dismissed EB-3 Case: Administrative

U.S. Citizenship 
and Immigration 
Services 
In Re : 10183744 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 06, 2020 
The Petitioner sought to employ the Beneficiary as an administrative assistant. 1 It requested classification 
of the Beneficiary as a skilled worker under the third preference immigrant category. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(B)(3)(A)(i) . This employment-based 
immigrant classification allows a U.S. employer to sponsor a foreign national for lawful permanent 
resident status to work in a position that requires at least two years of training or experience. 
After initially approving the petition, the Director of the Nebraska Service Center revoked the approval 
of the petition on multiple grounds . On appeal, we withdrew the Director 's decision and remanded 
the matter to the Director to determine the Beneficiary's eligibility to participate in revocation 
proceedings as an affected party. The Director issued another notice of intent to revoke (NOIR) to the 
Beneficiary and subsequently revoked the approval the petition, concluding that the record did not 
establish that the Beneficiary possessed the experience required by the labor certification as of the 
priority date. The matter is now before us on appeal. 
In these proceedings, it is the affected party'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 dismiss the appeal. 
I. 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). 2 See section 212(a)(5) of the 
1 U.S. Citizenship and Immigration Services (USCIS) regulations do not generally allow a beneficiary to appeal a petition 's 
revocation . See 8 C.F.R. § 103.3(a)(l)(iii)(B) (stating that a beneficiary is not an "affected party" with legal standing in a 
proceeding) . However , certain "portability-eligible " beneficiaries of revoked I-140 visa petitions are treated as affected 
parties in revocation proceedings. Section 204(j) of the Act, 8 U.S.C. § l 154(j). See Matter of V-S-G- Inc., Adopted 
Decision 2017-06 (AAO Nov. 11 , 2017). Under the portability provision of section 204(j) of the Act, approved petitions 
may remain valid under certain conditions even after eligible beneficiaries change jobs or employers. A beneficiary of a 
valid visa petition , whose application for adjustment of status remains pending for at least 180 days, may "port" the petition 
to a new job if that job is in the same or similar occupational classification as the position offered in the petition. Here, 
the Beneficiary has indicated that he has ported to a new employed I 
2 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
November 7, 2013. See 8 C.F.R. § 204.S(d). 
Act, 8 U.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)(A) of the Act. Second, the employer 
files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 
204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 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. 
II. REVOCATION OF A PETITION'S APPROVAL 
After granting a petition, USCIS may revoke the petition's approval "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record, a director's 
realization that a petition was erroneously approved may justify revocation. Matter of Ho, 19 I&N 
Dec. 582, 590 (BIA 1988). 
Good and sufficient cause exists to issue a NOIR where the record at the time of the notice's issuance, 
if unexplained or unrebutted, would have warranted the petition's denial. Matter of Estime, 19 I&N 
Dec. 450, 451 (BIA 1987). Similarly, revocation is proper if the record at the time of the decision, 
including any explanation or rebuttal evidence provided by a petitioner, warranted a petition's denial. 
Id. at 452. 
III. THE BENEFICIARY'S EXPERIENCE 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12); Matter o_f Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). In this case, the labor certification 
requires two years of experience in the job offered of administrative assistant. The job duties for the 
offered job listed at Part H.11 of the labor certification include performing routine clerical and 
administrative functions such as drafting correspondence, scheduling appointments, organizing and 
maintaining paper and electronic files, or providing information to callers. The labor certification does 
not permit qualifying experience in an alternate occupation. 
The labor certification states that the Beneficiary worked full-time as a manager at ._I _____ .....,. 
inl J California, from December 17, 2004, to November 7, 2013. As .__ _______ ___, 
detailed at Part K.9 of the labor certification, his duties as manager included buying tobacco products 
and accessories for retail resale to consumer; analyzing the company's past buying trends, sales 
records, and prices to determine maximum value and yield; continually researching potential 
wholesale sources to locate current optimum prices; and selecting, ordering, and authorizing payment 
for tobacco products to ensure adequate inventory with minimal waste due to staleness. None of the 
duties listed for the managerial position at Part K. 9 correspond with the duties of the offered position 
listed at Part H.11. The Beneficiary did not list any other jobs on the labor certification. 
Evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer, and a specific description of the 
duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). The Beneficiary submitted a letter 
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dated July 31, 2015, in support of the petition confirming his self-employment as a manager at I I ~----------~I from December 17, 2004, to the date of the letter. The letter did not 
list the address of the writer as required by 8 C.F.R. § 204.5(1)(3). In addition to listing the duties that 
were listed at Part K. 9 of the labor certification, the letter stated that he supervised employees and 
handled all administrative duties and correspondence with vendors and customers. 
In the NOIR, the Director noted several unresolved inconsistencies in the record regarding the 
Beneficiary's prior experience, including: 
• With the Beneficiary's Form I-485, Application to Register Permanent Residence or Adjust 
Status, filed on August 28, 2015, the Beneficiary submitted a Form G-325, Biographic 
Information form, signed by the Beneficiary on July 12, 2015, stating that he was employed as 
the owner/manager atl I from July 2003 to the present; 
and a letter from the Petitioner dated July 22, 2015, stating that I I will 
continue to employ [the Beneficiary] as an Administrative Assistant on a permanent, foll-time, 
basis upon approval of his application for permanent residency." 
• With the Beneficiary's Form 1-485 filed on March 11, 2016, the Beneficiary submitted a Form 
G-325, signed by the Beneficiary on March 10, 2016, stating that he had not had any 
employment from March 2001 to the present; a letter from the Beneficiary's counsel stating 
that the employment listed on the prior G-325 was based on a typographical error and that a 
summer college student in his office inserted the employment information from the wife's 
form; a declaration from the Beneficiary dated November 31, 2016, 3 stating that he had been 
unemployed from October 14, 2001, until April I 0, 2002, that he was an evangelist witH I I ~rom April 11, 2002, to March 31, 2004, and that he had been unemployed 
from April 1, 2004, onward; and a Form G-325, signed by the Beneficiary on March 6, 2017, 
stating that he has not had any employment from March 2004 to the present. 
In response to the NOIR, the Beneficiary's counsel stated that the Beneficiary worked as a manager 
at ~-------------_,from December 17, 2004, to November 7, 2013; that the 
Beneficiary was an "E-2 spouse working in a family business without receiving wages;" and that he 
mistakenly stated that he was unemployed during that time because he thought that "being 'employed' 
required payroll documentation, which he was not able to provide." In the Director's notice of 
revocation (NOR), the Director rejected counsel's explanation because the Beneficiary listed himself 
as employed on one Form G-325 and unemployed on another. He also noted that the Beneficiary 
provided no evidence in response to the NOIR to support counsel's claims. Assertions of counsel do 
not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). He farther stated that the Beneficiary did not 
address other inconsistencies in the record, including the fact that on his declaration, the Beneficiary 
listed employment as an evangelist withl I from April 11, 2002, to March 31, 
2004, and that employment was not listed on any other documentation in the record. 
Inconsistencies in the record must be resolved with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Doubt cast on any aspect of the proof provided 
may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
3 We note that November 31, 2016, is not an existing date on the calendar. 
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pet1t10n. Id. In the NOR, the Director determined that the Beneficiary did not submit independent, 
objective evidence of his qualifying employment and, thus, that the record did not establish that the 
Beneficiary met the experience requirements of the labor certification. 
In the NOR, the Director also determined that the Beneficiary's purported experience as a manager 
does not meet the requirements of the labor certification, specifically, two years of experience in the 
job offered of administrative assistant. He noted that the Beneficiary's NOIR response asserted that 
the duties performed by the Beneficiary as a manager included many of the same duties as the offered 
position of administrative assistant and, therefore, that experience as a manager satisfies the 
requirements of the labor certification. The Director determined that the labor certification does not 
permit experience as manager to qualify for the offered job, and therefore, that the record did not 
establish that the Beneficiary met the experience requirements of the labor certification. In evaluating 
the job offer portion of the labor certification to determine the required qualifications for the position, 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 4 
As previously noted, the labor certification requires two years of experience in the job offered of 
administrative assistant. It does not permit experience in an alternate occupation. 
On appeal, the Beneficiary's counsel asserts that since he prepared the applications, he can "give 
evidence of mistakes and/or typographical errors made by counsel." He asserts that the errors 
regarding the Beneficiary's prior employment were the result of his errors. 5 However, counsel 
previously indicated that a summer college student made the errors on the Form G-325, not counsel 
himself See Matter of Ho, 19 I&N Dec. at 591-92. Further, the Beneficiary signed the labor 
certification and Forms G-325, certifying under penalty of perjury that the information provided on 
the forms was true and correct. 6 The Beneficiary may not be absolved of his responsibility for the 
truthfulness of the information provided on the forms under these circumstances. See Matter of A.J 
Valdez and Z. Valdez, 27 I&N Dec. 496 (BIA 2018). 
The Beneficiary's counsel farther asserts on appeal that the Beneficiary worked at his family business 
without being paid, and that administrative duties are performed by "low level managers and 
supervisors at small entities." 7 However, he does not provide independent, obiective evidence of the 
Beneficiary's employment or duties atl ] See Matter of Ho, 19 
I&N Dec. at 591-92. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. at 534 n.2. As noted, the labor certification requires two years of experience as an 
administrative assistant and does not permit experience as manager to qualify for the offered job. None 
4 See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); 
Stewart Infra-Red Commissaiy of Mass., Inc. v. Coomey, 661 F .2d 1 (1st Cir. 1981 ). 
5 The record does not contain evidence of a claim of ineffective assistance of counsel. See Matter of Lozada, 19 l&N Dec. 
637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). 
6 The Beneficiary's signature on the labor ceitification establishes a strong presumption that he knew the contents of the 
labor certification application and assented to them. See Hanna v. Gonzales, 128 F. App'x 478,480 (6th Cir. 2005) (stating 
that "the law ... charges [an applicant] with knowledge of the application's contents"); see also, e.g., US. v. Baptist. 759 
F.3d 690,696 (7th Cir. 2014) (holding that the failure to read a waiver form containing clear warnings of its consequences 
was insufficient to prove that the waiver was invalid, absent evidence that the signer was tricked or pressured into signing 
it). 
7 The Beneficiary may not make material changes in an effort to conform a petition to USCIS requirements. See Matter 
of Izummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1988). 
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of the duties listed for the Beneficiary's managerial position at Part K.9 of the labor certification 
correspond with the qualifying duties of administrative assistant listed at Part H.11. Therefore, the 
record does not establish that the Beneficiary met the experience requirements of the labor 
certification. 
Finally, as noted, the Beneficiary stated on his 2016 declaration that he was an evangelist with]~--~ 
I I from April 11, 2002, to March 31, 2004, yet on the Form G-325 signed by the 
Beneficiary on March 10, 2016, he stated that he had no employment from March 2004 onward. The 
Beneficiary's counsel stated on appeal that the Beneficiary's position at.__ ________ __.did 
not involve administrative or management duties, but he did not resolve the inconsistencies in the 
record regarding that employment. See Matter of Ho, 19 I&N Dec. at 591-92. 
Although counsel asserts on appeal that a "more detailed brief will be submitted within 30 days," we 
have not received a more detailed brief from the Beneficiary nearly eight months after the appeal was 
filed. It is the affected party's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 
2012). The affected party must support its assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). It has not done so here. 
In sum, as detailed above, the documents in the record relating to the Beneficiary's prior employment 
conflict with his experience listed on the labor certification, and the inconsistencies regarding the 
Beneficiary's experience have not been resolved with independent, objective evidence. Further, the 
Beneficiary's purported experience as a manager does not qualify him for the offered job of 
administrative assistant. The record does not establish that the Beneficiary has the experience required 
by the labor certification as of the priority date. 
ORDER: The appeal is dismissed. 
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