dismissed EB-3 Case: Fashion Accessories

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 18, 2024 In Re: 23094939 
Certification of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a fashion accessories wholesaler and importer, sought to employ the Beneficiary as a 
jewelry repairer. It requested classification of the Beneficiary as a skilled worker under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). This employment-based immigrant classification allows 
a U.S. employer to sponsor a noncitizen 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 revoked the approval of the petition, concluding that the 
immigrant petition was approved in error. The Director determined that the Petitioner did not 
overcome discrepancies related to the Beneficiary's required work experience abroad listed in the 
labor certification, after the issuance of a notice of intent to revoke (NOIR). In addition, the Director 
concluded that the Beneficiary misrepresented material facts related to her claimed foreign 
employment. The Petitioner later filed an appeal, that we rejected as untimely. The Petitioner later 
filed a motion to reconsider contending our rejection was in error. Following this, the Director treated 
the rejected appeal as a motion to reopen and issued another decision leaving the revocation 
undisturbed. Thereafter, we requested that this matter be certified to us for review. The Director 
issued another decision on the merits, largely consistent with its initial revocation decision, and 
certified it to us for review. As such, the matter is now before us on certification pursuant to 8 C.F.R. 
§ 103.4(a). 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
denovo . Matter ofChristo 's, Inc. , 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon review, we conclude 
that the Director had good and sufficient cause to revoke the petition in August 2020 as the Petitioner 
did not establish that the Beneficiary had the required experience for the offered position. As such, 
we will revoke the petition. In these proceedings, it is the Petitioner's burden to establish eligibility 
for the requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. 
Since the issue of the Beneficiary's lack ofrequired experience is dispositive, we decline to reach and 
hereby reserve its arguments with respect to whether she misrepresented material facts, as our analysis 
of this issue would not alter our determination that the petition must be revoked. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues 
the decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N 
Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
In addition, the Petitioner filed an appeal that we rejected as untimely. Upon review, we acknowledge 
that the rejection of this appeal was in error, and we withdraw this rejection. As such, we will consider 
the Petitioner's assertions on appeal with respect to whether the Beneficiary had the required 
experience for the offered position. 1 
I. LAW 
Employment-based immigration 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) 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. 
If DOL approves a position, an employer must next submit the certified labor application 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 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the 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. 
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. Matter of Ho, 
19 I&N Dec. 582, 590 (BIA 1988). 
USCIS may issue a notice of intent to revoke (NOIR) if the unrebutted and unexplained record, as of 
the NOIR' s issuance, would have warranted the petition's denial. Matter ofEs time, 19 I&N Dec. 450, 
451 (BIA 1987). Similarly, USCIS may revoke a petition's approval if a petitioner's response does 
not overcome the grounds stated in a NOIR. Id. at 452. 2 
II. EXPERIENCE REQUIRED FOR THE OFFERED POSITION 
The sole issue before us is whether the Beneficiary had the required experience for the offered position, 
and if not, whether the approved petition must be revoked. 
1 Given our review of this matter on certification, including the entire record, we now consider the Petitioner's rejected 
appeal-----~ and the later motion to reconsider addressing our rejection..._.,_____ ___,, moot. 
2 The Form 1-140 filed on behalf of the Beneficiary was approved by the Director of the Texas Service Center on October 
21, 2011. The Director later revoked this approved petition on August 11, 2020, following the issuance of a notice of 
intent to revoke (NOIR) on August 31, 2017. 
2 
A skilled worker must be capable of "performing skilled labor (requiring at least 2 years training or 
experience)." Section 203(b)(3)(A)(i) of the Act. 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).3 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 the "DOL bears the authority for setting the content of the labor 
certification") ( emphasis in original). 
A. Facts and procedural history 
The labor certification stated that the offered position required 24 months of experience "in the job 
offered." The labor certification further indicated that the Petitioner would not accept experience in 
an alternate occupation. The job duties for the offered position as a jewelry repairer were listed as: 
Repair, redesign, or reassemble existing pieces of jewelry by reducing or enlarging 
sizes, soldering pieces together or replacing broken clasps and mountings upon client's 
request; set ornamental stones in jeweled items such as rings, earrings, bracelets and 
other jeweled items; position metal pieces in place using setting and hand tools; clean 
and polish items and jewelry pieces; may perform precision casting and modeling of 
molds and casting molds. 
The Petitioner asserted that the Beneficiary gained experience as a jewelry repairer 40 hour per week 
from January 3, 2005, to October 25, 2008, working for a jewelry wholesaler! I(the foreign 
employer), in South Korea. The initial evidence submitted with the petition included a "Certificate of 
Career" from the president of the claimed former employer. This certificate listed the Beneficiary's 
duties as follows: 
Put jewel on metallic parts 
Fix size of accessories such as rings etc. 
Clean and shine jewel 
Repair ofjewel 
Following the approval of the petition, the Director sent a NOIR stating that, upon further review, it 
appeared the petition had been approved in error. The Director informed the Petitioner that the 
Beneficiary's claimed employment was inconsistent with employment listed in government records 
where she listed employment with~------~in South Korea from 2005 through 2006, and 
later with I lprior to her entry into the United States as a nonimmigrant in October 
2008.4 The Director indicated this discrepancy reflected that the Petitioner may have willfully 
3 This petition's priority date was October 14, 2010, 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). 
4 The government records discussed by the Director were a DS-156, nonimmigrant visa application filed with the 
Department of State (DOS) in October 2007 within which the Beneficiary indicated that she had been employed as an 
"employee-porcelain part" with~-----~and a DS-157 supplement to this form stating that she had also been 
3 
misrepresented her previously asserted foreign employment as a jewelry repairer with the foreign 
employer. In addition, the Director requested that the Petitioner submit the Beneficiary's National 
Tax Service of Korea (NTSK) records and other evidence to substantiate her employment with the 
foreign employer as a jewelry repairer. 
In response to the NOIR, the Petitioner stated that the Beneficiary did not previously list her 
employment with the foreign employer on the nonimmigrant visa application with the DOS "because 
of a miscommunication with her prior lawyer." The Petitioner further provided a "verification letter" 
from the then president of the foreign employer stating that he "remember[ ed] [ the Beneficiary] based 
on her unique background - she worked as a jewelry repairer while she studied to be a dental 
technician." The president of the foreign employer also indicated that "due to the nature of the 
business our peak hours were on the weekends, and she stayed late on those days to finish orders." 
In addition, the Petitioner submitted an affidavit from the Beneficiary within which she stated: "I 
finished my studies as a dental technician and worked at a precious metal company called I I c=J" The Beneficiary also indicated that she "worked at [the foreign employer] from Friday to the 
end of most weekends all night, and during the weekdays, I worked as a dental technician." The 
Beneficiary further explained that she filed tax returns specific to her employment at the dental clinics, 
but that the owner of the foreign employer stated that she did not "make enough money to file [her 
income with the foreign employer] and [that she] was already filing income taxes through other 
companies." The Petitioner also submitted translations of the Beneficiary's bank records it claimed 
reflected payments to her from the foreign employer from January 2005 to October 2008. 
In revoking the approved petition, the Director pointed to the inconsistency in the Beneficiary's 
assertions, namely that she did not earn enough to report her income with the foreign employer to 
South Korean tax authorities, while reporting other income earned from ~--------~ 
I !during her asserted time of employment with the foreign employer. The Director concluded 
that this evidence indicated that the Beneficiary had not been employed fulltime with the foreign 
employer or that she had gained the required 24 months of experience as a jewelry repairer. 
In support of its later appeal, the Petitioner contended that the Director should have accepted the 
evidence of wages paid to the Beneficiary, reflected in her bank accounts, as evidence of her fulltime 
employment with the foreign employer and the required 24 months of experience as a jewelry repairer. 
The Petitioner states that these payments, ranging from 600,000 South Korean Won (KRW) to 880,000 
KRW from January 2005 to October 2008, substantiate her fulltime employment with the foreign 
employer and required experience. The Petitioner provided average hourly wage tables for each year 
and stated the following: 
A jewelry repairer is a low-wage job in Korea considering that the current wage of an 
entry level jewelry repairer is 105.45% of the minimum wage. The beneficiary 
received the wages of 122.40% to 129.50% of the minimum wages on a full-time basis 
during her employment withl l The beneficiary's bank statements establish 
the beneficiary's receipt of the wages of a full-time jewelry repairer. 
employed in the same position with~I ~---~~I from 2005 to 2006. Neither form listed the Beneficiary's claimed 
employment as a jewelry repairer with I~--~ 
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The Petitioner also submitted an affidavit from the owner of the foreign employer stating he thought 
that USCIS would "take fulltime employment [of the Beneficiary] for granted," since "jewelry 
repairers working at Jewelry shops work long hours." The owner of the foreign employer further 
indicated that the Beneficiary "worked for 7 hours from 5 pm to 12 am on Fridays, and 16 hours a day 
from 8 am to 12 am on Saturdays and Sundays." Likewise, the Petitioner provided another affidavit 
from the Beneficiary asserting the Director did not sufficiently consider the bank account records 
reflecting her receipt of payments from the foreign employer. The Beneficiary stated that her low 
wages were not a reflection of parttime work, but showed typical wages paid to jewelry repair 
employees in South Korea "a little bit above" minimum wage. The Petitioner further submitted 
another a partial translation of the Beneficiary's bank records reflecting the "relevant portion only," 
namely the asserted payments made to her from the foreign employer from January 2005 through 
October 2008, and not all other portions of her bank records. 
Following our rejection of the Petitioner's appeal, the Director treated the appeal as a motion to reopen 
and issued another decision. In this decision, the Director stated that the Petitioner did not sufficiently 
explain why the Beneficiary failed to report her income from the foreign employer to South Korean 
tax authorities or why this employment was not reflected in her nonimmigrant visa application filed 
with the DOS in 2007. The Director determined that the revocation of the approved petition would 
remain undisturbed. After this decision, we recognized our error in rejecting the appeal and 
acknowledged the Director's subsequent motion decision. As such, we requested that the matter be 
certified to us pursuant to 8 C.F.R. § 103.4(a). The Director proceeded to issue another decision, 
largely reiterating the determinations set forth in the prior decisions. We note that the Petitioner did 
not submit additional evidence or assertions following the certification of this matter to us, so we will 
consider the record complete as currently constituted. 
B. Analysis 
As a preliminary matter, our adjudication here is focused on whether the Director had good and 
sufficient cause to revoke the previously approved petition in 2020 following the issuance of the NOIR 
in 2017. We conclude that the Director issued the NOIR for good and sufficient cause. The 
Beneficiary's claim that she was employed as an "employee-porcelain part" at two dental clinics in 
South Korea in a nonimmigrant visa application in 2007 contradicted her asserted employment listed 
on the labor certification and in the submitted letters and affidavits. Although we acknowledge that 
the Director was somewhat unclear as to where the information as to the Beneficiary's contradictory 
foreign employment was gained, the Petitioner does not dispute this employment and received 
sufficient notice of the discrepancies. The record lacked sufficient reliable evidence of the 
Beneficiary's qualifying experience for the offered position. The Petitioner was required to resolve 
discrepancies in the record with independent, objective evidence pointing to where the truth lies. 
Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In response, the Petitioner did not submit sufficient evidence to overcome the uncertainty raised by 
the inconsistencies between the Beneficiary's asserted employment with the foreign employer, and 
her reported employment with two dental clinics during the same period. The Petitioner continually 
points to the Beneficiary's bank records reflecting payments made by the foreign employer to the 
Beneficiary from 2005 to 2008. As discussed by the Director, the Petitioner provided insufficient 
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explanation as to why this income was not reported to the South Korean government during this time, 
while purportedly her employment with the dental clinics had been during the same period. The 
Petitioner and Beneficiary only state that her wages were low, she was reporting other income from 
the dental clinics, and the owner of the foreign employer stated that she did not need to report this 
income. However, these reasons are insufficient and provide little reasonable basis for the 
Beneficiary's failure to report these wages or the lack of tax returns to corroborate her qualifying 
employment. 
Further, on appeal, the Petitioner later contended that her wages were "122.40% to 129.50% of the 
minimum wages on a foll-time basis," while a typical jewelry entry-level repairer received "105.45% 
of the minimum wage." Therefore, the Petitioner's and Beneficiary's statements appear incongruent, 
as they both claim that she did not report her income with the foreign employer because it was too 
low, yet they indicate she was earning anywhere from 22.4% to 29.5% more than the minimum wage 
in South Korea during her employment with the foreign employer, substantially more than an entry 
level jewelry repairer in that country. In addition, the Petitioner does not provide an indication as to 
what she earned while working at the two dental clinics during that same time, as it would be probative 
to compare these wages and understand why one was reported, while her wages with the foreign 
employer were not for being "too low." The Petitioner also submits no basis in foreign law for her 
lack of tax returns related to her asserted employment as a jewelry repairer. In immigration 
proceedings, the law of a foreign country is a question of fact which must be proven if a petitioner 
relies on it to establish eligibility for an immigration benefit. Matter ofAnnang, 14 I&N Dec. 502 
(BIA 1973). 
As such, the Petitioner has provided little reasonable basis for the lack of tax documentation to support 
her employment for 24 months with the foreign employer on a folltime basis, nor why there is no other 
supporting documentation to substantiate this employment, such as paystubs, payroll records, 
employment contracts, personnel forms, employer's tax documentation, or other similar evidence. 
The lack of other evidence is particularly noteworthy, since in the NOIR, the Director specifically 
requested that the Petitioner submit the Beneficiary's National Tax Service of Korea (NTSK) records 
and other evidence to substantiate her employment with the foreign employer as a jewelry repairer. 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 ofSkirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
It is also noteworthy that at the time of the NOIR response, the Petitioner provided no indication as to 
how the asserted payments to the Beneficiary demonstrated folltime employment with the foreign 
employer. The Petitioner also provided no plausible explanation for why the Beneficiary did not report 
her employment with the foreign employer in her the DOS nonimmigrant visa application, only 
vaguely stating that this was "because of a miscommunication with her prior lawyer." We observe 
the Beneficiary signed the nonimmigrant visa application, attesting that the information on the 
application was true and correct. The Beneficiary's signature "establishes a strong presumption" that 
she knew and assented to the contents. See Matter o_f Valdez, 27 I&N Dec. 496,499 (BIA 2018). 
Similarly, section K of the labor certification, filed on October 13, 2010, related to "alien work 
experience" required that the Beneficiary "list all jobs the [ foreign national] held during the past 3 
years." Considering that this reporting period dated back to October 2007, the Beneficiary's 
concurrent employment with the discussed dental clinics is conspicuously absent from the labor 
6 
certification, while being included in the DOS nonimmigrant visa filed in October 2007 at the same 
time. Again, the Petitioner must resolve inconsistencies and ambiguities in the record with 
independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&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. 
In sum, the Beneficiary's bank records are not alone sufficient to substantiate her required 24 months 
of experience as a jewelry repairer abroad, particularly in light of the material discrepancies raised by 
her conflicting employment listed in the DOS nonimmigrant visa application. As such, the submitted 
evidence does not demonstrate that the Beneficiary had the required experience for the offered 
position. For this reason, we conclude that there was, and is, good and sufficient cause to revoke the 
approved petition. 
ORDER: The petition is revoked. 
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