dismissed EB-3 Case: Carpentry

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-A-T-S-INC. 
APEAL OF NEBRASKA SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 25, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a trucking company, seeks to employ the Beneficiary as a carpenter. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant classification. 
See 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 Nebraska Service Center denied the petition. The Director concluded that the 
Beneficiary had previously entered into a marriage for the purpose of evading immigration laws and, 
therefore, was subject to a bar under section 204(c) of the Act which prevented approval of the 
petition. 
The matter is now before us on appeal. The Petitioner asserts that the Director ignored "a substantial 
amount of evidence ... about the good faith of [the Benelkiary's] marriage.'' The Petitioner 
acknowledges the discrepancies in the interview testimony cited by the Director, but states that these 
were "inconsistencies, not misrepresentations." Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 204(c) of the Act provides for the following: 
Notwithstanding the provisions of subsection (b)
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no petition shall be approved if: 
(I) the alien has previously been accorded, or has sought to be accorded, an 
immediate relative or preference status as the spouse of a citizen of the United 
States or the spouse of an alien lawfully admitted for permanent residence, by 
reason of a marriage detem1ined by the [director] to have been entered into for the 
purpose of evading the immigration laws; or 
1 
Subsection (b) of section 204 of the Act refers to preference visa petitions that are verified as true and forwarded to the 
State Department for issuance of a visa. 
Matter of T-A-T-S-Inc. 
(2) the [director] has determined that the alien has attempted or conspired to enter 
into a marriage for the purpose of evading the immigration laws. 
The regulation 8 C.F.R. § 204.2(a)( I )(ii) states in pertinent part: 
Section 204(c) of the Act prohibits the approval of a visa petition filed on behalf of an 
alien who has attempted or conspired to enter into a marriage for the purpose of 
evading the immigration laws. The director will deny a petition for immigrant visa 
classification filed on behalf of any alien for whom there is substantial and probative 
evidence of such an attempt or conspiracy. regardless of whether that alien received a 
benefit through the attempt or conspiracy. Although it is not necessary that the alien 
have been convicted of, or even prosecuted for, the attempt or conspiracy, the 
evidence of the attempt or conspiracy must be contained in the alien's file. 
The standard for reviewing section 204(c) appeals is laid out in Matter of Tawfik, 20 I&N Dec. 166 
(BIA 1990). In Tawfik, the Board held that section 204(c) may only be applied if there is substantial 
and probative evidence in the record of proceeding to support a reasonable inference that the prior 
marriage was entered into for the purpose of evading immigration laws. See also Malter of Kahy, 
I 9 J&N Dec. 803 (BIA 1988); Matter of Agdinaoay, 16 J&N Dec. 545 (BIA I 978); lvfatter of La 
Grotta, 141&N Dec. 110 (BIA 1972). 
Tawfik at 167 states the following, in pertinent part: 
Section 204(c) of the Act ... prohibits the approval of a visa petition filed on behalf 
of an alien who has attempted or conspired to enter into a marriage for the purpose of 
evading the immigration laws. Accordingly, the district director must deny any 
subsequent visa petition for immigrant classification filed on behalf of such alien, 
regardless of whether the alien received a benefit through the attempt or conspiracy. 
As a basis for the denial it is not necessary that the alien have been convicted of, or 
even prosecuted for, the attempt or conspiracy. However, the evidence of such 
attempt or conspiracy must be documented in the alien's file and must be substantial 
and probative. 
(citing Matter of Kahy, 19 J&N Dec. 803 (BIA 1988); Matter ofAgdinaoay, 16 l&N Dec. 545 (BIA 
1978); Matter of La Groll a, 14 l&N Dec. 110 (BIA 1972): and 8 C.F.R. § 204.1 (a)(2)(iv) (1989)). 
Regarding the application of the bar to approval of a petition described in section 204(c), the court in 
Mendoza v. Secretary, Department of Homeland Security, X 51 F.3cl 1348 (11th Cir. 2017) stated: 
... the marriage-fraud bar applies where the attorney general 'determine[s].' based on 
'substantial and probative evidence' that the beneficiary previously sought a visa 
based on a marriage entered into for the purpose of circumventing the immigration 
laws. 8 U.S.C. § 1154(c) (emphasis added); 8 C.F.R. § 204.2(a)(1)(ii). But this 
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dictate must be read in conjunction with § 1361, which puts the onu s on the petitioner 
to show that the beneficiary is 'eligible' for a visa. And it is reasonable to conclude 
that, where there is unrebutted evidence suggesting that the beneficiary previousl y 
sought a visa by operation of a fraudulent marriage, the petitioner failed to carry her 
burden of proving the beneficiary's ultimate eligibility . 
Citing Matler of Kahy, 19 1&1\' Dec. at 80-07, the com1 in Mendoza continued, "the mere presence 
of evidence in the record suggesting that the marriage-fraud bar applie s, rather than a definitive 
finding of previous maniage fraud , is sufficient to requ ire the petitioner to prove that the marri age­
fraud bar does not apply.'' 
rr. PROCEDUR.A.L HISTORY 
The Beneficiary's prior family-based immigr ant visa petition , a Form [-130, Petition for Alien 
Relative (Form J-130), Jiled by (M.O.), the Beneficiary's then-,vife, 2 was submitted 
on March 29, 1997. The Beneficiary stated that he met M.O. in August 1996 and the record contains 
a marriage certificate showing that the Beneficiary married M.O. on 1997, in 
l\ew York . The Director oC the Newark, Ne'<v Jersey. District Offic e issued a denial dec ision on 
March 6, 2000, detailing 14 discrepancies between interview question responses by the Beneficia ry 
and M.O. and concluding that the "marriage is strictly for [the Beneficiary] to pro cure permanent 
residence in the United States and for no other reas on." The Petitioner filed the current 
employment-based Form 1-140 immigrant petition on November 20, 20 l5. The Director denied the 
cunent petition because the evidence of record revealed that the Beneficiar y had previously entered 
into a marriage for the purpo se of evading immi gration laws and was subj ect to a bar under section 
204(c) ofthe Act. 
Prior to the I-130 denial, the couple was inter viewed by the :.Jewark , New Jersey , District Offi ce. 
Slokes v. !l•/S, 393 F. Supp . 24 (S.D.N.Y. l975) , set forth procedur es for government al investi gations 
of fraud. In marriage-based immigrant petitions, this involves separating the spouses and asking the 
same quest ions to each spouse separately. During their separate Stokes interviews on Januar y 27, 
1999 , the Beneficiary and his then-spous e provided contr adicto ry answer s in response to questions 
(listed below in the order the questions v.'ere asked) about their home and daily routine. 
In response to questi ons about their independent residences prior to marriage: 
• The Beneficiary stated that he had been inside her previous residence one time; and, 
• M.O. stated that she did not know if he had ever been inside her previous residence. 
2 
The record contains a court decree showing the couple divorced on 200 I. 
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1\1atter afT-A- T-S- Inc. 
In response to questions about details of basic household chores such as laundry: 
• The Beneficiary stated that they had traveled three blocks to the laundromat 3 days before the 
date of the interview; and, 
• M.O. stated that they had driven to the laundromat 3 or 4 days before the interview, but could 
not state how long it took to get there. 
In response to questions about household appliances: 
• The Beneficiary stated that their hair dryer was white; 
• M.O. stated that their hair dryer was black; 
• The Beneficiary stated that they had four televisions; 
• M.O. stated that they had two televisions: 
• The Beneficiary stated that they used a standing fan in their bedroom during the summer, and 
that they had returned the fan to his sister-in-law; and, 
• M.O. was unable to state if they used a standing fan or a table fan, and speculated that the fan 
was possibly stored in the closet of their bedroom. 
In response to questions regarding each others' families: 
• The Beneficiary stated that his then-wife had two brothers, and that she was the middle child; 
• M.O. stated that she was the oldest of three siblings; 
• The Beneficiary stated that all of his siblings lived in the United States except his youngest 
sister, who lived in Ecuador; 
• M.O. stated that she did not know if the Beneficiary's sister in Ecuador was his oldest or 
youngest sibling; 
• The Beneficiary stated that he was the fifth child in his family; and, 
• M.O. stated that she did not know if the Beneficiary was oldest, youngest, or in the middle of 
his family. 
In response to questions regarding their daily household routines: 
• The Beneficiary stated that he works Monday through Friday; 
• M.O. stated that she did not know if the Beneficiary went to work on the Saturday before 
their interview; 
• The Beneficiary stated that he normally returns home from work at 7 p.m.: 
• M.O. stated that the Beneficiary normally returns home from work at4 or 5 p.m.; 
• The Beneficiary stated that M.O. went to bed at 10:30 p.m. on the night before the interview; 
• M.O. was unable to state what time she went to bed on the night before the interview; 
• The Beneficiary stated that they did not set an alarm for the morning of the interview; and, 
• M.O. stated that she set an alarm for 8 a.m. on the morning of the interview. 
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Maller rifT-A-T~s·- Inc . 
fn respo nse to questions regard ing their academic backgrounds: 
• The Beneficiar y stated that M.O. stopped working 6 mon ths after grad uating high schoo l; 
and, 
• M.O. stated that she did not graduate high school and does not have a diploma. 
ln response to questions regarding their household celebrations: 
• The Beneficiary stated that they ce lebrated the past year's Thanksgiving with his brother's 
fami ly, and that his brother purchased the turkey; 
• M.O. stated that she did not know who purchased the turkey, and that she did not remember 
whe ther they even had turkey; 
• The Beneficiary stated that on M.O. 's last bitthday he gave her a necklace in the living room; 
• M.O. was unable to state 
where the Beneficiary gave her the necklace ; 
• The Beneficia ry stated that his wife had a birthd ay cake for her last birthday; and, 
• M.O. was unable to state 
whether she had a cake on her last birthday. 
The United States Citizenship and Immi gration Serv ices District Directo r, Ne\:vark, New Jersey, 
denied the Form I-130 petition afte r reviewing the testi monies g iven by husband and wife. 
The District Director listed the discrepa nt answers to the intervi ew questio ns regarding their 
residences prior to marriage , house ho ld chores and appliances, each others' families, their dail y 
routines, their academic backgrounds, and their family celebration s. After describing in detail the 
discrepancies between the interview responses from the Beneficiary and M.O. , the Distr ict Director 
concluded that the "numerous discrepancies . .. more than adequ ately establis h that this marriage is 
strictly for [the Beneficiary] to procure permanent residence in the United States ." The 
Beneficiary 's then-wife appealed the District Director's decision to the Board of Immi gration 
Appeals (the Board). Th e Board dismissed the appea l, finding that the appeal "fa ils to set forth valid 
arguments which would warra nt a reversal of the d istrict director 's decision ." 
The Petition er subsequentl y fi led the current Form I-140 employment-ba sed immi grant petition .3 
The Director issued a notice of intent to deny (NO lO) based on the discrepancies between the 
testimonies ofthe Benefi ciary and his then-wife durin g their marriage interviews, and noted that "the 
3 We note that the Petition er previously fi led two other F orm I-140 petitions on beha lf of the Beneficia ry, one under 
receipt number and another under rece ipt number The Director approved the 
first peti tion , but subsequent ly revoked the approva l when he determin ed that the Beneficiary was under a 
marr iage-fraud bar pursuant to section 204(c) of the Act. Tawfik states that the marriage -fraud bar may be applied at any 
time. !d. at 168 (citing Malter ofSa msen, 15 l&N Dec . 28 (BIA 1974)). The Petitione r appea led the Director ' s decision, 
and we dismissed the a ppeal afte r we determined that there was suffic ient evidence in the record of proceed ing to 
suppor t a reaso nable inference that a fraudu lent marriage ex isted and determined that the Benefic iary was under a 
marriage- fraud bar pursuant to sect ion 204( c) of the Act. The Director denied the seco nd pet ition a fter determining that 
there was suffic ient evidence in the record of proceed ing to support a reason able inference that the Beneficiar y had 
entered into a fraudulent man· iage and that the Beneficiar y was under a marri age-fraud bar pursuant to section 2 04(c) of 
the Act. 
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Maller ofT-A-T-S-Ine. 
evidence submitted by the petltloner. which included documentation showing commingling of 
financial resources and affidavits of third parties having knowledge ofthe bona fides of the marriage 
relationship, was insufficient to overcome evidence in the record of proceeding that supported a 
reasonable inference that the petitioner's prior marriage ... was entered into for the purpose of 
evading immigration laws." 
In response to the NOID, the Petitioner submitted copies of joint income tax returns from 1998 and 
1999 and joint bank account statements from six months in 1999, as well as personal statements 
from the Beneficiary, his ex-wife, and trom third parties. We note that the record contains no 
evidence of the Beneficiary and M.O. living together as husband and wife from 2000 until their 
divorce in 2001. We also note that the bank statements misspell M.O.'s name, and reflect just three 
to five transactions per month in February, March, April, June, September, and October 1999 and an 
average monthly closing balance of $64.29. The Director concluded that the joint tax returns and 
joint bank account statements were not sut1icienl evidence to overcome the "numerous discrepancies 
and inconsistencies" in their testimony. The Director denied the petition after concluding that the 
Beneficiary was under a marriage-fraud bar pursuant to section 204(c) of the Act. 
Ill. ANALYSIS 
On appeal, counsel asserts that the Director ignored ·'a substantial amount of evidence ... about the 
good faith of [the Beneliciary's]marriage." Counsel points to previously submittedjoint income lax 
returns and joint bank statements, and also refers to the previous statements from the Beneliciary and 
his ex-wife explaining their testimony during their interviews. However, the record reveals that this 
evidence was not ignored by the Director; rather, the Director addressed this evidence in both his 
NOID and in his denial, and found this evidence to be insufiicient to overcome the inconsistencies in 
the testimony of the Beneficiary and his former wife. 
Counsel stales that the discrepancies cited by the Director were "inconsistencies, not 
misrepresentations" and characterizes the noted discrepancies as minor. Counsel concludes that the 
inconsistencies "do not necessarily establish a fraudulent maniage. 
When the couple were each interviewed regarding numerous facets of their relationship, the 
Beneficiary and his wife repeatedly provided contradictory information 4 While counsel now 
characterizes these discrepancies as minor, the answers were inconsistent on basic elements of their 
claimed daily life together including what time of day the Beneliciary returned home from work, 
whether he worked on Saturdays, her education level, the distance to the laundromat, the basic 
4 In their personal statements, which are undated, the Beneficiary and his ex-vvife challenge some of the answers 
attributed to them in their interviews. However, we note that the USCIS Officer who conducted the Stokes interviews 
with the Beneficiary and his then-wife documented their testimonies in a contemporaneous record. We find a 
contemporaneous record of testimony to be more reliable than an amended testimony made sometime after the fact. 
USC IS may reject a fact stated if it does not believe that fact to be true. Section 204(b) of the Act, 8 U.S.C. § 1154(b); 
see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bake!)' Shop. Inc. v. Nelson, 705 F. Supp. 7, 
10 (D. D.C. 1988); Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D. D.C. 2001). 
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app liances present in their home, and they even differed on whether they had used an alarm clock on 
the very m orning of their interview. 
In both the NOID and the denia l, the Directo r acknow ledged the joint income tax retums and joint 
bank statements and stated that these doc uments •Nere not sufficient to overco me the d iscrepancies 
noted in the file. J\1atter of Ho, 19 T&N Dec. 582, 591-592 (BfA 1988) states : "lt is incumbent on 
the petitioner to resolve any incon sistencies in the record by independ ent objective evidence, and 
attempt s to explain or reconcile such inconsistencies, absent comp etent objective evidence pointing 
to where the truth, in fact, lies, will not suffice." On appeal, the Petitioner provides copies of 
documents that they had submitted previous ly, includi ng personal statements trom the Beneficiary 
and fro m his former wife seek ing to explain the discrepancies and i nconsistenc ies in their previous 
testi mony. The Petitioner also submi ts cop ies of state ments that they had sub mitted prev iously from 
the coup le's friends, relatives, neighbors, and co-wo rkers, who relate stories of the couple's 
marriage. However, we note that the record contains no photographs o f the couple's wedd ing, or of 
their life together in a house they claim to have share d w ith t he Beneficiary's brorher, his wife, and 
their two children. The o nly contempora neous evide nce submitted by d1e Petitioner regarding 
M .0. 's residence with the Benefic iary consists of a copy of her identiticat ion card issued on January 
25, 1999, by New Jersey Motor Vehicle Services, copies of two federal income tax returns, and 
copies of six monthly bank statements showi ng just three to five tra nsact ions per mont h. The 
Petitioner submit s no other independent objective evidence to explain the previous inconsistencies or 
to overcome the finding ofmarria ge fra ud. 
In addition to the discr epancies detailed by the director and repeated above, we also note additional 
discrepanc ies contained in the reco rd of proceedings. The Beneticiary's statement submitted on 
appeal indicates that M.O. moved in with him on the 1loor at New 
Jersey, after their 1997, wedd ing; howev er, on February 26, 1997, M.O. signed her Fom1 
G-325A, Biographic Information, indicating that she had lived at New 
Jersey , s ince June 1995. Furthermore, we aga in note that the Beneficiary 's most recen t statement 
indicates that M.O. move d in with him on the floor at New Jersey, 
after their 199 7, wedding; howeve r, on February 26, 1997, M.O. indicated on the Form 
I-130 fam ily-based petition that she and the Beneficiary lived on the floor at that address. These 
discrepa ncies further discredit the legitimacy of the evidenc e submitted to reso lve inconsistencies. 
When interviewed, the Beneficiary and his then-spouse provided contradictory responses regarding 
basic elements of their claimed d aily lite together i ncluding what time of d ay the Benef iciary 
returned home from work, whether he worked on Saturdays, the distance to the laundromat, the basic 
app liances present in their home, and they eve n differed on whether they had used an alarm clock on 
the very morning of their interview. \\lhere there is reason to doubt the validity of t he m arital 
relationship, the petitio ner must present evidence to show that the marriage was not entered into for 
the primary purpose of evadin g the imm igration laws. ;'v/aller of Phillis, 15 r&N Dec. 385, 386-387 
(1975 BIA). The evidence submitted by the Petitione r, principally in the form of personal testimony, 
is insuflic ient to overcome the finding of fraud. 
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T herefo re, we conclude that there is subs tantia l and probative evidenc e in the record of procee ding 
tO support a reason able infer ence that a sham or fra udulen1 marria ge existed. We agree with the 
Director's determination, and find that the Beneficiary and his ex-wife entered into a marriage in 
violation of the regulation 8 C.F.R . § 204.2(a)(1) for the purpose of evading the immi grat ion laws. 
Thus , the petition on the Benefici ary's behalf cannot be approved based on the marriag e-fraud bar 
described in Section 204(c) of the Act and we affirm the Director 's de nial of the petition. 
JV. THE 1-140 PETfTlOl\: 
A. The Beneficiary's Experience 
We note the following previously unidenti fied defec ts in the Form f- 140 petitic n that wou ld preve nt 
approval even if approval was not barred by Section 204(c) of the Act. The Petitione r has not 
establi shed that the Benefi ciary possesses the mi nimum experience requ irements req uired for the 
offe red posi tion. The petit ioner must esta blish that the benefi ciary possessed all the educ ation, 
trainin g, and expe rience spec i tied on the labor cert ification as of the priority date. 8 C.F .R. 
§ 103.2 (b)(!), (12). See !Valier qf1Ying 's Tea House. 16 I&N Dec. 158 , 159 (Acting Reg'! Comm'r 
1977); see also Marter of Kar;gbak, 14 I&N Dec. 45, 49 (Reg'! Comm 'r 197 1). 
In the instant case, the labor certifi cation states that the offered position requi res hvo years of 
experien ce in the offered job of carp enter. On the labor certification, the Benefi ciary claims to qualify 
for the offered position based on exper ience working as a carpenter f{)r 
in New Jersey, fi·om De<:ember 1995 throug h December 1997. The claim is 
supported by an employment letter from the warehouse manager for 
who stated that the beneficiary worked there from December 1995 throu gh Decembe r 1997. Howe ver, 
on the Form G-325A , Biographic Information , signe d by the Benefic iary on Febr uary 26, 1997, and 
submitted with the family-based petition previously filed on his behal t: the Ben eficia ry testified that he 
had worked for the Petitioner since November 1995. In add ition , the Benefici ary submitted a 19971RS 
Form W-2, Wage and Tax Statement, iss ued to him by the Petitioner , and not by 
The Beneficiary's own testimony on Form G-325A contradicts hi s claim of work experience that 
satisfies the req uirements of the labor certifica tion . It is incumbent on the petitioner to reso lve any 
incon sisten cies in the record by independent object ive evidence, and altempt s to explain or reconcile 
such incon sistencies, absent competen t objective evidence pointing to where the truth , i n facl, lies, 
will not sufti ce. Matter of Ho, 19 I&N Dec. at 59 1-592 . The evidence in the reco rd does not 
estab lish that the Benefici ary possessed the required experience set forth on the labor certifica tion by 
the pri ority date . This defi cien cy must be addresse d in any f urther proceeding s. 
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Maller ofT-A-T-S-Ine. 
B. Ability to Pay the Proffered Wage 
Also as an additional ground that would prevent approval of the petition, the Petitioner has not 
established its ability to pay the proffered wage as of the priority date and continuing until the 
Beneficiary obtains lawful permanent residence. The regulation at 8 C.F.R. § 204.5(g)(2) states: 
Ability of prospective employer to pay wage. Any petition liled by or for an 
employment-based immigrant which requires an otTer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In the instant case, while the record contains copies of IRS Fonn W-2, Wage and Tax Statements, 
showing that the Petitioner paid the Beneficiary in each year from the priority date in 2001 through 
2014, the Petitioner did not submit copies of its annual reports, federal tax returns, or audited 
financial statements for any of the years in question. These documents are expressly required by 
8 C.F.R. § 204.5(g)(2). Accordingly, we find that the Petitioner has not established its continuing 
ability to pay the proffered wage to the Beneficiary since the priority date. This deficiency must be 
resolved in any further proceedings. 
V. CONCLUSION 
The pehhon on the Beneficiary's behalf cannot be approved based on the marriage-fraud bar 
described in Section 204(c) of the Act. Accordingly, the Petitioner has not established the 
Beneficiary's eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Maller ofT-A-T-S-Ine., ID# 00293552 (AAO May 25, 2017) 
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