dismissed EB-3 Case: International Sales

U.S. Department of flomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington. DC 20529 
identifying data &W to 
prevent clearly unwrmanted 
invasion of pila1 privacy 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
Office: CALIFORNIA SERVICE CENTER 
WAC 01 277 52066 
 Date: 00 1 9 2006 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 9 1153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
~ob'ert P. Wiernann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was initially approved by the Director, California Service 
Center. The director later issued a Notice of Intent to Revoke the approval of the petition and then issued a 
Notice of Revocation. The revocation is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
. . . . 
The record shows that the1 ~etitioner, 
Equipment Sales Company. It seeks to employ the beneficiary permanently in the United States as a Manager 
of International Sales. As required by statute, the petition is accompanied by a Form ETA-750, Application 
for Alien Employment Certification, approved by the U.S. Department of Labor (DOL). The director 
determined that the petitioner had not established that the beneficiary had the four years of qualifying 
employment experience as defined by the Form ETA-750 required to perform the duties of the proffered 
position. The director also determined that the petitioner had not established that it conducted international sales 
or that it intended to develop any business outside the United States. Therefore, the director revoked the 
previously approved petition. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's May 13, 2005 Notice of Revocation, the two issues in this case are whether the 
petitioner has demonstrated that the beneficiary was qualified to perform the duties of the proffered position, 
Manager of International Sales, as of the priority date, and whether the petitioner regularly engages in sales 
outside the United States such that it has need of and intends to employ the beneficiary as a Manager of 
International Sales. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. 
The petitioner must demonstrate that, on the priority date,' the beneficiary had the qualifications stated on its Form 
ETA-750 as certified by the DOL and submitted with the petition. Matter of Wing's Tea House, 16 I&N Dec. 158 
(Act. Reg. Cornm. 1977). Here, the Form ETA-750 was accepted on April 20,2001. 
The AAO takes a de novo look at issues raised in the denial of the petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted on appeal.' Relevant evidence in 
the record includes: 
1. A summary of the January 14, 2005 interview of the beneficiary conducted at the 
Los Angeles District Office which indicates that the beneficiary testified: that he 
1 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. fj 103.2(a)(l). The record in this case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
began as an International Sales Manager at wing July 2002 
and he continued in this position through the date of the January 14, 2005 
supervised five salesmen in the International Division at 
and that s working to develop a sales 
force in Argentina, Brazil and the Philippines. 
employed the beneficiary as a salesman serving customers in the United States, 
not as a Manager of International Sales. 
3. Letter written by the Vice-president of f dated April 4, 
2005 submitted in response to the Notice o Intent to Revoke which indicates: 
that the ICE investigators reached incorrect conclusions in December 2004 
reparding the nature of the ~etitioner's business: that American Wav Im~orting. 
-. 
D CI 
an entity which was close1 affiliated wit 
 200'1 anh wh~ci 
merged with & during nte in both North 
~merican and European markets beginning in 2001 and continuing through the 
writing of this April 4, 2005 letter, and that the beneficiary's efforts helped to 
make its international sales operations possible; that beginning in July 2002, the 
beneficiary served as Account ExecutiveIManager overseeing international sales 
for American Way Importing, with other officers in the company traveling 
overseas on the beneficiary's behalf as the beneficiary did not have the legal right 
to travel in and out of the United States; and that after January 2005, the 
beneficiary's position changed such that he began conducting domestic sales for 
the company, again because he does not have the legal right to travel in and out 
of the United States. 
4. Certification of Employment on letterhead signed by 
Steve Javizad and dated July 3 1, 2003 [2004] which indicates that the beneficiary 
began working for American Way Importing Corporation during August 2002 
and that he ended his employment with that company during July 2004. The 
letter specifies that the beneficiary worked full time and held the title of 
International Sales Manager during his tenure at American Way Importing 
Corporation. 
5. Letter written by the President of dated February 6, 
2002 which specifies: that the beneficiary worked full-time as an Account 
ExecutiveIManager at om September 1998 until the writing 
of this letter. The letter lists the beneficiary's duties but does not indicate that he 
had any duties that relate to international sales during this period of employment 
at - 
6. 
 Certification of Employment written by the Head of 
which is not dated, that indicates 
the beneficiary full time in Sri Lanka from January 1995 through October 1996. 
He held the title of Field Sales Manager. The certification lists the beneficiary's 
Page 4 
duties but does not indicate that he had any duties that relate to international sales 
during his tenure at Vision Wide. 
7. Form G-325A, Biographic Information, attached to the beneficiary's Form 1-485, 
Application to Register Permanent Residence or Adjust Status, signed by the 
beneficiary on May 20, 2002, which indicates that from September 1998 through 
the date the beneficia 
 si 
 ed this form, he worked as a Senior Account 
Executive at and that from January 1995 through October 
1996, he worked as a Field Sales Manager at Visionwide International, Ltd., 
Columbo. Sri Lanka. 
8. ETA Form 9089, Application for Permanent Employment Certification, signed 
by the beneficiary and filed with the DOL on July 7,2006 which specifies: at part 
K(d), that from January 2, 1995 through October 1, 1996, the beneficiary worked 
at Vision Wide, Kaldemulla, Sri Lanka, as a Field Sales Manager supervising 
sales staff; at 
 K(c), that from September 1, 1998 through JUG 31, 2002, the 
beneficiary worked for 
 Santa Monica Blvd., Los 
Angeles, as an Account Manager overseeing sales in Southern California; at part 
K(b), that from August 1,2002 through July 3 1,2004, the beneficiary worked for 
American Way Importing Corporation, La Cienega Blvd., Los Angeles, as an 
International Sales Manager overseeing sales activities in European and Asian 
markets; at part K(a), tha; from ~u~ust2, 
9089 was signed, the beneficiary worked for 
 ., Santa 
Monica Blvd., Los Angeles, as a 
telephones and activations to seeking out retail wireless dealers in Southern 
California. 
9. Three documents that record a single transaction in which the petitioner bought 
cellular telephones from a company in Turkey during March 2004. 
10. Two documents that record a single transaction in which the petitioner purchased 
cellular telephones from a company in Germany during December 2002. 
11. Three documents that record a single transaction in which the petitioner sold 
cellular telephones to a company in the United Kingdom during April 2004. 
12. Three documents that record a single transaction in which the petitioner had a 
company in Germany ship cellular telephones to a customer in Russia during 
December 200 1. 
The record does not contain any other evidence relevant to the beneficiary's qualifications or to the 
petitioner's claim that it conducts international sales. 
On appeal, counsel indicates that, as of the April 20, 2001 priority date, the petitioner has established that the 
beneficiary had four years of qualifying experience in the position of International Sales Manager and that the 
petitioner's business included an international sales division. 
To determine whether a beneficiary is eligible for an employment based immigrant visa, Citizenship and 
Immigration Services (CIS) must examine whether the alien's credentials meet the requirements set forth in the 
Page 5 
labor certification. In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the 
labor certification to determine the required qualifications for the position. CIS may not ignore a term of the 
labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese 
Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 
1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
In this case, the Form ETA-750A, items 14 and 15, set forth the minimum education, training, and experience 
that an applicant must have for the position of International Sales Manager. Item 14 describes the requirements of 
the proffered position as follows: 
14. Education 
Grade School 
High School 
College 
8 years 
4 years 
not applicable 
The applicant must also have 4 years of experience in the job offered, the duties of which are: 
Manage sales activities in the No. American and European markets; direct staffing, training, 
and performance evaluations to develop and control sales program. 
 Coordinate sales 
distribution by establishing quotas, goals and sales territories. Assign sales territory to sales 
personnel. Analyze sales statistics to formulate policies and strategies. Review market 
analyses to determine customer needs, volume potential, price schedules and monitor 
competitor's activity; develop sales campaigns to accommodate goals of company. Conduct 
and participate in meetings relating to product development, sales activities and new 
accounts. Analyze and control expenditures of division to conform to budgetary 
requirements. Prepare periodic sales report showing sales volume and potential sales; report 
to vice-president of sales and the CEO. Duties to be performed with use of computer 
software. Supervise three sales associates. 
Item 15 of Form ETA 750A does not reflect any additional special requirements. 
The beneficiary set forth his credentials on Form ETA-750B and signed his name under a declaration that the 
contents of the form are true and correct under the penalty of perjury. At part 15, eliciting information of the 
experience, he represented that he held the position of Account Executive/Sales Manager at 
, Culver City, California from September 1998 through the date that he signed the form or 
April 1 1, 2001. In describing the duties he performed at this job, the beneficiary does not indicate that he gained 
any experience in international sales whle in th~s position. He indicated that from January 1997 through 
November 1998, he held the position of Commercial Dnver at Embassy Suites HoteVLAX. He also represented 
that from January 1995 through October 1996, he held the position of Field Sales Manager at Visionwide 
International, Ltd., Columbo, Sri Lanka. In describing the duties he performed at ths job, he did not indicate that 
he gained any experience in international sales while in this position. 
The beneficiary does not provide any additional information concerning his employment background on that 
form. 
The regulation at 8 C.F.R. 5 204.5(1)(3) provides: 
Page 6 
(ii) Other documentation- 
(A) General. Any requirements of training or experience for slalled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a slulled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for ths 
classification are at least two years of training or experience. 
The petitioner provided the records of only two international sales transactions. Both transactions occurred after 
the priority date. The other two transaction records which the petitioner submitted suggest that the petitioner 
purchased merchandise outside of the United States, also after the priority date. Such purchases may not be seen 
as evidence that the petitioner conducts sales outside of the United States. Thus, records of two sales of wireless 
equipment in Europe, one in December 2001 and one in April 2004, are all that the petitioner has provided to 
demonstrate that its business includes an international sales division. Contrary to counsel's assertions, such 
evidence is not sufficient to support the petitioner's claims: that the ICE investigators erred in their conclusion 
that the petitioner's business did not regularly conduct sales outside of the United States; and that the beneficiary 
gained several years of qualifying experience in the proffered position of Manager of Internationa 
the April 20, 2001 priority date, while worlang as Account Executivehlanager for 
September 1998 through April 2001. 
Counsel's assertions that unsupported statements made by officers in the petitioner's corporation - that the 
petitioner has engaged in and continues to engage in international sales - are sufficient to show that, as of the 
priority date, the petitioner had an international sales division and it intended to employ the beneficiary as its 
Manager of International Sales are misplaced. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Counsel's assertions that there is no requirement that a beneficiary show that he was previously employed by the 
petitioner and that, consequently, CIS erred in finding that the petition could not be approved because the 
petitioner had failed to demonstrate that the beneficiary had performed the duties of the proffered position on its 
behalf are also misplaced. The petitioner must demonstrate that the beneficiary had, as of the priority date, four 
years of qualifyinn experience-in the proffered position of Manager of International sales. 
 Thk ~etitioner 
--. 
presented the beneficiary's employment a 
 . gom September 1998 through ~~rii 2001 as 
qualifying experience in the proffered 
 revoked the previously approved petition 
based on the petitioner's failure to demonstrate: 
 that, as of the priority date, the beneficiary had acquired 
qualifying experience while employed by the petitioner or while employed elsewhere; and that the petitioner's 
business included an international sales division in which it intended to employ the beneficiary as a Manger of 
International Sales, as set out on the Form ETA-750 certified by the DOL and submitted with the petition. 
Counsel's assertion that CIS erred in concluding that the fact that the petitioner's record of having paid the 
beneficiary is the Form 1099, Miscellaneous Income, rather than the Form W-2, Wage and Tax Statement, 
Page 7 
suggests that the beneficiary did not work as a manager for the petitioner, supervising its employees, but that it 
more likely hired the beneficiary as a type of non-managerial, independent contractor need not be addressed. 
That is, whether the Form 1099 may be used to record payment to full time managers who are: in charge of 
supervising several sales personnel, in charge of training and evaluating staff, etc., as counsel asserts, has no 
bearing on the fact that the petitioner has failed to demonstrate that as of the priority date: the beneficiary had four 
years qualifying experience in the proffered position and it engaged in international sales on a regular basis such 
that it had need of and intended to employ the beneficiary as a Manager of International Sales, as set out on the 
certified Form ETA-750. 
In sum, the preponderance of the evidence fails to demonstrate that, as of the priority date, the beneficiary had 
acquired four years of experience in the proffered position of Manager of International Sales or that the 
petitioner regularly conducted international sales such that it had need of and intended to employ the 
beneficiary in the proffered position. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
fj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.