dismissed EB-3 Case: Jewelry

U.S. Citizenship 
and Immigration 
Services 
In Re : 10270757 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 16, 2022 
The Petitioner, a jewelry shop, seeks to employ the Beneficiary as a jewelry repairer. The Petitioner 
seeks to classify the Beneficiary under the third-preference immigrant visa category for "skilled 
workers." See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). 
The Director of the Texas Service Center initially approved the petition, but subsequently revoked 1he 
approval on notice, under the provisions of section 205 of the Act, 8 U.S.C. § 1155, and 8 C.F.R. 
§ 205 .2. The Director concluded that: (1) there is insufficient evidence to establish that the 
Beneficiary is qualified for the offered position, and (2) a bona fide job offer open to U.S. workers did 
not exist because of a familial relationship between the Beneficiary and the Petitioner's co-owner. 
The Director further concluded that the Petitioner willfully misrepresented material facts by failing to 
disclose this familial relationship on the labor certification, and that the willful misrepresentation, in 
turn, invalidated the labor certification. The Director also concluded that the Beneficiary 
misrepresented material facts about his employment experience. The matter is now before us on 
appeal. 
The AAO reviews the questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 
537,537 n.2 (AAO 2015). The burden of proof to establish eligibility for the benefit sought remains 
with the petitioner in revocation proceedings. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Cheung, 12 I&N Dec. 715 (BIA 1968); and MatterofEstime, 19 I&N Dec. 450,452, n.1 (BIA 1987). 
Upon de nova review, we will dismiss the appeal. We will also withdraw the invalidation of the labor 
certification and the finding of willful misrepresentation of a material fact. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved laborcertification(ETAForm 9089)from the U.S. DepartmentofLabor(DOL). See section 
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 1he 
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. 
Section 205 of the Act, 8 U.S. C. § 115 5, provides that the Secretary of Homeland Security may "for 
good and sufficient cause, revoke the approval of any petition." By regulation this revocation authority 
is delegated to any USCIS officer who is authorized to approve an immigrant visa petition "when the 
necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). USCIS must 
give the petitioner notice of its intent to revoke the prior approval of the petition and the opportunity 
to submit evidence in opposition thereto, before proceeding with written notice of revocation. See 
8 C.F.R. § 205.2(b) and (c). 
The Board of Immigration Appeals has discussed revocations on notice as follows: 
[A] notice of intention to revoke a visa petition is properly issued for "good and 
sufficient cause" where the evidence of record at the time the notice is issued, if 
unexplained and unrebutted, would warrant a denial of the visa petition based upon the 
petitioner's failure to meet his burden of proof. The decision to revoke will be sustained 
where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention 
to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) ( citing Matter of Es time, 19 I&N Dec. 450 (BIA 
1987)). By itself, the director's realization that a petition was incorrectly approved is good and 
sufficient cause for the issuance of a notice of intent to revoke an immigrant petition. Id. 
II. ANALYSIS 
The Petitioner filed ETA Form 9089 on January 19, 2017, and filed the Form I-140 petition on May 
4, 2017. The Director approved the petition on May 31, 2017. Subsequently, the Director issued a 
notice of intent to revoke (NOIR) on August 6, 2019, and revoked the approval of the petition on 
December 13, 2019. 
A. Experience Required for the Position 
The Petitioner indicated that the proffered petition requires 24 months of experience in the job offered, 
as a jewelry repairer, and that experience in an alternate occupation would not be acceptable. On part 
K of the ETA Fonn 9089, the Beneficiary claimed to have worked as a jewelry repairer for I I 
in inl Pakistan on a full-time basis from March 
1, 1998 to December 1, 2003, and part-time from January 1, 2004 to January 19, 2017. The 
Beneficiary claimed that he switched from full-time to part-time employment at I I when he 
took a full-time job maintaining fuel dispensers for I also in 
2 
The Petitioner submitted a letter froml I stating, as above, that the Beneficiaty 
began working full-time for lin 1997 and indicating that the Beneficiary's "hours were cut 
down to 20 hours per week" in 2004 after "the gold business went down." 1 
After approving the petition, the Director learned of information from a nonimmigrantvisa application 
which does not corroborate the Beneficiary's claimed employment history. In March 2015 and again 
in December 2016, the Beneficiary applied for a nonimmigrant visa at the U.S. Consulate in Karachi, 
Pakistan. On both visa applications, the Beneficiary identified! I as his employer. The 
Beneficiary answered "no" to the question"[ w Jere you previously employed?" 
In March 2017, while the ETA Form 9089 was pending at DOL, the Beneficiary filed another 
application for a nonimmigrant visa. On the 201 7 application, he listed bothl I and 
I las his current employers, specifying that his work for the latter employer was part-time. He 
again answered "no" when asked about previous employment, and did not indicate that he had ever 
worked full-time for the jewelry shop. 
The Director issued a NOIR, stating "the record of the beneficiary's experience is inconsistent 
throughout. ... Therefore, it appears the beneficiary has misrepresented his experience to qualify him 
for an immigrant benefit." The Director also cited case law, stating: "It is incumbent on the petitioner 
to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain 
or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in 
fact, lies, will not suffice." See Matter of Ho, 19 I&N Dec. at 591-92. The Director instructed the 
Petitioner to submit "independent, objective evidence" such as payroll and tax records to establish the 
Beneficiary's claimed employment with I 
In response, the Petitioner submitted an affidavit in which the Beneficiary asserted that the 
non immigrant visa application form only provided space for one current employer, so he chose to list 
his primary, full-time employer. The Beneficiary did not explain why he twice answered "no" when 
asked about previous employment. The Petitioner also submitted a second letter froml I 
repeating the earlier claims about the Beneficiary's employment, but the Petitioner did not submit 
contemporaneous documentary evidence of that employment, such as tax or payroll records, as 
instructed in the NOIR. 
The Director revoked the approval of the petition, noting that the Beneficiary had not explained why 
he did not list earlier employment on his 2015 and 2016 visa applications. The Director also observed 
that the Petitioner had neither submitted contemporaneous documentation of the Beneficiary's claimed 
employment withl I nor explained its absence. 
On appeal, counsel for the Petitioner repeats prior claims and asserts: "The Beneficiary tried his best 
to gather evidence and documents from I I [sic] and has submitted everything 
he had access to show compliance with USCIS' request." Assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533·, 534 n.2 (BIA 1988) ( citing Matter of Ramirez-
1 The record reflects confusion over the date of this letter. The letter is on printed letterhead that includes thepartial date 
"200." The writer hand-wrote the numerals "17," with the "1" overlapping the second "0." As a result, the date of the 
letter appears, at first glance, to read "16th Jan. 2007," but the partially discernible "1" shows that the true date is "16th 
Jan. 2017," consistent with the submissionofETAForm 9089threedays later. 
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Sanchez, 17 I&NDec. 503, 506(BIA 1980)). The Beneficiary, in his own affidavit, said nothing about 
attempting to obtain documentation from I I In his second letter,I ldid not mention 
any requests or efforts to obtain such documentation, or explain why such evidence is absent or 
unavailable. Counsel's unsubstantiated claim also does not account for evidence that the Beneficia1y 
may have already had in his own possession, such as pay receipts and copies of income tax returns. 
The record shows that the Beneficiary did not claim employmentwithl in 2015 and 2016 
on two separate prior visa applications, even though he claims to have been actively working for the 
company at at that time, and he specifically denied any employment prior to his position at I I 
The Beneficiary changed his claims only after the petitioning U.S. entity began to seek an 
immigration benefit on his behalf. Given the opportunity to submit documentary evidence of the 
Beneficiary's claimed employment for I I the Petitioner neither submitted it nor explained 
its absence. Based on the unresolved inconsistencies in experience, and doubt cast on the experience 
claimed as a result, the Petitioner has not established that the Beneficiary possesses the two years of 
required experience in the position offered. 
B. Invalidation of the Labor Certification and Willful Misrepresentation 
The Petitioner did not disclose a familial relationship on the labor certification. As a result, the 
Director determined that the record does not establish that the Petitioner made a bona fide job offer to 
the Beneficiary or that the job was clearly open to any U.S. worker. The Director also determined that 
the Beneficiary misrepresented his prior experience on the labor certification. 
While the record raises serious questions, based on the facts and circumstances of this specific case, 
we withdraw the Director's finding related to misrepresentation, and we withdraw the invalidation of 
the labor certification that resulted from that finding. 2 Nevertheless, we agree with the Director's 
fundamental conclusion that the petition should not have been approved, as the Petitioner has not 
demonstrated that the Beneficiary has the experience required for the position offered. 
For the above reasons, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
2 We recognize that that the Director raised significant concerns. While not sufficiently developed for purposes ofthis 
visa petition, the Director is not barred from further inquiry, investigation, or the development of questions for consular 
processingoradjustmentof status proceedings. See Matter of 0, 8 T&NDec. 295 (BIA 1959) (stating that the immigrant 
visa petition is not the appropriate stage of the process for questions regarding admissibility). 
A foreign national's misrepresentation of a material fact in a request for an immigration benefit renders him or her 
inadmissible to the United States. Seesection212(a)(6)(C)(i) of the Act, 8 U.S.C. § l 158(a)(6)(C)(i). An T-140 petitioner, 
however, need not establish a beneficiary's admissibility. Rather, the Act authorizes officers of the U.S. Departments of 
State and Homeland Security to make admissibility findings on applications for: immigrant visas at consulates, see section 
101 (a)(l 3)(A) of the Act, 8 U.S.C. § 11 0l(a)(l3)(A); admissions at ports of entry, see section 202(a)(l )(B) of the Act, 
8 U.S.C. § l 152(a)(l )(B); and adjustments of status at USCIS offices,scc section245 of the Act, 8 U.S.C. § 1255. 
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