dismissed EB-3 Case: Cosmetology

MATTER OF L-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 16, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a nail salon, sought to employ the Beneficiary as a manicurist and pedicurist. It 
requested her classification under the third-preference, immigrant category as a skilled worker. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § l 153(b)(3)(A)(i). 
This employment-based, "EB-3" category allows a U.S. business to sponsor a foreign national with 
at least two years of training or experience for lawful permanent resident status. 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that, as of the approval, the Petitioner did not establish the 
Beneficiary's possession of the minimum experience required for the offered position and the 
requested classification. 
On appeal, the Petitioner asserts that the Director disregarded evidence of the Beneficiary's 
qualifying experience and that the Beneficiary sufficiently explained her omission of the experience 
from a prior U.S. visa application. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker, an 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 a position, and that employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id 
If the DOL certifies a position, an employer must next submit the 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 considers whether a beneficiary meets the minimum 
requirements of a certified position and a requested immigrant classification. If USCIS approves 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 L-, Inc. 
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, 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 notify a petitioner of the Agency's intent to revoke 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). Similarly, revocation lies if the record would have warranted denial 
after consideration of a petitioner's explanation or rebuttal evidence. Id at 452. 
II. THE MINIMUM EXPERIENCE REQUIRED 
As previously indicated, a petition for a skilled worker must demonstrate that a beneficiary has at 
least two years of training or experience. 8 C.F.R. § 204.5(1)(3)(ii)(B). A petitioner must also 
establish a beneficiary's possession, by a petition's priority date, of all DOL-certified job 
requirements. 1 Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). 
In evaluating a beneficiary's qualifications, USCIS must examine the job offer portion of an 
accompanying labor certification to determine the minimum requirements of a position. 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 the "DOL bears the authority for setting the 
content of the labor certification") ( emphasis in original). 
Here, the accompanying labor certification states the minimum requirements of the offered position 
of manicurist and pedicurist as a U.S. high school diploma or a foreign equivalent credential, and 
two years of experience in the offered position. The certification also states that the position 
requires a manicurist license in New Jersey. 
On the labor certification, the Beneficiary attested that, before the petition's priority date, she gained 
more than three years of full-time experience in the offered position. She stated that she worked as a 
manicurist and pedicurist at a nail shop in South Korea from March 2004 through October 2007. 
The Petitioner submitted a letter from the purported former employer, confirming the Beneficiary's 
claimed dates of employment, job title, and duties. See 8 C.F.R. § 204.5(1)(3)(ii)(A) (requiring a 
petitioner to support a beneficiary's qualifying experience with a letter from a former employer). 
The Director's notice of intent to revoke (NOIR), however, noted discrepancies between the 
Beneficiary's claimed experience and her statements on a December 2006 application for a U.S. 
visitor's visa. Asked on the visa application to identify her employer and telephone number at work, 
the Beneficiary answered "None" to both questions. 
1 This petition's priority date is May 8, 2009, the date the 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 L-, Inc. 
The Director properly issued the NOIR. The Beneficiary's indication on the visa application of her 
unemployment in December 2006 would have warranted the petition's denial. The discrepancy cast 
significant doubt on the Beneficiary's claimed, continuous experience from March 2004 through 
October 2007, and thus on her qualifications for the offered position and the requested classification. 
See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies of record by 
independent, objective evidence pointing to where the truth lies). 
In response to the NOIR, the Petitioner submitted affidavits from the Beneficiary, the president of 
her claimed former employer, and a purported former co-worker of hers. The statements confirm the 
Beneficiary's dates of employment, job title, and duties. The Petitioner also submitted copies of the 
former employer's purported attendance and payroll records for 2006 and 2007, indicating the 
business's employment of the Beneficiary and the coworker during those years. 
The Beneficiary's affidavit states that a travel agent assisted her and her family in preparing and 
filing visitor visa applications in 2006. The agent reportedly told them that no proof of the 
Beneficiary's employment was needed because documentation of the employment and income of the 
Beneficiary's spouse established the intention of the entire family to return to South Korea after 
visiting the United States. See section 101(a)(15)(B) of the Act, 8 U.S.C. § l 101(a)(15)(B) (stating 
that visitors to the United States must have foreign residences that they have "no intention of 
abandoning"). The Beneficiary stated that the agent therefore "skipped" listing her work details on 
the application. The Beneficiary also attributed the application's omission of her claimed 
employment to her "misunderstanding and unfamiliarity" with the application form and the English 
language. 
The Petitioner argues that the Beneficiary did not know of her employment's omission from the visa 
application. Her affidavit, however, does not clearly indicate whether she knew or not. The travel 
agent's purported discussion of the Beneficiary's employment with the family suggests that she 
knew of the omission. Also, by signing the application, she attested to her understanding of its 
questions and the truth and accuracy of her answers. 
Moreover, regardless of whether the Beneficiary knew of her employment's omission, the record 
does not explain why she or the travel agent would have concealed her work. As additional evidence 
of the family's ties to South Korea, disclosure of the Beneficiary's employment would have further 
supported the visa applications. In her affidavit, the Beneficiary suggests that "the travel agent 
might have skipped my work history in order to simplify [the agency's] work in preparing our visa 
applications." But listing the Beneficiary's employer and its phone number on her application would 
have constituted little additional work. As previously discussed, the Beneficiary stated that the agent 
found no need to gather evidence of her employment. 
Although the Petitioner submitted attendance and payroll records, the records document her 
employment only from January 2006 through October 2007, less than the requisite two years of 
qualifying experience. Also, the handwritten attendance and payroll records could have been created 
at any time. The record lacks additional, more reliable evidence, such as government or 
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Matter of L-, Inc. 
contemporaneous business records, confirming: the former employer's business operations and 
location during the claimed employment period; the identities of the president and former coworker; 
and their positions with the former employer. The Petitioner has also not submitted, for example, 
records from the National Tax Service, the government agency that collects payroll taxes from South 
Korean employers, to demonstrate the Beneficiary's claimed qualifying experience. 
The purported president of the nail salon stated that the business "disposed of' prior employment 
records because the South Korean government no longer required their retention. Even so, however, 
the Petitioner still must resolve the Beneficiary's inconsistent statements regarding her employment 
experience and establish her qualifications for the offered position. See section 291 of the Act, 8 
U.S.C. § 1361 (stating that a petitioner bears the burden of proof) 
For the foregoing reasons, the record as of the petition's approval did not establish the Beneficiary's 
possession of the minimum experience required for the offered position and the requested 
classification. 
III. ADDITIONAL ISSUES 
Although unaddressed by the Director, the record as of the petition's approval also did not establish 
the Beneficiary's possession of the minimum education and licensure required for the offered 
position. As previously discussed, the labor certification states that, besides two years of experience 
in the job offered, the position of manicurist and pedicurist requires a U.S. high school diploma or a 
foreign equivalent credential, and a New Jersey manicurist license. 
On the labor certification, the Beneficiary attested to her graduation from a senior high school in 
South Korea in 1979. The record, however, lacks evidence of her educational qualifications. The 
record also lacks evidence of her possession of a New Jersey manicurist license. 
Thus, even if the Petitioner overcomes the Director's ground of revocation, the record would not 
establish the Beneficiary's eligibility for the offered position. The Petitioner must establish that, by 
the petition's priority date, the Beneficiary met the educational and licensure requirements of the 
offered position 
In addition, public records indicate that another corporation conducts business at the Petitioner's 
address. See N.J. Div. of Revenues & Enter. Servs., Bus. Name Search, https://www.njportal.com/ 
DOR/BusinessNameSearch/Search/BusinessName (last visited Aug. 10, 2018). The record therefore 
does not establish that the petitioning corporation remains in business. Termination of the 
Petitioner's business might have automatically revoked the petition's approval. See 8 C.F.R. 
§ 205.l(a)(3)(iii)(D). In any future filings in this matter, the Petitioner must therefore demonstrate 
its continued business operations or document when those operations ceased. 
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Matter of L-, Inc. 
IV. CONCLUSION 
The record does not establish the Beneficiary's possession of the minimum experience required for 
the offered position and the requested classification. We will therefore affirm the Director's 
decision. 
ORDER: The appeal is dismissed. 
Cite as Matter of L-, Inc., ID# 1244666 (AAO Aug. 16, 2018) 
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