dismissed EB-3 Case: Nail Technician

MATTER OF D-S-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 26, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a nail salon and spa, seeks to employ the Beneficiary as a nail 
technician. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant category. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 
8 U.S.C. § 1153(b)(3)(A)(i). This category allows a U.S. employer to sponsor a foreign national 
with at least 2 years of training or experience for lawful permanent resident status. 
The Director, Texas Service Center, denied the petition, concluding that the record did not establish 
the Beneficiary's possession of the experience required for the offered position. The Director also 
invalidated the accompanying ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), finding that the Beneficiary fraudulently or willfully misrepresented her 
qualifying experience on the document. 
The matter is now before us on appeal. The Petitioner asserts that the Director requested evidence of 
the Beneficiary's qualifying experience beyond that required by regulation and that the record does 
not support the finding of a willful misrepresentation by the Beneficiary. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration is generally a three-step process. First, a U.S. employer must 
obtain an approved labor certification from the U.S. Department of Labor (DOL). See section 
212(a)(5)(A)(i) ofthe Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, the employer must file a Form I-140, 
Immigrant Petition for Alien Worker, with U.S. Immigration and Citizenship Services (USCIS). See 
section 204 of the Act. Finally, if USCIS approves the 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. 
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Matter of D-S-, LLC 
By approving the labor certification in this case, the DOL certified that there are insufficient U.S. 
workers who are able, willing, qualified, and available for the offered position of nail technician. See 
section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified that the employment of a foreign national 
in the position will not adversely affect the wages and working conditions of domestic workers similarly 
employed. See sectidn 212(a)(5)(A)(i)(II). 
USCIS must determine whether the Ben~ficiary meets the requirements of the offered position 
certified by the DOL and whether the Petitioner and the Beneficiary otherwise qualify for the 
requested benefit. See, e.g, Tongatapu Woodcraft Haw., Ltd. v Feldman, 736 F.2d 1305, 1309 (9th 
Cir. 1984) (holding that the immigration service "makes its own determination of the alien's 
entitlement to [the requested] preference status"). 
II. ANALYSIS 
A. The Beneficiary's Possession of the Required Experience 
A petitioner must establish a beneficiary ' s possession of all the education, training, and experience 
specified on a labor certification by a petition's priority date. 8 C.F.R. §§ 103.2(b)(l), (12); see also 
Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'! Comm'r 1971). The priority date is the date the DOL accepted 
the labor certification application for processing. See 8 C.F.R. § 204.5(d). 
·In this case, the petition 's priority date is April 13, 2015. The labor certification states the minimum 
requirements of the offered position of nail technician as aU .S. high school diploma or an equivalent 
foreign credential , and 24 months of experience in the job offered. 
In evaluating a beneficiary's qualifications , we must examine the job offer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position. 
We may neither ignore a term of the labor certification, nor impose additional requirements. See 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 
1008, 1012-13 (D.C. Cir. 1983); Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 
1, 3 (1st Cir. 1981 ). 
The Petitioner submitted a copy of a graduation certificate, indicating the Beneficiary ' s possession 
of the foreign equivalent of a U.S. high school diploma. This evidence is sufficient to establish that 
the Beneficiary has the education required by the labor certification. At issue is whether the 
Beneficiary has the experience required in order to qualify for the offered position 
The Beneficiary attested on the labor certification to her possession of about 28 months of full-time 
experience as a nail technician with in South Korea from April1 , 2010, to July 30, 2012. 
In response to the Director ' s request for evidence (RFE) concerning the Beneficiary's claimed 
experience , the Petitioner submitted a "verification of employment " certificate signed by the 
president of ec:msistent with the labor certification , the certificate states the 
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Matter of D-S-, LLC 
Beneficiary's employment by 
and describes her job duties. 
as a nail technician from April l, 2010, to July 30, 2012, 
A petitioner must support a beneficiary's claimed qualifying experience with a letter from an 
employer. 8 C.P.R. § 204.5(1)(3)(ii)(A). A letter must provide the name, title, and address of the 
employer and describe a beneficiary's experience. /d. The Director found the submitted certificate 
insufficient to establish the Beneficiary's claimed qualifying experience, noting that the certificate is 
not printed on stationery and does not otherwise indic,ate the signatory's affiliation with 
the business. But a "certificate of business registration" submitted by the Petitioner identifies the 
signatory as a representative of Thus, together, the certificates link the sign(!.tory to 
and appear to comply with 8 C.P.R. § 204.5(1)(3)(ii)(A). 
Nevertheless, the record contains inconsistencies casting doubt on the Beneficiary's claimed 
qualifying experience. USCIS records indicate the Beneficiary's omission of her purported 
employment by when she applied for a student visa in South Korea on July 2, 2012. On 
the labor certification, the Beneficiary claims that she worked full-time at from April 1, 
2010, to July 30, 2012. But the visa appiication filed in July 2012 stated her current employer as 
and her prior employer as .1 The Director identified this discrepancy 
in the Beneficiary's employment history in the denial, indicating that it cast doubt on whether the 
Beneficiary had the claimed qualifying experience. 
In an affidavit submitted on appeal, the Beneficiary states that, before working at , she 
worked as a chiefflight attendant at from February 1989 to August 2009. She states 
that she had to quit that job for medical reasons . The Petitioner submitted medical documentation 
indicating that the Beneficiary underwent surgery in September 2009. From October 2009 to 
February 2010, the Beneficiary states she worked part-time as a flight attendant 
instructor for 
. She states that she decided to become a nail technician because the position required little 
physical labor. 
The Beneficiary claims that she began working again for in June 2012 on a part-time 
basis and was selected to study in the United States in conjunction with her employment with 
Although still working for , the Beneficiary stated that she listed 
as her current employer on the student visa application because the company sponsored her 
for the U.S. studies. The Beneficiary states that she did not list as her prior employer on 
1 The Director did not inform the Petitioner of the Beneficiary's omission of her purported qualifying experience from 
the visa application until issuing his decision. The Petitioner therefore did not receive an opportunity to respond to the 
information before the decision . See 8 C.F.R. § 103.2(b)(l6)(i) (requiring USCIS, before issuing an adverse decision, to 
advise a petitioner of derogatory information of which the petitioner is unaware and to afford it an opportunity to 
respond). The Petitioner, however, responded to the infom1ation on appeal. See USCJS, Instructions to Form 1-2908, 
Notice of Appeal .or Motion, 2, at https://www.uscis.gov /sites/default/files /files/form/i-290binstr.pdf (accessed Jan . 26, 
20 17) (providing that a petitioner may submit additional evidence on appeal) ; see also 8 C.F.R. § I 03.2(a)(l) 
(incorporating form instructions into the regulations) . Pursuant to regulations , the Petitioner therefore received notice of 
the derogatory information and an opportunity to respond before the issuance of this decision. 
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Matter of D-S-, LLC 
the application because she COJ!sidered the position to be an "unofficial job," as the business did not 
report her employment to government authorities. The Beneficiary states: 
The reason I forgot to mention was because I was paid in cash and the 
employer did not report my employee status and my employee payment tax and 
employee benefits like employment insurance and health insurance to the Korean 
government. 
A petitioner may rely on unauthorized employment by a beneficiary to establish qualifying 
experience. But unauthorized employment may be more difficult to document than authorized 
employment. See Matter of B&B Residential Facility, 2001-INA-00146, 2002 WL 1586297, *3 
(BALCA July 16, 2002) (stating that, to establish "under the table" employment as qualifying 
experience, a labor certification employer "will undoubtedly need to present credible supporting 
documentation of the work and/or corroborating affidavits or declarations of witnesses with personal 
knowledge"). 
Certificates fro in · a certified tax accountant and the president of state that the amount of 
the Beneficiary 's monthly wages did not require the business to withhold taxes from her pay. The 
Petitioner also submitted copies of news articles indicating that many small businesses in South 
Korea - including beauty salons - pay their employees less than legal minimum wages and rarely 
receive punishment for the infractions. 
But other evidence of record conflicts with the Beneficiary's statements. The labor certification and 
the certificate from the president of state the Beneficiary 's continuous employment by 
the business for 28 months performing the job duties of the offered position of nail technician , 
including manicuring customers ' nails. However , in an affidavit submitted on appeal, the 
Beneficiary stated that she began work for as a trainee, a position in which she cleaned 
customers' nails and merely observed other employees performing manicures on customers. The 
Beneficiary's work in a non-manicuring position at casts doubt on the Beneficiary ' s 
possession ofthe required 24 months of full-time experience in the offered position. 
Also, the Beneficiary stated that she earned 500,090 South Korean won (about $450) per month 
when she started work at and eventually received 700,000 won (about $630) per month. 
The certified tax accountant stated that South Korean employees who earn less than 700,000 won per . 
month are exempt from earned income taxes. If the Beneficiary eventually earned 700,000 won per 
month, however, the record does not explain why the president of and the tax accountant 
stated that the business was not required to withhold taxes from the Beneficiary ' s pay. 
A petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the 
Act, 8 U.S.C. § 1361. The Petitioner must therefore explain the discrepancies of record regarding 
the Beneficiary 's claimed qualifying experience . See Matter of Ho, 19 I&N Dec. 482, 591 
(BIA 1988) (requiring a petitioner to resolve inconsistencies of record by independent , objective 
evidence pointing to where the truth lies). 
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Matter of D-S- , L_LC 
On appeal, the Petitioner asserts that the certificates of record establish the Beneficiary's qualifying 
experience. Pursuant to 8 C.P.R. § 204.5(1)(3)(ii)(A), the Petitioner suggests that USCIS abuses its 
authority by requiring South Korean tax or pension documentation to further confirm the claimed 
employment. 
As previously indicated, the certificates of record appear to meet the regulatory requirements. But 
the Beneficiary's omission of her claimed qualifying experience on the 2012 visa application and the 
other inconsistencies of record previously discussed cast doubt on the reliability of the certificates. 
See Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies of record by 
independent, objective evidence pointing to where the truth lies). Where the reliability of required 
evidence is in question, USCIS does not err in requesting additional, objective documentation. 
' 
The Petitioner also asserts that USCIS disregarded evidence of record indicating that many South 
Korean small businesses do not report their employees to government authorities to avoid insurance 
and ' pension obligations . However , as previously indicated, we have considered the news articles 
submitted by the Petitioner. But these articles focus on minimum wage obligations in South Korea
. 
Contrary to the Petitioner's assertion, the articles do not specifically address avoidance of insurance 
and pension obligations by South Korean businesses. Counsel asserts the evasion of insurance and 
pension obligations by South Korean small businesses. But counsel's assertions do not constitute 
evidence. See INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984) (noting that counsel's unsupported 
assertions do not establish facts of record). A petitioner bears the burden of establishing eligibility 
for a requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. 
,---
Moreover, the president of and the certified tax accountant stated that the business did 
not report the Beneficiary's employment to Korean authorities because the Beneficiary earned less 
than the minimum taxable wage. Contrary to the Petitioner's assertion, they did not state that the 
business sought to avoid insurance and pension obligations to the Beneficiary. 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the required 
experience for the offered position as specified on the labor certification by the petition's priority 
date. We will therefore affirm the Director's decision and dismiss the appeal. 
B. The Invalidation of the Labor Certification 
A petition for a skilled worker must be accompanied by a valid individual labor certification , an 
application for Schedule A designation, or documentation of a beneficiary's qualifications for a 
shortage occupation. 8 C.F.R. § 204.5(1)(3)(i). USCIS may invalidate a labor certification after its 
issuance upon a finding of "fraud or willful misrepresentation of a material fact involving the labor 
certification." 20 C.F.R. § 656.30(d). 
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Matter of D-S-, LLC 
Willful misrepresentation of a material fact requires a deliberate and voluntary misrepresentation 
made with knowledge of its falsity. Xing Yang Yang v. Holder, 770 F.3d 294, 303 (4th Cir. 2014). 
Fraud requires an intention to deceive. !d. 
In this case, the Director found that the Petitioner fraudulently or willfully misrepresented the 
Beneficiary's qualifying experience on the labor certification. As previously indicated, certificates 
from the president of the Beneficiary's purported former employer support the Beneficiary's claimed 
prior employment, but the ,Beneficiary's statements on appeal raise doubt as to the nature of the 
duties performed . In light of inconsistencies of record, the submitted evidence does not establish the 
Beneficiary's possession of the claimed experience. However, we do not find that the 
inconsistencies present are sufficient to warrant a finding that the Petitioner fraudulently or willfully 
misrepresented material facts on the labor certification, meriting its invalidation. 
As such, we will withdraw the Director's finding of fraud or willful misrepresentation of a material 
fact as it relates to the Form I-140 petition and reinstate the validity of the labor certification. 
On appeal, the Petitioner also challenges the Director ' s determination that the Beneficiary 
fraudulently or willfully omitted material facts on her visa application , rendering her inadmissible. 
See section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). That determination, however, 
was not grounds for the petition's denial or the invalidation of the labor certification. See Matter of 
0-, 8 I&N Dec. 295, 296-97 (BIA 1959) (holding that visa petition proceedings do not concern 
substantive questions of inadmissibility). We will therefore not review that finding or express an 
opinion on its validity.2 · 
III. CONCLUSION 
The record lacks evidence of fraud or willful misrepresentation of the Beneficiary's qualifying 
experience on the labor certification. We therefore withdraw the Director's finding of fraud or 
willful misrepresentation of a material fact as it relates to the underlying petition and reinstate the 
validity of the labor certification. But the record does not establish the Beneficiary's possession of 
the required experience for the offered position as specified on the labor certification by the 
petition's priority date. For this reason, the petition must remain denied. 
2 The Petitioner also asserts that a USCIS officer engaged in improper conduct while investigating the Beneficiary 's 
claimed qualifying experience . The Petitioner submits a copy of a letter from the chief executive officer (CEO) of 
describing an officer's questions and mann er of questioning as "inappropriate. " Neither the Petitioner 
nor the CEO of . however , asserts that the officer 's purported misconduct materially affected the 
petition 's adjudication . We otherwise lack authority to investigate the complaint. ' 
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Matter of D-S-, LLC 
In visa petition proceedings, a petitioner bears the burden of establishing eligibility for a requested 
benefit. Section 291 of the Act; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the 
Petitioner did not meet that burden. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The approval of the ETA Form 9089, ETA Case number A-15103-
66174, is reinstated. 
Cite as Matter of D-S-, LLC, ID# 94037 (AAO Jan. 26, 2017) 
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