dismissed EB-3 Case: Bakery

U.S. Citizenship 
and Immigration 
Services 
In Re: 16227834 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 16, 2021 
The Petitioner, a bakery, sought to employ the Beneficiary as a procurement clerk. The company 
requested her classification under the third-preference, immigrant visa category for skilled workers. See 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
After first approving the filing, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that the Petitioner didn't demonstrate the Beneficiary's possession 
of the minimum employment experience required for the offered position . 
As an appellant in revocation proceedings, the Beneficiary bears the burden of establishing eligibility 
for the requested benefit by a preponderance of evidence. See Matter of Ho, 19 I&N Dec. 582,589 
(BIA 1988) (discussing the burden of proof); see also Matter of Chawathe, 25 I&N Dec. 369,375 
(AAO 2010) (discussing the standard of proof). 1 Upon de novo review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and (2) the employment of a 
noncitizen in the position won't harm wages and working conditions of U.S. workers with similar jobs. 
See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
USCIS. See section 204 of the Act. Among other things, USCIS determines whether a noncitizen 
beneficiary meets the requirements of a certified position and a requested immigrant visa category. 
8 C.F.R. § 204.5(1). 
1 U.S. Citizenship and Immigration Services (USCIS) treats beneficiaries in revocation proceedings as affected parties if 
they: 1) qualify for "portability" under section 204G) of the Act, 8 U.S.C. § l 154(j); and 2) properly requested to port. 
MatterofV-S-G-Inc ., Adopted Decision2017-06 (AAONov. 11, 2017) . Consistent with V-S-G-, the Director found the 
Beneficiary eligible fortrea tment as an affected party. We may therefore consider her appeal. 
Finally, if USCIS approves a petition, a designated non citizen may 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. 
"[ A ]t 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 a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
USCIS may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and 
unrebutted record at the time of the NOIR' s issuance would have warranted the filing' s denial. Matter 
ofEstime, 19 I&N Dec. 450,451 (BIA 1987). USCISproperlyrevokes a petition's approval if a NO IR 
response doesn't rebut or resolve the stated revocation grounds. Id. at 451-52. 
II. THE REQUIRED EXPERIENCE 
A beneficiary must meet all DOL-certified job requirements of an offered position by a petition's 
priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). This 
petition's priority date is May 30, 2014, the date DOL accepted the accompanying labor certification 
application for processing. See 8 C.F.R. § 204 .5( d) ( explaining how to determine a petition's pri01ity 
date). 
In assessing a beneficiary's qualifications for an offered position, USCIS must examine the job-offer 
portion of an accompanying labor certification to determine the position's minimum job requirements. 
USCIS may neither ignore a certification term nor impose additional requirements. See, e.g., Madany 
v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. l 983)(holdingthat "DOL bears the authority for setting the 
content of the labor certification") ( emphasis in original). 
The accompanying labor certification states the minimum requirements of the offered position of 
procurement clerk as two years of experience in the job offered. The position requires neither training 
nor education. The Petitioner stated that it won't accept experience in an alternate occupation. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, she gained more 
than two years of full-time, qualifying experience. She stated that a bakery in South Korea employed 
her as a procurement clerk from March 2003 to June 2005. 
To support claimed experience, a party must submit a letter from a beneficiary's former employer. 
8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must include the employer's name, title, and address, and a 
description of the beneficiary's experience. Id. If such a letter is unavailable, USCIS will consider 
other documentation of a beneficiary's experience. 8 C.F.R. § 204.5(g)(l ). 
At the time of the petition's filing in November 2015, the Petitioner submitted a "work certificate" 
from the South Korean bakery listed on the labor certification. Consistent with the Beneficiaty's 
attestation, the certificate states the bakery's employment of her as a procurement clerk from March 
2003 to June 2005. 
2 
The Director's NOrR, however, alleges inconsistencies in the Beneficiary's claimed, qualifying 
experience. The NOrR states that, at an interview regarding the Beneficiary's application for 
adjustment of status in 2017, she told a users officer that a school in South Korea employed her from 
January 2005 to November 2006. She also reportedly told the officer that she began working for 1he 
bakery in January 2003, not in March 2003 as she attested on the labor certification. The NOrR 
requests additional evidence of her claimed, qualifying experience, which "may include, but is not 
limited to" payroll records, tax records, or affidavits from former employers. 
The inconsistent start dates of employment at the South Korean bakery cast doubt on the Beneficiaty's 
claimed, qualifying experience at the business. A party must resolve inconsistencies of record wi1h 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 r&N Dec. at 591. 
Also, the Beneficiary's stated work at the school would have overlapped a pmiion of her claimed 
tenure at the bakery, fromJanuary2005 to June 2005. The purpmied, concunentwork casts doubt on 
her bakery experience, especially on its claimed, full-time nature. Thus, the NOrR' s allegations would 
have warranted the petition's denial for insufficient evidence of qualifying experience. The Director 
therefore issued the NOrR for good and sufficient cause. 
In an affidavit in her NOrR response, the Beneficiary stated that she lacks tax records from her tenure 
at the bakery but worked there full-time from March 2003 to June 2005. 2 She also attested that, during 
her full-time employment at the bakery from January 2005 to June 2005, she worked four hours a day 
at the school. 
The Beneficiary's NOrR response doesn't resolve the inconsistencies in her claimed, qualifying 
experience. The Beneficiary didn't explain why she provided different staii dates of employment at 
the South Korean bakery. See Matter of Ho, 19 r&N Dec. at 591 (requiring a party to resolve 
inconsistencies of record). The record also lacks evidence corroborating her claimed, part-time 
employment at the school from January 2005 to June 2005. 
On appeal, the Beneficiary asserts that users' request for independent, documentary evidence of her 
prior employment is "excessive and unreasonable," as she worked for the South Korean bakery and 
school about 15 years ago. She argues that statutes oflimitations on most federal crimes and document 
retention periods for U.S. financial institutions don't exceed five years. 
We acknowledge the potential difficulty in obtaining documentary evidence of distant employment. 
As previously indicated, however, users may revoke a petition's approval "at any time" before a 
beneficiary obtains lawful permanent residence. Section 205 of the Act. Also, the doubts on the 
Beneficiary's claimed experience stem from her own inconsistent statements. Thus, she must "resolve 
the inconsistencies by independent objective evidence." Matter of Ho, 19 r&N Dec. at 591. 
Also as previously indicated, users will consider other documentation in lieu of unavailable, 
requested evidence. 8 e.F.R. § 204.5(g)(l ). The Beneficiary, however, hasn't established the 
unavailability of additional, documentary evidence of her claimed experience. She stated that she 
2 Pursuant to 8 C.F.R. § 205.2(a), (b) andMatterofV-S-G-,supra, the Directoralsosenta NOIRto the Petitioner. USCIS, 
however, didn'treceivea response from the business. 
3 
doesn't have tax records from her tenure at the South Korean bakery. But she hasn't demonstrated the 
records' unavailability or explained whether she tried to obtain those or other documents. 
Case law requires the Beneficiary to resolve the inconsistencies ofrecord with objective evidence, and 
Department of Homeland Security regulations allow her flexibility in the types of evidence she may 
submit. Thus, users' request for independent, documentary evidence of the Beneficiary's claimed, 
qualifying experience was neither excessive nor unreasonable. 
The Beneficiary also asserts that she should have received notice of"the obligation to retain copies of 
pay records from 15 years ago." Contrary to the Beneficiary's assertion, however, she didn't need to 
retain copies of bygone pay records. As previously indicated, to demonstrate qualifying experience, 
beneficiaries of skilled-worker petitions generally need only provide letters from fom1er employers. 
8 C.F.R. § 204.5(1)(3)(ii)(A). The need for additional, conoborating evidence stems from the 
Beneficiary's own, inconsistent statements. See Matter of Ho, 19 r&N Dec. at 591. Also, as 
previously discussed, resolution of the discrepancies doesn't necessarily require submission of pay 
records. See 8 C.F.R. § 204.5(g)(l). 
In addition, pursuant to case law and regulations, the NOrR sufficiently notified the Beneficiary of the 
need for additional evidence of her qualifying experience. See 8 C.F.R. § 205 .2( a), (b ); see also Matter 
of V-S-G- Inc., supra. users needn't provide her with additional notice. See Con tr eras v. Atty Gen. 
of the United States, 665 F.3d 578, 585-86 (3d Cir. 2012) (holding that due process rights under the 
Fifth Amendment do not extend to Form r-140 beneficiaries in petition proceedings). 
For the foregoing reasons, the Beneficiary hasn't demonstrated her claimed, qualifying experience for 
the offered position. We will therefore affirm the revocation of the petition's approval. 
Although unaddressed by the NOrR, the record contains additional inconsistencies in the Beneficiary's 
claimed, qualifying experience. On a November 2006 application for a U.S. nonimmigrant student 
visa, the Beneficiary attested that she began working at the school in June 2004, not in January 2005 
as she told the users officer at her adjustment interview. Her additional period of employment at the 
school would further overlap her claimed, qualifying experience at the South Korean bakery. In 
addition, asked on the visa application if she had work experience beyond her tenure at the schooL the 
Beneficiary omitted her purported employment by the bakery, indicating "None" in the two spaces 
provided for additional, prior employers. These additional discrepancies cast further doubt on the 
Beneficiary's claimed, qualifying experience. See Matter of Ho, 19 r&N Dec. at 591 (stating that 
doubt cast on any aspect of a petitioner's proof may lead to a reevaluation of the reliability and 
sufficiency of remaining evidence of record). 
The Director didn 'tnotify the Petitioner or Beneficiary of these additional discrepancies. Thus, in any 
future filings in this matter, the Petitioner or Beneficiary must also submit additional evidence 
resolving these inconsistencies and demonstrating her claimed, qualifying experience for the offered 
position. 
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III. ABILITY TO PAY THE PROFFERED WAGE 
Also unaddressed by the Director, the record at the time of the NOIR's issuance didn't establish the 
Petitioner's ability to pay the proffered wage of the offered position. 
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's pri01ity 
date until a beneficiary obtains lawful pe1manent residence. 8 e.F.R. § 204.5(g)(2). Evidence of 
ability to pay must generally include copies of annual reports, federal tax returns, or audited financial 
statements. Id. 
In assessing ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date onward. If a petitioner didn't annually pay the full 
proffered wage or didn't pay a beneficiary at all, users examines whether the business generated 
annual amounts of net income or net current assets sufficient to pay any differences between the 
proffered wage and the wages paid. If net income and net current assets are insufficient, users may 
consider other factors affecting a petitioner's ability to pay the proffered wage. See Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 3 
The accompanying labor ce1iification states the proffered wage of the offered position of procurement 
clerk as $39,333 a year. As previously indicated, the petition's priority date is May 30, 2014. 
users approved the petition in November 2015. Thus, at the time of approval, the Petitioner had to 
demonstrate its ability to pay the proffered wage in 2014 and 2015. 
The Petitioner didn't claim to have employed the Beneficiary and didn't submit any evidence that it 
paid her in 2014 or 2015. Thus, based solely on wages paid, the business didn't establish its ability to 
pay the proffered wage. 
The Petitioner submitted a copy of its federal income tax return for 2014. The tax return reflects 
amounts of both net income and net current assets exceeding the annual proffered wage of $39,333. 
Thus, the Petitioner appeared to demonstrate its ability to pay the proffered wage in 2014. eontraiy 
to 8 e.F.R. § 204.5(g)(2), however, the record lacked required evidence of the Petitioner's continuing 
ability to pay in 2015. The record therefore didn't establish the business's continuing ability to pay 
the proffered wage. 
Moreover, users records indicate the Petitioner's filing of a F01m I-140 petition for another 
beneficiary. A petitioner must demonstrate its ability to pay the proffered wage of each petition it files 
until a beneficiary obtains lawful permanent residence. 8 e.F.R. § 204.5(g)(2). This Petitioner 
therefore had to demonstrate its ability to pay the combined proffered wages of this petition and any 
others the business filed that were pending or approved as of this petition's priority date or filed 
thereafter but before the petition's approval. See Patel v. Johnson, 2 Fed.Supp.3d 108, 124 (D. Mass. 
3 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St.Donuts,LLCv. Napolitano, 558 F.3d 111,118 (lstCir.2009);Rahman v. Chertoj/;641 F. Supp.2d 349,351-52 (D. 
Del. 2009). 
5 
2014) ( affirming our revocation of a petition's approval where, as of the filing' s grant, the petitioner 
didn't demonstrate its ability to pay the combined proffered wages of multiple petitions). 4 
USCIS records indicate both the Petitioner's filing and the Agency's approval of the business's other 
Form I-140 petition in February 2015. Also, USCIS records identify the other petition's priority date 
as May 30, 2014, the same as this petition's priority date. Thus, the Petitioner had to demonstrate its 
ability to pay the combined proffered wages of this and its other petition in 2014 and 2015. 
The record, however, didn't include the proffered wage of the Petitioner's other petition. USCIS 
therefore couldn't calculate the total, combined proffered wages that the business had to demonstrate 
its ability to pay in 2014 and 2015. For this additional reason, the Petitioner didn't demonstrate its 
ability to pay the proffered wage. 
The NOIRs didn't notify the Petitioner or Beneficiary of this additional, potential ground of 
revocation. Thus, in any future filings in this matter, the Petitioner or Beneficiary must provide the 
proffered wage of the Petitioner's other Form I-140 petition and submit copies of the business's annual 
report, federal tax return, or audited financial statements for 2015. The Petitioner or Beneficiaty may 
also submit additional evidence of the Petitioner's ability to pay, including proof of any payments the 
business made to applicable beneficiaries in relevant years or materials supp01iing the factors stated 
inSonegawa. See12I&NDec.at614-15. 
IV. CONCLUSION 
The Beneficiary hasn't demonstrated her possession of the minimum experience required for the 
offered position. We will therefore affirm the revocation of the petition's approval. 
ORDER: The appeal is dismissed. 
4 The Petitionerneedn't demonstrate its ability to pa yprof-fored wages of petitions that it withdrew or, unless pending on 
appeal or motion, that USCIS rejected. denied, or revoked. The Petitioner also needn't demonstrate its ability to pay 
proffered wages before the corresponding priority dates of their petitions or after the dates corresponding beneficiaries 
obtain lawful permanent residence. 
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