dismissed EB-3 Case: Machinist

U.S. Citizenship 
and Immigration 
Services 
In Re: 4987296 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 29, 2021 
The Petitioner seeks to employ the Beneficiary as a machinist under the third-preference, immigrant 
classification 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) . 
After initially granting the filing, the Director of the Nebraska Service Center revoked the petition 's 
approval. The Director concluded that the Petitioner did not establish the Beneficiary's possession of 
the minimum employment experience required for the offered position or the requested immigrant 
visa classification . We rejected the Petitioner 's appeal as untimely, before reopening the filing on our 
own motion. 1 
In these revocation proceedings, the Petitioner bears the burden of establishing eligibility for the 
requested benefit. See Matter of Ho, 19 I&N Dec . 582,589 (BIA 1988) (citation omitted) . Upon de 
nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process . First, to permanently fill a 
position in the United States with a foreign worker, a prospective employer must obtain certification 
from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and available for an 
offered position . Id. Labor certification also signifies that employment of a foreign national will not 
harm wages and working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS determines whether a beneficiary meets the 
1 Before we reopened the appeal, the Director treated the Petitioner 's untimely filing as a motion to reopen and dismissed 
the motion. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2) (requiring treatment of an untimely appeal that meets motion requirements 
as a motion). The Petitioner also submitted motions to reopen and reconsider our rejection of its appeal. Because we have 
since reopened the appeal on our own motion, the Director 's motion decision and the Petitioner 's motions have no legal 
effect on this matter. 
requirements of a DOL-certified position and a requested immigrant visa classification. Finally, if 
USCIS grants a petition, a 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. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, USCIS may revoke 
a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
USCIS may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and 
unrebutted record at the time of the NOIR's issuance would have warranted the petition's denial. 
Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). If a petitioner's NOIR response does not 
overcome revocation grounds stated in the notice, USCIS properly revokes a petition's approval. Id. 
at451-52. 
II. THE REQUIRED EXPERIENCE 
A position for a skilled worker must require at least two years of training or experience. Section 
203(b)(3)(A)(i) of the Act; 8 C.F.R. § 204.5(1)(3)(ii)(B). A petitioner must also demonstrate that a 
beneficiary met all DOL-certified job requirements of an offered position by a petition's priority date. 
Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). 2 
In evaluating a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position. 
USCIS may neither ignore a certification term, nor impose additional requirements. See, e.g., Madany 
v. Smith, 656 F.Supp.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the burden of setting 
the content of the labor certification") ( emphasis in original). 
The accompanying labor certification states the minimum requirements of the offered position of 
machinist as a U.S. technical or vocational, high school diploma, or a foreign educational equivalent, 
and two years of experience "in the job offered." For labor certification purposes, experience "in the 
job offered" means experience performing the key duties of the offered position. See, e.g., Matter of 
Symbioun Techs, Inc., 2010-PER-01422, slip op. at *4 (BALCA Oct. 24, 2011) (citations omitted). 
The labor certification states that the Petitioner will not accept experience in a related occupation. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he studied at a 
technical/vocational high school and gained more than two years of full-time qualifying experience in 
Poland. He stated that he worked as a machinist at a machine shop for about 28 months, from 
September 2001 through December 2003. The Beneficiary did not list any other qualifying experience 
on the labor certification. 
To support claimed experience, a petitioner must submit a letter from a beneficiary's former employer. 
8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must include the employer's name, title, and address, and a 
2 This petition's priority date is September 12, 2014, the date DOL accepted the labor ce1iification application for 
processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
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description of a beneficiary's experience. Id. If that evidence is unavailable, USCIS will consider 
other documentation. 8 C.F.R. § 204.5(g)(l). 
The Petitioner submitted an employment certificate from the Beneficiary's claimed former employer 
in Poland, stamped with the company's name and address. As noted in the Director's NOIR, however, 
USCIS officers in Poland telephoned and emailed the company after the petition's approval. The 
company's owner told the officers that the business did not issue the type of certificate the Petitioner 
submitted to USCIS and that the company did not hire machinists at the time of the Beneficiary's 
claimed employment. 3 
The owner's statements cast significant doubt on the authenticity of the employment certification and 
the Beneficiary's claimed qualifying experience. A petitioner must resolve inconsistencies ofrecord 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 
591. Thus, at the time of the NOIR' s issuance, the record did not establish the Beneficiary's possession 
of the minimum experience required for the offered position or the requested immigrant visa 
classification. The Director therefore issued the NOIR for good and sufficient cause. 
In its NOIR response, the Petitioner submitted a letter from another U.S. business stating its 
employment of the Beneficiary as a machinist from June 2011 until beyond the petition's September 
2014 priority date. The Petitioner, however, has not explained why the Beneficiary omitted this 
purported experience from the labor certification application. The application, which was filed in 
September 2014, instructed the Beneficiary to list "all jobs the alien has held during the past 3 years" 
and "any other experience that qualifies [him] for the job opportunity." The Petitioner did not mention 
the Beneficiary's purported, additional experience in the United States until after the NOIR questioned 
his listed work in Poland. These unresolved discrepancies and the timing of the new claim cast doubt 
on the purported, additional experience. See Matter of Ho, 19 I&N Dec. at 591; see also Matter of 
Leung, 16 I&N Dec. 12, 14-15 (Distr. Dir. 1976), disapp 'd of on other grounds by Matter of Lam, 16 
I&N Dec. 432, 434 (BIA 1978) (finding testimony of qualifying experience by an applicant for 
adjustment of status to be not credible where he omitted the purported employment from the labor 
certification application on his behalf). The letter from the other U.S. employer therefore does not 
establish the Beneficiary's qualifying experience for the offered position and the request immigrant 
visa classification. 
In addition, neither the employment certificate from the Polish company nor the letter from the other 
U.S. business describes the Beneficiary's experiences. The documents therefore do not comply with 
8 C.F.R. § 204.5(1)(3)(ii)(A) or demonstrate the Beneficiary's qualifying experience "in the job 
offered." For these additional reasons, the Petitioner has not demonstrated the Beneficiary's 
possession of the minimum experience required for the offered position or the requested immigrant 
visa classification. 
On appeal, counsel claims that the Beneficiary "is not able to farther confirm his experience." 
Counsel's assertion, however, does not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 
3 Although omitted from the NOTR. the owner of the Polish company also expressly told USCTS officers that it never 
employed the Beneficiaiy. According to the owner, from 1998 to 2004, the company engaged in trading and did not hire 
machinists. Since 2004, the company has operated as a gas station. The owner further told officers that the business last 
used the stamp shown on the 2013 employment certificate in 2004. 
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534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). The 
Petitioner must substantiate counsel's statement in the record with independent evidence, which may 
include affidavits or declarations. 
The Petitioner also argues that the Beneficiary qualifies for the offered position and the requested 
immigrant visa classification by virtue of his education. The Petitioner notes that, for skilled worker 
purposes, "[r]elevant post-secondary education may be considered as training." See 8 C.F.R. 
§ 204.5(1)(2) ( defining the term "skilled worker"). The record contains evidence that, in Poland, the 
Beneficiary completed one year of post-secondary studies at a technical university and two years of 
post-secondary courses at an agricultural institution. 
The Petitioner, however, has not demonstrated how the Beneficiary's education relates to the offered 
position of machinist. The educational documents indicate the Beneficiary's study of computer 
science at the university and agriculture at the other school. The Petitioner has offered him work as a 
machinist. Thus, contrary to 8 C.F.R. § 204.5(1)(2), the record does not establish the Beneficiary's 
possession of "relevant," post-secondary education countable as training for skilled worker purposes. 
Also, the labor certification did not state the offered position's requirement of any training. Rather, 
the certification indicates the job's requirement of two years of experience in the position offered. The 
regulation does not allow "relevant post-secondary education" to be considered as experience. 
8 C.F.R. § 204.5(1)(2). 
In addition, the record indicates that the Beneficiary's post-secondary education overlaps his claimed, 
full-time, employment experience from September 2001 through December 2003. The submitted, 
educational documents indicate the Beneficiary's studies at the university and agricultural school from 
2001 to 2005. According to one document, in the 2001-02 semester at the university, he took five 
courses, each entailing at least 14 hours of lectures or practical instruction a week. The Petitioner has 
not explained how the Beneficiary simultaneously studied and worked full-time for more than two 
years. 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the minimum 
experience required for the offered position or the requested immigrant visa classification. We will 
therefore affirm the petition's denial. 
III. MISREPRESENTATION OF A MATERIAL FACT 
Noncitizens who fraudulently or willfully misrepresent material facts in immigration proceedings 
render themselves inadmissible to the United States. Section 212(a)(6)(C)(i) of the Act, 8 U.S.C. 
§ 1182(a)(6)(C)(i). Misrepresentations are willful if they are "deliberately made with knowledge of 
their falsity." Matter of Valdez, 27 I&N Dec. 496, 498 (BIA 2018) (citations omitted). A 
misrepresentation is material when it has a "natural tendency to influence, or [be] capable of 
influencing, the decision of the decision-making body to which it was addressed." Id. (citation 
omitted). In addition to willful misrepresentation of a material fact, fraud requires an intention to 
deceive and a successful deception. Matter of G-G-, 7 I&N Dec. 161, 164 (BIA 1956). 
Both the Director's NOIR and decision, in discussing inconsistencies in the Beneficiary's claimed 
experience, state: "It appears the beneficiary fraudulently claimed the required 24 months of previous 
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work experience." This statement, however, lacks sufficient clarity to constitute a fraud finding. 
Neither the NOIR nor the decision further discusses fraud or willful misrepresentation or the elements 
of the offenses. 
Regardless, significant evidence supports the Beneficiary's willful misrepresentation of his qualifying 
experience on the labor certification and in immigrant visa petition proceedings. 4 He stated that the 
Polish company employed him full-time as a machinist from September 2001 through December 2003 
and provided an employment certificate from the company as proof The company's owner, however, 
told users officers that the business neither issued the type of certificate submitted nor employed 
machinists. Thus, the record supports the Beneficiary's misrepresentation of his qualifying 
experience. The statements of the company owner contradict those of the Beneficiary. The Petitioner 
also submitted documents indicating the Beneficiary's studies during his purported, full-time tenure 
at the Polish company. Although provided an opportunity in revocation proceedings to explain the 
inconsistencies of record or provide additional evidence of the Beneficiary's purported experience, the 
Petitioner has not done so. 
Evidence also indicates the willfulness of a misrepresentation. On the labor certification application, 
the Beneficiary attested under penalty of perjury to the truth and accuracy of the application's contents. 
A noncitizen's signature on an application establishes a strong presumption that they knew of, and 
assented to, the filing's contents. Matter o_f Valdez, 27 I&N Dec. at 499-501. 
Evidence further supports the materiality of a misrepresentation. Both the offered position and the 
requested immigrant visa classification require a beneficiary's possession of at least two years of 
experience. The Beneficiary's purported, 28-month tenure at the Polish company constituted the only 
experience he listed on the labor certification. A misrepresentation of the Beneficiary's experience 
therefore had a natural tendency to influence the decisions on the labor certification application and 
the petition. 
Thus, in any future filings in this matter, the Petitioner must explain the inconsistencies of record, 
provide independent, objective evidence of the Beneficiary's claimed qualifying experience, or both. 
Otherwise, users or another federal agency may find the Beneficiary inadmissible to the United 
States based on willful misrepresentation of a material fact. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record also does not establish the Petitioner's ability to pay 
the proffered wage of the offered position. 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 e.F.R. § 204.5(g)(2). If a petitioner employs less than 100 people, as here, evidence of ability to 
pay must include copies of annual reports, federal tax returns, or audited financial statements. Id. 
4 A misrepresentation determination in this matter would be a "finding of fact," not an admissibility determination. Visa 
petition proceedings are inappropriate fora for deciding substantive issues of admissibility. Matter of 0-, 8 T&N Dec. 295, 
296-97 (BIA 1959). USCTS benefit request decisions, however, should include specific findings and conclusions on any 
material issues of law or fact that arise. See 8 C.F.R. § 103.3(a)(l)(i); see also 5 U.S.C. § 557(c). In later, separate 
proceedings, USCIS or another federal agency may find the Beneficiary inadmissible. 
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The labor certification states the proffered wage of the offered position of machinist as $42,515 a year. 
As previously noted, the petition's priority date is September 12, 2014. 
At the time of the petition's approval in March 2015, the Petitioner had to demonstrate its continuing 
ability to pay the proffered wage in 2014, the year of the petition's priority date, and in 2015. The 
petition included a copy of the Petitioner's federal income tax return for 2013. The record, however, 
lacked regulatory required evidence of the company's ability to pay in 2014 or 2015. The record 
therefore did not establish the Petitioner's continuing ability to pay the proffered wage from the 
petition's priority date onward. 
Thus, pursuant to 8 C.F.R. § 204.5(g)(2), the Petitioner must submit copies of annual reports, federal 
tax returns, or audited financial statements for 2014 and 2015 in any future filings in this matter. The 
Petitioner may also submit additional evidence of its ability to pay the proffered wage in those years, 
including proof of any wages it paid the Beneficiary and materials supporting the factors stated in 
Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
IV. CONCLUSION 
The record on appeal does not establish the Beneficiary's qualifying experience for the offered position 
or the requested visa classification. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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