dismissed EB-3 Case: Freight Trucking

U.S. Citizenship 
and Immigration 
Services 
In Re: 16132492 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 11, 2021 
The Petitioner, a freight trucking business, seeks to employ the Beneficiary as a maintenance 
mechanic. It requests skilled worker classification for the Beneficiary under the third-preference 
immigrant category . 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 "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 first 
determined that the Petitioner did not establish that it made a bona fide job offer to the Beneficiary for 
the proffered position identified in the labor certification. Secondly, the Director determined that the 
Petitioner did not establish its ability to pay the proffered wage. Thirdly, the Director determined that 
both the Petitioner and the Beneficiary willfully misrepresented material facts on the labor certification 
and other documentation regarding the Beneficiary's employment history, and invalidated the labor 
certification on that basis. 
On appeal, the Petitioner contests all of the Director's grounds for the denial and asserts that the 
evidence of record establishes its eligibility for the immigration benefit sought in this proceeding. 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the requested benefit. 
See section 291 of the Act, 8 U.S .C § 1361. Upon de novo review, we will dismiss the appeal based 
on the first and third grounds of the Director's decision. Since our decision on these two issues is 
dispositive of the appeal, we will reserve the remaining issue of the Petitioner's ability to pay the 
proffered wage. 1 
I. LAW 
Employment-based immigration generally follows a three-step process . First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). See section 
1 See INS v. Bagamashad, 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). 
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 (Form I-140) with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
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 
A. Bona Fides of the Job Offer 
A petitioner must establish its intent to employ the beneficiary in accordance with the terms and 
conditions of the labor certification. See Matter of Izdebska, 12 I&N Dec. 54 (Reg. Comm'r 1966) 
(upholding the denial of an employment-based immigrant visa where the evidence did not establish 
that the petitioner actually desired and intended to employ the beneficiary pursuant to the terms of the 
labor certification). A labor certification is valid only for the particular job opportunity, beneficiary, 
and area of intended employment identified in the labor certification. See Matter of Sunoco Energy 
Development Co., 17 I&N Dec. 283 (Reg'l Comm'r 1979) and 20 C.F.R. § 656.30(c)(l). 
In this case the labor certification identified the job opportunity (in section H.3) as a maintenance 
mechanic and the area of intended employment (in sections H.1 and H.2) as the Petitioner's home 
address in I I Florida. In section H.11 of the labor certification the duties of the 
proffered position were described as follows: 
Repair machines and equipment such as electric and mechanical motors, parts and 
systems using equipment like the precision measuring instruments or electrical or 
electronic testing devices and tools such as hammers, hoists, saws, drills, and or 
wrenches. Perform routine maintenance, such as inspecting drivers, motor, or belts, 
checking fluid levels, replacing filters, or doing other preventive maintenance actions. 
Inspect, operate, or test machinery or equipment to diagnose machine malfunctions. 
In denying the petition the Director reviewed the evidence showing that the Petitioner had just one 
employee and otherwise utilized independent contract labor to conduct its business. In the Director's 
view this situation cast doubt on whether the Petitioner intended to hire the Beneficiary as a foll-time 
employee. The Director alluded to a statement from the Petitioner's president! l asserting 
that a maintenance mechanic was necessary to maintain its fleet of trucks, but pointed to other 
documentation indicating that the Petitioner does not actually own any trucks, acting instead as a 
middleman, or dispatcher, securing trucks from other companies for its clients. Considering this 
business model the Director questioned why the Petitioner had any need for a maintenance mechanic. 
The Director farther noted that the Petitioner's home address, identified on the labor certification as 
the primary worksite, was office space and thus not a location where the duties of a maintenance 
mechanic could be performed. For all of these reasons the Director concluded that the Petitioner failed 
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to establish that it made a bona fide job offer to the Beneficiary for employment in the proffered 
position of a maintenance mechanic. 
On appeal the Petitioner contends that it satisfied all requirements to recruit for a maintenance 
mechanic, and the fact that its business model up to now has been outsourcing services and tasks does 
not mean that it will continue to operate this way in the future. The Petitioner contends that its search 
for a maintenance mechanic is part of an "operations redesign program" and thus a bona fide job offer. 
The Petitioner acknowledges that its headquarters offices are not where the maintenance mechanic 
will work (notwithstanding the labor certification which states otherwise), and asserts that it intends 
to rent suitable premises when the maintenance mechanic is hired. 
The Petitioner's claims are not persuasive. While it is true that the Petitioner has no obligation to hire 
a maintenance mechanic before the instant petition is approved, the Petitioner's existing business 
model does not indicate that it needs any maintenance mechanic since it apparently does not own any 
trucks that require maintenance. Though the Petitioner suggests that its business model will change 
as part of an "operations redesign program," it provides no specifics or supporting documentation 
thereof. In particular, the Petitioner provides no evidence of any concrete plan and financial outlay to 
buy trucks that would require the services of a maintenance mechanic. Likewise, the Petitioner offers 
no evidence of any concrete plan to purchase or lease a facility where truck maintenance could be 
performed. Due to these evidentiary deficiencies we conclude that the Petitioner has not established 
that it intends to employ the Beneficiary as a full-time maintenance mechanic, in accord with the terms 
of the labor certification. Thus, the Petitioner has not established the bonafides of the job offer. On 
this ground alone the petition cannot be approved. See Matter of Izdebska, id. 
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, 17 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). 
The labor certification in this case stated that the mm1mum requirements for the position of 
maintenance mechanic were a high school level education and two years of experience in the job 
offered. According to the labor certification the Beneficiary met the experience requirement by virtue 
of his emf1oyment as a maintenance mechanic byl I a "mechanic shop" in I I I Venezuela, from June 2008 to February 2018. This job was the only experience listed for 
the Beneficiary on the labor certification. 
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As evidence of the Beneficiary's alleged experience the Petitioner submitted a Spanish language letter 
with an English translation, ostensibly from the operations manager of the Venezuelan business, 
I I stating that the Beneficiary was employed as chief maintenance 
mechanic in its diesel workshop from June 2, 2008, to February 23, 2018. Also submitted in support 
of the petition was the Beneficiary's resume in which the position as a maintenance mechanic with 
I twas the only job listed under the heading of Experience. 
In a notice of intent to deny the petition (NOID) the Director advised the Petitioner of an earlier 
nonimmigrant visa (NIV) application filed by the Beneficiary in March 2015 which did not mention 
his alleged experience wit~ I (we will refer to this company hereinafter as 
I ,I. Instead, the Beneficiary indicated on the 2015 NIV application that his current 
employment was in the engineering field wit~'-----,------,-----,--....,..,..,------,----'~' a company in which he 
held a partnership interest and whose business was buying and selling tires. The NIV application also 
indicated, as the Director pointed out, that the Beneficiary had no prior employment. Based on the 
inconsistent employment histories stated on the NIV application in 2015 and the labor certification 
underlying the instant immigrant visa petition, the Director stated that it appeared the Petitioner and 
the Beneficiary had misrepresented the Beneficiary's work experience. 
In the denial decision the Director discussed the Petitioner's response to the NOID, including the 
Petitioner's assertion that the Beneficiary had two jobs at the time of the 2015 NIV application -
working as the director and co-owner ofl I and as chief maintenance mechanic atl I 
According to the Petitioner, since the two jobs were simultaneous, the Beneficiary chose to list the 
work with his own company on the NIV application and correctly indicated that he had no prior 
~nee. As pointed out by the Director, however, the Beneficiary claimed that the work with 
L___Jbegan in 2012, four years after the beginning of his employment withl I in 2008. 
Therefore, the Beneficiary would have had four years of employment at I I prior to the job 
listed on the NIV application, making his denial on that form of any prior employment incorrect. The 
Director also noted that the NIV application allowed the listing of additional employment, so the 
Beneficiary could have listed his alleged employment withl I Adding to the Beneficiary's 
alleged employment history, the Petitioner submitted with its NOID response a photocopied letter 
ostensibly from.__ _______ __, in I I stating that the Beneficiary was employed from 
December 1997 to May 2008, when the company was known as.__ __________ ____. 
I I), as "leader of the heavy repair workshop." Since this job was not listed on the 
labor certification or in the Beneficiary's resume submitted with the petition, the Director deemed the 
purported employment verification letter not credible. 
The Director concluded that the Petitioner and the Beneficiary misrepresented the Beneficiary's work 
history on the NIV application (the Beneficiary alone) and on the labor certification underlying the 
immigrant visa petition (both the Petitioner and the Beneficiary), that the misrepresentations were 
willfully made because the Petitioner and the Beneficiary attested to the truth and accuracy of the 
information on the forms, and that the misrepresentations were material because they related to 
whether the Beneficiary had two years of experience as a maintenance mechanic, as required to qualify 
for the immigration benefit of skilled worker classification sought by the Petitioner. The Director then 
invalidated the labor certification under 20 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 
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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." Though 
not expressly stated by the Director, since the petition was not accompanied by a valid labor 
certification it could not be approved. See 8 C.F.R. § 204.5(a)(2). 
On appeal the Petitioner reiterates its contention that the Beneficiary worked simultaneously in 
Venezuela as the chief maintenance mechanic in the diesel retail shop o±i ~ and as the 50% 
co-owner o~ I The Petitioner claims that the Beneficiary's alleged employment withl I I lin the years 1997-2008 was not listed on the labor certification because the Beneficiary 
exceeded the two-year requirement for qualifying experience with his employment atl I 
making the earlier experience at I I irrelevant. As for the experience claimed on the 
Beneficiary's NIV application, the Petitioner reiterates the Beneficiary's claim that he chose to list his 
work with I ~he company he co-owned, since it was more lucrative and he thought it would 
facilitate the application's approval. Echoing another claim by the Beneficiary, the Petitioner asserts 
that the experience withl I was not listed on the NIV application because the form asked 
about previous work, not a simultaneous job. 
The Petitioner's explanations are not persuasive. Section K of the labor certification (Alien Work 
Experience) has the following instructions: 
List all jobs the alien has held during the past 3 years. Also list any other experience 
that qualifies the alien for the job opportunity for which the employer is seeking 
certification. 
Only one job was listed for the Beneficiary on the labor certification - the position of maintenance 
mechanic withl lfrom June 2008 to February 2018. However, at the time the labor 
certification was filed with the DOL in August 2018 the Beneficiary asserts that he was working for 
,___ _ __,las well. Therefore, that experience should have been listed on the labor certification, whether 
or not it was qualifying experience, because it was a job the Beneficiary held "during the past 3 years." 
In addition, if the Beneficiary's alleged position with I I from 1997 to 2008 was 
qualifying experience, as the Petitioner claims, it should also have been listed on the labor certification 
as "other ex[eriencl that qualifies the alien for the job opportunity." The fact that thel I I land positions were not listed on the labor certification lessens the credibility of that 
alleged experience. See Matter o_f Leung, 16 I&N Dec. 2530 (BIA 1976). Moreover, neither of those 
jobs was listed in the Beneficiary's resume submitted with the instant petition. Furthermore, the 
Beneficiary has provided no convincing explanation for omitting his alleged experience withe=] 
LJ and,__ _____ __. from his NIV application since that form requested information about 
previous employment - which the I ljob would have been in full because it preceded 
thel I husiness, and thel I job would have been in part because it started four years 
beforel I began. 
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). 
Neither the Petitioner nor the Beneficiary in this case has resolved the myriad inconsistencies 
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discussed above regarding the Beneficiary's employment history, which casts doubt on the veracity of 
all the employment claims. 
Accordingly, we will not disturb the Director's determination that the Petitioner and the Beneficiary 
willfully misrepresented material facts about the Beneficiary's employment history on the labor 
certification 2 and other documentation, nor the Director's invalidation of the labor certification under 
20 C.F.R. § 656.30(d). The regulation at 8 C.F.R. § 204.5(a)(2) provides that a Form I-140 petition 
must be accompanied by any required labor certification to be considered properly filed. Since the 
instant petition is not accompanied by a valid labor certification, it is not properly filed and cannot be 
approved. 
C. Petitioner's Ability to Pay the Proffered Wage 
As previously discussed, we reserve the issue of the Petitioner's ability to pay the proffered wage. 
III. CONCLUSION 
The Petitioner has not established its intent to employ the Beneficiary as a maintenance mechanic. 
Accordingly, it has not established that the proffered position in the labor certification is a bona fide 
offer of employment. In addition, we agree with the Director's determination that the Petitioner and 
the Beneficiary willfully misrepresented material facts concerning the Beneficiary's employment 
history on the labor certification and other documentation. Accordingly, the labor certification was 
properly invalidated. Without a valid labor certification, the instant petition cannot be approved. For 
the above stated reasons we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
2 In the NOID and the denial decision the Director suggested that the Petitioner may have misrepresented its relationship 
to the Beneficiary by answering "No" to the compound question at section C.9 of the labor certification which asks: (1) 
Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest? 
and (2) is there a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and 
the alien? The answer to part (1) is "No" since the Beneficiary has no ownership interest in the petitioning company, 
which is wholly owned by its president, Felix Alvarado. The answer to part (2) is also "No" because the record indicates 
there is no family relationship between the Beneficiary and the petitioning company's owner/president or anyone else 
associated with the company. Therefore, the Petitioner's answer to the question at section C.9 of the labor certification 
was correct. 
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