dismissed EB-3 Case: Newspaper Distribution

o U.S. Citizenship 
"' and Immigration 
Services 
MATTER OF P-H-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 27,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a newspaper distributor, seeks to employ the Beneficiary as a circulation-sales 
representative. 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 lawfuJ permanent resident status to work in 
a position that requires at least 2 years of training or experience. 
The Director, Nebraska Service Center, denied the petition, concluding that the record did not 
establish the Petitioner's ability to pay the Beneficiary the proffered wage. This office dismissed the 
Petitioner's subsequent appeal, and has denied its successive motions to reopen and motions to 
reconsider, finding the record to establish neither the Petitioner's ability to pay nor the Beneficiary's 
qualifications for the offered position. 
The matter is again before us as a motion to reopen. The Petitioner submits evidence to overcome 
our prior findings regarding the Beneficiary's qualifications. We will deny the motion. 
I. LAW 
The requirements for motions to reopen are found at 8 C.F.R. § 103.5(a)(2): 
Requirements for motion to reopen. A motion to reopen must state the new facts to 
be proved in the reopened proceeding and be supported by affidavits or other 
documentary evidence .... 
The record reflects that the motion is properly filed and timely. The Petitioner states new facts and 
submits new evidence relating to the Beneficiary's qualifying experience for the offered position. 
We will limit our consideration of the record to those issues raised by the Petitioner in the motion, 
which does not include its ability to pay the proffered wage. 
(b)(6)
Matter of P-H-, Inc. 
II. PROCEDURAL HISTORY AND EVIDENCE OF RECORD 
The Petitioner filed the Form I-140 immigrant visa petition on November 3, 2006. On January 24, 
2008, the Director denied the petition, finding that the record did not establish the Petitioner's 
continuing ability to pay the proffered wage as of the visa petition's priority date. 
The Petitioner appealed the Director's decision to this office. We dismissed the appeal on October 1, 
2009, affirming the Director's decision. On June 2, 2010, we again affirmed the Director's decision iri 
response to the Petitioner's motion to reopen and motion to reconsider. On February 1, 2013, we 
denied the Petitioner's second motion to reopen as it did not meet the regulatory requirements at 8 
C.F.R. § 103.5(a)(2). On August 1, 2013, in response to a third motion to reopen, we, once again, 
determined that the record did not establish the Petitioner's ability to pay the proffered wage. We also 
reached this decision on March 6, 2014, in response to the Petitioner's fourth motion to reopen. 
On April 7, 2014, the Petitioner again filed a motion to reopen, in response to which we issued a notice 
of derogatory information and request for evidence (NDI/RFE). The NDIIRFE informed the 
Petitioner that an overseas inquiry into the qualifying experience claimed by the Beneficiary on the 
labor certification had raised questions regarding the reliability of that experience. 8 C.F.R. §§ 
103.2(b)(8), (16)(i). Specifically, the NDI/RFE advised the Petitioner that although the Beneficiary 
had claimed employment experience with a newspaper company located in 
Indonesia, from January 1996 until October 1998, had no record of the Beneficiary in its 
employee database. It also notified the Petitioner that the individual who had signed the letter 
confirming the Beneficiary's experience was unknown to Accordingly, the NDI/RFE 
requested the submission of independent, objective evidence to establish the employment claimed by 
the Beneficiary on the labor certification. It also asked the Petitioner ·to resolve the apparent 
inconsistency between the Beneficiary's claim in Part B.15. of the labor certification to have worked 
full-time for from January 1996 until October 1998 and his claim in Part B.11. where he 
indicated that he had attended from June 1994 to June 1998. 
In response, the Petitioner provided statements from the Beneficiary and a former co-worker who 
both asserted that, as they were distributing newspapers during the relevant period, it was 
their belief that they were working for However, these statements were not the objective, 
independent evidence requested by the NDIIRFE. Further, the description of the Beneficiary's 
duties provided by his former co-worker was inconsistent with that provided by the Beneficiary in 
the labor certification, thereby raising additional questions regarding the reliability of the 
Beneficiary's experience claim. 
In our February 10, 2015, decision, we noted that the Petitioner's response to the ND IIRFE had not 
overcome the derogatory 
information and, accordingly, found that the record did not establish that 
the Beneficiary was qualified for the offered position. We further concluded that the unrebutted 
derogatory evidence regarding the Beneficiary's employment experience was sufficient to 
demonstrate that he had willfully misrepresented a material fact to U.S. Citizenship a~d Immigration 
Services (USCIS) to obtain an immigration benefit and, accordingly, entered a finding pursuant to 
section 212(a)(6)(C)(i) of the Act, of misrepresentation against the Beneficiary. Our decision also 
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(b)(6)
Matter of P-H-, Inc. 
noted that the record continued to lack the evidence necessary to establish the Petitioner's ability to 
pay the proffered wage. For these reasons, we affirmed our prior decision, finding the absence of 
evidence establishing the Beneficiary's eligibility for the offered position to provide a second basis 
for the denial of the Form I-140. Further, based on our finding of misrepresentation, we invalidated 
the approval of the underlying labor certification under our authority at 20 C.F.R. § 656.30(d). 
r 
On March 13, 2015, the Petitioner filed a motion to reconsider, which we denied on November 6, 
2015, as it did not satisfy the requirements at 8 C.F.R. § 103.5(a)(3). 
The Petitioner has now filed a new motion to reopen, which is accompanied by evidence that the 
Petitioner believes sufficient to overcome our findings that the Beneficiary misrepresented his 
qualifying experience on the labor certification and knowingly submitted a fraudulent experience 
letter in support ofthis claim. The Petitioner also submits copies of the Beneficiary:'s school records 
to establish that he holds the high school diploma required by the labor certification. 
II. ANALYSIS 
To establish that a beneficiary is qualified to perform the duties of an offered position, a petitioner 
must demonstrate that the beneficiary has met all of the requirements set forth in the labor 
certification by the priority date of the petition.1 In evaluating the job offer portion of the labor 
certification to determine the required qualifications for the position, USCIS may not ignore a term 
of the labor certification, nor may it impose additional requirements. 2 
In the present case, Part A.14. of the labor certification requires the Beneficiary to have a high 
school education and 2 years of experience, either as a circulation-sales representative or a 
sales/distribution coordinator. Ih Part B.15. of the labor certification, the Beneficiary claimed full­
time employment as a circulation-sales representative with the Petitioner from December 2000 until 
the "present," and full-time employment as a circulation-sales representative with from 
January 1996 until October 1998. At the time it filed the visa petition, the Petitioner sought to 
qualify the Beneficiary for the offered position based on his claimed employment with 
which, as previously discussed, has been found to be fraudulent. On motion, the Petitioner now 
seeks to establish the Beneficiary's experience as a distributor of publications from 
January 1996 until December 1998. 
In support of the motion,3 the Petitioner submits a December 1, 2015, certificate signed by the owner 
of the which is accompanied by a second certificate from the area sales manager for 
I ' . 
1 8 C.F.R. §§ 103.2(b)(l), (12); 8 C.F.R. § 204.5(1)(3)(ii)(A); see Matter of Wing's Tea House, 16 I&N Dec. 158, 159 
(Acting Reg'! Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'! Comm'r 1971). 
2 See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, ~99 F.2d 1006 (9th Cir. 1983); 
Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d I (1st Cir. 1981). 
3 We note that the Petitioner submitted copies of the Beneficiary's from 
in Indonesia and English, as well as his academic transcript, when it filed its March 13, 
2015, motion and resubmits this documentation with the current motion to reopen. The submitted evidence establishes 
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(b)(6)
Matter of P-H-, Inc. 
that identifies the as authorized distributor. The 
certificate states that the agency is a distributor of newspapers, tabloids and magazines for 
and and that the Beneficiary worked for as a newspaper distributor 
from January 1996 to December 1998. It describes the Beneficiary's duties as follows: 
"[p ]romotions, coordination and distribution of Newspapers, making a delivery schedule to increase 
sales, conducting courier route inspections and holding training for the couriers in terms of delivery 
techniques to Newspaper customers." 
However, the information that is provided by the certificate is inconsistent with that which the 
Beneficiary provided in the labor certification. In Part B.15., the Beneficiary indicated that he 
worked for as a circulation/sales representative from January 1996 to October 1998, not 
Jaimary 1996 to December 1998, and he described his duties as promoting and supervising the sale 
and distribution of the daily newspaper, assigning routes of delivery and regulatingthe size of orders 
and circulation. He made no reference to conducting courier route inspections or providing training 
for couriers. Unresolved material inconsistencies may lead to a reevaluation of the reliability and 
sufficiency of the evidence submitted in support of the requested immigration benefit. Matter of Ho, 
19 I&N Dec. at 591-92. We also find the certificate's description of the Beneficiary's duties to be 
inconsistent with the previously noted statement provided by the Beneficiary's former co-worker 
who indicated that he and the Beneficiary "[had] newspaper stalls, and distributed the 
newspaper." !d. The Petitioner has not addressed or provided independent, objective evidence that 
would resolve these inconsistencies. 
Further concerns regarding the reliability of the certificate are raised by an interview with 
owner conducted during a second overseas inquiry into the Beneficiary's employment history. At 
the time of the interview, owner described his agency as employing casual, part-time 
workers to distribute publications for the and indicated that such 
employment is sporadic as it depends on the volume of work. He also stated that he does not 
maintain employment records for these workers, but that, as he remembered the Beneficiary's name, 
he provided an employment certificate for him when the Beneficiary's girlfriend requested one. 
Accordingly, it appears from the interview that the information provided in the employment 
certificate submitted by the Petitioner is based solely on what owner remembers of the 
, Beneficiary's employment. 
Therefore, while we find the certificate documenting the Beneficiary 's experience with to be 
genuine, i.e., that it was issued by the owner of the we do not find it of sufficient 
evidentiary weight to establish that the Beneficiary has , the experience required by the labor 
certification or to rebut our finding of misrepresentation against the Beneficiary under section 
212(a)(6)(C) of the Act. Considering the number of years that have passed since owner says 
he employed the Beneficiary, the absence of any records documenting that employment, and that we 
have already found the certificate's statements regarding the length ofthe Beneficiary's employment 
and his duties to be inconsistent with the information ,provided by the Beneficiary on the labor 
that the Beneficiary holds the foreign equivalent of a U.S. high school diploma . 
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(b)(6)
Matter of P-H-, Inc. 
certification, we do not find the certificate to offer reliable proof of the Beneficiary's 
employment experience and, therefore, to satisfy the requirement at 8 C.F.R. § 204.5(1)(3)(ii)(A) for 
an experience letter establishing the Beneficiary's qualifying employment. 
Even if we were to accept the certificate as proof of the Beneficiary's employment during the 
period claimed, it would not establish that he has 2 years of experience as a circulation-sales 
representative or sales/distribution/coordinator. Based on the description that owner 
provided of his workforce, the Beneficiary would have worked for him on a part-time basis, and 
then, only as needed. Therefore, even if we were to find the Beneficiary to have been employed by 
the during the period January 1996 to December 1998, his employment does not 
appear to have been full-time or continuous, and, therefore, would not provide him with the 2 years 
of experience required by the labor certification and for classification as a skilled worker under 
section 203(b)(3)(A)(i) of the Act. 
For the reasons discussed above, the December 1, 2015, certificate from the owner 
does not establish that the Beneficiary has the 2 years of experience required by the labor 
certification. Accordingly, the record does not demonstrate that the Beneficiary is qualified for the 
offered position. , 
IV. CONCLUSION 
The experience certificate submitted by the Petitioner in support of its motion does not establish that 
the Beneficiary has th,e experience he claimed on the labor certification. Therefore, we continue to 
find that the Beneficiary knowingly made false statements on the labor · ~ertification and that he 
submitted a false document to USCIS to establish his experience for the offered position. 
Accordingly, we will affirm our prior 212(a)(6)(C)(i) finding against the Beneficiary and, on this 
basis, our invalidation of the approval of the underlying labor certification pursuant to 20 C.F.R. § 
656.30(d). 
However, even if the evidence submitted on motion did establish that the Beneficiary had the 
employment experience required by the labor certification, we would still deny the motion as it is 
not_ supported by evidence demonstrating the Petitioner's ability to pay the proffered wage. 
The petition will remain denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U .S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reopen is denied. 
Cite as Matter of P-H-, Inc., ID# 86291 (AAO Oct. 27, 2016) 
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