283.96. Because a Form W-2 indicates the Petitioner's payment to the Beneficiary in 2008 of $30,000, the Petitioner asserts that the record demonstrates its ability to pay the Beneficiary the proffered wage that year.

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Matter ofC-F-, Inc.

But we will prorate a proffered wage only if the record contains evidence of net income or wage payments occurring after a priority date during a given year. The instant record does not contain evidence that, after the May 22 priority date, the Petitioner earned sufficient net income or paid the Beneficiary sufficient wages in 2008. Instead, the Petitioner appears to inequitably rely on 12 months of pay to the Beneficiary, as reflected on the 2008 Form W-2, to demonstrate its ability to pay only about 7 months of wages. The Petitioner therefore has not demonstrated its ability to pay the prorated proffered wage for 2008. I

The Petitioner also asserts that its compensation to the Beneficiary includes not only annual wages of $30,000, but also room and board on its premises for the Beneficiary and his family. The Petitioner "conservatively" estimates the annual value of the Beneficiary's room and board as $18,000. Thus, the Petitioner asserts that the Beneficiary actually receives total annual compensation of at least $48,000, exceeding the annual proffered wage of $44,657.60.

The record does not demonstrate the Petitioner's purported provision of room and board to the Beneficiary and his family. The Petitioner submitted a copy of a 2011 telephone bill to the Beneficiary at the Petitioner's address. But the 2011 bill is insufficient to establish the residence of the Beneficiary and his family on the Petitioner's premises in 2008, 2009, or 2010.

Also, on Forms I-129, Petitions for Nonimmigrant Workers, that the Petitioner filed with USCIS on the Beneficiary's behalf in 2009, 2011, and 2013, the company did not declare any "[o]ther compensation" provided to the Beneficiary beyond wages. A petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. The instant Petitioner must therefore explain its inconsistent statements regarding the Beneficiary's compensation. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of record by independent, objective evidence pointing to where the truth lies).

In addition, the record does not indicate that the Petitioner offered residence on its premises to potential U.S. applicants for the offered position. See 20 C.F.R. §§ 656.17(£)(4), (7) (requiring labor certification advertisements to apprise applicants of the geograph.ic areas where they will likely need to reside to work in the offered position and barring ads from containing terms and conditions of employment that are less favorable than those offered to a foreign national).

The record lacks copies of recruitment ads placed for the offered position. But prevailing wage and other information on the accompanying labor certification indicate that the offered position's compensation does not include room and board. See 20 C.F.R. §§ 656.10(c)(l), (2) (requiring labor certification employers to attest that a foreignnational's wages will equal or exceed the prevailing wage rate and that the proffered wage is not based on commissions, bonuses, or other incentives, unless the employer guarantees a wage paid on a weekly, biweekly, or monthly basis that equals or exceeds the prevailing wage); see also Matter of Kids 'R' Us, 90-INA-20, 1991 WL 120095 *4 (BALCA Jan. 28, 1991) (en bane) (holding that a labor certification employer bears "a heavy burden" when it seeks to demonstrate the values of fringe benefits). Therefore, the record does not establish: the existence or value of the Petitioner's claimed room-and-board compensation to the

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I

Beneficiary; or that, pursuant to DOL regulations, the Petitioner offered the same on-site residence option to U.S. applicants. The record therefore does not establish the Petitioner's provision of additional compensation to the Beneficiary in 2008, 2009, or 2010.

As previously indicated, we may consider a petitioner's ability to pay a proffered wage beyond its net income and net current assets. Sonegawa, 12 I&N Dec. at 614-15. As in Sonegawa, we may consider evidence of: the number of years a petitioner has conducted business; the growth of its business; its number of employees; the occurrence of any uncharacteristic business expenditures or losses; its reputation in its industry; whether a beneficiary will replace a current employee or outsourced service; or other evidence of its ability to pay the proffered wage.

In the instant case, the record indicates the Petitioner's continuous business operations since 2007. For most of that time, the record indicates the Petitioner's employment of three people. Its federal tax returns show a decline in revenues from 2008 to 2009. Thus, the record indicates that the Petitioner has not conducted business for as long as the petitioner in Sonegawa, nor has it established growth of its business.

Like the petitioner in Sonegawa, the instant Petitioner asserts that it experienced uncharacteristic business losses. But unlike in Sonegawa, the record does not support the instant Petitioner's claims.

The Petitioner asserts its loss of"a sizeable revenue stream" in 2009 and 201 0 from four customers who were forced out of business by "harrowing economic conditions." But the Petitioner submitted copies of 2008 payments from these purportedly significant customers that totaled only $8863, a small fraction of the $380,245 in revenues it reported on that year's tax return.

In addition, the Petitioner states that "unforeseeable and severe cold fronts?' in 2009 and 2010 caused "voluminous" snowfall that damaged its greenhouses and crops, and "crippled" its operations. The Petitioner states that it moved its operations to avoid future weather-related damages.3 The Petitioner sul?mits photographs of snow that purportedly fell at its farm and documentary evidence of the Petitioner's relocation.

3 The accompanying labor certification states the area of intended employment as California. The Form 1-140, Petition for Alien Worker, states that the Beneficiary will work in California:. The record also contains copies of bills and a July 18, 2008, lease, indicating the Petitioner's relocation of its farm to after filing the labor certification. and are not located within the same Metropolitan Statistical Area (MSA). See DOL, Foreign Labor Certification Data Center, at http://www.flcdatacenter.com/ OesWizardStep2.aspx?.stateName =California (accessed Sept. 13, 2016); 20 C.F.R. § 656.3(stating that any place within an MSA is deemed to be within the same area of intended employment). The record therefore does not establish that and are in the same area of intended employment. In any future filings in this matter, the Petitioner must submit additional evidence that the labor certification remains valid for the geographic area of intended employment. See Matter of Sunoco Energy Dev. Co., 17 I&N Dec. 283, 284 (Reg'! Comm'r 1979) (affirming a petition's denial where a petitioner did not intend to employ a beneficiary at the geographical area of intended employment stated on an accompanying labor Cf(rtification).

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Matter ofC-F-, Inc.

The record does not support the Petitioner's claim that it moved to its current address to avoid future weather-related damage. A copy of a lease for the new location states an effective date of July 19, 4008.4 The lease's effective date suggests that the Petitioner relocated before it sustained weather­related damages in 2009 and 2010.

In addition, the Petitioner did not date or describe the snow photographs, casting doubt on whether they support the Petitioner's assertion of uncharacteristic business losses. The record also does not explain how the snow damaged the Petitioner's operations. Thus, the record does not sufficiently support the Petitioner's assertion of uncharacteristic business losses in 2009 and 2010.

Further, unlike the petitioner in Sonegawa, USCIS records indicate that the instant Petitioner filed an immigrant visa petition for another beneficiary while the instant petition was pending. 5 Pursuant to 8 C.F.R. § 204.5(g)(2), a petitioner must demonstrate its continuing ability to pay the proffered wage of each petition filed from the petition's priority date. Therefore, the instant Petitioner must establish its continuing ability to pay the combined proffered wages of both the instant Beneficiary and the beneficiary of the later petition that remained pending after the instant petition's priority date. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our denial of a petition where a petitioner did not demonstrate its ability to pay the proffered wages of multiple pending beneficiaries).

The record does not document the priority date or proffered wage of the Petitioner's other petition, or whether the Petitioner paid wages to the other beneficiary. The record also does not indicate whether the other petition was withdrawn, revoked, or denied, or whether the other beneficiary obtained lawful permanent residence. The record therefore does not establish the Petitioner's continuing ability to pay the combined proffered wages of both the instant Beneficiary and the beneficiary of the other petition:

Unlike in Sonegawa, the totality of the circumstances in the instant case does not establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore affirm the Director's decision and dismiss the appeal.

C. The Bona Fides of the Job Opportunity and the Job Offer

Although not mentioned by the Director, the record also does not demonstrate the bona .fides of the Petitioner's job opportunity.

Labor certification employers must attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." 20 C.F.R. § 656.10(c)(8). "This provision infuses the recruitment process with the requirement of a bona fide job opportunity: not merely a test of the job market." Matter of

4 The address of the new location on th~ lease and utility bills shares the same street name as the Petitioner's address on the Form 1-140. But the Petitioner's address on the Form I-140 contains a different lot or "house" number than the addresses on the lease and utility bills. The record does not explain the discrepancy. 5 USCIS records identify the other petition by the following receipt number:

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Matter ofC-F-, Inc.

Modular Container Sys., Inc., 89-INA-228, 1991 WL 223955, *7 (BALCA July 16, 1991) (en bane) (referring to the former, identical regulation at 20 C.F.R. § 656.20(c)(8)).

We may deny a petition accompanied by a labor certification that violates DOL regulations. See Sunoco Energy, 17 I&N Dec. at 284 (affirming a petition's denial where the accompanying labor certification was invalid for the geographical area of intended employment).

To provide an "opportunity to evaluate whether the job opportunity has been and is clearly open to qualified U.S. workers, an employer must disclose any familial relationship(s) between the foreign worker and the owners, stockholders, partners, corporate officers, and incorporators by marking 'yes' to Question C.9 on the ETA Form 9089." DOL, Office of Foreign Labor Certification, "OFLC Frequently Asked Questions & Answers," · "Familial Relationships," at http:/ /www.foreignlaborcert.doleta.gov/faqsanswers.cfm (accessed Sept. 13, 20 16). "A familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. It also includes relationships established through marriage, such as in-laws and step-families." !d.

In determining the bona fides of a job opportunity, adjudicators must consider multiple factors, including but not limited to, whether a foreign national: is in a position to control or influence hiring decisions regarding the offered position; is related to corporate directors, officers, or employees; incorporated or founded the company; has an ownership interest in it; is involved in the management of the company; sits on its board of directors; is one of a small group of employees; and has qualifications matching specialized or unusual job duties or requirements stated in the labor certification. Modular Container, 1991 WL 223955 at *8; 20 C.F.R. § 656.17(1) (describing the documents required to establish the existence of a bonafide job opportunity).

Adjudicators must also consider whether a foreign national's pervasive presence and personal attributes would likely cause a petitioner to cease operations in the foreign national's absence and whether the employer complied with regulations and otherwise acted in good faith. !d. A beneficiary's familial relationship or employment within a small group of employees is an important factor in determining the bona fides of a job opportunity. See 20 C.F.R. § 656.17(1)(5).

In the instant case, the Petitioner attested on the accompanying labor certification that "[t]he job opportunity has been and is clearly open to any qualified United States worker." Question C.9 on the ETA Form 9089 also asked: "Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien?" The Petitioner responded: "No."

Despite its negative response to Question C.9 on the ETA Form 9089, the appellate record indicates a familial relationship between the Beneficiary and the Petitioner's president/sole shareholder.6 In

6 USCIS records contain copies of the Petitioner's articles of incorporation and a stock certificate. These documents indicate that the petitioning corporation is authorized to issue up to I ,000,000 shares of stock and that its president

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Matter ofC-F-, Inc.

response to our October 25, 2012, request for evidence (RFE), the Petitioner disclosed that the Beneficiary inhe son-in-law of its president/shareholder. The Petitioner submitted copies of family census registrations indicating the Beneficiary's marriage to the daughter of the Petitioner's president on 2001, more than 6 years before the Petitioner filed the accompanying labor certification application. At the time of the petition's priority date, the record therefore establishes a familial relationship between the Beneficiary and the Petitioner's president/shareholder.

The Form 1-140 states that the Petitioner employs "[a]ppr[oximately]" three people. USCIS records contain copies of Forms W-2 and payroll tax records from 2008, 2009, 2010, and 2012, indicating the Petitioner's typical employment of the following three people during those years: its president/shareholder; the Beneficiary; and the Beneficiary's brother-in-law, the spouse of another daughter of the Petitioner's president/shareholder.7 The record therefore identifies the Beneficiary as part of a small group of employees.

The record also indicates the Beneficiary's involvement in the Petitioner's management. The accompanying labor certification states the Beneficiary's employment by the Petitioner in the offered position of agricultural manager since October 1, 2007, shortly after the Petitioner's incorporation in April 2007 and before the filing of the accompanying labor certification application in May 2008. The job duties of the offered position involve managing "the day-to-day activities of the entire operations of the farm." The duties include "[r]eview[ing] output goals, determin[ing] financial constraints, monitor[ing] production and marketing, hir[ing], assign[ing] and supervis[ing] workers, determin[ing] crop storage and distribution requirements and oversee[ing] maintenance of property and equipment."

Also, USCIS records contain a September 24, 2009, letter submitted by the Petitioner in support of the extension of the Beneficiary's E-2 nonimmigrant visa status. The letter states the Petitioner's employment of the Beneficiary "[i]n a top managerial role." The letter states that he participates in quarterly "strategy" meetings with the Petitioner's president, and that he "will make crucial hiring, termination, assignment and supervisory decisions." Thus, the record indicates the Beneficiary's involvement in the Petitioner's management, including the hiring of its employees.

In addition, by petitioning for E-2 nonimmigrant visa status for the Beneficiary, the Petitioner represented his services as "essential to the efficient operation of the enterprise." 8 C.F.R. §§ 214.2(e)(13), (18). Thus, the record suggests that the Beneficiary's absence could cause the Petitioner to cease operations. See Modular Container, 1991 WL 223955 at *8.

received 200,000 shares after its incorporation in April2007. The copies ofthe Petitioner's federal tax returns of record identify the president as the corporation's sole shareholder. 7 During parts of 2008 and 2009, USCIS records also indicate that the Petitioner employed the spouse of its president/shareholder. In addition, on a Form G-325A, Biographic Information, that she submitted in 2015 with her application for adjustment of status, the Beneficiary's spouse stated her employment by the Petitioner as "staff' since June 2014. ~

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Matter ofC-F-, Inc.

Thus, the record indicates that the Beneficiary has a familial relationship with the Petitioner's president/shareholder; is a part of a small group of employees, is involved in the Petitioner's management, and is an essential employee of the company. Therefore, based on DOL guidance and the Modular Container factors, the record does not establish the bona fides of the job opportunity.

The Petitioner asserts that the Beneficiary's son-in-law relationship to the Petitioner's president/shareholder does not constitute a "familial relationship." The Petitioner states that USCIS has "historically" treated in-laws differently than blood relatives, demonstrating that an in-law relationship "clearly holds less gravity and intimacy than that of a blood 'family relationship."' The Petitioner asserts that in-laws are ineligible to obtain immigrant visas on the basis of their rehitionships to U.S. citizens or lawful permanent residents. See sections 201(b)(2)(A)(i), 203(a) of the Act, 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a) (allotting immigrant visas to "immediate relatives" and other relatives of U.S. citizens and lawful permanent residents based on family relationships).

Contrary to the Petitioner's assertion, immigration laws do not always treat relationships based on marriage differently than blood relationships. The term "immediate relatives" includes spouses, who are related by marriage to U.S. citizens, as well as the children and parents of U.S. citizens. Section 201(b)(2)(A)(i) of the Act. We also note that spouses of beneficiaries in the employment-based immigration process are eligible to apply for derivative immigrant visas. See section 203( d) of the Act.

Moreover, the statutes cited by the Petitioner relate to the family-based immigrant visa preference system and do not define the term "familial relationship" for employment-based purposes. As previously indicated, the F AQ answer on the DOL website specifies that a familial relationship means "any relationship established by blood, marriage, or adoption, even if distant" and that the term "includes relationships established through marriage, such as in-laws and step-families."

The DOL website indicates that the agency did not publish the F AQ answer on familial relationships until July 28, 2014, after the filing of this appeal. But we must apply the law as it exists at the time of adjudication. See, e.g., Matter of Alarcon, 20 I&N Dec. 557, 562 (BIA 1992) (citing Ziffrin, Inc. v. United States, 318 U.S. 73, 78 (1943)) (holding that a federal agency must follow a change in law during its proceedings because it cannot issue decisions contrary to existing legislation).

The F AQ answer is not a statute or regulation. But we find it persuasive authority because it is consistent with earlier decisions of the Board of Alien Labor Certification Appeals (BALCA). See Matter of HealthAmerica, 2006-PER-000001, 2006 WL 5040202 **8-9 (BALCA July 18, 2006) (en bane), superseded by regulation on other grounds at 20 C.P.R. § 656.11(b), (stating that the persuasive authority of an F AQ answer depends in part on its consistency with earlier or later pronouncements).

In several decisions, most of which predate this petition's priority date, BALCA has indicated that in-law relationships between foreign nationals and their prospective employers constitute familial relationships that trigger concerns about the bona fides of the job opportunities. See, e.g., Matter of

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Matter ofC-F-, Inc.

Marie Jean Fabroa, 2010-PER-01071, 2011 WL 5375174 *3 (BALCA Nov. 3, 2011) (finding a "familial relationship" between an employer and his sister-in-law indicated a non-bona .fide job opportunity); Matter ofSunmart 374, 2000-INA-93, 2000 WL 707942 *3 (BALCA May 15, 2000) (stating that a suspect relationship between an employer and a foreign national "is not only of the blood; it may also be financial, by marriage, or through friendship"); Matter ofTopco USA, Inc., 93-INA-00516, 1996 WL 86214 *4 (BALCA Feb. 23, 1996) (upholding a certification denial based solely on a "family relationship" between a foreign national and his sister-in-law, an officer and director ofthe employer); Matter of Altobelli's Fine Italian Cuisine, 90-INA-130, 1991 WL 239636 **3-4 (BALCA Oct. 16, 1991) (finding that a foreign national's relationship to his sister-in-law, the employer's corporate secretary, constituted a "family relationship").

I

Based on DOL guidance and BALCA case law, the record indicates that the Beneficiary has a familial relationship with the Petitioner's president/shareholder, as well as with the Petitioner's other regular full-time employee. The Petitioner's assertions that an in-law relationship "lacks the intimacy of a blood familial relationship" and that the "instant bond [between the Beneficiary and the Petitioner's president/shareholder] should not qualify as a familial relationship" do not overcome current DOL policy and case law. We therefore reject the Petitioner's assertion.

The Petitioner notes that a familial relationship between an employer and a foreign national does not preclude a bona fide job opportunity. See, e.g., Matter of Paris Bakery Corp., 88-INA-337, 1990 WL 1232931, *3 (BALCA Jan. 4, 1990). As previously discussed, however, application of the Modular Container factors to the instant case indicates a non-bona.fide job opportunity. Besides the familial relationship, we have considered multiple factors that, taken as a whole, indicate that the job opportunity was not clearly open to U.S. workers.

In addition to the familial relationship between the Petitioner's principal and the Beneficiary, the record identifies the Petitioner as a closely held corporation with a small number of employees. The record also indicates that the Beneficiary's brother-in-law is a managerial employee of the Petitioner. Further, the record indicates the Beneficiary's management of the Petitioner's day-to-day operations, including its hiring of employees, and identifies him as an essential employee.

In response to our RFE, counsel asserts that no U.S. workers applied for the offered position during the labor certification process. But counsel's assertion does not constitute evidence.· See INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984) (noting that counsel's unsupported assertions do not establish facts of record). Unlike in Paris Bakery, the record does not include documentation supporting the Petitioner's claim that no U.S. workers applied for the job opportunity. See Paris Bakery, 1990 WL 1232931 at **1-2.

Based on careful consideration of the Modular Container factors and the facts of the instant case, the record does not establish the existence of a bonafide job opportunity. We will therefore also dismiss the appeal on this basis.

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We further note that the record does riot establish the Petitioner's intention to employ the Beneficiary in the offered position.

A labor certification remains valid only for the particular job opportunity, the foreign national, and the geographical area of intended employment specified on it. 20 C.F.R. § 656.30( c )(2). A petitioner must establish its intention to employ a beneficiary pursuant to the terms of an accompanying labor certification. Matter of Izdebska, 12 I&N Dec. 54, 54 (Reg'l Comm'r 1966) (affirming a petition denial where a petitioner did not intend to employ a beneficiary as a live-in domestic worker as specified on an accompanying labor certification).

In the instant case, the Petitioner seeks to permanently employ the Beneficiary as an agricultural manager. As previously indicated, the labor certification states that the job duties of the offered position involve managing "the day-to-day activities of the entire operations of the farm." The job duties include "[ r ]eview[ing] output goals, determin[ing] financial constraints, monitor[ing] production and marketing, hir[ing], assign[ing] and supervis[ing] workers, determin[ing] crop storage and distribution requirements and oversee[ing] maintenance of property and equipment."

The record does not establish the Petitioner's intention to employ the Beneficiary in the offered position of agricultural manager. The Petitioner's Form 1-140 and USCIS records contain copies of the Petitioner's Forms W-2 and payroll tax records from 2008, 2009, 2010, and 2012. For most of these years, the documents indicate the Petitioner's employment of three people: its president/shareholder; the Beneficiary; and the Beneficiary's brother-in-law, who like the Beneficiary reportedly worked in the offered position of agricultural manager.

The record identifies the Petitioner's only non-managerial employees as the spouses of its president/shareholder and the Beneficiary. The record indicates the Petitioner's employment of the spouse of its president/shareholder in in 2008 and 2009, and of the Beneficiary's spouse since June 2014.

The job duties of the offered position include hiring, assigning, and supervising workers. But the record indicates that the Petitioner has not hired any workers outside of the family of its president/shareholder and Beneficiary. The record also indicates that the Petitioner has not continually employed non-managerial workers who require assignment and supervision. In addition, the record indicates the Petitioner's employment of a president/shareholder and two agricultural managers. The record does not indicate that the Petitioner has enough employees or business to warrant the employment of three managers.

For the foregoing reasons, the record does not establish the Petitioner's intention to employ the Beneficiary in the offered position specified on the labor certification.

D. The Beneficiary's Possession of the Required Experience

Also not discussed by the Director, the record does not establish the Beneficiary's possession of the required experience for the offered position of agricultural manager.

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Matter ofC-F-, Inc.

A petitioner must establish a Beneficiary's possession of all the education, training, and experience specified on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 103.2(b)(l), (12); see also Matter of Wing 's Tea House, 16 I&N Dec. 158, 159 (Acting Reg' l Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971).

In evaluating a beneficiary 's qualifications, we must examine the job offer portion of an accompanying labor certification to determine the minimum requirements of an offered position. We may neither ignore a term of the labor certification, nor impose additional requirements. See K.R.K Irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983); Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).

In the instant case, the accompanying labor certification states the minimum requirements of the offered position of agricultural manager as 24 months of experience in the job offered. As previously indicated, the job duties of the offered position involve managing "the day-to-day activities of the entire operations of the farm. " The duties include "[r]eview[ing] output goals, determin[ing] financial constraints, monitor[ing] production and marketing, hir[ing], assign[ing] and supervis[ing] workers, determin[ing] crop storage and distribution requirements and oversee[ing] maintenance of property and equipment."

The Beneficiary attested on the labor certification to about 68 months of full-time qualifYing experience. The Beneficiary stated his employment as an agricultural manager by m South Korea from January 20, 2000 to September 30, 2005.

' A petitioner must support a beneficiary?s claimed qualifYing experience with a letter from an employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). A letter must provide the name, address, and title of an employer, and describe a beneficiary's experience. !d.

In support of the Beneficiary' s qualifYing experience, the Petitioner submitted copies of four undated letters from purported presidents of farming associations. The president of a branch of the

purportedly signed two of the letters. One letter states that the Beneficiary "has been farming specialty plants for 5 years at the The other letter states that the Beneficiary "has been a member of the of the

for 5 years."

The president of the Beneficiary's involvement in farming in the Beneficiary's experience as including marketing, and supply of "tree fruits."

purportedly signed another letter stating the from 1999 to 2005.8 The letter also describes

pesticide application, selection, packaging, cooperative

8 English translations stating Korea.

apparently refer to a city about 16 miles from South

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(b)(6)

Matter ofC-F-, Inc.

The president of the purportedly signed the final letter, which states the Beneficiary's membership in the association from 2001 to 2006.

Two of the farming association letters identify the Beneficiary as a farmer. But none of the letters demonstrate the Beneficiary's experience in the offered position, which involves management duties.

One letter describes the Beneficiary's experience. But the experience did not include most of the job duties of the offered position. Specifically, the letter does not state the Beneficiary's experience in: reviewing output goals; determining financial constraints; monitoring production; hiring, assigning and supervising workers; determining crop storage; and overseeing maintenance of property and equipment. The record therefore does not establish the Beneficiary's claimed qualifying experience in the job offered.

Also, the Beneficiary stated the location of on the labor certification as the city of ' in the ' province of South Korea. 'J But two of the farming association letters state

that the Beneficiary farmed during an overlapping time period in ' The inconsistencies in the locations of the Beneficiary's purported farming activities in South Korea cast doubt on his claimed qualifying experience for the offered position. See Ho, 19 I&N Dec. at 591 (stating that doubt cast on any aspect of a petitioner's proof may lead to reevaluation of the reliability and sufficiency of the remaining evidence in support of a petition).

In a later petition, USCIS records indicate that another petitioner submitted a January 5, 2008, "career certificate" from a vice president of on behalf of the Beneficiary. The certificate states that the farm employed the Beneficiary as a special crop agricultural manager from January 20, 2000 to September 30, 2005 and that his duties included "[m]anag[ing] the day-to-day activities of the entire operations of the farm."

The certificate submitted with the later petition, however, does not establish the Beneficiary's claimed qualifying experience. Because the certificate is not on stationery, the record lacks evidence of the signatory's affiliation with the farm or his personal knowledge of the Beneficiary's experience. Also, neither the certificate nor other evidence supporting the later petition explains the inconsistencies of record regarding the location of the Beneficiary's qualifYing experience in South Korea.

For the foregoing reasons, the record does not establish the Beneficiary's possession of the required experience for the offered position as specified on accompanying labor certification by the petition' s priority date.

9 The labor certification's identification of · as the Beneficiary' s former city of employment apparently refers to a city located in South Korea. is pronounced similarly to ' · the Beneficiary's stated province of prior employment on the labor certification.

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Matter ofC-F-, Inc.

II. CONCUJSION

The record does not establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore affirm the Director's decision and dismiss the appeal. The record also does not establish the Beneficiary's possession of the required experience for the offered position, or the bona fides of the job opportunity and the job offer.

The petition will remain denied for the reasons stated above, with each considered an independent and alternate basis of denial. In visa petition proceedings, a petitioner bears the burden of proving eligibility for a benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the instant Petitioner did not meet that burden.

ORDER: The appeal is dismissed.

Cite as Matter ofC-F-, Inc., ID# 213985 (AAO Nov. 4, 2016)

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