dismissed EB-3 Case: Industrial Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-N-A- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 24, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a motorcycle manufacturer and research and development company, seeks to employ 
the Beneficiary as an industrial engineer under the immigrant classification of skilled worker. See 
Immigration and Nationality 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 foreign national for 
lawful permanent resident status to work in a position that requires at least 2 years of training or 
expenence. 
The Director, Texas Service Center, initially approved the petitiOn. The Director subsequently 
revoked the petition's approval on multiple grounds, and the Petitioner appealed. We issued a 
decision dismissing the appeal as abandoned, dismissing the appeal based on the record, and 
invalidating the underlying labor certification with a finding of willful misrepresentation of a 
material fact by the Petitioner and the Beneficiary. 
The matter is now before us on a motion to reopen and a motion to reconsider. The Petitioner 
contends that we dismissed the appeal in error. Upon reyiew, we will deny the motion to reopen and 
motion to reconsider. 
I. LAW 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § 1 03.5(a)(2) and the requirements of a motion to reconsider are located at 
8 C.F.R. § 1 03.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
In this case, the appeal was dismissed as abandoned, in part, because the Petitioner did not respond 
to our second notice of intent to dismiss (NOID). 1 A motion to reopen an application or petition 
denied due to abandonment must be filed with evidence that the decision was in error because: (I) 
1 
We issued a NOlO, and then a request for evidence, to both of which the Petitioner responded. We subsequently sent a 
second NOlO which alerted the Petitioner that the educational documents submitted appeared to be fraudulent. 
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Matter ofV-N-A- LLC 
the requested evidence was not material to the issue of eligibility, (2) the required initial evidence 
was previously submitted, or (3) the request for additional information was sent to the wrong 
address. See 8 C.P.R.§ 103.5(a)(2). 
II. ANALYSIS 
As the basis of its motion to reopen, the Petitioner assetts that our dismissal of the appeal in part due 
to abandonment was erroneous because the issues raised in our second NOID were not material to 
the issue of eligibility and all previously requested evidence had been submitted. 
Our second NOID alerted the Petitioner that the educational documents submitted appeared to be 
fraudulent. Specifically, we informed the Petitioner that in order to verify the authenticity of the 
Beneficiary's educational documents, we requested the assistance of the U.S. Citizenship and 
Immigration Services (USCIS) field of1ice in The results of that inquiry cast doubt on 
the veracity of the Beneficiary's claim to have earned a m 
Mexico. USCIS verified with the that the Beneficiary 
studied at the university for only five semesters, did not complete the eight semesters required for a 
degree, and that the document purported to be the Beneficiary's 
is fraudulent. The Legal Department of the m 
also confirmed that there is no record for the Beneficiary on its database, and that the 
professional identity card number written on one of the degree documents belongs to another 
individual. As such, we indicated that it appeared that the Beneficiary does not have the educational 
credential claimed in the labor certification - a foreign equivalent degree to a bachelor's degree in 
industrial design- and that the documents submitted in support of this claim -the alleged 
and accompanying transcripts- are fraudulent. 
We further stated that in view of the derogatory information received from the USCIS field office, 
we intended to invalidate the labor certification based on a finding of fraud or willful 
misrepresentation of a material fact, see 20 C.P.R. § 656.30(d), and dismiss the appeal because the 
petition is not supported by a valid labor certification, as required by 8 C.P.R. § 204.5(1)(3)(i). We 
advised the Petitioner that it could submit additional evidence to rebut the derogatory information, in 
accordance with the regulation at 8 C.P.R. § 103.2(b)(l6)(i), and that any response to the NOID 
must be received by us within 33 days. The Petitioner did not respond to the NOID. 
Since the Petitioner did not submit any evidence to rebut the derogatory 
information contained in the 
record, we invalidated the labor certification based on a finding of willful misrepresentation of a 
material fact by the Petitioner and the Beneficiary, in accordance with the regulation at 20 C.P.R. 
§ 656.30(d). As prescribed in 8 C.P.R.§ 103.2(b)(13)(i), we also dismissed the appeal as abandoned 
and dismissed the appeal based on the record because the petition was not supported by a valid labor 
certification as required by 8 C.P.R. § 204.5(1)(3)(i). 
According to the Petitioner, its submission of an eight-semester transcript of the Beneficiary's 
alleged coursework at the in response to our initial NOID, 
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Matter of V-N-A- LLC 
which supplemented the five-semester transcript previously submitted, complied with the 
requirements of 8 C.F.R. § 1 03.5(a)(2)(ii) because it established that the Beneficiary completed the 
requisite coursework to earn a thereby satisfying the 
educational requirement of the labor certification. In our second NOID , however, we advised the 
Petitioner that the documentation of the Beneficiary's education appeared to be fraudulent, and gave 
the Petitioner the opportunity to submit rebuttal evidence to establish the validity of the 
documentation. Since the alleged baccalaureate-level credential from the 
was needed to meet the educational requirement of the labor certification, the requested 
evidence was material to the issue of the Beneficiary's eligibility for an employment-based 
immigrant visa. Accordingly, the lack of a response by the Petitioner warranted our dismissal of the 
appeal in part for abandonment. 
On motion the Petitioner cites a letter from the Director of the 
which states that the Beneficiary studied at the university 
during the years 1997-2000 and appears to refer to him as a graduate . This letter was previously 
submitted by the Petitioner, however , and is contradicted by the information we subsequently 
received from the USCIS field office in which indicated that the Beneficiary completed" 
only five semesters of study in the years 1996-1998 and did not earn a degree. The Petitioner has 
not addressed this conflict, either in response to our second NOID or in its current motion, and has 
submitted no further documentation from university authorities to corroborate the claim that the 
Beneficiary completed eight semesters of coursework and graduated with a degree. 
The Petitioner further claims that the professional identity card number written on one of the 
educational documents, which wa~ referenced in our second NOID , was on a license issued to the 
Beneficiary on May 21, 2001. According to the Petitioner, the Beneficiary ceased to work in 
Mexico in October 2005, after which he stopped paying fees and his license was terminated. 
Counsel speculates that the Beneficiary's card number was reassigned to another individual. No 
documentary evidence has been submitted in support of this theory, and as far as the record shows 
neither counsel nor the Petitioner has contacted authorities in Mexico to obtain more information 
about the license number. Assertions of counsel do not constitute evidence. }.fatter of Obaigbena, 
19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing .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. 
In accord with the foregoing discussion, the record does not support the Petitioner's contention that the 
evidence requested in our second NOID was not material to the issue of the Beneficiary's eligibility for 
the immigration benefit sought in 'this proceeding. Therefore, the dismissal of the appeal in part tor 
abandonment was not erroneous, and does not provide a legal basis to reopen the proceeding. 
Nor has the Petitioner provided any new facts or pertinent documentation to review in a reopened 
proceeding. Most of the documents submitted with the current motion are copies of materials already in 
the record. The only new documents are the website extracts of general information from the 
and the neither of 
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Matter ojV-N-A- LLC 
which have any information about the Beneficiary and his educational credentials, or lack thereof, in 
Mexico. Thus, there is no basis in the record to reopen this proceeding. 
Furthermore, the Petitioner has not presented any persuasive argument or pertinent precedent 
decisions showing that our decision was based on an incorrect application of law or users policy, 
as required in a motion to reconsider. Contrary to the Petitioner's assertion that the evidence 
requested in our second NOID, was not material, it was directly material to the issue of whether the 
documentation of the Beneficiary's alleged credentials from the 
is fraudulent, as indicated in the investigation of our USClS field office, or genuine, as 
maintained by the Petitioner and the Beneficiary. The resolution of this issue determines whether 
the Beneficiary meets the minimum educational requirement of the labor certification and is eligible 
for immigrant classification as a skilled worker, and whether fraud or willful misrepresentation of a 
material fact has been committed. On motion, the Petitioner asserts that we misapplied the 
regulation at 8 C.F.R. § 103.2(b)(l3)(i) in our decision to invalidate the labor certification and 
dismiss the appeal in part due to abandonment. However, as the Petiti9ner did not respond to our 
second NOID inviting the submission of rebuttal evidence, the Petitioner's claim has no merit. 
III. CONCLUSION 
Based on the foregoing discussion, we find that the Petitioner's motion does not meet the 
requirements of a motion to reopen or a motion to reconsider. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofV-N-A- LLC, ID# 150907 (AAO Mar. 24, 2017) 
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