dismissed EB-3 Case: Maintenance Technician

U.S. Citizenship 
and Immigration 
Services 
In Re: 06548437 
Motion on Administrative Appeals Office Decision 
Form I-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: FEB. 7, 2020 
The Petitioner, a food service business, seeks to employ the Beneficiary as a maintenance technician. 
It requests skilled worker classification for the Beneficiary under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This 
employment-based "EB -3" 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 two years of 
training or experience. 
The petition was initially approved, but the approval was subsequently revoked by the Director of the 
Nebraska Service Center. The Director found that the Petitioner, in responding to a notice of intent to 
revoke (NOIR), did not resolve discrepancies in the record about the Beneficiary's employment 
history. In particular, the job experience claimed in the instant proceeding and the associated 
employment verification letters differed completely from the employment experience claimed by the 
Beneficiary in an earlier nonimmigrant visa application. In the NOIR the Director advised the 
Petitioner that additional evidence was needed, such as payroll records from the two South Korean 
companies that allegedly employed the Beneficiary and the Beneficiary's Korean national tax 
documents, to confirm that the Beneficiary had the qualifying experience claimed in this proceeding. 
The requested evidence was not submitted by the Petitioner , however, who instead submitted 
additional employment verification letters from the South Korean companies and clients where the 
Beneficiary was allegedly assigned. The Director concluded that the evidence of record did not 
establish that the Beneficiary met the minimum experience requirement of the labor certification, and 
revoked the petition's approval. 
The Petitioner filed an appeal, which we rejected as late filed in accordance with the regulation at 
8 C.F.R. §§ 103.3(a)(2)(v)(B)(I). An appeal of a revocation decision must be filed within 18 days of 
the date of the decision. See 8 C.F.R. §§ 205.2(d) and 103.8(b). The Petitioner's appeal was not 
received by U.S. Citizenship and Immigration Services (USCIS) or officially logged in as an appeal 
within the 18-day period prescribed in the regulations. After receiving correspondence from the 
Petitioner along with documentation showing that the appeal had been received by USCIS 29 days 
after the revocation decision was issued, we sent a letter to the Petitioner stating that the appeal would 
remain rejected. 1 
1 We also advised that the only office with jurisdiction to determine whether an untimely appeal meets the requirements 
Two weeks after our letter the Petitioner filed a motion to reopen and a motion to reconsider. The 
Petitioner contends that its appeal was filed within the time period indicated on the revocation decision 
and should be adjudicated on the merits. The timely filing of this combined motion, however, cannot 
cure the late filing of the original appeal under applicable regulations. 2 
Accordingly, the appeal will remain rejected. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed 
of a motion is the office that issued the unfavorable decision. On August 21, 2019, the Director of the Nebraska Service 
Center issued a decision which found insufficient grounds to treat the untimely appeal as a motion and let stand the denial 
of the petition. 
2 Even if we were to accept the appeal as timely filed and adjudicate it on the merits, which we do not as set forth above, 
the evidence of record would not yield a favorable result for the Petitioner. As noted by the Director in his revocation 
decision, the Petitioner did not submit any of the documentation specifically requested in the NOIR to reconcile conflicting 
information about the Beneficiary's employment history and demonstrate that he actually worked for the two South Korean 
companies identified in the labor certification supporting the instant petition. It is incumbent upon a petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Attempts to explain or reconcile such inconsistencies 
will not suffice without competent evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of the petitioner's 
remaining evidence. Sec id. Given the conflicting information provided by the Beneficiary in the instant immigrant 
petition and his prior nonimmigrant application, it was proper for the Director to request primary evidence - specifically, 
payroll records from the companies and tax documents from the Beneficiary - to document his employment by the South 
Korean companies. No such materials were submitted in response to the NOIR, on appeal, or with the current motion. In 
its appeal brief the Petitioner asserted that the Beneficiary "is unable to obtain copies of his national tax documents and 
payroll records as he does not have access to such information." However, no evidence was submitted that the Beneficiary 
even tried to obtain such documentation, much less that he is actually unable to do so. In visa petition proceedings the 
Petitioner has the burden of establishing eligibility for the requested benefit. See section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). In this proceeding the Petitioner has not met its burden of proof. It 
has not established that the Beneficiary gained any qualifying experience with the two South Korean companies as alleged 
in the labor certification. Therefore, the Petitioner has not established that the Beneficiary has the requisite five years of 
qualifying employment to meet the experience requirement of the labor certification or the requisite two years of 
experience to qualify for skilled worker classification. See 8 C.F.R. § 204.5(1)(3)(ii)(B). 
2