dismissed EB-3 Case: Martial Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF KHH-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 25.2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a martial arts school, seeks to employ the Beneficiary as a hapkido instructor. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the 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 two years of training or experience. 
The Director of the Nebraska Service Center initially approved the petition. Subsequently, the 
Acting Director of the Nebraska Service Center revoked the approval of the petition, concluding that 
the record did not establish that the Beneficiary possessed the experience required by the labor 
certification as of the priority date. The Acting Director noted unresolved inconsistencies regarding 
the Beneficiary's prior work experience in the record and on his prior nonimmigrant visa 
application. 
On appeal, the Petitioner submits additional evidence and asserts that since the Beneficiary was paid 
in cash by his former employer, he "cannot submit evidence to support his income during this time 
period." However, the Petitioner states that the evidence submitted to the record and on appeal 
overcomes the inconsistencies noted by the Acting Director and supports the Beneficiary's claims 
that he possessed the experience required by the labor certification as of the priority date. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the U.S. Department of Labor (DOL).
1 
See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL 
certifies that there are insufficient U.S. workers who are able, willing. qualified. and available for the 
1 
The priority date of a petition is the date the DOL accepted the labor certification for processing. which in this case is 
August 18, 2014. See 8 C.F.R. § 204.5(d). 
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Matter of KHH-S- , Inc. 
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 
the Act. Second, the employer files an immigrant visa petition 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 applies for an immigrant visa abroad or, if eligible, 
adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255. 
After granting a petition, USCIS may revoke the petition ' s approval "at any time" for "good and 
sufficient cause ." Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record, a director ' s 
realization that a petition was erroneously approved may justify revocation. Matter (?l Ho, 19 I&N 
Dec. 582, 590 (BIA 1988). 
Good and sufficient cause exists to issue a notice of intent to revoke (NOIR) where the record at the 
time of the notice's issuance, if unexplained or unrebutted, would have warranted the petition ' s 
denial. Matter ol Estime, 19 I&N Dec. 450, 451 (BIA 1987). Similarly, revocation is proper if the 
record at the time of the decision , including any explanation or rebuttal evidence provided by a 
petitioner, warranted a petition ' s denial. !d. at 452. 
II. THE BENEFICIARY'S EXPERIENCE 
The Acting Director revoked the petition ' s approval because the Petitioner did not establish that the 
Beneficiary possessed the experience required by 
the labor certification as of the priority date. 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 1 03.2(b)(l), (12); Matter (?l Wing ·s Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). In this case, the labor certification 
requires a high school education 2 and 24 months of experience as a hapkido instructor. 
Regarding the experience requirement, the labor certification states that the Beneficiary qualities for 
the offered position based on experience as a full-time hapkido instructor at 
in South Korea from April 4, 2005, to October 3 L 2008. 
Evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name , address , and title of the writer, and a specific description of the 
duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). 
With the petition , the Petitioner submitted an experience certificate from 
of stating that the Beneficiary was employed as a hapkido 
instructor from April 4, 2005, to October 31, 2008 . Although the letter lists his duties, it does not list 
the address of the writer as required by 8 C.F.R. § 204.5(1)(3), and it does not indicate if the 
Beneficiary was employed full-time . Therefore, the certificate does not establish that the 
2 The record reflects that the Beneficiary has completed the required education. 
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Matter of KHH-S-. Inc. 
Beneficiary possessed 24 months of experience as a hapkido instructor as required by the labor 
certification. 
In his NOIR, the Director noted that the Beneficiary ' s nonimmigrant visa application from August 
2009 indicates that he was a student at from March 2005 to February 2007 and 
that he claimed no employment during that time, and that his only claimed employment in a section 
requesting information regarding his two previous employers was as a sports teacher at a high school 
in South Korea from 2008 to 2009. The Director indicated that the information provided on the 
Beneficiary's nonimmigrant visa application conflicts with the information provided in the petition 
and labor certification in this case and stated that the Petitioner must resolve these inconsistencies 
with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. at 
591-592. 
In response to the NOIR, the Petitioner claimed that the Beneficiary attended trom 
March 2005 to February 2007, during which time he attended classes during the day and worked 
full-time for at night (Monday through Friday 3:00pm tolO:OOpm) 
and on weekends (Saturdays 9:00am to 2:00pm). It submitted an affidavit (first affidavit) from 
Head Master at stating that the Beneficiary was paid 
410,000 won per month and did not have to pay taxes on his salary;3 a letter from the tax office in 
South Korea stating that taxes are not due on wages less than 5,000,000 won per year; a statement 
from the Beneficiary's bank account showing cash deposits made between April 2005 and October 
2008; and pictures of the Beneficiary at hapkido events. The Petitioner also asserted that the 
Beneficiary misunderstood the nonimmigrant visa application instructions and thought he only 
needed to 
indicate his most recent employment on that form. 
In her notice of revocation (NOR), the Acting Director stated that although the Beneficiary claimed 
to have earned less than 5,000,000 won with he also claimed to have 
been employed as a sports teacher at a high school in South Korea from 2008 to 2009. The record 
does not indicate how much he earned at the high school and whether the amounts, when coupled 
with the payments from exceeded 5,000,000 won in 2008. Thus, the 
Acting Director determined that the bank statement was not credible evidence of the Beneficiary's 
wages. The Acting Director also noted that the bank statement does not show that the funds 
represent wages paid to the Beneficiary by that the deposits were 
made at times when the Beneficiary was purportedly working or at school; that the bank statement 
does not clearly show the deposits from the Beneficiary's employment as a sports teacher at a high 
school in South Korea in 2008; and that the bank statement was not properly translated. See 8 C.F.R. 
§ 103.2(b)(3).4 
3 We note that this affidavit does not appear to be written by the individual who submitted the original experience 
certificate submitted with the petition, 
4 Any document in a foreign language must be accompanied by a full English language translation. 8 C.F.R. 
§ I 03.2(b )(3). The translator must certify that the English language translation is complete and accurate, and that the 
translator is competent to translate from the foreign language into English. !d 
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Matter of KHH-S- , Inc. 
On appeal, the Petitioner asserts that since the Beneficiary was paid in cash by his former employer, 
he "cannot submit evidence to support his income during this time period." Further, the Petitioner 
asserts that the Beneficiary had varying daytime class schedules and did not work seven nights per 
week and, therefore, he was able to make the deposits listed on the bank statement. On appeal, the 
Petitioner submits another affidavit (second affidavit) from Head Master at 
listing all payments made to the Beneficiary; a business card for the 
Beneficiary ; an appreciation plaque; statements, cards, and letters from former students of the 
Beneficiary; and additional pictures ofthe Beneficiary at hapkido events. 
The Petitioner has not resolved the inconsistencies in the record with independent , objective 
evidence establishing that that the Beneficiary possessed the experience required by the labor 
certification as of the priority date. Specifically , the Petitioner has not established that the 
Beneficiary worked full-time as a hapkido instructor at in South 
Korea from April 4, 2005, to October 31, 2008, as claimed on the labor certification. Although the 
Petitioner asserts that the Beneficiary misunderstood the nonimmigrant visa form, the form in 
question distinctly required the Beneficiary to list his last two employers, not including his current 
employer. If the Beneficiary was employed by the as alleged, the 
Beneficiary was clearly required to record this employment on the nonimmigrant form, but he did 
not do so. The Petitioner has not provided a persuasive explanation as to why the Beneficiary 
omitted this claimed experience . Moreover , the affidavits submitted are inconsistent with one 
another . The second affidavit from lists payments purportedly made to the 
Beneficiary during his employment with However, this second 
affidavit from conflicts with his first affidavit submitted in response to the NOIR 
which stated that the Beneficiary was paid 410,000 won per month . The second affidavit shows 
monthly payments ranging from a low of 150,000 won on June 23, 2008, to a high of 700,000 won 
on March 21, 2008. Further, the first payment listed in the second affidavit shows that the 
Beneficiary was paid 400,000 won on April 18, 2005, which was two weeks after he purportedly 
started working there. This payment exceeds many of the monthly payments listed in the affidavit 
and appears to be almost double what he was supposed to be paid for a half month of work. The 
Beneficiary also claims to have been employed by through October 
31, 2008; however, the last payment listed in the affidavit was made on October I, 2008. The 
Petitioner has not resolved these inconsistencies in the record . Matt er qf Ho , 19 I&N Dec. at 591-
592. 
Additionally , as noted by the Acting Director, the bank deposits were made at times when the 
Beneficiary was purportedly working or at school. 5 The original bank statement shows that the 
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The Petitioner asserts that the Beneficiary attended daytime classes at from March 2005 to February 
2007 . However , the Petition er provid ed no evidence from confirming the Beneficiar y's class 
schedule . It is the Petitioner ' s burden to establish eligibilit y for the immigration benefit sought. Section 291 of the Act, 
8 U .S.C . § 1361; Matter of Skirba/1 Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 20 12). Also, the tran slation of the 
Beneficiary 's bank statement submitted on appeal does not contain the time stamp s contained in the original document. 
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Matter of KHH-S-. Inc. 
majority of the deposits were made during times when the Beneficiary was purportedly working. 
Although the Petitioner asserts on appeal that the Beneficiary did not work seven nights per week, it 
has represented in the record that he worked Monday through Friday from 3:00pm to I O:OOpm, and 
on Saturdays from 9:00am to 2:00pm. Most of the deposits were made on weekday evenings 
between the hours of 3:OOpm and I O:OOpm, when the Beneficiary was purportedly working. 6 The 
Petitioner has not resolved this inconsistency in the record. Matter ofHo, 19 I&N Dec. at 591-592. 
In addition, the business card; 7 appreciation plaque; pictures; and statements, cards, and letters from 
former students of the Beneficiary do not confirm the Beneficiary 's full-time employment as a 
hapkido instructor at in South Korea from April 4, 2005, to October 
31, 2008. Specifically , the appreciation plaque is dated October 24, 2008, and thanks the 
Beneficiary for his teaching skills. It does not list his dates of employment or indicate his full-time 
status. A statement from states that he was enrolled in classes at 
from September 12, 2005, to September 11 , 2007, three times a week, and learned 
hapkido from the Beneficiary and The statement does not. however, confirm the 
Beneficiary's 
actual dates of employment, indicate his full-time status, or indicate how the teaching 
was split between or shared by the Beneficiary and The remaining cards and letters 
appear to be written by children thanking the Beneficiary for teaching them martial arts. However, 
they do not list his dates of employment or indicate his full-time status. 
Further, the Petitioner has not established that that the Beneficiary could have been concurrently 
employed as a full-time hapkido instructor at in South Korea, and as a 
sports teacher at a South Korean high school, in 2008. On appeal, the Petitioner did not address this 
inconsistency noted in the NOR. !d. 
Because the Petitioner has not resolved the inconsistencies in the record with independent, objective 
evidence establishing that that the Beneficiary possessed the experience required by the labor 
certification, we will dismiss the appeal, and the petition's approval will remain revoked. 
Finally, we note that the Petitioner listed on the labor certification that it was established in 1971. Its 
2014 tax return indicates that it was established in 1999. Its Articles oflncorporation indicate that it 
was incorporated in Illinois in 2007, and there is a notice from the Internal Revenue Service 
addressed to the Petitioner in the file for tax year 2007 indicating that there is a discrepancy with its 
Therefor e, it is not an accurate translation as certified by the translator. See 8 C.F.R. ~ 103.2(b)(3). If a petitioner doe s 
not submit a properly certified English language translation of a docum ent, we cannot meaningfully determine whether 
the translated material is accurate and thus supports the petitioner 's claims. 
6 For example, in 2005, deposit s were made on Monday, April 18, 2005, at 5:01pm; Wednesday, May 4, 2005, at 
3:18pm; Monday , June 20, 2005, at 8:13pm; Tuesday, July 12, 2005, at 3:36pm; Thursday, October 20, 2005, at 9:46pm; 
and Friday, November 18, 2005, at 7:15pm. 
7 
We note that the business card includes a logo for in the top lett-hand corner. The logo was not 
included in the English translation and therefore , it is not clear if the tran slation is accurate. See 8 C.F.R. § I 03.2(b)(3). 
Further , it is not clear why a univer sity logo is included on what is purportedly a business card for a martial arts studio. 
See Matter of Ho, 19 l&N Dec . at 591-592. The card does not indicate the Beneficiary ·s job title. 
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Matter of KHH-S-, Inc. 
taxpayer identification number. In any future proceedings, the discrepancy in the Petitioner's 
identity and taxpayer identification number must be resolved with independent, objective evidence. 
!d. 
III. CONCLUSION 
The Petitioner has not resolved the inconsistencies in the record with independent, objective 
evidence establishing that that the Beneficiary possessed the experience required by the labor 
certification as of the priority date. 
ORDER: The appeal is dismissed. 
Cite as Matter of KHH-S-. Inc., lD# 887141 (AAO Jan. 25, 2018) 
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