dismissed EB-3 Case: Quality Assurance Engineering

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-B-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Otlice 
DATE: JULY 19, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a telecommunications corporation,- seeks to employ the Beneficiary as director of 
quality assurance engineering. It requests classification of the Beneficiary as a professional under the 
third preference immigrant classification. · Immigration and Nationality Act (the Act), 
section 203(b)(3)(A)(ii), 8 U.S.C. § ll53(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to spons'or a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director of the Texas•Service Center denied the petition on October 24, 2011, concluding that 
the Beneficiary did not meet the minimum requirements of the labor certification. The Petitioner 
appealed the matter, and we rejected the appeal as improperly filed . We denied a subsequent motion 
to reconsider. The Director subsequently cenified his October 24, 2011, decision to us for review. 
We affirmed the Director's decision in part and withdrew it in part. We denied a subsequent motion 
to reopen and motion to reconsider, finding that the Beneficiary did not meet the minimum 
requirements of the labor certification, and that the job offered did not constitute a bona fide job offer 
that was open to U.S. workers. The matter is now before us on a motion to reopen and a motion to 
reconsider. ~ 
On motion , the Petitioner asserts that we incorrectly denied the motion based on legal and factual 
error. It states that the Beneficiary had the required experience for the offered job based on his 
experience with and S.A., and that there was a bona fide job 
offer because the Beneficiary was not shown any favoritism during his employment. 
Upon review, we will deny the motion to reopen and deny the motion to reconsider. 
I. MOTION REQUIREMENTS 
A petitioner must meet the formal filing requirements of a motion and show proper cause for 
granting the motion. 8 C.F.R. § 103.S(a)(l ). : A motion to reopen must state new facts and be 
supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). The regulation at 8 C.F.R. § 
103.5(a)(2) does not define what constitutes ;a "new" fact, nor docs it mirror the Board of 
Immigration Appeals' (the Board) definition of "new" at 8 C.F.R. § l003.23(b)(3) (stating that a 
motion to reopen will not be granted unless the evidence "was not available and could not have been 
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Matter of A-B-, file. 
discovered or presented at the former hearing"). Unlike the Board regulation, we do not require the 
evidence of a "new fact" to have been previously unavailable or undiscoverable. Instead, we 
interpret "new facts" to mean facts that are relevant to the issue(s) raised on motion and that have not 
been previously submitted in the proceeding, which includes the original petition. Reasserting 
previously stated facts or resubmitting previously provided evidence docs not constitute "new facts:· 
On its motion to reopen, the Petitioner has not asserted new facts supported by documentary 
evidence. Thus, the motion to reopen will be denied. 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at 
the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must also be supported by a 
pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. 
Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy. 
On motion, the Petitioner asserts that our prior decision was legally and factually incorrect based on 
the record at the time of filing. We will address the Beneficiary's qualifications and the existence of 
a bona fide job opportunity below. 
II. BENEFICIARY'S QUALIFICATIONS 
We denied the prior motion, in part, because the Petitioner did not establish that the Beneficiary 
possessed the experience required by the labor certification as of the priority date. 1 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. * l03.2(b )(I), (12). See Matter of Wing's Tea House, 16 I&N 
Dec. 158, 159 (Act. Reg'! Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'! 
Comm'r 1971). · 
In this matter, regarding the experience requirements, the labor certification requires three years of 
experience in the job offered of director of quality assurance engineering. On motion, the Petitioner 
states that the Beneficiary qualifies for the offered position based on the following work experience: 
1 The priority date of a petition is the date the U.S. Department or Labor (DOL) accepted the labur certification for 
processing, which in this case is March 21, 2005. See 8 C.F.R. § 204.S(d). New DOL regulations concerning labor 
certifications went into effect on March 28, 2005. The new regulations are referred to by the acronym PERM. See 69 
Fed. Reg. 77325, 77326 (Dec. 27, 2004). The PERM regulation was effective as of March 28, 2005, and applies to labor 
certification applications filed on or after that dale. The instant petition is governed by the prior regulations. 
2 The labor certification also lists his position as director of and from November 
2000 to December 2001, and his position as general manager of ____ from August 1964 to July 1966. 
2 
.
Matter of A-8-, Inc. 
First, regarding the Beneficiary's . employment with we stated in our previous 
decisions that the credibility of the 'Beneficiary's experience with is lessened by the 
discovery of the Beneficiary's purported simultaneous full-time employment as the Executive Vice 
for approximately 15 years while he allegedly also worked full-time as 
The Filanbanco em·ployment was not listed on the labor certification.4 
The omission of the Beneficiary's claimed experience from the labor certification application casts 
doubt on the validity of the Beneficiary's claimed full-time experience with 
In our previous decisions, we noted that it is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objJctive evidence, and attempts to explain or reconcile 
such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, 
will not suffice . Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 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 I&N Dec. 799, 806 (AAO 2012). On motion, the 
Petitioner has not resolved the inconsistencies regarding the Beneficiary's employment \,\;ith 
with independent objective evidence, such as payroll records, paychecks, or tax 
records, to demonstrate the Beneficiary's employment from July 1966 through November 2000. 
Further, as noted in our prior decisions, the record does not establish that the Beneficiary's job as 
was similar to the offered job of director of quality assurance engineering. 
The Petitioner submitted no evidence on motion demonstrating similarities in the job duties. 
Therefore, the evidence in the record does not demonstrate that the Beneficiary gained three years of 
experience as a director of quality assurance engineering with 
Second, the record does not establish that the Beneficiary's expenence as 
satisfies the experience 
requirements for the pos1t1on offered. The labor certification indicates that the Beneficiary 
"designed an1 implemented the engineering development programs to maximize productivity 
strategies" and that he "formulated and maintained the engineering operational procedures and 
goals." As noted in our prior decision, this impl~es that the textile engineering system was instituted 
and that the Beneficiary was responsible for ~aximizing production from Decem!Jer 2001 until 
August 2003. We noted in our previous decision that the credibility of this experience is 
questionable due to evidence in the record that U.S. Customs and Border Protection did not find any 
import or export records in its databases for from December 200 I to 
December 2004, and due to the Beneficiary's brothers' ownership in the business. However, the 
Petitioner states on motion that the Beneficiary ~as responsible for setting up the textile business but 
:i In 2009, a government agency of Ecuador filed a complaint against the Beneficiary and his brother in the Circuit 
in , Florida, alleging that the defendants, as administrators of the largest hank in Ecuador in the mid-
1990s, made fraudulent loans and other transactions. In ·an answer 10 the complaint, the Beneficiary admiued that he· 
served as from the mid- I 980s to December 2, 1998. 
4 The Beneficiary's employment was not mentioned in the May 7, 2007, letter from the general manager ol' 
describing the Beneficiary's full-time employment. · 
3 
.
Matter ofA-B-, Inc. 
that 
textiles. 
A letter dated 
changed its operations and abandoned the actual production of 
2007, from to USCIS describing the Beneficiary's duties as 
does not 
mention that the company abandoned its plans for a textile business . Instead, it states that the 
Beneficiary "established the quality control syste1n of all import and export of raw textile material 
and finished textile products .... " However, a later affidavit from dated 2011, 
states that "economic conditions did not warrant initiating full scale textile production in the United 
States" and that the company changed the focus · of the Beneficiary's job from textiles to real estate 
in 2003. In his affidavit , he references the company ' s undated internal memo relating to textiles. 
The memo refers to years "I , 2, 3 and 4" but does not indicate which years these numbers signify. 
Therefore , although the Petitioner asserts that the memo confirms that it was developing a textile 
business in 2001, the undated memo does not verify that fact. The inconsistencies and ambiguities 
in the evidence have not been resolved with indepe~1dent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec . at 591-92 ,! · 
Third, on motion, the Petitioner asserts that :the Beneficiary's pos1t1011 as 
constituted qualifying experience for the pos1t1on 
offered. In a letter dated November 17, 2011, from Pedro Reyes, the job duties for the position of 
Vice President for Engineering describe only real estate duties , including preparing leases and rental 
receipts and ,~anaging real estate holdings. The job description docs not mention any engineering 
duties. 5 In our previous decisions, we noted that the job duties of Vice President for Engineering 
closely resemble that of a manager of real estate investments, and these differ significantly from the 
duties of the offered job . On motion, the Petitioner states that the Beneficiary's duties as 
were that of a managing engineer in a real 
estate environment, which it asserts are similar to the duties of the offered job, but in a 
telecommunications environment. However, the Petitioner has provided no independent, objective 
evidence to support this assertion . Id. The Petitioner cites its website in support of its claim that it is 
an application service provider of telecommunications solutions. However, the Petitioner ' s website 
is not independent, objective evidence of the operations of or of the 
Beneficiary's proposed job duties or his job duties as the 
Id. The inconsistencies in the job descriptions have not been resolved with 
independent, objective evidence pointing to where the truth lies. Id. 
On motion, the Petitioner claims that the affidavit, the company's internal memo, the letter 
from to USCIS, and the Petitioner's job description for the Beneficiary's H-1 B nonimmigrant 
' 5 In 2003, filed an H-18 nonimni'igrant petition on behalf of the Beneficiary for the pnsition of 
Vice Presidenl of Engineering . As noted by the Di reef or in her October 24, 2011, denial decision, ·'there arc no 
engineering duties listed and the agency has conclude{ that the duties more accurately rcflecl 1hose of a properly 
manager." 
4 
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Matter of A-8-, Inc. 
visa petition, 6 establish that the job duties qualify the Beneficiary for the offered job. It claims that 
rejection of the evidence is unlawful without a specific finding that the evidence was not accurate or 
not credible . See Lu-Ann Bakery Shop, Inc . v: Nelson, 705 F. Supp. 7, 10 (D.D .C. 1988). The 
decision in Lu-Ann Bakery Shop is not binding here. Although we may consider the reasoning of the 
decision, we are not bound to follow the published decision of a United States district court in cases 
arising within the same district. See Matter of K-S-, 20 I&N Dec . 715 (BIA 1993). Further, in our 
prior decisions, citing inconsistencies in the record regarding the Beneficiary's experience, we 
determined that the Petitioner had not resolved the inconsistencies with independent , objective 
evidence pointing to where the truth lies . Matter of Ho, 19 l&N Dec. al 591-92 . In other words, we 
rnade a specific finding that the evidence was not credib -le. See Mauer of Clwwathe, 25 I&N Dec. 
369 , 375-76 (AAO 2010). Therefore, the evidence in the record docs not demonstrate that the 
Beneficiary gained three years of experience in the job offered (Director of Quality Assurance 
Engineering) with 
The evidence submitted on motion does not demonstrate that our prior decision was legally or factually 
incorrect based on the record at the time of filing. · The Petitioner has not established that the 
Beneficiary met the experience requirements of the labor certification as of the priority date. 
III. BONA FIDE JOB OPPORTUNITY 
We also denied the prior motion, in part, because the Petitioner has not established that the instant 
petition constitutes a bona ftde job opportunity that is open to U.S. workers. 
A labor certification employer must attest that "[t]he job opportunity has been and is clearly open to 
any U.S . worker." 20 C.F .R. § 656.1 0(c)(8). This attestation "infuses the recruitment process with 
the requirement of a bona fide job opportunity: not merely a test of the job market." Mauer of 
Modular Container Sys., Inc., 89-INA-228, 199~ WL 223955, *7 (BALCA 1991) (en bane) ; see 20 
C.F.R. § 656 .17(1). 7 A relationship between a pe.titioner and a beneficiary triggering concerns about 
6 In 2001, filed an H-1B nonimmigrant petition on behalf of the Beneficiary for the position of 
Director of Textile Technology Engineering Operations. As noted by the Director in her October 24, 2011, denial 
decision, "it has not been established that ever had any textile import/export or 
manufacturing operations in the United States and that the beneficiary ever performed any textile engineering duties." 
7 In determining whether a job opportunity is bona fide, we look to the totality of the circumstam;es. See Mod11/ar 
Containef'l 991 WL 223955 at *8. The same standard has been incorporatl.!d inlo the PERM regulations. See 69 Fed. 
Reg. 77326, 77356 (ETA) (Dec. 27, 2004). The regulation at 20 C.F.R. § 656.17(1) states in pertinent part: 
(I) Alien influence and control over job opportunity. If the employer is.a dosdy held corpora tion or 
partnership in which th!.! alien has an ·ownership interest, or if there is a familial relationship between 
the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one or a 
small number of employees, the employer in the event of an audit must be able to demonstrate the 
existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers, and must provide 
to the Certifying Officer, the following supporting documentation : 
(1) A copy of the articles of incorporation , partnership agreement, business license or similar 
documents that establish the business eniity; 
5 
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Mcmer of A-B -, Ille. 
the bona fzdes of a job opportunity "is not only of the blood; it may also be financial, by marriage, or 
through friendship." Matter of Swunart 374, 2000-INA-93, 2000 WL 707942, *3 (BALCA May 15, 
2000). We may deny a petition accompanied by a labor certification that violates DOL regulations . 
See Sunoco Energy Dev. Co., 17 l&N Dec. 283, 284 (Reg'I Comm'r 1979) (affirming a petition's 
denial where the accompanying labor certification was invalid for the geographical area of intended 
employment). 
In this case, (Iceland) is the parent companx of the Petitioner. The 
ownership of is shared by and who are the 
Beneficiary's brothers. The Beneficiary's brothers were also I isted as directors of the Pcti t ioner in 
its Florida annual report filings from 2004 through 2008. 8 In our prior decision, we concluded that 
these facts, viewed in the totality of the circumstances, indicate that there is not a bona fhle job 
opportunity. 
In determining the bona fides of a job opportunity, adjudicators must consider multiple factors 
including, but not limited to, whether a foreign national: is in a position to control or influence hiring 
decisions regarding the offered position; is related to corporate directors, officers, or employees; 
incorporated or founded the company; has an ownership interest in it; is involved in the management 
of the company; sits on its board of directors; is one of a small group of employees; and has 
qualifications matching specialized or unusual job duties or requirements stated in the labor 
certification. Modular Container, 1991 WL 223955 at *8; 20 C.F.R. § 656.17(1). In this case, the 
factors indicating that the position offered does not constitute a bona fide job opportunity include: 
• The Beneficiary's brothers have a signi!'icant ownership interest in the Petitioner's parent 
company . 
• The Beneficiary's brothers were listed as the Petitioner's directors from 2004 to 2008 . . 
• The Beneficiary was involved in the management of the Petitioner's holding company, 
during the period of recruitment for the job offered. 
According to the labor certification, the Beneficiary was the Vice President for Engineering 
who oversaw and directed operations, and managed and supervised staff. 
·, 
(2) A list of all corporate/company officers and shareholders/partners or the 
corporation/finn/business, their titles and positions in the business' structure, and a description of 
the relationships to each other and to the alie~ beneficiary; 
(3) The financial history of the corporation /ci.impany/partncrship, including the total invcstmcrll in 
the business entity and the amount of investment of each officer, incorpnratnr /partncr and the alien 
beneficiary; and 
(4) The name of the business' official with primary responsibility for interviewing and hiring 
applicants for positions within the organization and the name{s) of the business' official(s) having 
control or influence over hiring decisions involving the position for which labor certification is 
sought. 
(5) lf the alien is one of 10 or fewer employees, the employer must document any family 
relationship between the employees and the alien. 
8 See Florida Dep't of State Div. of Corporations , h1tp _________________ (as of 
Mar. 9, 2018). 
6 
.
Matter of A-B-, Inc. 
• The Beneficiary is a director of 
• The Petitioner claimed on the petition to employ only eight U.S. employees. 
On motion, the Petitioner asserts that the e'vidence in the record demonstrates that there is a bona 
fide job offer. The Petitioner states that although there is a familial relationship between the 
Petitioner and the Beneficiary, the Petitioner granted no favoritism to the Beneficiary. For example, 
it states that it placed the Beneficiary on leave at least two times in response to immigration 
developments - once when his H-18 nonimmigrant visa was revoked in 2005, and again in 2011 
when his employment authorization lapsed between expiration of his H-l B nonimmigrant visa and 
the granting of employment authorization as an E-2 nonimmigrant dependent. However, these 
actions were taken by the employer due to the Bfneficiary's lack of valid employment authorization 
in the United States. If a beneficiary works wit,hout valid work authorization in the United States, 
there are significant legal consequences for the employer and the beneficiary. Placing a beneficiary 
on leave because he lacked valid employment authorization does not establish the bona fides of a job 
opportunity. Further, the 2011 incident occurred well after recruitment for the offered position had 
ended. 
The Petitioner also states that it cut the Beneficiary's salary during his employment - his salary was 
reduced each year between 2001 and 2005. However, it does not indicate a reason for the cuts 1 or 
whether other employees' salaries were also reduced during this timeframe. 10 Reducing a 
beneficiary's salary does not, by itself, establish the bona /ides of a job opportunity. 
The Petitioner again asserts that rejection of the affidavit is unlawful without a specific 
find.ing that the affidavit was not accurate or not credible. See L11-An11 Bakery Shop, Inc, 705 F. 
Supp. at 10. It asserts that the affidavit establishes the bona fides of the job opportunity. As 
previously noted, the decision in Lu-Ann Bakery Shop is not binding here. · Additionally, we 
previously articulated the reasons why the Reyes affidavit is not credible. 
The Petitioner has not provided evidence to establish that the position offered constitutes a bona jfrle 
job opportunity. The Petitioner cannot meet the burden of proof simply by claiming a fact to be true, 
without supporting documentary evidence. See Matter of Clwwathe, 25 I&N Dec. at 369. The 
Petitioner must support its assertions with relevant, probative, and credible evidence. Id. at 376. In 
this case, the record reflects that Beneficiary was employed in a position to control or ii1nuence 
hiring decisions regardi~g the offered position; 'is related to corporate shareholders and directors; 
was involved in the management of the company during the recruitment process; was a director of 
the company; and was one of a small group of employees. Based on the totality of these 
circumstances, Petitioner has not established tharthe job opportunity is not bona fide. 
9 The Beneficiary's brothers are also long-time directors of. 
w The cuts appear to have been economic in nature, as .the affidavit states that 
changed the Beneficiary's focus rrorn textiles to real estate in 2003 because "economic conditions did not warrant 
initiating ful I scale textile production in the United State?-~ 
7 
Malter of A-B-, Inc. 
The evidence submitted on motion does not demonstrate that our prior decision was legally or factually 
incorrect based on the record at the time of filing. The Petitioner has not established that the job 
opportunity was bona fide. 
IV. CONCLUSION 
The evidence in the record does not establish that the Beneficiary met the experience requirements of 
the labor certification or that the job offered constituted a bona fide job opportunity. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of A-B-, Inc., ID# 1034192 (AAOJuly 19, 2018) 
·8