dismissed EB-3 Case: Procurement

U.S. Citizenship . 
and Immigration 
Services 
MATTER OF N-Y-M-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN.23,2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a meat and poultry distributor, seeks to employ the Beneficiary as a procurement 
specialist. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant classification. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 
8 U.S.C. § l 153(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 
Directcfr revoked the approval of the petition, concluding that the record did not establish that the 
Beneficiary possessed the experience required by the labor certification. 1 We dismissed a 
. subsequent appeal. The matter is now before us on a motion to reopen. 
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On motion, the Petitioner asserts that the Beneficiary has two years of experience in the offered job 
as required by the labor certification. Upon review,,we will deny the motion to reopen. 
I. MOTION REQUIREMENTS 
A petitioner must show proper cause for granting the motion. 8 C.F-.R. § 103.5(a)(l). A motion to 
reopen must state new facts and be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). 
1 After granting a petition, U.S. Citizenship and Inimigration Services (USCIS) may revoke the petition's approval "at any 
time". for "good and sufficient cause." Sectipn 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 of Ho, 19 l&N Dec. 582, ·590 (BIA 
1988). Good and sufficient cause exists to issue a notice of intent to revoke (NOi R) where the record at the time of the 
notice's issuance, if imexplained or unrebutted, would have warranted the petition's denial. Matter qf Estime, 19 l&N 
Dec. 450, 451 (BIA ·I 987). 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. Id. at 452. 
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Maller of N-Y-M- . Inc. 
II .. THE BENEFICIARY'S EXPERIENCE 
The 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. 2 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. § 103.2(b)(I), (12); Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg' ! Comm 'r 1977) .. 
Jn this case, the labor certification requires 24 months of experience as a procurement specialist. 
The duties of the offered job are: "Prepare · purchasing orders; determine inventory need and 
purchase meat products accordingly for wholesale; contact suppliers to schedule deliver [sic]; track 
all purchase orders and confirm timely delivery." 
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 1, 2003, to July 31, 2005 . His job duties were described as follows: "Prepared purchasing 
orders; determined inventory need and purchased materials for manufacturing furniture according to 
amount of inventory; contacted suppliers to schedule delivery; tracked all purchase orders and 
confirmed timely delivery." 
Evidence relating to qualifying experience must be in the form of a letter froni 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 a Korean "Certificate of Work Experience " dated July 27, 
2014, from · chief executive officer (CEO) of together with English translation . 3 
The certificate stated that employed the Beneficiary full-time as a procurement specialist from 
August 1, 2003, to July 31, 2005. His job duties were described as follows: "prepared purchasing 
orders; determined inventory need and purchased materials for manufacturing furniture according to 
amount of inventory; contacted suppliers to schedule delivery; tracked all · purchase orders and 
· confirmed timely delivery. "4 
In the NOIR , the Director noted that in 2008 , the Beneficiary filed a_n application for a U .S. 
nonimrnigrarit visitor's visa that omitted his employment with . On the 2008 visa application, 
the Beneficiary stated his "present occupation " as "evangelist. " When asked to identify his prior two 
2 The priority date of a petition is the date the U.S. Department of Labor (DOL) accepted the labor certification for 
processing, which in this case is February 23, 2015. See 8 C.F.R. § 204.5(d). 
3 The certificate was translated by who also translated the other Korean documents submitted with the 
petition, with the Petitioner's response to the NOIR, and on appeal. 
4 The job description provided in the letter is nearly identi~al to the job duties listed for the offered position on the labor 
certification, which casts doubt on the· veracity of the Beneficiary's claimed employment. The Petitioner must resolve 
any inconsistencies with independent, objective eviderice of the Beneficiary's prior employment. See Matter qf Ho, 19 
l&N Dec. at 591-92. 
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Matter of N-Y-M-, Inc. 
employers,. he stated: "None." The Beneficiary's omission of as a prior employer on his 
nonimmigrant visa application casts doubt on his claimed, qualifying experience for the offered 
position and the requested classification. See Matter of Ho, 19 I&N Dec. at 591-92 (requiring a 
petitioner to resolve inconsistencies of record by independent, objective evidence pointing to where 
the truth lies). Thus, good and sufficient cause existed to issue the N_GIR because the record at the 
time of the notice's issuance, if unexplained or unrebutted, would have warranted the petition's 
denial. See Matter of Estime, 19 I&N Dec. at _45 l. 
In response to the NOIR, the Beneficiary stated in an affidavit that he misundersto·od the 2008 
nonimmigrant visa application, assuming that it sought information only about "post-college 
experiences." He asserted that because he was on leave from school while working for he · 
omitted that employment from the visa application. However, the Beneficiary's 2008 rionimmigrant 
visa application indicated that he attended · from 2001 to 2007 .. 
It did not indicate any periods of leave from the university, and the record does not contain any 
· documents from the university evidencing the Beneficiary's dates of attendance. 
Further, the record also contains the Beneficiary's 2009 application for a U.S. nonimmigrant student 
visa. Like the 2008 visa application, the 2009 application omitted the Beneficiary's employment 
with . The 2009 visa application listed the Beneficiary's employment with 
in South Korea from September 2006 to December 2008. It also listed his 
attendance at . from February 2001 to February 2008. Jt did not 
indicate any periods of leave from the university. If the Beneficiary assumed that the nonimmigrant 
visa applications sought information only about post-college work, it is not clear why he included 
information about employment starting in 2006, but not his purported employment with starting 
in 2003. Both employment experiences started during his claimed period of attendance at 
Thus, his explanation for the omission of his · employment is not 
credible. 5 USCIS . may reject a fact stated in the petition if it does not believe that fact to be 
true. Section 204(b) of the Act, 8 U.S.C. § l 154(b); see also Anetekhai v. I.NS, 876 F.2d 1218, 
1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson. 705 F. Supp. 7, 10 (D.D.C. 1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The NOIR also requested copies of South Korean tax records to confirm the Beneficiary's claimed 
experience. However, in a new affidavit dated July 17, 2017, President of 
stated that tax reco·rds of the Beneficiary's employment do not exist because the company paid him 
in cash and did not withhold any taxes from his pay.6 The affidavit stated that the Beneficiary was 
5 A Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
l&N Dec. 369, 376 (AAO 2010). . 
6 The prior certificate from the CEO of was written in Korean and translated into English. The new affidavit, which 
appears to be written by the same individual despite a different title, is written in English. It appears to be a translation 
of a Korean document, but the original Korean qocument was not provided to the record. Without the foreign language 
· document, we cannot determine whether the translation is correct. See 8 C.F.R. § 103.2(b)(3). A petitioner bears the 
burden of establishing eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § .1361; Matter of 
Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
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Matter of N-Y-M-, Inc. 
employed full-time as "buying staff' 7 and that he was paid "KRW 2,100,000 a month from August 
1, 2003 to July 31, 2005." The Beneficiary also asserted in his affidavit that he was not required to 
pay income taxes because he did not earn enough money. 8 · 
• I 
In response to the NOIR, the Petitioner also submitted undated copies of an employee record and 
wage confirmation sheets for the Beneficiary, and a business license for . The employee record 
states that the Beneficiary earned 2,100,000 won annually as staff in the procurement office of an 
unnamed employer. The wage confirmation sheets list monthly wages purportedly earned by the 
Beneficiary between August 2003 and July 2005. In the notice of revocation, the Director 
determined that the Petitioner had not established that the Beneficiary had the required two years of 
experience as a procurement specialist, as it did not overcome the inconsistencies in the record with 
independent, objective evidence. See Matter of Ho, 19 I&N Dec. at 591-92. She noted that the , 
employee record doesn't name the employer and the wage confirmation sheets are not fully 
translated. She therefore revoked the approval of the petition. 
On appeal, the Petitioner asserted that the Director erred in discounting its evidence as not credible. 
H stated that the evidence submitted in response to the NOIR resolved the inconsistencies noted by 
the Director. In our decision, we determined that the record lacks sufficient, independent,' objective 
evidence to establish the Beneficiary's claimed experience. Id. We stated that many of the 
submitted materials are unreliable. For example, we noted that undated copies of an employee 
record and wage confirmation sheets from do not establish. their preparations during the 
Beneficiary's employment. We stated that the record lacks contemporaneous evide1ice of the 
Beneficiary's claimed employment, such as copies of his bank account statements showing deposits 
during his purported tenure "as a procurement specialist. 9 
We further stated that the affidavit of President states a different company address than listed 
on the CEO's prior certificate and on the labor, certification; business license states a third 
company address; and the employee record and wage confirmation sheets state another address. We 
indicated that the record does not explain the inconsistent company addresses. Further, we indicated 
that the affidavit of President stated that the company paid the Beneficiary. 2.1 million won a 
month. However, the wage confirmation sheets indicate that it took about a year for the Beneficiary 
to earn that much. We noted that these unresolved inconsistencies "further undermine the reliability 
of the Petitioner's evidence. Id. 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). 
7 This job title differs from the job title listed in the CEO's July 2014 certificate. See Mafler of Ho, 19 l&N Dec. at 591-
92. . 
8 The record does not contain evidence suppo1ting this asse1tion. A petitioner must establish that it meets each eligibility 
requirement by a preponderance of the evidence. Mafler ofChawath e, 25 l&N Dec. at 375-76. . 
9 Evidence that a petitioner creates after USCIS points out the deficiencies and inconsistencies. in the petition will not be 
considered independent and objective evidence. Independent and objective evidence is contemporaneous with the event 
to be proven and existent at the time of the initial decision. 
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Matter of N-Y-M-, Inc. 
We also determined that the record does not establish the qualifying nature of the Beneficiary's 
claimed experience. \ The labor certification requires experience in the job offered, which means 
experience performing the job duties of the offered position. See, e.g., Matter ofSumeru Inc., 2013-
PER-01241 (BALCA Apr. 24, 2017). We found that the Beneficiary did not have experience 
purchasing meat products for wholesale; instead, he claimed to have bought materials for 
manufacturing furniture. On the labor certification, the Petitioner specified that it' would not accept 
experience in an alternate occupation. Thus, we found that the record does . not establish the 
Beneficiary's experience in the job offered. Finally, we also stated in our decision that the Petitioner 
must demonstrate its continuing ability to pay the proffered wages of all of its pending petitions. 
On motion to reopen, the Petitioner states that the wage· confirmation sheets were prepared 
contemporaneously with the Beneficiary's claimed employment, and that the Beneficiary confim1ed 
his receipt of cash payments by executing his signature 'at the end of each month. Thus, the 
Petitioner asserts that the wage stateinents are reliable evidence of the Beneficiary's employment. 
We disagree. The signatures on the wage confirmation sheets do not match the Beneficiary's 
signature on the labor certification, and thus, they are not credible evidence of the Beneficiary's 
prior employment. Further, the Petitioner has provided no evidence to corroborate that the wage 
confirmation sheets were prepared contemporaneously with his purported employment at · 
The Petitioner also asserts that the employee record was prepared contemporaneously with the 
Beneficiary's claimed employment, as "it was the company's personnel record which was prepared 
and completed when the Beneficiary joined the company." However, the Petitioner provides no 
corroborating evidence to support this assertion , such as evidence of other similar personnel 
records for other employees. 
Regarding the affidavit of President which stated that the Beneficiary earned 2,100,000 won 
per month, the Petitioner claims that a "clerical mistake ... occurred when the previous affidavit, 
drafted in the Korean language, was translated into English." The President asserts that he "assumed 
the translation was correct and executed his signature to verify its accuracy." However, as 
previously noted, the original Korean document was not provided and, therefore, we cannot 
determine the accuracy ( or inaccuracy) of the translation. 
Regarding the different addresses, the Petitioner explains on motion that some of the discrepancies 
relate to a law implemented in South Korea that changed the address system. It states that the 
business license and wage confirmation sheet were prepared under the old address system; and the 
labor certification and certificate of work experience were prepared under the new address system. 
It further states that the address listed on the affidavit of the President contains his residential 
address, and that the affidavit was mistranslated to indicate it was the business address. The 
Petitioner provides evidence showing that it is the President's current residential address. While the 
explanation regarding the change of address system appears valid, the existence of another 
mistranslated document lessens the credibility of the other translated documents in the record.10 · 
10 Unresolved material inconsistencies may lead us to reevaluate the reliability. and sufficiency of other evi.dence 
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Matier of N-Y-M- . Inc. 
Further, the Petitioner states that to gain experience in the offered job, the Beneficiary was not 
required to gain that experience in the same industry as a meat purchaser. Instead, the Petitioner 
asserts that the duties ,performed by the Beneficiary were substantially similar to the duties of the 
offered job. The Petitioner distinguishes the holding in Matter of Sumeru from the facts of this case. 
The Petitioner also submits the O*Net 11 job description and indicates that the essential skills and 
knowledge needed for the offered job are not industry-specific and do not involve any knowledge 
related to products and services. Thus , the Petitioner asserts that the Beneficiary's claimed 
experience as a furniture procurement specialist qualifies him for the offered job of meat 
procurement specialist. We disagree. Because the Petitioner has not established by a preponderance 
of the evidence that the Beneficiary worked as a furniture procurement specialist at , we cannot 
conclude that the Beneficiary's purported duties at were substantially similar to the duties of the 
offered job. 
The Petitioner has not resolved the inconsistencies and ambiguities in the record with independent, 
objective evidence of the· Beneficiary ' s prior employment. See Matter of Ho, 19 I&N Dec. at 591-
92. Thus, the · Petitioner has not est;;iblished that the Beneficiary possessed the experience required 
by the labor certification as of the priority date. The Beneficiary does not have the required two 
years of experience as a procurement specialist. We therefore deny the motion. 
III. ABILITY TO PAY THE PROFFERED WAGE 
We stated in our decision that the Petitioner must establish its continuing ability to pay the proffered 
wage. The proffered wage is $45,968 per year. The record must show the Petitioner 's ability to pay . . 
the proffered wage from the priority date of February 23, 2015, onward . 
The regulation at 8 C.F.R. § 204._5(g)(2) states in pertinent part: 
Ability oj pro spective employer to pay wage. Any petit10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective .United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priorit y date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the foi;m of copies of 
annual reports, federal tax returns , or audited financial statements. 
The record contains the Petitioner's federal tax returns for fiscal years 2014, 2015, and 2016. They 
establish sufficient net current assets to pay the wages of the current Beneficiary and another 
beneficiary of a pending immigrant visa petition filed by the Petitioner. Thus, the Petitioner has 
established its continuing ability to pay the proffered wages of its pending petitions. 
submitted in support of the petition. Malter of Ho, 19 l&N Dec. at 591 -92. 
11 O*NET is the current occupational classification syste1i1 iri use by the DOL. 
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Matter of N-Y-M-, Inc. 
IV. CONCLUSION 
Although the Petitioner has established its continuing ability to pay the proffered wage, the 
Petitioner has' not demonstrated that the Beneficiary has the required experience for the offered job. 
ORDER: The motion to reopen is denied. 
Cite as Matter o.fN-Y-M-, Inc., ID# 1852700 (AAO Jan. 23, 2019) 
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