dismissed EB-3 Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 12, 2023 In Re: 25609696 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Beneficiary sought to obtain lawful permanent resident status based on a job offer as a "business 
manager." The Petitioner , a wholesale and retail importing business, requested his classification under 
the third-preference immigrant visa category as a professional. See Immigration and Nationality Act 
(the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful 
permanent resident status. 
The Director of the Nebraska Service Center initially approved the petition; however, the Director 
subsequently revoked the petition 's approval, concluding that the record did not establish that the 
Beneficiary is qualified for the offered position. However, the Director further stated that the 
Beneficiary is "eligible to receive notices and is hereby granted the opportunity to participate in these 
proceedings because [the Beneficiary satisfied the requirements provided in Matter of V-S-G-, 
Adopted Decision 2017-06 (AAO Nov. 11, 2017)]." The matter is now before us on appeal. 8 C.F.R. 
§ 103.3. 
As an appellant in revocation proceedings, the Beneficiary bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 
2010). We review the questions in this matter de novo. Matter of Christo 's, Inc., 26 I&N Dec. 53 7, 
537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal. 
I. LAW 
Immigration as a professional 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 noncitizen 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 users approves 
the petition, a noncitizen 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.e. § 1255. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, users may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.e. § 1155. If 
supported by a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. 582,590 (BIA 1988). USeIS properly issues a notice of intent to revoke (NOIR) a 
petition's approval if the unexplained and unrebutted record at the time of the notice's issuance would 
have warranted the filing's denial. Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). USeIS 
properly revokes a petition's approval if an affected party's NOIR response does not rebut or resolve 
the alleged revocation grounds. Id. at 451-52. 
The term "professional" is defined in the regulation at 8 e.F.R. § 204.5(1)(2) as follows: 
Professional means a qualified [ noncitizen] who holds at least a United States 
baccalaureate degree or a foreign equivalent degree and who is a member of the 
professions. 
In tum, the regulation at 8 e.F.R. § 204.5(k)(2) defines "profession" as "one of the occupations listed 
in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation." 
The regulation at 8 e.F.R. § 204.5(1)(3)(ii)(e) states that a petition for a professional must be 
accompanied by the following: 
evidence that the [ noncitizen] holds a United States baccalaureate degree or a foreign 
equivalent degree and by evidence that the [ noncitizen] is a member of the professions. 
Evidence of a baccalaureate degree shall be in the form of an official college or university 
record showing the date the baccalaureate degree was awarded and the area of 
concentration of study. To show that the [ noncitizen] is a member of the professions, the 
petitioner must submit evidence showing that the minimum of a baccalaureate degree is 
required for entry into the occupation. 
In addition, a beneficiary must meet all of the education, training, experience, and other requirements 
specified on the labor certification as of the petition's priority date. See Matter o_f Wing's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg'l eomm'r 1977). 
Therefore, to establish eligibility for a professional classification, a petitioner must demonstrate that 
the occupation requires a United States baccalaureate degree or its foreign equivalent as the minimum 
requirement for entry, the beneficiary possesses a United States baccalaureate degree or its foreign 
equivalent required for entry into the occupation, and also that the beneficiary meets the requirements 
for the offered position as stated on the labor certification. 
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II. ANALYSIS 
The priority date in this matter is November 30, 2008, the date on which DOL received the DOL ETA 
Form 9089, Application for Permanent Employment Certification, for processing. Although the 
Director addressed additional issues in the NOIR, as noted above, the Director ultimately revoked the 
approval of the Form 1-140, Immigrant Petition for Alien Workers, solely because the record does not 
establish the Beneficiary is qualified for the offered position. More specifically, the Director observed 
that the ETA Form 9089 requires-in addition to a bachelor's degree in business administration-24 
months of experience in the job offered, whereas experience in an alternate occupation is unacceptable. 
The Beneficiary provided only two jobs in the section of the ETA Form 9089 designated for 
"experience that qualifies the [Beneficiary] for the job opportunity for which the employer is seeking 
certification," the requested job itself as an employee of the Petitioner between October 2004 through 
the priority date, 1 and as a "business manager" for~ __________ __, India, for 40 hours 
per week between June 1997 and January 2000. In tum, the record contains a one-page letter signed 
byl Iidentified as the "manager" of1 ~India, dated January 17, 
2000. The letter asserts that the Beneficiary "worked at I is a [b]usiness [ m ]anager 
from 06.10.1997 to 01.10.2000," and it summarizes his job duties during that period. We note, 
however, that the letter omits whether the Beneficiary worked on a foll-time basis during that period. 
In the decision, the Director noted conflicting statements in the record from the Beneficiary, 
specifically a sworn statement submitted in response to the Director's NOIR, in which he asserted that 
he had "not at all" worked forl lthat his work exrrience in India between 1997 and 
2000 was as "the manager of my company[, ... ] I 'notl land that he 
worked forl t'[p]art time[,] not foll time" between 1997 and 2000, and that the hours 
he worked depended on "[w]hen they called me." 2 
The Director concluded that "the letter of experience from ._______ ___, is not acc ptable I 
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[because] the 
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[B]eneficiary has attested in his Sworn Statement that he never worked for
Consequently, without independent, objective evidence to substantiate the Beneficiary's 
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assertion that he had at least two years of qualifying experience in the job offered, as required by the 
ETA Form 9089, the Director concluded that the record does not establish the Beneficiary is qualified 
for the position. 
On appeal, the Beneficiary generally asserts that he was confused by the form of the questions he was 
asked when he gave his statement, summarized above, and that he was unaware of "what constitutes 
part time and foll time under the USA law." He farther asserts that he "did work 40 hours a week in 
4 days for his previous employer, .. June 10, 1997, to January 10, 2000." As 
noted above, the letter from ._______ __,in the record does not indicate whether the Beneficiary 
1 A labor ceitification employer cannot rely on experience that a noncitizen gained with it, unless the experience was in a 
job substantially different than the offered position or the employer demonstrates the impracticality of training a U.S. 
worker for the offered position. 20 C.F.R. § 656.17(i)(3). Here, the labor ce1iification indicates that the Beneficiary gained 
qualifying experience with the Petitioner in the same job, and the record does not demonstrate the impracticality of training 
a U.S. worker for the offered position. The record therefore does not support the use of experience that the Beneficiary 
gained with the Petitioner. 
2 In a prior NOIR, the Director summarized the discrepancy as follows: "During the interview the [B]eneficiary stated that 
he had never worked for the company I I but had heard ofit." 
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worked as a "business manager" between June 1997 and January 2000 on a full-time basis. Therefore, 
the letter does not confirm the Beneficiary's 24 months of experience in the job offered, as required 
by the ETA Form 9089. See 8 C.F.R. § 204.5(1)(3)(ii)(A) (providing that "[a]ny requirements of 
training or experience for ... professionals ... must be supported by letters from trainers or employers 
giving ... a description of the training received or the experience of the [individual]"). Even if the 
I letter had asserted that the Beneficiary worked as a "business manager" on a full-
time basis, which it does not, the record lacks independent, objective evidence, such as personnel 
records, tax records, or pay stubs, to resolve the material inconsistencies regarding the Beneficiary's 
experience with I I as a result of his conflicting sworn statement. See Matter of Ho, 
19 I&N Dec. at 591-92 (providing that unresolved material inconsistencies may lead us to reevaluate 
the reliability and sufficiency of other evidence submitted in support of the requested immigration 
benefit). 
In sum, the petition's approval was properly revoked for good and sufficient cause, and the affected 
party has not resolved this basis of revocation on appeal. The record does not establish that the 
Beneficiary has the minimum qualifications for the offered job as detailed on the ETA Form 9089. 
We will therefore affirm the revocation of the petition's approval. 
ORDER: The appeal is dismissed. 
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