dismissed EB-3 Case: Church Administration

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-B-C-O-A-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 27, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a church, seeks to employ the Beneficiary as an administrative assistant. It requests 
her classification under the third-preference, immigrant category as an "other worker." See 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii) , 8 U.S.C. § 1153(b)(3)(A)(iii). 
This employment-based, "EB-3" category allows a U.S. organization to sponsor a foreign national 
for lawful permanent resident status to work in a job requiring less than two years of training or 
expenence. 
After the filing's initial grant, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that the Petitioner did not demonstrate the Beneficiary's 
possession of the minimum employment experience required for the offered position. 
On appeal, the Petitioner submits additional evidence. The church argues that USCIS should have 
provided it with a copy of derogatory evidence and that it has resolved inconsistencies of record 
regarding the Beneficiary's qualifying experience. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an other worker 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)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, 
qualified, and available for an offered position, and that 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 labor certification 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 determines whether a beneficiary meets the 
requirements of a DOL-certified position and the requested visa classification. If USCIS grants a 
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. 
Matter of K-B-C-O-A-. 
"[ 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. The erroneous nature of a petition's approval may justify its revocation. Matter of Ho, 
19 I&N Dec. 582, 590 (BIA 1988). 
USCIS may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and 
unrebutted record would have warranted the petition's denial. Matter of Estime, 19 I&N Dec. 450, 
451 (BIA 1987). Revocation properly lies if a petitioner's NOIR response does not resolve or rebut 
the revocation grounds. Id. at 451-52. 
II. REQUIRED EXPERIENCE 
A petitioner must establish a beneficiary's possession of 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).1 In evaluating a beneficiary's qualifications, USCIS must examine 
the job-offer portion of an accompanying labor certification to determine a position's minimum 
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. 1983) (holding that "DOL bears the 
authority for setting the content of the labor certification") ( emphasis in original). 
Here, the labor certification states the minimum requirements of the offered pos1t10n of 
administrative assistant as a U.S. high school diploma or an equivalent foreign credential, and one 
year of experience in the offered position. Also, part H.14 of the labor certification, "Specific skills 
or other requirements," states that the position requires "computer proficiency." 
On the labor certification, the Beneficiary attested that, by the petition's priority date, she gained 
more than four years of full-time, qualifying experience. She stated that she worked for a church in 
South Korea as an administrative assistant from March 2005 to May 2009. 
To establish qualifying experience, a petitioner must submit a letter from a beneficiary's former 
employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). A letter must contain an employer's name, address, and 
title, and describe a beneficiary's experience. Id. 
The Petitioner submitted a written "employment verification" signed by the senior pastor of the 
South Korean church. The English translation of the verification stated that the church employed the 
Beneficiary as an administrative assistant from March 2006 to May 2009. But the original 
verification in Korean includes Arabic numerals and, consistent with the information on the labor 
certification, indicates that the Beneficiary assumed the position in March 2005. 
The Director's NOIR, however, noted that, on a 2012 application for a U.S. nonimmigrant student 
visa, the Beneficiary certified that she had never been employed. The NOIR also asserted that the 
employment verification of the South Korean church had little evidentiary value because its English 
1 This petition's priority date is April 4. 2016, the date DOL accepted the accompanying labor certification application 
for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
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Matter of K-B-C-O-A-. 
translation lacked a certification. See 8 C.F.R. § 103.2(b )(3) (requiring petitioners to provide not 
only foll English translations of documents containing foreign languages, but also certifications from 
the translators that they are linguistically competent and that their translations are complete and 
accurate). 
Contrary to the NOIR, the record contained a certification for the translation of the employment 
verification. Nevertheless, the Beneficiary's denial of employment experience on her student visa 
application casted significant doubt on her claimed, qualifying experience. A petitioner must resolve 
such inconsistencies of record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. at 591. Thus, the unexplained and unrebutted record did not establish 
the Beneficiary's qualifying experience and would have warranted the petition's denial. The 
Director therefore properly issued the NOIR. 
The Petitioner's NOIR response included an affidavit of the Beneficiary. She stated that, when 
completing the student visa application, she did not consider her work for the South Korean church 
to constitute "employment." She said the church did not pay her wages, but only reimbursed her in 
cash for transportation and other expenses. The Beneficiary stated: 
I was not working for money. I was doing my job to serve God and his church I was 
destined to serve. For this simple reason, when I applied for [the student] Visa, I did 
not indicate that I had previous employment history. I had no intention to lie to the 
U.S. government to obtain a visa. 
Unpaid work can constitute qualifying experience. Matter of B&B Residential Facility, 0l-INA-146 
*4 (BALCA July 16, 2002). 2 But the Beneficiary's affidavit contained another inconsistency. 
Without indicating her work for the South Korean church as an administrative assistant, the affidavit 
stated that she had "served the church as bible teacher since college." As the Beneficiary states in 
her affidavit on appeal, a reader of her prior statement "would only naturally reach the conclusion 
that I did not work for the Church in the position of Church Administrative Assistant because the 
entire part of my work experience in the position ... is missing." The Beneficiary maintains that she 
worked as an administrative assistant for the South Korean church from 2005 to 2009. She states 
that she omitted this experience from her student visa application "because I did not believe having 
received compensation in cash and not having it reported on my tax report would be considered 
'working."' 
The Beneficiary's explanation of the omission of her claimed qualifying experience from the student 
visa application is consistent with her prior affidavit and seems reasonable. But the record does not 
2 Decisions of the Board of Alien Labor Certification Appeals (BALCA), a part of DOL, do not bind us. See 8 C.F.R. 
§§ 103.lO(b), (e) (stating that all Department of Homeland Security employees must follow precedent decisions of the 
Board oflmmigration Appeals (BIA) and the Attorney General in proceedings involving the same or similar issues). As 
previously indicated, however, Congress directed DOL to determine the availability of qualified U.S. workers for 
positions offered to qualifying immigrants. See section 212(a)(5)(A)(i)(I) of the Act. We therefore defer to DOL's 
reasonable dete1minations regarding position qualifications. See Martin v. Occupational Safety & Health Review Comm 'n, 
499 U.S. 144, 157-59 ( 1991) (requiring one agency to defer to a reasonable regulatory interpretation of another charged with 
promulgating and enforcing a statute). 
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Matter of K-B-C-O-A-. 
similarly support the omission of her claimed qualifying experience from her prior affidavit. The 
Petitioner and the Beneficiary assert that prior counsel prepared the Beneficiary's earlier statement 
in English, without translating it into Korean for the Beneficiary. Thus, they contend that prior 
counsel deprived the Beneficiary of knowledge of the affidavit's omission of her qualifying 
experience. This explanation effectively accuses the prior attorney of ineffective assistance of 
counsel. The Petitioner, however, has not complied with requirements designed to ensure our 
possession of information needed to evaluate an ineffective assistance claim and to deter a meritless 
allegation. A petitioner asserting ineffective assistance of counsel must generally provide: a written 
affidavit describing the representation agreement with prior counsel; evidence that counsel was 
informed of the ineffective assistance allegation; and proof of the filing of a complaint with 
appropriate disciplinary authorities, or an explanation of the absence of a complaint. Matter of 
Lozada, 19 I&N Dec. 637, 639 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). Here, the record 
lacks information regarding the representation agreement with prior counsel and assuring the validity 
of the ineffective assistance claim. The record therefore does not support ineffective assistance of 
counsel as an explanation for the omission of the Beneficiary's claimed qualifying experience from 
her earlier affidavit. See Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000) (holding that 
agencies may generally deny claims of ineffective assistance of counsel if they do not meet the 
Lozada requirements). 
The Petitioner also provides additional affidavits from pastors of the South Korean church, attesting 
to the Beneficiary's qualifying experience as an administrative assistant. One of the senior pastor's 
affidavits, however, casts doubt on the Beneficiary's experience by stating, contrary to the 
information on the labor certification, that she worked "[f]rom year 2006 until 2009." (emphasis 
added). Moreover, the record lacks sufficient, independent, objective evidence of the Beneficiary's 
claimed experience. If the church paid the Beneficiary in cash, payroll and tax records of her work 
would not exist. But the record does not explain the absence of contemporaneous, internal church 
records of the Beneficiary's work. The senior pastor stated that the church has about 1,000 
congregants and six administrative volunteers. The Beneficiary stated that the church paid her the 
equivalent of about $450 a month, and the senior pastor stated that some volunteers received more. 
Considering the size of the church and the scope of its operations, the record does not explain the 
absence of contemporaneous, church records indicating its allocation or budgeting of fonds to pay 
the Beneficiary and its other volunteers. See Matter of Ho, 19 I&N Dec. at 591 (requiring a 
petitioner to resolve inconsistencies with independent, objective evidence). 
On appeal, the Petitioner and the Beneficiary assert that USCIS should have provided them with a 
copy of her 2012 visa application. See 8 C.F.R. § 103.2(b)(l6) (stating that a petitioner "shall be 
permitted to inspect the record of proceeding which constitutes the basis for the decision"). 
However, the regulations at 8 C.F.R. § 103.2(b)(l6) do not require USCIS to provide copies of 
derogatory documents to petitioners or applicants. Rather, the Agency may simply send written 
notices summarizing such evidence. See, e.g., Sehgal v. Lynch, 813 F.3d 1025, 1031-32 (7th Cir. 
2016) ( stating that "a summary [ of derogatory evidence] can suffice") ( citation omitted). Here, the 
Director's NOIR sufficiently summarized the derogatory information in the Beneficiary's student 
visa application. 
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Matter of K-B-C-O-A-. 
Citing a federal court decision, the Petitioner also argues that the absence of tax records should not 
undermine the Beneficiary's qualifying experience. See Betancur v. Roark, No. 10-11131-RWZ, 
2012 WL 4862774 **6-8 (D. Mass. Oct. 15, 2012) (holding that, despite a lack of tax and payroll 
documentation, the record supported a beneficiary's claimed, qualifying experience). As previously 
indicated, however, we acknowledge that tax records would not exist if the Beneficiary received 
only cash reimbursements from the church. Pursuant to Ho, however, the Petitioner must provide 
copies of any contemporaneous, church documents evidencing the Beneficiary's claimed work, or 
explain their absence. 
Finally, the Petitioner attempts to factually distinguish this matter from Ho. There, immigration 
officials revoked a naturalized citizen's immigrant petition for his adopted, unmarried son. Id. at 
582-83. The officials found that the petitioner did not establish his son's residency with him or his 
spouse for the required two-year period. Id. at 584; see also 8 C.F.R. § 204.2(d)(2)(vii) (requiring 
evidence that an adopted son or daughter lived with the adopting parent or parents for at least two 
years). On appeal, the BIA affirmed the decision, finding affidavits from the petitioner and his 
family insufficient to establish the requisite residency period. The Petitioner argues that the 
affidavits in Ho were mostly from members of the petitioner's immediate family who would have 
benefited from the petition's approval. The Petitioner contends that, unlike in Ho, it has submitted 
affidavits supporting the Beneficiary's qualifying experience from pastors who are "disinterested 
third parties." 
The decision in Ho, however, did not tum on the biases of the affiants. Rather, the BIA found the 
affidavits from the petitioner and his family "unsubstantiated" and "contradicted by the affiants' own 
prior declarations." Id. at 591. Here, as in Ho, the affidavits of the pastors are unsubstantiated. The 
record lacks contemporaneous, church records supporting the church's claimed payments to the 
Beneficiary or an explanation of the absence ofrecords. A prior declaration of the senior pastor also 
contradicts his most recent statement that the Beneficiary began working as an administrative 
assistant in 2005. Even if we considered bias, the record does not establish the pastors as 
"disinterested." The record indicates that the Beneficiary's membership in the church spanned 25 
years, and at least three of the six pastors who provided affidavits indicated that they knew her for 
that entire period. Given the long standing personal relationships, the record does not demonstrate 
that the pastors are unbiased towards the Beneficiary. The Petitioner's argument is therefore 
unavailing. 
For the foregoing reasons, the Petitioner did not demonstrate the Beneficiary's possession of the 
minimum experience required for the offered position. We will therefore affirm the revocation of 
the petition's approval. 
IV. CONCLUSION 
The record on appeal does not establish the Beneficiary's possession of the minimum experience 
required for the offered position. We will therefore affirm the revocation of the petition's approval. 
A petitioner in revocation proceedings bears the burden of establishing eligibility for the requested 
benefit. Matter of Ho, 19 I&N Dec. at 589. Here, the Petitioner did not meet that burden. 
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Matter of K-B-C-O-A-. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-B-C-O-A-, ID# 5781339 (AAO Sept. 27, 2019) 
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