dismissed EB-3 Case: Auto Repair

U.S. Citizenship 
and Immigration 
Services 
In Re: 15796653 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 27, 2021 
The Petitioner seeks to employ the Beneficiary as al !mechanic . It requests classification 
of the Beneficiary under the third-preference, immigrant category as a skilled worker. Immigration 
and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). This employment­
based, "EB-3" category allows a U.S. business to sponsor a foreign national for lawful permanent 
resident status based on a job offer requiring at least two years of training or experience. 
After the filing's initial grant, the Director of the Texas Service Center revoked the petition's approval. 
The Director concluded that the Petitioner did not provide sufficient evidence of the Beneficiary's 
qualifying experience for the offered position. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawathe, 25 I&N 
Dec. 369, 375 (AAO 2010). The Administrative Appeals Office (AAO) reviews the questions in this 
matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . Upon de nova 
review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification . If USCIS approves 
the petition, a foreign national may finally apply 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. 
At any time before a beneficiary obtains lawful permanent residence, however, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by the record, a petition's erroneous approval may justify its revocation. Matter of Ho, 
19 I&N Dec. 582,590 (BIA 1988). By regulation this revocation authority is delegated to any USCIS 
officer who is authorized to approve an immigrant visa petition "when the necessity for the revocation 
comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). USCIS must give the petitioner notice of its 
intent to revoke the prior approval of the petition and the opportunity to submit evidence in opposition 
thereto , before proceeding with written notice of revocation. See 8 C.F .R. § 205 .2(b) and ( c ). A notice 
of intent to revoke (NOIR) "is not properly issued unless there is 'good and sufficient cause' and the 
notice includes a specific statement not only of the facts underlying the proposed action, but also of 
the supporting evidence ." MatterofEstime, 19 I&NDec. 450,451 (BIA 1987) . Per MatterofEstime, 
"[i]n determining what is 'good and sufficient cause' for the issuance of a notice of intention to revoke, 
we ask whether the evidence ofrecord at the time the notice was issued, if unexplained and unrebutted, 
would have warranted a denial based on the petitioner's failure to meet his or her burden of proof." Id. 
II. THE BENEFICIARY'S EXPERIENCE 
The Petitioner here is an autd lrepair business established in 1998 with four employees. 
The underlying labor certification was filed with DOL on February 23, 2001. 1 The labor certification 
states that the offered position requires no training or education and 24 months of experience in the 
offered job ofl !mechanic. No alternate experience is accepted. 
On the labor certification, the Petitioner asserts that he gained experience as al !mechanic 
from October 1996 to March 1999 withl linl !Turkey. No other employment is 
listed. The initial evidence submitted with the petition included a "certificate of merit /employer 
recommendation" from this employer, indicating that the Beneficiary was employed as a motor and 
I !mechanic from November 10, 1996 to October 3, 1999. 
Following the approval of the petition, in January 2012, the Beneficiary attended an immigrant visa 
interview at a U.S. Embassy. The Embassy refused the Beneficiary's immigrant visa and returned the 
petition to USCIS recommending revocation. The Embassy noted that the Beneficiary stated that he 
has no formal or specialized training in automobiles, and has only informal experience working in his 
father's mechanic shop and some part-time experience from 1989 to 1992 while he was a student. The 
Embassy also noted that the Beneficiary claimed on his immigrant visa application to live in! I 
from 1996 to 1999, although he also claimed work experience during this period inl l which i.s . 
nearly 500 miles from I 
The Director sent the Petitioner a NOIR, providing the details of the derogatory information in the 
U.S. Embassy's findings, and giving the Petitioner an opportunity to respond and establish that the 
Beneficiary met the requirement of 24 months of experience as al !mechanic as of the 
priority date . 
The Director issued the NOIR for good and sufficient cause. The address history that the Beneficiary 
provided on the immigrant visa application contradicts the employment listed on the labor certification 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing. See 8 C.F .R. § 204.5( d). 
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and in the experience letter. The Beneficiary's statements during the immigrant visa interview present 
additional discrepancies regarding the nature of his experience. The Petitioner must resolve 
inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Thus, the record lacked sufficient reliable evidence of the 
Beneficiary's qualifying experience for the offered position or the requested visa classification. 
In response to the NOIR, the Petitioner submitted a statement from the Beneficiary clarifying 
statements made during his interview and on his immigrant visa application. The Beneficiary asserts 
that in describing his informal experience in his father's shop and part-time as a student, he was 
answering the interviewing officer's question of how his interest in automobiles began, and not 
describing his formal experience as ~ I mechanic. The Beneficiary also states that he did 
not list his residence inl I from 1996 to 1999 on his application because he considered this to be 
a temporary residence, while his primary residence during this time was inl I where his family 
resided. 
The response also included a copy of the "certificate of merit/employer recommendation" submitted 
with the initial petition, evidence that the Beneficiary owns property inl I and a letter dated 
August 11, 2018 o~ I letterhead, with English translation. The letter, signed 
by ownerl I states that the Beneficiary worked in the company between November l 0, 
1996 and October 3, 1999. The letter further states, "At that time, especially since we could not find 
qualified personnel for the gearboxes of imported automobiles, and at the same time because of his 
managerial qualities, we assigned him for 1.5 years for our branch located a~ I 
site." 
The Director concluded that the Petitioner did not submit independent objective evidence to resolve 
the inconsistencies and verify the Beneficiary's qualifying employment and revoked the petition's 
approval. 
In its timely filed appeal, the Petitioner submits no brief or additional evidence. In a statement titled 
"Reasons for this Appeal," the Petitioner asserts that the Director erred in not informing it of its appeal 
rights in the notice of revocation. It further asserts that the Director erred in not considering the 
evidence submitted in response to the NOIR, including the Beneficiary's "reasonable and plausible 
explanations." 
In adjudicating immigration benefit requests, USCIS regularly reviews affidavits, testimonials, and 
letters from both laypersons and recognized experts. To be probative, a document must generally 
provide: (1) the nature of the affiant's relationship, if any, to the affected party; (2) the basis of the 
affiant's knowledge; and (3) a specific - rather than merely conclusory - statement of the asserted 
facts based on the affiant's personal knowledge. Matter of Chin, 14 I&N Dec. 150, 152 (BIA 1972); 
see also 8 C.F .R. § 103 .2(b )(2)(i) (requiring affidavits in lieu of unavailable required evidence from 
"persons who are not parties to the petition who have direct personal knowledge of the event and 
circumstances"); Matter of Kwan, 14 I&N Dec. 175, 176-77 (BIA 1972); Iyamba v. INS, 244 F.3d 
606, 608 (8th Cir. 2001 ); Dabaase v. INS, 627 F .2d 117, 119 (8th Cir. 1980). A petitioner may submit 
a letter or affidavit that contains hearsay or biased information, but such factors will affect the weight 
to be accorded the evidence in an administrative proceeding. See Matter of D-R-, 25 I&N Dec. 445, 
461 (BIA 2011) ( citations omitted). Probative evidence beyond a letter or affidavit may be considered 
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when submitted to resolve inconsistencies or discrepancies in the record. See Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). Ultimately, to determine whether a petitioner has established eligibility 
for a requested benefit by a preponderance of the evidence, USCIS must examine each piece of 
evidence - both individually and within the context of the entire record - for relevance, probative value, 
and credibility. Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
The record here includes multiple unresolved inconsistencies that cast doubt on the Beneficiary's 
claimed experience. The dates of employment claimed on the underlying labor certification (October 
1996 to March 1999) are not consistent with the dates of employment in the employer letters 
(November 1996 to October 1999). The "certificate of merit/employer recommendation" includes a 
signature over the ink stamped name ofl I This si nature differs si nificantly from the 
signature ofl I on the August 2018 letter fromL_ _____ _,-----,i Further, the 
August 2018 letter states that the Beneficiary was assigned to its branch in~--~ but does not 
mention any assignment inL I as the Beneficiary claimed on the labor certification and at his 
immigrant visa interview. Ut;iresolved material inconsistencies may lead us to reevaluate the reliability 
and sufficiency of other evidence submitted in support of the requested immigration benefit. See 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's 
evidence also reflects on the reliability of the petitioner's remaining evidence. See id. 
Here, the Petitioner relies only on testimonial evidence from the Beneficiary and his former employer 
to establish the Beneficiary's claimed employment experience, without providing independent, 
objective evidence in support of this testimony. Based on inconsistencies in the Beneficiary's 
interview statements, conflicting information from his immigrant visa application, and unresolved 
inconsistencies in the experience documentation, further independent evidence is required. The record 
does not include the Beneficiary's income tax or payroll records to corroborate his claimed 
employment, or other records documenting his claimed temporary residence inl !during his 
employment. Nor does the Petitioner assert that these records are unavailable for any reason. It is 
the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
As the inconsistencies in the record have not been resolved, the Petitioner has not established with 
independent, objective evidence that the Beneficiary possesses the required 24 months of experience 
in the offered position, as required by the labor certification. The Director properly revoked the 
approval of the petition on this basis and the appeal is dismissed on this basis. 
III. THE PETITIONER AS EMPLOYER 
Although not discussed by the Director in the decision, the record does not clearly identify the 
Petitioner as the Beneficiary's intending employer. An employer may petition for a foreign national 
if it is "desiring and intending to employ [him or her] within the United States." Section 204(a)(l)(F) 
of the Act. For labor certification purposes, the term "employer" also means a person or company 
"which proposes to employ a full-time worker at a place within in the United States." 20 C.F.R. § 
656.3. 
We note that the underlying labor certification was filed bye::] Stars I I Service 
Corporation. The Petitioner lists its name on the petition asc=JStar.--1 -~-----r-1 C-o-rp~oration. 
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However, the cover letter accompanying the petition lists the Petitioner's business name as D Stars 
I I Service Corporation d/b/a I t The record includes corporate 
income tax returns for 2001 through 2001 In 2001, and in 2005 to 2007 the tax returns list the 
business name as D Starl Service Co oratio ' However, 
the tax returns for 2002 to 2004 do not includ .__ _______ __,in the business name. 
A search of the New York State Department of State, Division of dorportions, website reveals that 
the Petitioner's business was registered ing1998 under the nam Starsl I Service 
Corporation and was dissolved onl2012. See Office of the New York State Department 
of State available at https://appext20.dos.ny.gov/corp _public/corpsearch .entity _search_ entry (last 
accessed April 6, 2021). No fictitious name is listed. The New York State Department of State, 
Division of Corporations, website also reveals that a business namedl I I I operating at the Petitioner's address, was registered inc=] 2009. This business also lists no 
fictitious name. Therefore, it appears that the Petitioner's registered business name differs from the 
name listed o~ the petition and its tax returns. Further, it appears that the Petitioner andl I I are two separate entities operating at the same address. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. See Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner does not appear to be an operating business at this time. A labor certification is only valid 
for the particular job opportunity stated on the application form. 20 C.F.R. § 656.30(c). If the 
petitioner is a different entity than the labor certification employer, then it must establish that it is a 
successor-in interest to that entity. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 
(Comm'r 1986). With any further filings, the Petitioner must submit evidence to explain the 
inconsistencies in its name and to demonstrate its good standing and ongoing business operations. 
Although the Petitioner has not asserted that another entity is its successor, if another entity claims to 
be a valid successor-in-interest to the Petitioner, we note that a valid successor-in-interest relationship 
exists if three conditions are satisfied. First, the successor must fully describe and document the transfer 
and assumption of the ownership of the predecessor by the successor. Second, the successor must 
demonstrate that the job opportunity is the same as originally offered on the labor certification. Third, 
the successor must establish by a preponderance of the evidence that it is eligible for the immigrant visa 
in all respects. Id. 
Because we cannot affirmatively find that the Petitioner and the labor certification employer are the 
same entity or that the Petitioner remains the intending employer of the Beneficiary, we will also 
dismiss the appeal on this basis. 
IV. CONCLUSION 
The Petitioner has not established that the Beneficiary meets the minimum experience requirements 
as set forth on the accompanying labor certification, or that it is eligible for the requested benefit in all 
respects. The record includes unresolved inconsistencies with respect to the Beneficiary 's claimed 
employment history and the status of the Petitioner's business. 
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It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). The 
Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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