dismissed EB-3 Case: Electronics Repair

U.S. Citizenship 
and Immigration 
Services 
In Re: 12565250 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 13, 2021 
The Petitioner, a wholesaler of cellphones and cellphone accessories, seeks to employ the Beneficiary 
as a cell technician. It requests skilled worker classification for the Beneficiary under the third 
preference immigrant category. 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 Director of the Texas Service Center denied the petition on multiple grounds. The Director 
determined that the Petitioner did not establish that the Beneficiary had at least two years of qualifying 
experience as required to meet the minimum requirement of the labor certification and to qualify for 
skilled worker classification. The Director also found that the Petitioner and the Beneficiary willfully 
misrepresented a material fact regarding the Beneficiary's employment history in the labor 
certification that accompanied the instant petition, and invalidated the labor certification on that basis, 
which constituted another ground for denying the petition . 
On appeal the Petitioner submits a brief and supporting documentation, much of which was already in 
the record. The Petitioner asserts that the evidence establishes that the Beneficiary has the requisite 
experience to qualify for the job offered and the requested classification. The Petitioner also asserts 
that neither it nor the Beneficiary misrepresented any material fact in the labor certification 
accompanying the instant petition. 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the 
appeal. We determine that the Petitioner has not established that the Beneficiary gained the requisite 
experience to qualify for skilled worker classification and for the proffered position under the terms 
of the labor certification. We also determine that the Beneficiary willfully misrepresented a material 
fact regarding her employment history in the labor certification filed with this petition, and affirm the 
Director's decision to invalidate the labor certification. However, we will withdraw the Director's 
finding that the Petitioner also willfully misrepresented a material fact in this petition. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, 
the foreign national may 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. 
II. ANALYSIS 
The instant petition was filed with USCIS on July 16, 2018, accompanied by a labor certification that 
was filed with the DOL on January 5, 2018, and certified on May 15, 2018. A beneficiary must meet 
the specific educational, training, experience, and other requirements of the labor certification, 
regardless of the classification requested. See 8 C.F.R. § 204.5(1)(3)(i). To be eligible for 
classification as a skilled worker, a beneficiary must have at minimum two years of training or 
experience. See 8 C.F.R. § 204.5(1)(3)(ii)(B). All requirements must be met by the petition's priority 
date, 1 which in this case is January 5, 2018. See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 
(Acting Reg'l Comm'r 1977). 
A. Labor Certification Requirements and the Beneficiary's Experience 
The requirements for the proffered position of cell technician are indicated in section H of the labor 
certification (Job Opportunity Information), which specifies that two years of experience as a cell 
technician or in the alternate occupation of technical support are required to qualify for the job. 
According to sections J and K of the labor certification the Beneficiary met the experience 
requirements of section H by virtue of two prior jobs, including: 
• withl I Electronis inl I India, as a technician, from January 8, 2007, to 
October 31, 2013; and before that 
• witOComputers in I I India, as a mobile technician, from March 15, 1999, to 
November 30, 2005. 
As its initial evidence of the Beneficiary's work experience the Petitioner submitted two letters, 
including: 
• a letter purportedly from[=:JEiectronis inl I India - dated November 6, 2013, 
and signed by the "proprietor" - stating that the Beneficiary was employed as a "technician 
1 The priority date of an employment-based immigrant petition is the date the underlying labor certification is filed with 
the DOL. See 8 C.F.R. § 204.S(d). 
2 
for mobile phone repairing and quality control" from January 8, 2007, to October 31, 2013; 
and 
• a letter purportedly fromD Computers in~----------~ India - dated 
December 5, 2005, and likewise signed by the "proprietor" - stating that the Beneficiary 
was employed as a "mobile phone repairing technician" from March 15, 1999, to 
November 30, 2005, and describing her job duties as "mainly responsible to repair and use 
mobile accessories from the company stock and produce detail report in coordination with 
Marketing Planning, Production and Q.A. Department." 
The Director issued a notice of intent to deny (NOID) in September 2019. After reviewing the 
experience claimed and evidence submitted in this petition, the Director discussed a previous 
application by the Beneficiary for an F-1 nonimmigrant (student) visa on October 20, 2014, at which 
time the Beneficiary claimed that she worked at~---=-----,,--------~ and 
responded "No" to the question "were you previously employed?" The Director indicated that the 
conflicting information provided with the F-1 visa application cast doubt on the veracity of the 
Beneficiary's employment history as provided in the current proceeding's labor certification. 
In response to the NOID the Petitioner acknowledged that the Beneficiary "failed to accurately 
complete her employment history" on the DS-160 application form for her F-1 visa, but asserted that 
it "was not her intent to misrepresent or mislead in any form or fashion" and the issue of the 
Beneficiary's prior employment was not raised in the consular interview or by U.S. Customs and 
Border Protection (CBP) at the port of entry. The Petitioner submitted additional documentation as 
evidence of the Beneficiary's claimed employment with0Eiectronics 2 and0Computers in India, 
including affidavits from alleged co-workers at those two companies attestinp....!2....!fe Beneficiary's 
employment and pages from a bank account statement recording deposits fromL__JElectronic. 3 
In denying the petition the Director determined that the Petitioner's response to the NOID, 
supplementing its initial evidence, did not resolve the discrepancy between the labor certification in 
the instant proceeding and the previously filed application for an F-1 nonimmigrant visa with regard 
to the Beneficiary's allege~ empllyment history. The Director discussed certain substantive 
deficiencies in the letters fro Electronics 4 and Ocomputers such as the illegible signatures 
of the "proprietors" and the lack of any description of the Beneficiary's job duties in thee=] 
Electronis letter, which undermined the credibility of the letters. As for the affidavits from alleged 
co-workers of the Beneficiary at 0Electronics and Dcomputers, the Director stated that they 
lacked specificity with regard to the Beneficiary's job title and duties as well as the affiants' own jobs 
with those companies, and were not supported by any independent objective evidence of the 
Beneficiary's employment with either company. The Director also reviewed the bank account records, 
noted that they were partly hand-written and contained conflicting dates, and indicated that they were 
not credible evidence of the Beneficiary's employment withe=] Electronics, as alleged. Based on 
2 In its response to the NOID, as well as ,t its subsequent 
1
appe~,, the Petitioner referred to the Beneficiary's alleged 
employer in the years 2007-2013 as Electronics, not Electronis as the company was called in the labor 
ce1tification and in the Petitioner's initial supp01t letter to the Texas Service Center. 
3 The bank account statement contains deposit entries from[:J..Electronic, which constitutes yet another version of this 
company's name - identified elsewhere in~roceeding as~ Electronis andc=] Electronics. 
4 The Director referred to this company as L_J Electronics in the decision, as well as in the foregoing NOTO. 
3 
the foregoing analysis the Director concluded that the Petitioner did not establish that the Beneficiary 
gained any experience with0Electronics orOComputers. Therefore, the Beneficiary did not 
have the requisite 24 months of qualifying experience to meet the terms of the labor certification and 
qualify for skilled worker classification. 
On appeal the Petitioner asserts that the employment verification letters it submitted with its initial 
evidence satisfied the evidentiary requirements of 8 C.F.~04.5(g)(2) and should be accepted as 
establishing the Beneficiary's qualifying experience withl__JElectronics and0 Computers. The 
regulation at 8 C.F.R. § 204.5(g)(2) states that: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) 
from current or former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties performed by the alien or 
of the training received. 
The letters ostensibly fromOComputers andD Electronics (the name we will use for this 
company hereinafter) do not satisfy all of the substantive requirements of the regulation. For example, 
the signatures of the "proprietors" of each company are illegible, and their names are not otherwise 
identified in the letters. In addition, the letter froml !Electronics does not contain a specific 
description of~ties performed by the Beneficiary. Furthermore, the letterhead of this letter 
actually reads l_____plectronis" which conflicts with the proprietor's reference to the company in the 
body of the letter as I I Electronics. The letterhead of the D Computers letter also looks 
questionable with the word "Services" in red lettering printed below the blue lettering ot..D 
Computers." For all of these reasons we conclude that the letters fromc=]::omputers andL_J 
Electronics, dated December 5, 2005, and November 6, 2013, respectively, are questionable as to their 
authenticity and are not persuasive evidence that the Beneficiary was employed by either company. 
The Petitioner refers to tr pTviously submitted affidavits from alleged co-workers of the Beneficiary 
at0Electronics and Computers. The affidavits do not qualify as employment verification 
letters under 8 C.F.R. § 204.5(g)(2) because they are not from the companies themselves (the affiants 
are not "current or former employers," as the regulation prescribes). Furthermore, neither of the 
affiants identifies his own position with the respective company or describes the Beneficiary's job 
duties there. Moreover, the affidavit from the I I Electronics employee conflicts with the 
employment verification letter from that company which is identified in the letterhead as D 
Electronis. Thus, the affidavits have little or no evidentiary weight. 
The Petitioner also refers to its previously submitted bank account records 
account statement" in the Beneficiary's name from r'----.--------------------' 
I I (in India) with entries labeled "Chq. By electronic" 5 which allegedly confirm the 
Beneficiary's employment byD Electronics. There is a disconnect, however, between the date of 
the bank statement- October 22, 2019 - and the dates of the deposits and withdrawals, which range 
from May 2012 to October 2013. The Petitioner has not explained why a bank statement issued in 
5 These deposit entries present a final variation of the company's name, with "electronic" beginning with a lower case "e" 
instead of a capital "E." 
4 
2019 would list deposits and withdrawals from six and seven years earlier. Furthermore, the savings 
account number on the "savings account statement" does not match the identification number of a 
"savings bank pass book" bearing the date May 8, 2012, which is also in the record. The Petitioner 
has not explained the significance of the savings bank pass book, given that the identity of the bank is 
unclear and no deposits fromLJElectronics ( or any other deposits and withdrawals) are associated 
with that pass book. Thus, the bank account records have little probative value as evidence of the 
Beneficiary's employment bLJ Electronics ( oQ Electronic, oQ Electronis ). 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Attempts to explain or reconcile such inconsistencies will not suffice without competent 
evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of the petitioner's 
remaining evidence. See id. 
The Petitioner has not resolved the myriad inconsistencies in this case. The Petitioner has not 
submitted anz infependent objective evidence of the Beneficiary's empl.oyment by eitherl I 
Electronics o Computers, such as pay statements from those companies, employment records or 
employment-related correspondence from those companies during the time periods of the 
Beneficiary's alleged employment, tax records of those companies or of the Beneficiary, or any other 
credible documentation confirming the Beneficiary's employment and the nature of her jobs. We 
conclude, therefore, that the Petitioner has not established that the Beneficiary worked for or gained 
any qualifying experience witH I Electronics oOComputers. Accordingly, the Petitioner has 
not established that the Beneficiary gained the requisite two years of experience to meet the terms of 
the labor certification and qualify for skilled worker classification. The appeal will be dismissed on 
these grounds. 
B. Willful Misrepresentation of a Material Fact 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts. For an 
immigration officer to find a willful and material misrepresentation of fact, he or she must determine 
that (1) the petitioner or beneficiary made a false representation to an authorized official of the U.S. 
government, (2) the misrepresentation was willfully made, and (3) the fact misrepresented was 
material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N Dec. 288, 
289 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy and 
Goodchild, 1 7 I&N Dec. 22, 28 (BIA 1979). A "material" misrepresentation is one that "tends to shut 
off a line of inquiry relevant to the alien's eligibility." Matter of Ng, 17 I&N Dec. 536, 537 (BIA 
1980). 
In the NOID the Director alluded to the Beneficiary's nonimmigrant visa application in which she 
claimed to work forl I and answered "No" to the question of 
whether she had any previous employment. This answer, the Director noted, conflicted with the 
su~segurt claim in the labor certification underlying the instant petition that the Beneficiary worked 
fo Electronics and0colmprers. Accordingly, the Director questioned the validity of the 
letters fromc=] Electronics and Computers attesting to the Beneficiary's employment with those 
5 
companies, and whether the Petitioner and the Beneficiarr wilT1lly misrepresented a material fact in 
the labor certification by claiming work experience with Electronics and0Computers. The 
Director cited the regulation at 8 C.F.R. § 656.30( d) which provides, in pertinent part, that "after 
issuance, a labor certification is subject to invalidation by the DHS [Department of Homeland 
Security] ... upon a determination, made in accordance with [its] procedures or by a court, of fraud 
or willful misrepresentation of a material fact involving the labor certification application." The 
Director also cited the regulation at 8 C.F.R. § 204.5(a)(2), which provides that a Form I-140 petition 
must be accompanied by any required labor certification to be considered properly filed. The Director 
then advised the Petitioner that "USCIS may invalidate this labor certification based upon a finding of 
willful misrepresentation of a material fact," which would constitute an additional ground for 
dismissing the appeal under 8 C.F.R. § 204.5(a)(2). 
In response to the NOID the Petitioner indicated that the Beneficiary was mistaken in her 
nonimmigrant visa petition by not including all of her emplJmentl in the DS-160 ~ication, but 
asserted that she correctly identified her past employment wit Electronics andLJComputers 
in the labor certification underlying the current immigrant visa petition. According to the Petitioner, 
therefore, there has been no willful misrepresentation of any material fact in the current proceedings 
involving the immigrant visa petition. 
In his decision the Director indicated that the evidence of record was insufficient to establish the 
Beneficiary's claimed experience with[]Computers, 1999-2005, and0Electronics, 2007-2013, 
and recounted the Beneficiary's answer of "No" in her 2014 nonimmigrant visa application to the 
question of whether she had any work experience prior to her present job withl I I I The Director stated that the Petitioner did not provide an adequate explanation 
for the Beneficiary's answer of "No" to the question of previous employment in the nonimmigrant 
visa apllication, or why the Beneficiary stated that she worked for I I 
l"at the time of the application [in 2014] rather than the claimed employers in the [labor 
certification]." The Director concluded that the Beneficiary misrepresented her ejplo]ment history 
in the labor certification by claiming to have experience withL] Computers and Electronics, 
that this misrepresentation was willfully made since she signed a declaration on the labor certification 
that the information about her employment history was true and correct, and that the misrepresentation 
was material to the Beneficiary's ability to meet the experience requirements of the labor certification 
and skilled worker classification. Having determined that the three elements discussed in Matter of 
M- and Matter of Kai Hing Hui were met, the Director found that the Beneficiary willfully 
misrepresented a material fact regarding her claimed experience in the labor certification in order to 
obtain the immigration benefit sought in the instant petition. 
The Director then added that the Petitioner also willfully misrepresented a material fact "regarding the 
Beneficiary's claimed employment history in the instant petition." However, the Director did not 
analyze the Petitioner's actions in accordance with the three elements discussed in Matter of M- and 
Matter of Kai Hing Hui. Rather, the Director appears to have linked the Petitioner to the finding 
against the Beneficiary by noting that the Petitioner's president certified as "true and correct" the Form 
I-140 petition and associated evidence, which included the labor certification with the Beneficiary's 
unsubstantiated employment history and a declaration by the Petitioner that "to the best of my 
6 
knowledge the information contained herei~e and accurate," as well as the dubious employment 
verification letters fromOComputers andL_J Electronics. 
Having concluded that both the Petitioner and the Beneficiary willfully misrepresented a material fact 
in the labor certification, the Director determined that the Petitioner filed an invalid labor certification, 
and that the petition was deniable on this ground as well. 
On appeal the Petitioner contends that neither it nor the Beneficiary willfully misrepresented a material 
fact in this proceeding because the Beneficiary was previously employed bLJComputers andD 
Electronics, in accordance with the information provided in the labor certification and supporting 
documentation. 
The Director's findings that the Petitioner and the Beneficiary willtull} misrepresented a material fact 
are based on the conclusion that the Beneficiary did not work for Computers from 1999 to 2005 
or witH !Electronics from 2007 to 2013, as claimed in the labor certification. This conclusion 
stems from the Beneficiary's prior statement in her nonimmigrant visa application in 2014 that she 
was not employed before her then current job wit~ I There is 
clearly a gaping inconsistency here, and the Beneficiary has not provided a convincing explanation 
for her failure to identify her purported employment experience with two Indian companies that 
allegedly spanned 13 1/2 years and ended just one year before her application for the nonimmigrant 
F-1 visa. We conclude that the most credible explanation for the omission of this employment 
experience in the 2014 application, consistent with the evidentiary shortcomings discussed in this 
decision, is that the Beneficiary did not actually work for0 Computers or D Electronics. 
Accordingly, we will not disturb the Director's finding that the Beneficiary willfully misrepresented 
a material fact regarding her employment history in the labor certification, and the consequential 
invalidation of the labor certification in accordance with 8 C.F.R. § 656.30( d). Since the petition is 
not accompanied by a valid labor certification, it cannot be approved. See 8 C.F.R. § 204.5(a)(2). The 
appeal will be dismissed on this ground as well. 
With respect to the Petitioner, however, we conclude that the Director's misrepresentation finding was 
not well grounded because the Petitioner's actions were not analyzed in accordance with the three 
elements discussed in Matter of M- and Matter of Kai Hing Hui. In particular, the Director did not 
determine whether the Petitioner "knew" as in Matter of Healy and Goodchild, id., that the 
Beneficiary's employment history was misrepresented in the labor certification. If the Petitioner's 
president had no such knowledge at the time he signed the labor certification, and the evidence does 
not demonstrate that he did, then his declaration that the contents of the labor certification were "to 
the best of my knowledge ... true and accurate" 6 would not constitute a "willful" misrepresentation 
of the Beneficiary's work experience. Therefore, based on the evidence of record we will withdraw 
the Director's finding that the Petitioner willfully misrepresented a material fact regarding the 
Beneficiary's employment history. 
6 As previously mentioned, the Petitioner's president also certified that the 1-140 petition and associated evidence was 
"true and correct." The date of this certification preceded by two weeks, and was thus roughly simultaneous with, the date 
of the labor certification declaration. (The 1-140 petition was filed two months after the labor certification's approval.) 
7 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary had at least two years of experience as a cell 
technician or in a related technical support job as of the petition's priority date. Therefore, the 
Beneficiary does not meet the labor certification's minimum experience requirement and does not 
qualify for skilled worker classification. The evidence of record also establishes that the Beneficiary 
willfully misrepresented a material fact regarding her employment history in the labor certification, 
and that the labor certification must be invalidated on that basis. Thus, the petition is not accompanied 
by a valid labor certification, as required for approval. We will dismiss the appeal for all of the above 
stated reasons. However, we withdraw the Director's finding that the Petitioner also willfully 
misrepresented a material fact regarding the Beneficiary's employment history as claimed in the labor 
certification. 
ORDER: The appeal is dismissed. 
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