dismissed EB-3 Case: Costume Jewelry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 8, 2024 In Re: 31841431 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a costume jewelry importer, seeks to employ the Beneficiary as a marketing specialist. 
The company requests his classification under the employment-based, third-preference (EB-3) 
immigrant visa category as a "skilled worker." See Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). Businesses may sponsor noncitizens for permanent 
residence in this category to work in jobs requiring at least two years of training or experience. Id. 
After initially granting the filing, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that, on the accompanying certification from the U.S. Department 
of Labor, the Petitioner willfully concealed its incorporation by the Beneficiary's sister. On appeal, 
we withdrew the misrepresentation finding but remanded the matter for investigation of other 
evidentiary inconsistencies. See In Re: 10572221 (AAO Feb. 16, 2021). 
On remand, after issuing a new notice of intent to revoke (NOIR) the petition and considering the 
Petitioner's response, the Director again revoked the filing's approval. The Director concluded that, 
at the time of the petition's approval, the Petitioner had not demonstrated the Beneficiary's satisfaction 
of the offered job's minimum experience requirements or the company's ability to pay the job's 
proffered wage. We dismissed the Petitioner's second appeal and following two motions to 
reconsider. See In Re: 29207563 (AAO Dec. 6, 2023). Our decisions affinned the Director's finding 
of insufficient evidence of the Beneficiary's claimed qualifying experience. Id. We reserved 
consideration of whether the company demonstrated its ability to pay the proffered wage. Id. 
The matter returns to us on the Petitioner's third motion to reconsider. The company contends that we 
disregarded independent, objective evidence of the Beneficiary's claimed qualifying experience. In 
these revocation proceedings, the Petitioner bears the burden of demonstrating eligibility for the 
requested benefit by a preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-
76 (AAO 2010). Upon review, we conclude that the company has not established our prior 
misapplication of law or policy, or the Beneficiary's eligibility for the offered job. We will therefore 
dismiss the motion. 
I. LAW 
A motion to reconsider must demonstrate that our prior decision misapplied law or U.S. Citizenship 
and Immigration Services (USCIS) policy based on the evidence at the time of the decision. 8 C.F.R. 
§ 103.5(a)(3). The scope of our review on motion is limited to our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. 
II. ANALYSIS 
A. The Required Experience 
To demonstrate the Beneficiary's qualifying experience for the offered job, the Petitioner must 
establish that, by the petition's March 24, 2016 priority date, the Beneficiary had at least four years' 
experience "in consumer marketing and sales in the fashion jewelry industry." See 8 C.F.R. 
§ 204.5(1)(3)(ii)(B) (requiring "evidence that the [noncitizen] meets the educational, training or 
experience, or any other requirements of the individual labor certification"); see also Matter of Wing's 
Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977) (barring a beneficiary from gaining 
qualifying education or experience after a petition's priority date). The company must also establish 
the Beneficiary's "experience with market data segmentation and analysis." Id. 
The Petitioner's initial filing included a 2016 letter from the general manager of the Beneficiary's 
purported former employer in South Korea. See 8 C.F.R. § 204.5(1)(3)(ii)(A) (requiring letters from 
former employers as proof of beneficiaries' claimed qualifying experience). Consistent with the 
information on the accompanying labor certification, the letter states the company's employment of 
the Beneficiary as president from May 2005 to May 2013 and describes his job duties, including his 
purported performance of market data segmentation and analysis. 
The Director's most recent NOIR, however, noted inconsistent evidence of the Beneficiary's claimed 
qualifying experience. U.S. government records show that, on a May 2013 application for a U.S. 
nonimmigrant visa, the Beneficiary listed a Chinese company as his then-current employer. He also 
stated that he worked for a Hong Kong company from October 2005 to March 2009. He listed his 
employment with the South Korean company indicated on the labor certification. But, whereas he 
listed his employment with the company on the labor certification from May 2005 to May 2013, his 
nonimmigrant visa application states his employment with the business from May 2009 to February 
2013. A petitioner must resolve inconsistencies of record with independent, objective evidence 
pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
On motion, the Petitioner contends that the Beneficiary "has owned and operated numerous companies 
in the jewelry trade industry in South Korea, Hong Kong, China, and in [the] USA for more than 20 
years as evidenced by the submitted documents." The company argues that copies of business 
registration documents of the three foreign companies listed on the Beneficiary's visa application 
demonstrate his qualifying experience. The company states that the documents are independent, 
objective evidence because government entities issued them. The Petitioner contends that the 
documents "giv[e] material weight and credibility to [the] Beneficiary's previous work experience." 
The company states: "Given the Beneficiary's career-long professional experience in the jewelry trade 
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industry as proven by evidence submitted, the Beneficiary's employment experience in the job offered 
is more probable than its nonexistence." 
The business registration documents constitute independent, objective evidence. But they do not 
corroborate the Beneficiary's claimed qualifying experience. The documents identify him as the 
owner or president of the three companies listed on the 2013 visa application. But the documents do 
not indicate his employment dates or job duties with the businesses. The documents also do not show 
that the Chinese and Hong Kong businesses operated in the jewelry trade industry. The documents 
therefore do not demonstrate that, by the petition's priority date, the Beneficiary had at least four years' 
experience "in consumer marketing and sales in the fashion jewelry industry," including "experience 
with market data segmentation and analysis." The business registration documents also do not explain 
why his 2013 visa application lists a different employment history than the labor certification and the 
employment letter from his purported former South Korean employer. See Matter ofHo, 19 I&N Dec. 
at 591 (requiring a petitioner to resolve inconsistencies ofrecord). 
Counsel states that, "[ d]ue to the lapse of time, the Beneficiary is physically unable to obtain any 
additional evidence to support his employment experience." See 8 C.F.R. § 204.5(g)(l) (stating that, 
if letters from former employers are unavailable, "other documentation relating to the [ noncitizen] 's 
experience ... will be considered"). 
Counsel's statement, however, is not evidence. See, e.g., Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 
1998) ("[S]tatements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled 
to any evidentiary weight.") The Petitioner therefore has not established the unavailability of 
regulatory required letters from the Beneficiary's purported former employers. 
The Petitioner also contends that, because the Beneficiary worked for two years in E-2 nonimmigrant 
visa status for a U.S. company that he listed on the labor certification, the Petitioner need only 
demonstrate his possession of two additional years of qualifying experience. See section 
10l(a)(15)(E) of the Act, 8 U.S.C. § l 10l(a)(15)(E) (authorizing the temporary admission of 
noncitizens under treaties of commerce and navigation between the United States and their foreign 
states of nationality). The company argues that the Beneficiary "has already verified employment 
experience from [the U.S. company] pursuant to his previously valid E-2 status from June 10, 2013 
through June 30, 2015." 
USCIS records indicate the Beneficiary's U.S. admissions in E-2 visa status during the specified 
period. But, contrary to the regulatory requirement for immigrant visa petitions, the Petitioner has not 
provided a letter from his purported E-2 employer stating his title and duties during that period. See 
8 C.F.R. § 204.5(1)(3)(ii)(A). The company therefore has not demonstrated that the Beneficiary gained 
two years of qualifying experience with the U.S. company. 
The Petitioner has not established the Beneficiary's qualifying experience. We will therefore affirm 
our appellate dismissal. 
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B. Ability to Pay the Proffered Wage 
Our finding regarding the Beneficiary's qualifying experience resolves this motion. We need not 
reach and therefore continue to reserve consideration of the Petitioner's ability to pay the offered job's 
proffered wage. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies need not make 
"purely advisory findings" on issues unnecessary to their ultimate decisions); see also Matter ofL-A­
C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where the 
applicant did not otherwise meet their burden of proof). 
ITT. CONCLUSION 
The Petitioner's motion to reconsider does not establish our prior misapplication oflaw or policy, or 
the Beneficiary's eligibility for the requested benefit. We will therefore affirm our appellate dismissal. 
ORDER: The motion to reconsider is dismissed. 
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