dismissed EB-3 Case: Garment Manufacturing

MATTER OF T-N-M-C-M-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 15, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
, 
The Petitioner, a garment manufacturer, seeks to permanently employ the Beneficiary as a sewing 
machine operator. It requests classification of the Beneficiary as an unskilled worker under the third 
preference immigrant category. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). This classification allows a U.S. employer to 
sponsor a worker with less than 2 years of training or experience for lawful permanent resident 
status. 
On May 27, 2014, the Director, Texas Service Center, denied the petition. The Director concluded 
that the Beneficiary previously married in an attempt to evade immigration laws, barring the 
petition's approval. 
The matter is now before us on de novo. appellate review. Because the record on appeal does not 
establish the bona fides of the Beneficiary's prior marriage, we will affirm the Director's decision 
and dismiss the appeal. The record also does not establish the Petitioner's ability to pay the 
proffered wage or the Beneficiary's qualifications for the offered position. 
I. LAW AND ANALYSIS 
k USCIS' Role in the Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor 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). Next, U.S. Citizenship and Immigration Services (USCIS) 
must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, a 
foreign national must 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. 
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Matter ofT-N-M-C-M-, Inc. 
By approving the accompanying ETA Form 9089, Application for Employment .Certification (labor 
certification) in the instant case, the DOL certified that there are insufficient U.S. workers who are able, 
willing, qualified, and available for the offered position of sewing machine operator. See section 
212(a)(5)(A)(i)(I) of the Act. The DOL also certified that the employment of 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)(II). 
We must decide whether the Beneficiary meets the requirements of the offered position as certified 
by the DOL and the eligibility of the Petitioner and the Beneficiary for the requested classification. 
See, e.g., Tongatapu Woodcraft Haw., Ltd. v Feldman , 736 F.2d 1305, 1309 (9th Cir. 1984) (holding 
that the immigration service "makes its own determination of the alien's entitlement to [the 
requested] preference status"). 
B. The Bona Fides ofthe Beneficiary 's Prior Marriage 
We cannot approve a petition if a beneficiary previously married in an attempt to evade immigration 
laws. Section 204(c) of the Act, 8 U.S.C. § 1154(c). To invoke section 204(c) of the Act, the record 
must contain "substantial and probative" evidence of marriage fraud. 8 C.F.R. § 204.2(a)(l ); Matter 
ofTawjik, 20 I&N Dec. 166, 167 (BIA 1990). An adjudicator generally "should not give conclusive 
effect to determinations made in prior proceedings , but, rather, should reach his [or her] own 
independent conclusion based on the evidence." !d. at 168. 
If substantial and probative evidence of marriage fraud exists, a petitiOner must show by a 
preponderance of evidence that a beneficiary did not marry for the purpose of evading immigration 
laws. Matter of Laureano, 19 I&N Dec. 1, 3 (BIA 1983). The central question in determining the 
bona fides of a marriage is whether the parties intended to establish a life together at the time of their 
marriage. Laureano, 19 I&N Dec. at 3; see also Lutwak v. United States, 344 U.S. 604, 611 (1953). 
On 1995, the record indicates that the Beneficiary married a U.S. citizen who later filed 
an immigrant visa petition for him as her spouse. See section 201(b)(2)(A)(i) of the Act, 8 U.S.C. 
1151(b)(2)(A)(i) (defining the term "immediate relatives" to include spouses of U.S. citizens). The 
week before the couple's scheduled November 26, 1996, interview at an immigration office, the 
Beneficiary's spouse signed a handwritten statement withdrawing the petition. She wrote that she 
did not want to attend the interview with the Beneficiary and complained about the quality of her life 
with him . The letter stated: "I think he only married me for a green card." 
Also, on June 26, 1997, in an application submitted to the immigration service, the Beneficiary 
attested that he married a woman in India on 1993 and remained married to her. At the 
time he wed his U.S. citizen spouse in 1995, the Beneficiary therefore appears to have already had a 
spouse. 
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In addition, in a March 31, 1995, letter to the immigration service, an Oregon woman stated that she 
married the Beneficiary on 1995·. She indicated that she first met him while he was 
working as a restaurant cook in Oregon. 
The woman stated that, about a week after their wedding, the Beneficiary took her to visit his 
attorney and told her that she must "sign papers" to allow him to remain in the United States. She 
stated that she did not sign the papers because "he was asking me to lie for him and to lie about our 
relationship and how we met." 
The letter states that the woman sought annulment of her marriage to the Beneficiary. She asked the 
immigration service to investigate him, stating: "I feel as though I have been taken advantage o'f, 
and he is taking advantage of my country also." 
On August 1, 1995, USCIS records indicate that the Oregon woman told an immigration officer of 
another marriage by the Beneficiary. She said the Beneficiary's former employer told her that, while 
the Beneficiary was married to her, he was also the spouse of a California woman. The Oregon 
woman stated that the other woman visited the Beneficiary at the restaurant, where he referred to the 
other woman as his "wife." But the Oregon woman stated that the Beneficiary later told her that his 
spouse had died in a car accident and that he was not actually married to the other woman. Contrary 
to the Beneficiary's explanation, the Oregon woman said that his former employer and a friend told 
her that the Beneficiary wed the other woman and remained legally married to her during his 
marriage to the Oregon woman. 
The record contains substantial and probative evidence of marriage fraud. The Beneficiary's U.S. 
citizen spouse withdrew her petition on his behalf, writing that she believed he married her for the 
purpose of evading immigration laws. See Oddo v. Reno, 17 F. Supp. 2d 529 (E.D. Va. 1998) 
(holding that the immigration service did not err in revoking a petition's approval under section 
204(c) of the Act where a beneficiary's spouse told officers that the marriage was entered into for 
immigration purposes). The Beneficiary also attested to marrying an Indian woman in 1993, casting 
doubt on his motives for wedding his U.S. citizen spouse. 
The reports of additional marriages between the Beneficiary and the women from Oregon and 
California are unsupported by marriage certificates or licenses. But the reports suggest that the 
Beneficiary engaged in a pattern of marrying U.S. citizens for immigration purposes. Pursuant to 
Laureano, the Petitioner must establish that the Beneficiary did not marry his U.S. citizen spouse in 
1995 for the purpose of evading immigration laws. See 19 I&N Dec. at 3. 
' In an affidavit in response to the Director's notice of intent to deny of August 6, 2013, the 
Beneficiary maintained that he and his U.S. citizen wife intended to establish a life together. He 
stated that an unidentified friend introduced them and that the couple dated before deciding to marry. 
The affidavit states that the Beneficiary's parents and sister attended the couple's wedding and that, 
after the ceremony, the couple resided together in various apartments. The Beneficiary stated that 
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Matter ofT-N-M-C-M-, Inc. 
his spouse often visited his sister's home and that the couple socialized together with friends and 
family. 
The Beneficiary attributed his spouse's withdrawal of the petition to a "jealous friend," who 
purportedly told her that the Beneficiary 's intentions were "doubtful." The Beneficiary stated that 
his spouse "immediately regretted her actions" and attended the interview at the immigration office 
with him. After the petition's denial, the Beneficiary stated that the couple continued to live together 
and .that he was confident that he would convince her of the validity of the marriage. He stated that 
they lived together for about 3 years before ultimately divorcing on 2005. 
The Beneficiary stated that he never knew the woman identified in his prior application as his 
spouse. The affidavit states that he did not marry the woman in India in 1993 and has not left the 
United States since entering the country in 1990. The Beneficiary attributed the inaccurate 
information to the agent who prepared the application on his behalf. The Beneficiary stated that he 
cannot read English well and "did not pay attention to the biographic information on the ... form 
before signing it." 
The Petitioner submitted affidavits from 10 of the Beneficiary 's friends and family members, 
attesting to the validity of his marriage to his U.S. citizen spouse. The record also contains two 
jewelry receipts and six photographs of the Beneficiary and his spouse together on their purported 
honeymoon and at a birthday party for the Beneficiary ' s niece. 
In response to our notice of intent to dismiss (NOID) of June 1, 2016, the Petitioner submitted an 
affidavit from the Beneficiary's sister, who was also the owner of the Oregon restaurant where the 
Beneficiary worked in 1995. She stated: "To the best of my knowledge, [the Beneficiary] was not 
legally married to any one at that time although he was in a relationship with a woman and they were 
living together." 
The Beneficiary's sister suggested that the Beneficiary's then girlfriend was the Oregon woman who 
contacted the immigration service and that she was jealous of the Beneficiary 's relationships with 
other women. If the Beneficiary spoke to other women, the Beneficiary 's sister stated that his 
girlfriend "easily became upset." She stated that "[ o ]n a few occasions, I had to intervene in their 
arguments arising from [the Beneficiary's] interaction with fellow restaurant female employees." 
The Beneficiary 's sister denied telling his girlfriend that he was married to other women. 
The Petitioner has not submitted sufficient evidence to establish the bona fid es of the Beneficiary 's 
marriage to his U.S. citizen spouse. The record lacks objective evidence of the couple's cohabitation 
and sharing of resources . See Matter of Phillis, 15 I&N Dec. 385, 387 (BIA 1975) (finding 
unsupported testimony insufficient to overcome an inference of marriage fraud). 
The record also lacks details of the couple's courtship . The Beneficiary's affidavit described their 
relationship in vague terms. It did not identify the friend who introduced the couple and indefinitely 
stated that they dated "for a while." 
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Matter ofT-N-M-C-M-, Inc. 
The Beneficiary denied th~ 1993 marriage in India stated on his prior application. But the regulation 
at 8 C.P.R. § 208.3(c)(2) creates a presumption that the Beneficiary was aware of the application's 
contents when he signed it. His unsupportyd denial of the marriage's existence is insufficient to 
overcome the regulatory presumption that he knowingly stated marrying in 1993. 
The single-page affidavits from the Beneficiary's friends and family members are virtually identical 
and provide few details of his marriage to his U.S. citizen spouse. Counsel asserts that the affiants 
prepared their statements from similar outlines because the affiants are not proficient in English. But 
counsel's assertion does not constitute probative evidence. Matter of Obaigbena, 19 I&N Dec. 533, 
534 n.2 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel's 
statements must be substantiated in the record with independent evidence, which may include affidavits 
and declarations. Also, the affiants could have provided statements in their native languages, 
accompanied by English translations. See 8 C.P.R.§ 103.2(b)(3). 
Counsel asserts that the jewelry receipts reflect gifts from the Beneficiary to his U.S. citizen spouse. 
Counsel states that the Beneficiary's possession of the receipts after almost 20 years indicates the 
importance of the gifts to him. But, again, counsel's assertions are not evidence. See Obaigbena, 19 
I&N Dec. at 534 n.2; Ramirez-Sanchez, 17 I&N Dec. at 506. Also, the receipts are in the name of 
the Beneficiary's spouse and therefore do not demonstrate the claimed purchases of the jewelry by 
him for her. 
The Petitioner also asserts that the photographs of record are "noteworthy" because digital 
photography was unavailable when they were taken and the Beneficiary kept them for many years. 
But the photos appear to reflect only 2 days during which the Beneficiary and his spouse were 
together. The photos therefore provide little support of the marriage's validity. 
The Petitioner notes that the Beneficiary's marriage to his U.S. citizen spouse lasted more than 9 
years. If the Beneficiary married only for immigration benefits, the Petitioner asserts that he would 
have divorced her immediately after the petition's denial. 
The Beneficiary's marriage, measured from the wedding to the divorce, represents a lengthy period. 
But the record does not establish that the couple lived together or otherwise shared their lives during 
or before that time. 
For the foregoing reasons, the record contains substantial and probative evidence that the 
Beneficiary married in an attempt to evade immigration laws. The record on , appeal does not 
establish the bona jide,s of his prior marriage. We will therefore affirm the Director's decision and 
dismiss the appeal. 
C. The Petitioner's Ability to Pay the Proffered Wage 
Although not addressed in the Director's decision, the record also does not establish the petitioner's 
ability to pay the proffered wage. 
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Matter ofT-N-M-C-M-, Inc. 
A petitioner must demonstrate its continuing ability to pay a proffered wage from a petition's 
priority date until a beneficiary obtains lawful permanent. residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. !d. 
The instant petition's priority date is March 31, 2011, the date the DOL accepted the accompanying 
labor certification application for processing. See 8 C.F.R. § 204.5(d). The labor certification states 
the proffered wage of the offered position of sewing machine operator as $24,050 per year. 
In determining ability to pay, we first examine whether a petitioner paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay a 
beneficiary the full proffered wage, we examine whether it generated sufficient annual amounts of 
net income or net current assets to pay the different between any wages paid and the annual 
proffered wage. If net income and net current assets are insufficient, we may also consider the 
overall magnitude of a petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612, 
614-15 (Reg'l Comm'r 1967).1 
The record contains copies of IRS Forms W-2, Wage and Tax Statements, for 2011 and 2012. The 
Forms W-2 indicate that the Petitioner paid the Beneficiary $24,702.85 in 2011 and $24,269.28 in 
2012. 
The record also contains copies of the Beneficiary's payroll records from January and February 
2013. The records indicate that, as ofF ebruary 23, 2013, the Petitioner paid the Beneficiary a total 
of$4220.96 that year. " 
The Petitioner's payments to the Beneficiary exceed the annual proffered wage of $24,050 in 2011 
and 2012. The record therefore appears to establish the Petitioner's ability to pay the proffered wage 
based on its payments to the Beneficiary those years. 
The $4220.96 amount paid to the Beneficiary in 2013 does not exceed the annual proffered wage. 
But we credit the payment. In 2013, the Petitioner need only demonstrate its ability to pay the 
difference between the wages paid and the annual proffered, or $19,829.04. 
In response to our NOID, the Petitioner .submits copies of its federal income tax returns for 2011 
through 2015. The returns state annual net income amounts that exceed the annual proffered wage 
in 2013, 2014, and 2015. 
1 Federal courts have upheld our method of determi~ing a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Estrada-Hernandez v. Holder, I 08 F. Supp. 3d 936, 942-
43 (S.D. Cal. 2015); Rizvi v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 884-85 (S.D. Tex. 2014), aff'd, 627 Fed. 
App'x. 292 (5th Cir. 20 15). 
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Matter ofT-N-M-C-M-, Inc. 
But the tax returns are incomplete. For each year, they consist of copies of only the first pages of the 
Petitioner's IRS Forms 1120S, U.S. Income Tax Returns for an S Corporation. 
S corporations that receive income adjustments from sources other than their trades or businesses 
reconcile their net incomes on Schedules K to IRS Form 1120S. See Internal Revenue Serv., 
Instructions to Form 1120S, 22, at https://www.irs.gov/[ib/irs-pdf/i1120s.pdf (accessed Sept. 9, 
2016) (explaining that Schedule K is a summary of all shareholders' shares of a corporation's 
income). Because the Petitioner's tax returns do not include Schedules K, the record does not 
indicate whether the Petitioner reported income adjustments from sources other than its business 
since 2011. Thus, the annual net income amounts reflected on the Petitioner's returns for 2013, 
I 
2014, and 2015 are unreliable and do not establish its ability to pay the proffered wage in those 
years. Because the Petitioner's tax returns are incomplete, they also do not indicate the company's 
annual amounts of net current assets since 2011. 
Thus, based on examinations of the amounts paid to the Beneficiary by the Petitioner, its net income, 
and its net current assets, the record does not establish 
the Petitioner's ability to pay the proffered 
wage. 
Also, as indicated in our NOID, USCIS records indicate the Petitioner's filing of two Forms I-140, 
Immigrant Petitions for Alien Workers, for other beneficiaries that remained pending after the 
instant petition's priority date.2 
A petitioner must demonstrate its continuing ability to pay the proffered wage of each petition it 
files. 8 C.F.R. § 204.5(g)(2). The instant Petitioner must therefore demonstrate its ability to pay the 
combined proffered wages of the instant Beneficiary arid the beneficiaries of its other petitions that 
remained pending after the instant petition's priority date. The. Petitioner must demonstrate its 
ability to pay the combined wages from the instant petition's priority date until. the other 
beneficiaries obtained lawful permanent residence, or until their petitions were denied, withdrawn, 
or revoked. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our denial of a 
petition where the petitioner did not demonstrate its ability to pay multiple beneficiaries). 
Contrary to the requests in our NOID, the Petitioner did not provide the proffered wages or priority 
dates of the other petitions, nor did it indicate whether it paid wages to the other beneficiaries. The 
Petitioner also did not indicate whether the other beneficiaries obtained lawful permanent residence, 
or whether their petitions were denied, withdrawn, or revoked. Without this information, the record 
does not establish the Petitioner's ability to pay the proffered wage. 
As previously ·Indicated, we may consider 
evidence of a petitioner's ability to pay a proffered wage 
beyond its net income and net current assets. See Sonegawa, 12 I&N Dec. at 614-15. We may 
consider such factors as: the numb>er of years a petitioner has conducted business; its number of 
employees; the growth of its business; the occurrence of any uncharacteristic business expenditures 
2 USCIS records identify the petitions by the following receipt numbers: and 
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Matter ofT-N-M-C-M-, Inc. 
or losses, its reputation within its industry; whether a beneficiary is replacing a current employee or 
outsourced service; or other evidence of its ability to pay the proffered wage. 
The instant record indicates that the Petitioner has conducted business for more than 30 years. In a 
May 10, 2013, letter, it indicated its employment of 68 people, stating that its number of employees 
fluctuates depending on government contracts it receives. The Petitioner's tax returns reflect 
increases in revenues and wages paid from 2011 through 2015. 
But, unlike the petitioner in Sonegawa, the record does not indicate the occurrence of any -
uncharacteristic business expenditures or losses, or the Petitioner's outstanding reputation' in its 
industry. The record also does not indicate the Beneficiary's replacement of a current employee or 
outsourced service. · 
Also unlike the petitioner in Sonegawa, the Petitioner must demonstrate its ability to pay multiple 
beneficiaries. As previously indicated, the Petitioner did not provide requested information about its 
other beneficiaries. See 8 C.F .R. § 1 03 .2(b )(14) (stating that we may deny a petition if a petitioner 
does not provide requested evidence that precludes a material line of inquiry). Considering the 
totality of the circumstances, the record does not establish the Petitioner's ability to pay the proffered 
wage pursuant to Sonegawa. 
For the foregoing reasons, the record does not establish the Petitioner's continuing ability to pay the 
proffered wage from the petition's priority date onward. We will therefore also dismiss the appeal 
for this reason.
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D. The Beneficiary's Qualifications for the Offered Position 
Although not addressed in the Director's decision, the record also does not establish the 
Beneficiary's qualifications for the offered position. 
A petitioner must establish a beneficiary's possession of all the education, training, and experience 
specified on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 
103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l 
Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
In evaluating a beneficiary's qualifications, we must examine the job offer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position. 
We may neither ignore a term of a labor certification, nor impose additional requirements. See 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 
1008, 1012-13 (D.C. Cir. 1983); Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 
1, 3 (1st Cir. 1981). 
In the instant case, the accompanying labor certification states the minimum requirements of the 
offered position of sewing machine operator as 3 months of experience in the job offered. Part H.14 
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Matter ofT-N-M-C-M-, Inc. 
of ETA Form 9089 also states that an applicant "[m]ust be able to operate all types of sewing 
machines used by the employer." 
The Beneficiary attested on the labor certification to his possession of more than 3 years of full-time 
qualifying experience before starting employment with the Petitioner on June I, I999. The Beneficiary 
stated his employment as a stitching master by in India from April I, 1986 to April 30, 
1989. 
A petitioner must support a beneficiary's claimed qualifying experience with a letter from an employer. 
8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must provide the name, address, and title of the employer, and a 
description of the beneficiary' s experience. !d. 
The instant Petitioner first provided a March 28, 200 I, letter on the stationery of in 
India. The letter states the business' employment of the Beneficiary as stitching master from April1986 
to April1989. 
But, contrary to 8 C.F.R. § 204.5(1)(3)(ii)(A), the letter does not contain the former employer's title or 
describe the Beneficiary's experience. The letter 'also lacks evidence of the Beneficiary' s ability to 
operate all types of sewing machines used by the Petitioner as specified on the accompanying labor 
certification. The letter therefore does not establish the Beneficiary' s claimed qualifying experience. 
In response to the Director's request for evidence of December 19, 20I2 , the Petitioner submitted an 
April 8, 2013, letter from The 2013 letter states the business' full-time employment of 
the. Beneficiary as stitching master from April 1, 1986 to April 30, 1989, identifies the signatory as the 
business's owner, and describes the Beneficiary's experiences. 
Our NOID informed the Petitioner that, in March 20I5 , USCIS officers 
visited at the 
Indian address indicated on the letters' stationery. A man there with a name other than the signatory's 
identified himself as the sole,proprietor of the business since I97 5. He indicated that the business had 
never employed anyone with the Beneficiary' s name. 
A petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the Act; 
8 U.S.C. § 1361. The instant Petitioner must therefore resolve the discrepancies regarding the 
Beneficiary's claimed qualifying experience. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) 
(requiring a petitioner to resolve inconsistencies of record by independent, objective evidence pointing 
to where the truth lies). 
In response to our NOID, the Petitioner submitted an affidavit from the letters' signatory, stating that 
USCIS officers "may have spoken to an employee[,] who not knowing the facts[,] gave them incorrect 
information that [the Beneficiary] never worked here .... In 2015, there was no employee who had also 
worked in I989 with 
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Matter ofT-N-M-C-M-, Inc. 
The Petitioner's response does not resolve the discrepancies regarding the Beneficiary's claimed 
qualifying experience. The record does not explain why a sole proprietor of the business since 197 5 did 
not know of the Beneficiary' s employment there from 1986 to 1989. 
Also, the sole proprietor wrote and signed a statement indicating that never employed 
anyone with the signatory's name at any of its three branches, which are operated by the sole 
proprietor's siblings. He also stated that the letters submitted by the Petitioner are "fake." 
In addition, the record does not establish the Beneficiary's ability "to operate all types of sewing 
machines used by the employer" as specified by the accompanying labor certification. In the May 10, 
2013, letter, the Petitioner's manager stated that the Beneficiary had the required ability before his 
hiring by the Petitioner. But the Petitioner's unsupported assertion is insufficient to meet its burden of 
proof in visa petition proceedings. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm 'r 1998) 
(citation omitted). The record lacks independent , documentary evidence of the Beneficiary 's ability 
to operate all types of sewing machines used by the Petitioner. 
For the foregoing reasons, the record does not establish the Beneficiary's qualifications for the 
offered position as specified by the accompanying labor certification by the petition 's priority date. 
We will therefore also dismiss the appeal for this reason. 
II. CONCLUSION 
The record contains substantial and probative evidence that the Beneficiary previously married in an 
attempt to evade immigration laws. The record on appeal does not establish the bona fides of the 
Beneficiary's prior marriage . Because section 204(c) of the Act bars the petition 's approval, we will 
affirm the Director's decision and dismiss the appeal. 
In addition, the record on appeal does not establish the Petitioner 's ability to pay the proffered wage 
or the Beneficiary 's qualifications for the offered position. We will therefore also dismiss the appeal 
for these reasons. 
The petition will remain denied for the reasons stated above, with each considered an independent 
and alternate basis of denial. In visa petition proceedings, a petitioner bears the burden of proving 
eligibility for the requested benefit. Section 291 of the Act; Matter of Otiende, 26 I&N Dec. 127, 
128 (BIA 2013). The instant Petitioner did not meet that burden. '·' 
ORDER: The appeal is dismissed. 
Cite as Matter o.fT-N-M-C-M-, Inc., ID# 77808 (AAO Nov. 15, 2016) 
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