dismissed EB-3 Case: Religion

U.S. Citizenship 
and Immigration 
Services 
In Re: 12967937 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 15, 2021 
The Petitioner, a not for profit religious organization, seeks to employ the Beneficiary as a pastoral 
assistant. It requests skilled worker classification for the Beneficiary 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" 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 Texas Service Center denied the petition on four grounds, determining that: (1) 
the evidence did not show that the Beneficiary met the minimum experience requirement of the labor 
certification by the petition's priority date; (2) the Petitioner did not establish that it had the ability to 
pay the proffered wage from the priority date onward; (3) the record did not show that a bona fide job 
offer existed for U.S. workers at the time of filing; and (4) the Petitioner and the Beneficiary committed 
fraud or willful misrepresentation of a material fact involving the labor certification, which warranted 
its invalidation. The Petitioner filed a motion to reopen and reconsider , which the Director dismissed. 
The matter is now before us on appeal. 
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. Upon de nova review, we will dismiss the 
appeal on two grounds. We determine that (1) the Petitioner has not established that the Beneficiary 
had two years of qualifying experience by the priority date , as required to meet the terms of the labor 
certification and to qualify for skilled worker classification, and (2) the Petitioner and the Beneficiary 
willfully misrepresented a material fact in the labor certification application, which warrants its 
invalidation . We will reserve the remaining two issues of whether the Petitioner has established its 
continuing ability to pay the proffered wage from the priority date onward, and whether the proffered 
position is, or was, a bona fide job opportunity open to U.S. workers. 
I. LAW 
Employment-based immigration generally follows a three-step process . First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL) . See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, 
the 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. 
II. ANALYSIS 
The instant petition was filed with USCIS on March 11, 2015, accompanied by a labor certification 
that was filed with the DOL on June 3, 2013, and certified on January 26, 2015. 
A. Labor Certification Requirements and the Beneficiary's Experience 
A beneficiary must meet the specific educational, training, experience, and other requirements of the 
labor certification, regardless of the classification requested. See 8 C.F.R. § 204.5(1)(3)(i). To be 
eligible for classification as a skilled worker, a beneficiary must have at minimum two years of training 
or experience. See 8 C.F.R. § 204.5(1)(3)(ii)(B). All requirements must be met by the petition's 
priority date, 1 which in this case is June 3, 2013. See Matter of Wing's Tea House, 16 I&N Dec. 158, 
159 (Acting Reg'l Comm'r 1977). 
The requirements for the proffered position of pastoral assistant are indicated in section H of the labor 
certification (Job Opportunity Information), which specifies that two years of experience in the job 
offered are required. The job duties are described as: "Assist clergy in conducting worship services. 
Plan, arrange educational activities for congregation." According to sections J and K of the labor 
certification (Alien Information and Work Experience) the Beneficiary met the experience 
requirement of section H bf virtue of a job as pastoral assistant with The Government of Egypt, The 
Ministry oti , Section, inl I Egypt, from June 28, 2004, to September 30, 2010. 
The labor certification also lists a job with the Petitioner as a pastoral assistant from October 1, 2010, 
to May 28, 2013, but this job does not constitute qualifying experience because the labor certification 
indicates at section J.21 that the Beneficiary did not gain any qualifying experience with the employer 
in a position substantially comparable to the job opportunity in this proceeding. Thus, the only job 
listed in the labor certification which could be qualifying experience in this petition is the alleged job 
with The Government of Egypt from 2004 to 2010. 
As its initial evidence of the Beneficiary's work experience the Petitioner submitted copies of an 
Arabic language document with an English translation entitled "Employee-status Report," purportedly 
from the 'I !Department Human Resources" inl !Egypt, and dated February 11, 2015, 
stating that the Beneficiary was hired on June 28, 2004, for a job described as follows: 
Mokeem shaer (his duties included assisting the clergy in conducting Muslim prayer 
and worship services). This also included planning and arranging educational, social, 
1 The priority date of an employment-based immigrant petition is the date the underlying labor certification is filed with 
the DOL. See 8 C.F.R. § 204.S(d). 
2 
and recreational activities for congregation. He also assisted in the planning and 
arrangement [ of] various retreats, social events, funerals, weddings, etc. 
The English translation stated that the Beneficiary "is on vacation since the beginning of year 2011." 
The Director issued a notice of intent to deny (NOID) in May 2017. After noting that the English 
language version of the "Employee-status Report" lacked the translator's certification required by the 
regulation at 8 e .F .R. § 103 .2(b )(3 ), the Director discussed various users records which appeared to 
conflict with the experience information provided in the labor certification. With respect to the 
Beneficiary's alleged employment with the Government of Egypt from 2004 to 2010, the Director 
pointed out that no such employment experience was claimed by the Beneficiary on three different 
nonimmigrant visa (NIV) applications he filed in 2006, 2009, and 2014. In his first NIV application, 
dated September 6, 2006, the Beneficiary stated that his current occupation was "celebrant'' ,2 but did 
not identify his current employer and in the spaces calling for the employer's name and address 
inserted "celebrant" in~-----~ Egypt. In his second NIV application, dated June 21, 2009, 
the Beneficiary identified his current employer or school asc=J School inl I, New Jersey, 
and his current occupation as "celebrant." In his third NIV application, from early 2014, the 
Beneficiary answered "No" to the question "Were You Previously Employed?" Furthermore, users 
records indicated that the Beneficiary spent most of the time between September 2006 and September 
2008 in the United States with tourist or temporary religious worker visas, which appeared to conflict 
with the claim that the Beneficiary worked for the Egyptian Government during that time. 
In response to the NOID the Petitioner asserted that the Beneficiary obtained the first of several 
temporary religious worker (R-1) visas in December 2006 to work at th~ School in New Jersey, 
that he was granted a "vacation from [his] official work in Egypt" and spent most of the next two years 
in the United States, that he returned to Egypt in September 2008 and resumed his work with the 
"Ministry of Endowment, branch o~- I' until he was granted a new "vacation" in August 2010 
for the purpose of working in the United States, and that he re-entered the United States with a new 
R-1 visa in October 2010 to work for the Petitioner. As evidence thereof the Petitioner submitted 
copies of Arabic-language letters with certified English translations, all purportedly stamped and 
signed by officials of the l I Directorate, Personnel Affairs." The first letter, dated May 12, 2009, 
stated that the Beneficiary was hired on June 28, 2014, to work as "rituals performer (he is the Imam 
of people in prayers)." The second and third letters, virtually identical, are dated June 13, 2017, and 
state that the Beneficiary was hired by thel I Directorate on June 28, 2004, to work as "Ritual 
Performer and Imam Assistant" (or "prayer lead and assistant imam"), was granted a three-year leave 
in November 2006 to work in the United States, returned to his job atl I Administration" (or 
I I Directorate") in October 2008, was granted another three-year leave to travel or work abroad 
in August or September 2010, and returned to work in Egypt in September 2013 before taking another 
leave in June 2014 that was ongoing in June 201 7. 
In denying the petition the Director determined that the Petitioner had not resolved the inconsistencies 
in the record, as discussed in the NOID, regarding the Beneficiary's employment history. The Director 
indicated that the Petitioner had not submitted independent objective evidence of the 
2 The Beneficiary may have meant "celebrant" but neither he nor the Petitioner ever clarifies this matter. 
3 
Beneficiary's claimed employment, such as the Beneficiary's wage and tax records for the asserted 
period( s) of employment, and concluded that the record did not establish that the Beneficiary had at 
least two years of qualifying experience. 
On appeal the Petitioner asserts that "[ t ]here are no income taxes" or "wage statements" documenting 
the Beneficiary's alleged employment with the Egyptian government. The Petitioner submits another 
Arabic language letter with a certified English translation from the "Ministry ofi I 
Endowments DirectorateJ I Endowment Management," dated March 25, 2019, which reiterates 
the employment and leave history from 2004 up to the present as alleged in the agency's previous 
letters from 2017. According to the Petitioner the record as a whole establishes that the Beneficiary 
has more than two years of qualifying experience. 
We do not agree. The Petitioner has not addressed the fundamental inconsistencies discussed in the 
N0ID concerning to the Beneficiary's alleged employment with the Egyptian Government from 2004 
to 2010, which is the only employment listed in the labor certification which could possibly be 
qualifying experience. The Director pointed out that the Beneficiary did not claim any employment 
with the Egyptian government on any of the three NIV applications he filed between 2006 and 2014. 
Moreover, the second NIV application in June 2019 identified the Beneficiary's current employer as 
theO School inl ] New Jersey, and the third NIV application in 2014 denied any prior 
employment (with the Egyptian Government or any other entity). Neither the Petitioner nor the 
Beneficiary has explained the absence of any reference to employment by the Egyptian government 
in the three NIV applications. Furthermore, USCIS records show, and the Petitioner concurs, that the 
Beneficiary was in the United States for approximately two years (2006-2008) during the six-year 
period from 2004 to 2010 in which the labor certification alleged that the Beneficiary was working 
exclusively for the Egyptian Government. The Petitioner's claim that the Beneficiary was granted 
"leave" ( or "vacation") from the Egyptian Government during his extended absences from Egypt does 
not square with the information provided in the labor certification, which presented the Beneficiary's 
employment by the Egyptian Government as uninterrupted. 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Attempts to explain or reconcile such inconsistencies will not suffice without competent 
evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of the petitioner's 
remaining evidence. See id. 
The Petitioner has not resolved the inconsistencies in this case. In the denial decision the Director 
pointed out that the Petitioner had not submitted tax records, pay statements, or any other independent 
objective evidence that the Beneficiary was employed by the Egyptian Government during the years 
2004-2010. On appeal the Petitioner asserts that no income tax records or pay statements are available, 
but has not explained why or documented any efforts to obtain specific evidence such as pay 
statements to the Beneficiary from the Egyptian Government, income tax returns filed by the 
Beneficiary in Egypt, or other official documentation of the Beneficiary's alleged employment in 
Egypt. Based on the evidence of record, therefore, we determine that the Petitioner has not established 
that the Beneficiary worked for or gained any qualifying experience with the Egyptian Government 
during the years 2004-2010. Accordingly, the Petitioner has not established that the Beneficiary has 
4 
the requisite two years of experience to meet the terms of the labor certification and qualify for skilled 
worker classification. The appeal will be dismissed on these grounds. 
B. Willful Misrepresentation of a Material Fact 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts. For an 
immigration officer to find a willful and material misrepresentation of fact, he or she must determine 
that (1) the petitioner or beneficiary made a false representation to an authorized official of the U.S. 
government, (2) the misrepresentation was willfully made, and (3) the fact misrepresented was 
material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N Dec. 288, 
289 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy and 
Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). A "material" misrepresentation is one that "tends to shut 
off a line of inquiry relevant to the alien's eligibility." Matter of Ng, 17 I&N Dec. 536, 537 (BIA 
1980). 
In the NOID the Director pointed out that the evidence showed the Beneficiary was in the United 
States during a substantial time period when the labor certification claimed he was employed in Egypt, 
and cited this conflict as a misrepresentation of information that was material to the Beneficiary's 
eligibility for the classification sought in this proceeding. The Director cited the regulation at 8 C.F.R. 
§ 656.30(d) which provides, in pertinent part, that "after issuance, a labor certification is subject to 
invalidation by the DHS [Department of Homeland Security] ... upon a determination, made in 
accordance with [its] procedures or by a court, of fraud or willful misrepresentation of a material fact 
involving the labor certification application." 
In its response to the NOID the Petitioner did not address the issue of why the labor certification 
claimed that the Beneficiary was employed uninterruptedly in Egypt during the years 2004-2010 when 
the record clearly showed that he was in the United States for a considerable amount of that time. Nor 
was any explanation provided for the Beneficiary's omission of any claim that he was employed by 
the Egyptian Government in three different NIV applications filed between 2006 and 2014. 
In the denial decision, therefore, the Director determined that the Petitioner and the Beneficiary 
misrepresented the Beneficiary's employment experience in the labor certification, and invalidated the 
labor certification. 
On appeal the Petitioner reiterates its contention that the Egyptian government considered the 
Beneficiary, even during his extended periods of "leave" from work, to still be in its employ. 
According to the Petitioner, therefore, no fact was misrepresented in the labor certification which 
claims that the Beneficiary was employed uninterruptedly by the Egyptian government from June 
2004 to September 2010. As previously discussed, however, the Petitioner has not submitted 
sufficiently independent and objective evidence to demonstrate that the Beneficiary was employed at 
any time by the Egyptian government during the years 2004-2010. Moreover, the Petitioner once 
again offers no explanation as to why the Beneficiary provided no information about his alleged 
employment with the Egyptian Government in any of the three NIV applications he filed in the years 
2006, 2009, and 2014. 
5 
Based on the foregoing analysis, we will not disturb the Director's determination that the Petitioner 
and the Beneficiary willfully misrepresented a material fact in the labor certification. In accord with 
the three conditions discussed in Matter of M- and Matter of Kai Hing Hui, we determine that the 
Petitioner and the Beneficiary misrepresented a fact concerning the Beneficiary's employment history 
in the labor certification by claiming that he was employed uninterruptedly by the Egyptian 
Government from 2004 to 2010, that this misrepresentation was willfully made by the Petitioner and 
the Beneficiary since they each signed a declaration on the labor certification that the information 
provided therein was true and correct, and that the misrepresentation was material to the Beneficiary's 
ability to meet the experience requirement of the labor certification and skilled worker classification. 
Given this determination that the Petitioner and the Beneficiary willfully misrepresented a material 
fact involving the labor certification application, we concur with the Director's invalidation of the 
labor certification in accordance with 8 C.F.R. § 656.30(d). 
The regulation at 8 C.F.R. § 204.5(a)(2) provides that a Form I-140 petition must be accompanied by 
any required labor certification to be considered properly filed. Since the labor certification 
accompanying the instant petition is invalidated, the petition is not considered properly filed and 
cannot be approved. On this ground as well the appeal we be dismissed. 
C. Reserved Issues 
As previously discussed, we will reserve the issues of whether the Petitioner has established its 
continuing ability to pay the proffered wage from the priority date onward, and whether the proffered 
position is, or was, a bona fide job opportunity open to U.S. workers. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary had at least two years of qualifying experience 
as of the petition's priority date. Therefore, the Beneficiary does not meet the labor certification's 
minimum experience requirement and does not qualify for skilled worker classification. The evidence 
of record also establishes that the Petitioner and the Beneficiary willfully misrepresented a material 
fact regarding the Beneficiary's employment history in the labor certification accompanying the 
petition, and that the labor certification must be invalidated on that basis. Thus, the petition is not 
accompanied by the requisite labor certification. We will dismiss the appeal for the above stated 
reasons. 
ORDER: The appeal is dismissed. 
6