dismissed EB-3 Case: Bookkeeping

MATTER OF L-E- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: JUL. 06, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a convenience store and· gas station, seeks to employ the Beneficiary as a 
bookkeeper. It requests 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. 
The Director of the Texas Service Center denied the petition on the ground that the Petitioner did not 
establish that the Beneficiary had two years of qualifying experience, as required by the terms of the 
labor certification and for classification as a skilled worker. The Director found that the Petitioner 
and the Beneficiary had not adequately explained evidentiary inconsistencies in the record, and that 
the Petitioner committed fraud or willfully misrepresented material facts concerning the 
Beneficiary's employment history. 
On appeal the Petitioner asserts that the Director's findings were in error and that the evidence of 
record, including the additional documentation submitted in support of the appeal, establishes that 
the Beneficiary had the requisite two years of qualifying experience for skilled worker classification. 
The Petitioner also asserts that it did not commit fraud or willfully misrepresent any material fact in 
this proceeding. .,.. 
Upon de novo review, we will dismiss the appeal, but withdraw the Director's finding of fraud or 
willful misrepresentation of a material fact. 
I. LAW 
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). See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). 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 
2 I 2(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. 
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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 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. 
To qualify for classification as a skilled worker a beneficiary must have at least two years of training 
. or experience. 8 C.F.R. § 204.5(l)(3)(ii)(B). A beneficiary must also meet the specific educational, 
training, experience, or other requirements of the labor certification. Id. All requirements must be 
met by the petition's priority date. 1 See Matter of Wing ·s Tea House, 16 I&N Dec. 158, 159 (Acting 
Reg'I Comm'r 1977). 
II. ANALYSIS 
At issue in this case is whether the Beneficiary has two years of qualifying experience to meet the 
requirement of the labor certification and to qualify for skilled worker classification. The labor 
certification that accompanied the Petitioner's Form 1-140, Immigrant Petition for Alien Worker, 
states that the minimum experience required for the proffered position of bookkeeper is 24 months in 
the job offered. According to the labor certification the Beneficiary met this requirement by working 
as a bookkeeper for , a general store in Pakistan, from March 1, 
2009, to May 1, 2011. This is the only employment experience listed for the Beneficiary on the 
labor certification. 
The record includes extensive, but inconsistent, evidence relating to the Beneficiary's asserted 
employment by , The first area of inconsistency, as discussed by the Director in his denial 
decision, is the · conflicting employment information provided by the Beneficiary on various 
government forms in recent years. The Beneficiary's first filing with the U.S. government, an 
application for a B-2 visa (Form DS-160) in 2010, stated that she was a homemaker with no 
employment experience. The labor certification filed in 2013, however, stated that the Beneficiary 
was employed by from March 1, 2009, to May 1, 2011. Adding to the confusion, a Form 
G-325A, Biographic Information, signed by the Beneficiary in July 2015, which accompanied her 
application for adjustment of status (Form 1-485), stated that the Beneficiary was employed by 
from March 2007 to May 2011. Thus, three differen't employment histories were provided on 
the three different forms. 
Attempting to clarify her employment history, the Petitioner submitted a letter in response to the 
Director's request for evidence (RFE) and another in response to the notice of intent to deny (NOID) 
stating that she: 
• traveled from her home country of Bahrain to Pakistan in December 2006, 2 
• started work at in Pakistan as a bookkeeper on March 1, 2007, 
1 The priority date of a petition, in this case December 9, 2013, is the date the underlying labor certification is tiled with 
the DOL. See 8 C.F.R. § 204.S(d). 
2 The Beneficiary's passport contains a stamp confirming that she entered Pakistan on December 18, 2006. 
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• also got married in Pakistan in March 2007,3 
• continued to work at until May 30, 2008, 
• then went to Australia for six months where she earned an advanced diploma in marketing at 
the 
• returned to Pakistan in February 2009, 
• resumed her employment with on March I, 2009, 
• went to Bahrain with her son after a fight with her husband in' March 20 I 0, 
• was granted a B-2 visa, along with other family members, in May 20 l 0, 
• but returned to Pakistan without visiting the United States and resumed her employment at 
until May I, 2011 .~ 
The Beneficiary asserts that the only break in her employment was the nine-month period between 
the end of May 2008 and the beginning of March 2009, during which time she went to Australia to 
study.5 The Beneficiary claims that the time she spent in Bahrain during the spring of 20106 was 
treated as vacation time by when she returned to work. She also claims that the reason her 
application for a B-2 visa to the United States did not reveal her employment by is because 
her brother completed and submitted the applications for all family members (seven in all) during 
her stay in Bahrain and he did not know about her employment in Pakistan. 7 According to the 
Beneficiary, therefore, she had 15 months of employment during her first stint with and 26 
months of employment during her second stint with thus exceeding the 24-month 
requirement to meet the terms of the labor certification and qualify for classification as a skilled 
worker. 
In support of this alleged employment history, the Petitioner has submitted letters from the two co­
owners of both of whom state that the Beneficiary was employed as a bookkeeper from 
March .I, 2007, to May 30, 2008, departed for "personal reasons," then resumed her position as a 
bookkeeper from March I, 2009, to May l, 2011. The Petitioner has also submitted monthly payroll 
figures for the Beneficiary and other employees of from March 2009 through April 2011. In 
addition, the Petitioner has submitted copies of six invoices of purchases by which bear the 
Beneficiary's signature and handwritten dates between July 2009 and January 2011, and a "daily 
) 
'The record includes a copy of the Beneficiary's marriage certificate showing that she wa~ married on 2007. 
4 The record indicates that the Beneficiary entered the United States with her B-2 visa on , 2011 . 
5 Passport stamps confirm that the Beneficiary entered Australia on 2008, and returned to on 
. 2009 . The record also includes page 2 (of 2) of the Beneficiary 's academic transcript from the 
in Australia, indicating that she earned an "advanced diploma of business (marketing)" 
in a course that ran from September 22, 2008, to January 21 , 2009 . 
6 Passport stamps confirm that the Beneficiary entered Bahrain on 20 I 0, and returned to on 
2010 . 
7 The record includes letters from the Beneficiary 's brother and father confirming that his brother completed the visa 
application forms for all seven family members during the Beneficiary's stay in Bahrain in the spring of 20 I 0. The 
record also includes copies of the nonimmigrant visa appointment confirmations (NIVACs) the family received from the 
Department of State which indicate that the appointments for all seven family members were set for May 3, 20 IO. and 
identified the telephone number and email address of the Beneficiary's brother on all seven NIV ACs for contact 
purposes . 
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Matter of L-E- LLC 
sheet" dated : 2010, which details transactions that day and identifies the 
Beneficiary as an employee. 
The Director found that the daily sheet and the payroll information discussed above was not reliable 
evidence of the Beneficiary's employment because the documents lacked important indicia of 
authenticity and may have been created for the sole purpose of satisfying the eligibility requirements 
of the visa classification sought in this proceeding. While not specifically addressed by the Director, 
the same shortcoming seems to apply to the invoices dating from 2009 to 201 I. The payroll 
information for 2009-2011 is certainly a later created compilation, and there is no authoritative 
evidence on the daily sheet or the invoices that they were actually created on the dates alleged in the 
documents. · The Director concluded that the foregoing documents were insufficient to resolve the 
conflicting information about the Beneficiary's prior employment as provided on her B-2 visa 
application, the biographic information form accompanying her adjustment application, and the 
labor certification in the current proceeding. · 
The Director also expressed skepticism that the Beneficiary's brother, as well as her father, would 
not have known about the Beneficiary's employment in Pakistan at the time the B-2 visa 
applications were completed in 2010 if she had actually been working at for the length of 
time she claims. The Director was not persuaded that the Beneficiary's visa application was filled 
out . by her brother, especially since the application indicated that no assistance had been obtained 
and the Beneficiary had not explained why, as an English-speaking adult, she could not have 
completed her own application. 
Based on the entire record the Director found that the Petitioner had not established the 
, Beneficiary's eligibility for the requested immigration classification, and coupled the denial of the 
petition with a finding of fraud or willful misrepresentation against the Petitioner . 
On appeal, the Petitioner asserts that the documentation submitted, in particular the daily sheet and 
payroll information, is the best evidence the Beneficiary has of her employment by The 
Petitioner states that the Beneficiary does not have any tax records because her annual income was 
always below the threshold amount that required the filing of a personal tax return in Pakistan. As 
described by the Petitioner, the Beneficiary was working in Pakistan's "informal sector" and thus 
was paid in cash. Consequently, she has no earnings statements from that were contemporary 
with her employment. Accordingly, the Petitioner claims that the recapitulation of the Beneficiary ' s 
income and other documentation submitted in this proceeding, supplemented by the letters from her 
former employers at is the best available evidence of the Beneficiary's employment by that 
store during the time periods alleged. As for the 8-2 visa application, the Petitioner asserts that it is 
not unusual for one family member to complete applications for the entire family. Finally, the 
Petitioner contends that it had no reason to doubt the veracity of the documentary evidence 
generated by the Beneficiary in this proceeding, and that it did not willfully misrepresent any 
material fact about the Beneficiary's employment history. ' 
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A lingering weakness of the payroll information, invoices, and daily sheet submitted as evidence of 
the Beneficiary's employment by is that the Petitioner has not explained the source of these 
documents. Even if we accept that the Beneficiary may have been employed by for some 
period of time, and that the declaration on the B-2 visa application that the Beneficiary had never 
worked could plausibly be explained as a mistake by the Beneficiary's brother who filled out and 
submitted all of the family's visa applications, we find that the evidence of record still does not 
establish that the Beneficiary had two years of qualifying experience as a bookkeeper by the priority 
date of December 9, 2013. The reasons are as follows: 
As previously noted, the labor certification (in section K) lists just one prior job experience for the 
Beneficiary - as a bookkeeper for from March 1, 2009, to May 1, 2011. While the 
Beneficiary claims to have worked for during a prior period of time as well - March 1, 2007, 
to May 31, 2008 - it is not listed on the labor certification. The Petitioner has provided no 
explanation for omitting this additional period of alleged employment for the Beneficiary, especially 
since section K specifically instructs the employer to list, in addition to jobs held by the alien during 
the past three years, "any other experience that qualifies the alien for the job opportunity." The fact 
that the DOL did not certify any experience by the Beneficiary with during the time period of 
March 1, 2007, to May 31, 2008, lessens the credibility of the Beneficiary's claim to have acquired 
any qualifying experience during those 15 months. See Matter of Leung, 16 I&N Dec. 2530 (BIA 
1976). 
Moreover, documentation in the record raises further questions about the Beneficiary's claim to have 
worked for in during the entire time period from March 1, 2007, to May 31, 2008. 
As stated on the Form 1-140 petition, the Beneficiary has a son who was born in Bahrain on 
2008. The Beneficiary's passport has stamps showing that she traveled from Pakistan to Bahrain on 
2008, and returned to Pakistan on 2008. There is no evidence in the passport 
of any other travel between those two dates. Thus, it appears that the Beneficiary was not in 
Pakistan for a three and a half month period beginning in late February 2008, and could not have 
worked for until ·May 31, 2008, as alleged. 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Attempts to explain or reconcile such inconsistencies will not suffice without 
competent evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 5 82, 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, such as the letters from co-owners. See id. The 
Petitioner has provided no explanation for the evidentiary discrepancy discussed above. 
Finally, the Petitioner has submitted no specific documentation relating to the Beneficiary's alleged 
employment by during the years 2007 and 2008, in contrast to the later period of employment 
listed on the labor certification (2009-2011 ), for which the Petitioner submitted the aforementioned 
payroll information, a daily sheet, and invoices. 
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Matter of L-E- LLC 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
gained any qualifying experience as a bookkeeper with during the time period of March 1, 
2007, to May 31, 2008. 
With regard to the latter period of alleged employment with the Beneficiary claims that her 
employment ran from March 1, 2009, to May 1, 2011, a period of 26 months. The record shows, 
however, that there was an extensive break in the claimed employment midway through this time 
period when the Beneficiary went to Bahrain with her son in the spring of 2010 following a fight 
with her husband in Pakistan . The Beneficiary's passport has stamps showing that she entered 
Bahrain on 20 l 0, and did not return to Pakistan until · 2010, two and a half months 
later. During this time period the Beneficiary obtained a 8-2 visa and states that she intended to 
travel with her family to the United States before being persuaded to return to Pakistan instead . 
The Beneficiary claims that when she returned to Pakistan she explained her absence from work as a 
"vacation" and resumed her employment with In their letters to USC[S neither of 
co-owners mentioned this extended interruption _ in the Beneficiary's employment. However, the 
payroll information furnished in this proceeding - which lists the Beneficiary's hours worked and 
wages paid as less than a full month in March and June 20 l 0, and "0" in April and May 20 l 0 -­
confirms that the Beneficiary did not work and was not paid during her time in Bahrain. The 
Petitioner describes the Beneficiary's employment by as work in the "informal sector" of the 
Pakistani economy. No formal records appear to have been kept, and the Beneficiary was paid in 
cash for work performed. 
Based on the evidence of record, we find that the Petitioner has not established that the Beneficiary 
was employed by during the two and a half months from March 20, 2010, to June 6, 20 l 0, 
when she was in Bahrain . Therefore, even if we found that may have employed the 
Beneficiary during some of the time period between March l, 2009, and May 1, 2011, the 
interruption of at least two and a half months from March to June 2010 means that the Beneficiary 
did not gain a full 24 months of qualifying experience with as required by the terms of the 
labor certification and for the requested classification of skilled worker . 
At the same time, we find that the evidence in the record does not support the Director's finding of 
fraud or willful misrepresentation of a material fact by the Petitioner. A finding of fraud requires a 
determination that the alien made a false representation of a material fact with knowledge of its 
falsity and with the intent to deceive an immigration officer. Furthermore, the false representation 
must have been believed and acted upon by the officer . See Matter of G:-G-, 7 l&N Dec. 161 (BIA 
1956). A misrepresentation is an assertion or manifestation that is not in accord with the true facts. 
For an immigration officer to find a willful and material misrepresentation of fact, he or she must 
determine that ( 1) the petitioner or beneficiary made a false representation to an authorized official 
of the U.S. government, (2) the misrepresentation was willfully made, and (3) the fact 
misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing 
Hui, 15 I&N Dec. 288, 289 (BIA 1975). The term "willfully" means knowing and intentionally, as 
distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See 
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Matter of L-E- LLC 
Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA (1979). A "material" misrepresentation is 
one that "tends to shut off a line of inquiry relevant to the alien's eligibility." Matter of Ng, 17 I&N 
Dec. 536,537 (BIA 1980). 
In his decision the Director stated that he was denying the petition with a finding of fraud or willful 
misrepresentation of a material fact against the Petitioner. However, he did not analyze the 
Petitioner's actions in accordance with the factors discussed in the above case law, did not 
distinguish whether fraud was found, or whether it was willful misrepresentation of a material fact, 
and provided no explanation for his finding aside from a reference to the Petitioner's certification on 
the Farm I- I 40 that the evidence submitted in support of the petition was true and correct. 
Accordingly, we will withdraw the Director's finding of fraud or willful misrepresentation of a 
material fact against the Petitioner. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary gained at least two years of qualifying 
experience as a bookkeeper by the priority date of December 9, 2013. Accordingly, the Beneficiary 
does not meet the minimum experience requirement of the labor certification and does not qualify 
for classification as a skilled worker. Therefore, we affirm the Director's denial of the petition, but 
withdraw the Director's finding of fraud or willful misrepresentation of a material fact against the 
Petitioner. -
ORDER: The appeal is dismissed. 
Cite as Matter of L-E- LLC, ID# 1323572 (AAO Jul. 06, 2018) 
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