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AAO Unpublished Decision on I-140 Beneficiary By Cadence Moore

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AAO Determines that Beneficiary Cannot Use Experience Gained with the Petitioner to Qualify for a Sponsored Role

In an unpublished decision, the Administrative Appeals Office (“AAO”) considered whether the Beneficiary of a filed I-140 Immigrant Petition for Alien Worker could use experience gained at the sponsoring employer to demonstrate that he met the requirements of the role. In this case, the sponsoring employer filed a labor certification for the position of repairman and stated that this position required two years of experience. The employer also listed in the labor certification that the Beneficiary had over two years of experience as a repairman at a prior employer and close to six years of experience with the sponsoring employer. When the I-140 was filed, the employer only provided documentation demonstrating the experience that the Beneficiary obtained with it. The case was denied. In filing this appeal, the sponsoring employer argued that USCIS should “be focusing on whether the beneficiary was qualified for the position offered before the priority date . . . rather than whether the beneficiary was qualified before being hired by the Petitioner.” In denying the appeal, the AAO stated that the employer was attempting to qualify the Beneficiary through the experience he gained while working for it. However, since the Beneficiary’s experience with the sponsoring employer was substantially comparable to the position offered, this experience could not be used to establish that the Beneficiary had the necessary qualifications for the role.
While there are provisions in the law that allow employers to use experience that a Beneficiary obtained while working for a sponsoring employer, they involve specific requirements that the employer and Beneficiary must meet in order to be successful. The Hammond Law Group is always happy to discuss these types of cases to determine whether it is feasible to use experience gained at a sponsoring employer in the greencard context. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/

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Updated 12-04-2014 at 04:17 PM by ImmigrationLawBlogs

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