dismissed EB-3 Case: Construction

U.S. Citizenship 
and Immigration 
Services 
In Re: 22972408 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 1, 2022 
The Petitioner, a builder, developer, and construction business, seeks to employ the Beneficiary as a 
stone cutter. It requests classification of the Beneficiary as a ski I led worker under the third preference 
immigrant classification. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based "EB-3" 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 petition was initially approved. However, the Director of the Nebraska Service Center 
subsequently revoked the approval on the ground that the Petitioner did not provide sufficient evidence 
of the Beneficiary's qualifying experience for the offered position. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 l&N 
Dec. 369, 375 (AAO 2010). The Administrative Appeals Office (AAO) reviews the questions in this 
matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 
review, we will dismiss the appeal. 
I. LAW 
Immigration as a skilled worker usually follows a three-step process. First, the prospective employer 
must obtain a labor certification approval from the U.S. Department of Labor (DOL). 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 foreign national will not harm wages and working conditions of U.S. workers with 
similar jobs. Id. Second, the employer must submit the approved labor certification with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. 
§ 1154. The immigrant visa petition must establish that the foreign worker qualifies for the offered 
position, that the foreign worker and the offered position are eligible for the requested immigrant 
classification, and that the employer has the ability to pay the proffered wage. See 8 C.F.R. § 204.5.1 
1 These requirements must be satisfied by the priority date of the immigrant visa petition . See 8 C.F.R. § 204.5(g)(2), 
Finally, if USCIS approves the immigrant visa petition, the foreign worker may apply for an immigrant 
visa abroad or, if eligible, for adjustment of status in the United States. Section 245 of the Act, 8 
U.S.C. § 1255. 
At 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 the record, a petition's erroneous approval may justify its revocation. See Matter of Ho, 
19 l&N Dec. 582, 590 (BIA 1988). By regulation this revocation authority is delegated to any USCIS 
officer who is authorized to approve an immigrant visa petition "when the necessity for the revocation 
comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). USCIS must give the petitioner notice of its 
intent to revoke the prior approval of the petition and the opportunity to submit evidence in opposition 
thereto, before proceeding with written notice of revocation. See 8 C.F.R. § 205.2(b) and (c). 
II. ANALYSIS 
The Petitioner is a builder, developer, and construction business that was established in 2004 and has 
approximately six employees. The underlying labor certification states that the offered position 
requires no training or education and 24 months of experience as a stone cutter. Experience in an 
alternate occupation is not accepted. On the labor certification, the Petitioner asserts that the 
Beneficiary gained experience as a stone cutter-tile setter with ___________ 
I I inl , Poland from May 10, 2010, to August 30, 2013. The initial evidence submitted 
with the petition included a certification dated September 26, 2016, froml of 
confirming the Beneficiary's work experience indicated on the labor certification. 
Following the approval of the petition, the Director issued a notice of intent to revoke (NOIR) 
identifying inconsistencies in the Beneficiary's claimed work experience. During an interview with 
the U.S. Consulate inl I Poland in 2018,I indicated that the Beneficiary had 
never worked withl IAlso, in July 2013, the Beneficiary submitted an F-1 visa application which 
did not list lin his employment history, instead listing his employment with I I I I from March 15, 2010, to September 14, 2010. 
The Director issued the NOIR for good and sufficient cause.2 The Beneficiary's work experience 
provided on the labor certification contradicts the Beneficiary's employment history indicated on his 
visa application and I statements to the U.S. Consulate. The Petitioner must resolve 
inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 l&N Dec. 582, 591-92 (BIA 1988). Thus, the record lacked sufficient reliable evidence of the 
Beneficiary's qualifying experience for the offered position or the requested visa classification. 
In response to the NOIR, the Petitioner explained that while the Beneficiary had worked for 
the employment was unofficial since he was paid in cash and did not pay taxes. The Petitioner further 
Matter of Wing's Tea House , 16 l&N Dec . 158 , 159 (Act. Reg'I Comm'r 1977). For petitions that require a labor 
certification, the priority date is the date on which the DOL accepted the labor certification application for processing. See 
8 C .F.R. § 204 .5(d). In this case , the priority date is September 20, 2017 . 
2 The NOIR also requested further evidence of the Petitioner's ability to pay the proffered wage. While the Director does 
not address the Petitioner's ability to pay in the revocation decision, we note that USCIS records indicate the Petitioner 
has submitted approximately 28 Form 1-140 petitions on behalf of other beneficiaries. 
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explained that the Beneficiary did not list his employment with on the visa application because 
it was not official employment, instead listing the government agency where he registered as being 
unemployed. 
The Director revoked the petition's approval finding that the Petitioner did not submit independent, 
objective evidence to resolve the inconsistencies in the record and verify the Beneficiary's qualifying 
employment. The AAO agrees with the Director's finding that the record does not support the 
Petitioner's contention that the Beneficiary possessed the minimum experience required for the job 
opportunity under the labor certification. 
On appeal, the Petitioner reasserts that the Beneficiary gained the minimum required 24 months of 
experience with! I even though he was not officially employed by the organization. The Petitioner 
re-submits the certificates from and the Beneficiary's statement. 
The Petitioner reiterates that the employment listed on the Beneficiary's nonimmigrant visa 
a lication actually refers to his unemployment status, instead of any employment with! I 
On a eal the Petitioner submits letters to establish the Beneficiary's unemployment 
status with The Petitioner submits a letter froml I I !indicating the Beneficiary's retirement account balance as of December 31, 2010, and 
retirement contributions paid during 2010 from Labor Department of the City of I I The 
Petitioner also submits a letter dated October 25, 2011, from the Department of Labor ofl I I I requesting the Beneficiary report to its office to confirm his readiness to be employed and 
a decision letter dated March 26, 2012, from Mayor of the ______ stating the 
Beneficiary's loss of status as an unemployed person. The Petitioner also submits a certification 
indicating that on May 21, 2012, the Beneficiary's mother requested that the Beneficiary be her 
registered family member for health insurance. Such documents provide further inconsistencies with 
the Beneficiary's claimed work experience withl lsince the documents appear to indicate the 
Beneficiary claimed to be in an unemployed status during the time he claims to have been working for 
I I 
The Petitioner asserts that the letters from I I of I I are sufficient to establish 
qualifying experience, citing to a decision from the Board of Alien Labor Certification Appeals 
(BALCA), Matter of B&B Residential Facility, 2001-INA-00146, 2002 WL 1586297 (BALCA July 
16, 2002). In Matter of B&B Residential Facility, BALCA held that foreign nationals may rely on 
unpaid or under-the-table experience to qualify for offered positions on labor certifications. Matter of 
B&B Residential Facility, 2002 WL 1586297 at *3. However, the decision also stated that foreign 
nationals will "need to present credible supporting documentation of the work and/or corroborating 
affidavits or declarations of witnesses with personal knowledge." Id. The Petitioner also cites Matter 
of Lendy Muller, 98-INA-237 (BALCA September 17, 1999), explaining that illegal employment may 
be counted toward the experience requirements of the labor certification. As noted by the Petitioner, 
we are not bound by BALCA decisions. See 8 C.F.R. § 103.lO(b) (stating that we are bound by 
decisions of the Board of Immigration Appeals and the Attorney General). 
Here, the Petitioner relies on testimonial evidence from I I of I I to establish the 
Beneficiary's claimed under-the-table employment. The employment letters and certificate from 
I !contradict his statements made during an interview with the U.S. Consulate when he 
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indicated that the Beneficiary had never been employed by I I They also contradict the 
Beneficiary's nonimmigrant visa application which did not list his employment withl I instead 
listing his employment with I I from March 15, 2010, to September 14, 2010. 
The Petitioner has not submitted further supporting documentation or witness declarations 
corroborating the Beneficiary's work experience. Instead, the Petitioner submitted documentation 
seeking to explain that the Beneficiary registered as unemployed during the time he claims to have 
been working for I 
The record also included discrepancies as to whether the Beneficiary worked full time withl I A 
letter froml I indicated the Beneficiary provided stone cutting-tile setting services at least 40 hours 
per week while other evidence in the record indicated the Beneficiary attended school at the same time 
he was working for I The Beneficiary's statement explained that he worked full time during the 
week and attended school every other weekend from 2009 to 2013 while obtaining his degree from 
European University of Information Technology and Economics. However, the Petitioner did not 
submit independent, objective evidence to substantiate the Beneficiary's statements that he attended 
school every other weekend. 
A petitioner may submit a letter or affidavit that contains hearsay or biased information, but such 
factors will affect the weight to be accorded the evidence in an administrative proceeding. See Matter 
of D-R-, 25 l&N Dec. 445, 461 (BIA 2011). Probative evidence beyond a letter or affidavit may be 
considered when submitted to resolve inconsistencies or discrepancies in the record. See Matter of 
Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to 
reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. Id. Ultimately, to determine whether a petitioner has established eligibility for 
a requested benefit by a preponderance of the evidence, USCIS must examine each piece of evidence, 
both individually and within the context of the entire record, for relevance, probative value, and 
credibility. Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). 
Here, the Petitioner relies only on testimonial evidence to establish his claimed work experience, 
without providing independent, objective evidence in support of this testimony. Based on unresolved 
inconsistencies in the record, further independent evidence is required. The record does not include 
evidence contemporaneous with the Beneficiary's employment, such as income tax returns, payroll 
records, or bank statements, to corroborate his claimed employment. It is the Petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
The Petitioner has not established that the Beneficiary possesses the required 24 months of experience 
in the offered position, as required by the labor certification. We affirm the Director's revocation of 
the approved petition on this basis. 
111. CONCLUSION 
The record does not support a finding that the Beneficiary, more likely than not, possessed the 
minimum qualification required for the offered position as required under 8 C.F.R. § 204.5(1)(3). We 
considered all evidence of the Beneficiary's qualifying experience in the record, however, the 
inconsistencies in the record have not been resolved with independent, objective evidence. The 
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Petitioner has not established that the Beneficiary possesses the 24 months of experience required by 
the labor certification. Accordingly, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
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