dismissed EB-3 Case: Meat Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-Y -M-. INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 8, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM l-140.1MMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a meat distributor, seeks to employ the Beneficiary as a procurement specialist. It 
requests his classification as a skilled worker 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" category allows a U.S. business to sponsor a foreign national with 
at least two years of training or experience fiJr lawful permanent resident status. 
After the initially approving the petition, the Acting Director of the Nebraska Service Center 
revoked the petition's approval. The Director concluded that, as of approval, the Petitioner did not 
establish the Beneficiary's possession of the minimum experience required for the offered position 
or the requested classitication. 
On appeal, the Petitioner asserts that the record demonstrates that the Beneficiary has the requisite 
expenence. 
Upon de novo review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer seeking 
to permanently employ a foreign national in the United States must obtain U.S. Department of Labor 
(DOL) certification of the job opportunity. Sec section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). The DOL considers whether the country has able, willing, qualified, and available 
workers for an oftered position, and whether employment of a loreign national would hurt the wages 
and working conditions ofU:S. workers with similar jobs. ld 
If the DOL certifies a position, an employer must next submit the certification with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. If USCIS approves a petition, a foreign national may finally 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. 
Mauer of N- Y-M-. Inc. 
At any time before a foreign national obtains lawful permanent residence, however, USCIS may 
revoke a petition's approval for "good and sufficient cause.•· Sedion 205 of the Act, 8 U.S.C. 
§ 1155. If supported by the record, the erroneous approval of a petition may justify its revocation. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). USC IS properly issues a notice of intent to revoke 
where the record as of the notice's issuance - if unexplained or unrebutted - would have warranted 
the petition's denial. See Matter of' Estime, 19 I&N Dec. 450. 451 (BIA 1987). Similarly, 
revocation lies if the record - including any explanation or rebuttal evidence - would have warranted 
the filing's denial. /d. at 451-52. 
II. THE REQUIRED EXPERIENCE 
As previously indicated. to qualify as a skilled worker, a foreign national must have at least two 
years of training or experience. Section 203(b )(3 )(A)( I) of the Act. A petitioner must also establish 
a beneficiary's possession, by a petition's priority date, 1 of all job requirements of a DOL-certified 
position. Matter of Wing·.,. Tea House, 16 I&N Dec. 158, 160 (Acting Reg'! Comm'r 1977). 
Here, the accompanying labor certification states the minimum requirements of the offered position 
of procurement specialist as two years of experience in the job ofTcred. On the labor certification, 
the Beneficiary attested that he gained the requisite experience as a full-time procurement specialist 
for a furniture manufacturer in South Korea from August I, 2003, to July 31, 2005. To support the 
claimed experience, the Petitioner submitted a "certificate" from a chief executive officer (CEO) on 
the stationery of the furniture manufacturer. See 8 C.F.R. § 204.5(1)(3)(ii)(A) (requiring a petitioner 
\.. to support a beneficiary's claimed experience with a letter fi·om a f(mner employer). Consistent with 
the inf(mnation on the labor certification, the certificate stated that, during the relevant period, the 
company employed the Beneficiary full-time as a procurement specialist. 
In the notice of intent to revoke (NOIR), however, the Director noted that. a few years· a tier the 
Beneficiary's claimed experience ended, he filed an application fiJr a nonimmigrant U.S. visa that 
omitted the employment. On the nonimmigrant visa application, the Beneficiary stated his "present 
occupation" as "evangelist." Asked to identify his prior two employers, he stated: "None." The 
Beneficiary's omission of the furniture manufacturer as a prior employer on his earlier 
nonimmigrant visa application cast significant doubt on his claimed, qualifying experience for the 
offered position and the requested classification. See Matter of' Ho, I 9 I&N Dec. 582, 591 (BIA 
1988) (requiring a petitioner to resolve inconsistencies of record by independent, objective evidence 
pointing to where the truth lies). Thus, unexplained and unrebutted, the record as of the NOIR's 
issuance would have warranted the petition's denial. 
In response to the NOIR, the Beneficiary stated in an artidavit that he misunderstood the visa 
application, assuming that it sought information only about post-college work. Because he was on 
leave from studies while working for the furniture manufacturer, he asserted that he omitted that 
1 
This petition ·s priority date is February 23. 2015. the date the DOL accepted the certification application for 
processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
2 
Mauer()( N- Y-M-. Inc. 
employment from the application. The NOIR also requested copies of South Korean tax records to 
confirm the Beneficiary's claimed experience. In an aftidavit, however, the CEO of the furniture 
manufacturer stated that tax records of the Beneficiary's employment do not exist because the 
company paid him in cash and did not withhold any taxes fi·orn his pay. The Beneficiary also 
asserted that he was not required to pay income taxes because he did not earn enough money. 
Despite the proffered explanations, the record lacks sunicient, independent, objective evidence to 
establish the Beneficiary's claimed experience. The Petitioner asserts that the Director erred in 
discounting evidence of the Beneficiary's employment, hut many of the submitted materials are 
unreliable. For example, the Petitioner submits copies of an "employee record" and "wage 
confirmation sheets" from the furniture manufacturer. But these undated documents do not establish 
their preparations during the Beneficiary's employment. The documents therefore are not reliable 
evidence of the Beneticiary's experience. The record lacks contemporaneous evidence of the 
Beneficiary's claimed employment, such as copies of his bank account statements showing deposits 
during his purported tenure as a procurement specialist. Also, the CEO's affidavit states that the 
company paid the Beneficiary 2.1 million won a month. But the wage confirmation sheets indicate 
that it took about a year fiJr the Beneficiary to earn that much. The CEO's aftidavit also states a 
different company address than listed in his prior certificate and on the labor certification. A copy of 
a business license states a third company address, and the employee record and wage contirmation 
sheets yet another. The record docs not explain the inconsistent company addresses. These 
unresolved inconsistencies fut1her undermine the reliability of the Petitioner's evidence. See Muller 
(J(Ho, 19 l&N Dec. at 591 (stating that doubt cast on any aspect of a petitioner's proof may lead to a 
reevaluation of the reliability and sufficiency of its remaining evidence). 
In addition, the. record does not establish the qualifying nature of the Beneficiary's claimed 
experience. The labor certiflcation states that the offered position requires experience "in the job 
offered." Experience in the job offered means experience performing the job duties of the offered 
position. See. e.g .. Muller of' Sumeru Inc., 2013-PER-01241 (BALCA Apr. 24, 2017) (citation 
omitted). Here, the job duties of the offered position include "determin[ing] inventory need and 
purchas[ing] meat products accordingly for wholesale." On the certification, the Petitioner specified 
that it would not accept experience in an alternate occupation. The CEO's ccrtitlcatc and atlidavit 
do not establish the Beneficiary's experience with purchasing meat. Rather, the documents indicate 
that the Beneficiary bought materials for manufacturing furniture. The record therefore does not 
establish the Beneflciary's experience in the job offered. 
For the foregoing reasons, as of the petition's approval, the record did not establish the Beneficiary's 
possession of the minimum experience required for the offered position or the requested 
classitication. 
Ill. THE ABILITY TO PAY TI-lE PROFFERED WAGE 
Although unaddressed by the Director, the Petitioner also did not demonstrate its ability to pay the 
prolrered wage .. A petitioner must demonstrate its continuing ability to pay a proffered \\;age, Ji·om a 
3 
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Mafler of N- Y-1\:f-. Inc. 
petition's pnonty date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 
204.5(g)(2). Evidence of ability to pay must include c.;opies of annual reports, federal income tax 
returns~ or audited financial statements. !d. Here, the labor certification states the proffered wage of 
the offered position of procurement specialist as $45,968 a year. As previously noted, the petition's 
priority date is February 23, 2015. 
The Petitioner submitted a copy of its federal income tax returns for fiscal year 2014-15, which ran 
from May 1, 2014, to April 30, 2015. The tax returns indicate sufticient net current assets to pay the 
proffered wage. However, the record does not contain evidence of the Petitioner's continuing ability 
to pay the proffered wage from May 1, 2015, onward. Thus, in any future filing in this matter, the 
Petitioner must submit updated annual reports, federal tax returns, or audited financial statements to 
support its ability to pay the proffered wages during its 2015-16 tiscal year. 
Also, USCIS records indicate the Petitioner's filing of a petition for another beneficiary that 
remained approved after this petition's priority date. 2 A petitioner must demonstrate its ability to 
pay the proffered wage of each petition it files until a beneficiary obtains lawful permanent 
residence. 8 C.F.R. § 204.5(g)(2). Therefore, the Petitioner here had to demonstrate its ability to 
pay the combined proffered wages of both petitions, unless the Petitioner documents the denial, 
withdrawal, or revocation of its other petition. See Pale/ v . .Johnson, 2 P. Supp. 3d 108, 124 (D. 
Mass. 2014) (affirming our· revocation of a petition's approval where, as of the tiling's grant the 
petitioner did not demonstrate its ability to pay combined proffered \vages of multiple petitions). 
In any future filing in this matter, the Petitioner must provide the proffered wage and priority date of 
the other petition. It may also submit evidence of any wages it paid the other beneticiary during the 
relevant period and in support of any other factors affecting its ability to pay the proffered wage. 
See Matter t~l S'onegawa, 12 I&N Dec. 612, 614-15 (Reg'! Comm'r 1967) (holding that in 
determining a petitioner's ability to pay, USCIS may consider factors beyond its amounts of net 
income and net current assets). 
IV. CONCLUSION 
As of the petition's approval, the record did not establish the Beneficiary's possession of the 
minimum experience required for the offered position and the requested classification. We will 
thereture affirm the revocation of the petition's approval. 
ORDER: The appeal is dismissed. 
Cite as Malter q/N- Y-M-. Inc., 10# 939116 (AAO Mar. 8, 20 18) 
2 USCIS records identify the other petition by the receipt number 
4