dismissed EB-3 Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-M- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : JULY 30, 2019 
PETITION: FORM I-140 , IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant management company , seeks to employ the Beneficiary as an inventory 
specialist. It requests her classification under the third-preference, immigrant category as a skilled 
worker. 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, "EB-3" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status to work in a job requiring at least two years of 
training or experience. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not establish the Beneficiary's possession of the minimum experience required for the 
offered position. 
On appeal, the Petitioner asserts that it resolved inconsistencies in the Beneficiary's employment 
history, including a discrepancy it blames on prior counsel. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker, a prospective employer must first obtain 
certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). DOL certification signifies that insufficient U.S. workers are able, willing, 
qualified, and available for an offered position, and that employment of a foreign national will not harm 
wages and working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the labor certification with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. Among other things, USCIS determines whether a beneficiary meets the 
requirements of a DOL-certified position and the requested classification. If USCIS grants a 
petition, a foreign national may finally 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. 
Matter of N-M- LLC 
II. THE REQUIRED EXPERIENCE 
A petitioner must establish a beneficiary's possession of all DOL-certified job requirements of an 
offered position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). 1 In evaluating a beneficiary's qualifications, USCIS must examine 
the job-offer portion of an accompanying labor certification to determine a position's minimum 
requirements. USCIS may neither ignore a certification term, nor impose additional requirements. 
See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the 
authority for setting the content of the labor certification") ( emphasis in original). 
Here, the labor certification states the minimum requirements of the offered position of inventory 
specialist as two years of experience in the job offered. The labor certification states that the 
position does not require training or education, and that the Petitioner will not accept experience in a 
related occupation. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, she gained about 
four years of full-time, qualifying experience. She stated that she worked as an inventory specialist at a 
restaurant in Mexico from December 2012 to December 2016. 
Pursuant to 8 C.F.R. § 204.5(1)(3)(ii)(A), the Petitioner submitted a letter from the Beneficiary's 
claimed former employer in support of the Beneficiary's qualifying experience. The letter states that 
the restaurant employed her during the period indicated on the labor certification and describes her 
duties. 
In a written request for additional evidence (RFE), however, the Director noted that the descriptions of 
the Beneficiary's experience in the restaurant's letter and on the labor certification conflict with 
information she listed on an application for a U.S. visitor's visa. On the visa application, which was 
filed and approved in July 2016, the Beneficiary listed her primary occupation as a "Homemaker." She 
also stated that, from March 2010 to March 2014, a firm employed her in Mexico as a sales executive, 
selling products to construction companies. She did not list any other prior employment on the visa 
application. The Director found that the Beneficiary's listing of a different occupation and former 
employer on the visa application cast doubt on her claimed, qualifying experience at the restaurant. See 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of 
record with independent, objective evidence pointing to where the truth lies). 
The RFE asked the Petitioner to submit evidence explaining the inconsistencies in the Beneficiary's 
employment history. But the Petitioner's response included an affidavit from the Beneficiary and 
another letter from the restaurant that revealed another discrepancy. Contrary to the information on the 
labor certification, the Beneficiary and her former employer stated that the restaurant initially employed 
her for more than a year on a part-time basis. They stated that she did not begin working full-time for 
the restaurant until March 2014. 
1 This petition's priority date is August 25, 2017, the date DOL accepted the Petitioner's labor certification application 
for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
2 
Matter of N-M- LLC 
Based on the discrepancies in the Beneficiary's employment history, the Director found that the 
Beneficiary willfully misrepresented her qualifying experience for the offered position. The Director 
noted that a misrepresentation finding could render the Beneficiary inadmissible to the United States. 
See section 212(a)(6)(C)(i) of the Act (excluding foreign nationals from admission to the United States 
if they, by fraud or willful misrepresentations of material facts, sought to procure benefits under the 
Act). The Petitioner also devoted much of its written, appellate brief to challenging the inadmissibility 
finding. The Beneficiary's admissibility, however, is not at issue in these proceedings. See Matter of 
0-, 8 I&N Dec. 295, 297 (BIA 1959) (holding that immigrant petition proceedings do not address 
substantive questions of admissibility). We will therefore express no opinion on the Beneficiary's 
admissibility. Later in this decision, we will review the Director's misrepresentation finding, as it may 
warrant invalidation of the accompanying labor certification. See 20 C.F.R. § 656.30(d) (authorizing 
USCIS to invalidate a labor certification after its issuance upon a finding of "fraud or willful 
misrepresentation of a material fact involving the labor certification application"). Here, however, we 
will focus on whether the record establishes the Beneficiary's possession of the experience required for 
the offered position. 
In her affidavit, the Beneficiary stated that she "was not fully aware of the fact that I had to display my 
work history" on the visa application form. She also said she "became very anxious and frustrated" 
because the online application "kept timing me off every couple of minutes, and I ended up moving on" 
to complete the form. 
The Beneficiary's claimed problems with the application form, however, do not resolve the 
discrepancies in her employment history. The Beneficiary claims that, as of the visa application's filing 
in July 2016, she worked full-time at the restaurant as an inventory specialist. Yet, when the application 
asked for her "Primary Occupation," she stated "Homemaker." Thus, the Beneficiary did not merely 
neglect to list the restaurant on the visa application as an employer. Rather, she affirmatively stated a 
different primary occupation on the application. The record does not sufficiently explain how problems 
with the online application caused the Beneficiary to misstate her then-current, full-time occupation. 
Also, evidence indicates that, from December 2012 to December 2016, the Beneficiary spent significant 
time in the United States. USCIS records indicate that, over that period, she entered the country at least 
1 7 times. Also, the petition and the Beneficiary's application for adjustment of status state that her two 
children were born in the United States: one in May 2014; and the other in November 2015. The 
record does not explain how the Beneficiary maintained full-time employment in Mexico - plus a part­
time job there from December 2012 to March 2014 - while spending so much time in the United States. 
The Petitioner's RFE response also included copies of the Beneficiary's purported payroll records with 
the restaurant from December 2012 to December 2016. The records are in the name of another 
company. But the Petitioner submitted copies of a contract and a letter from the restaurant indicating 
that it hired the other company to administer its payroll. The Petitioner therefore states that the payroll 
records of the restaurant's employees bear the name of the administrator. 
The payroll administrator, however, appears to be a company related to the Petitioner. A website 
identifies one of the administrator's "brands" as a Florida restaurant whose corporate entity is managed 
by the Petitioner's sole manager. See Fla. Dep't of State, Div. of Corps., 
https://dos.myflorida.com/sunbiz/search/ (last visited June 10, 2019). Thus, the payroll 
3 
Matter of N-M- LLC 
documentation is unreliable because the administrator appears biased in favor of the Petitioner. The 
documentation is therefore not independent, objective evidence. Also, as previously discussed, the 
Petitioner has not sufficiently explained why the Beneficiary listed a different occupation on the visa 
application, or how she maintained full-time employment in Mexico while spending significant time in 
the United States. These unresolved inconsistencies cast additional doubt on the authenticity of the 
payroll records. See Matter of Ho, 19 I&N Dec. at 591 (stating that doubt cast on any aspect of a 
petitioner's proof may lead to a reevaluation of the sufficiency and reliability of remaining evidence). 
The payroll records therefore do not establish the Beneficiary's claimed, qualifying experience. 
On appeal, counsel asserts that, although the Beneficiary worked as a sales representative for the other 
firm from March 2010 to March 2014, "her employment was actually based with [the restaurant], the 
company providing the sales service to [the other firm]." The assertions of counsel, however, do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). The Petitioner must substantiate counsel's 
statements with independent evidence, which may include affidavits and declarations. Also, counsel's 
claim that the restaurant employed the Beneficiary since March 2010 would conflict with her December 
2012 start date listed on the labor certification and in the restaurant's letters. In addition, if the 
Beneficiary served as a sales representative through the restaurant, the record does not explain why the 
restaurant's letters describe her position as an inventory specialist, or why the restaurant would provide 
sales services to construction companies. See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner 
to resolve inconsistencies of record). 
The Petitioner also asserts that prior counsel "inadvertently miscategorized" all of the Beneficiary's 
qualifying experience on the labor certification as full-time in nature. In as much as the Petitioner may 
be making a claim of ineffective assistance of counsel, the Petitioner has not met any of the 
documentary requirements of that claim.2 Moreover, as noted above, the full-time nature of the 
employment is only one of the numerous inconsistencies in the record regarding the Beneficiary's 
employment experience. Resolving that question alone, would not overcome our other findings. 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the minimum 
experience required for the offered position. We will therefore affirm the Director's decision. 
III. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
As noted above, the Director also found that the Beneficiary misrepresented her experience on the 
labor certification. A willful misrepresentation of a material fact involves: 1) a false representation 
to an authorized U.S. government official, Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994); 2) 
that was "deliberately made with knowledge of [its] falsity," Matters of Valdez, 27 I&N Dec. 496, 
2 A claim of ineffective assistance must include: 1) a written affidavit from a petitioner detailing its agreement with former 
counsel and counsel's actions and representations; 2) evidence that it informed former counsel of the allegations and provided 
him or her with an opportunity to respond; and 3) evidence that it filed a complaint against former counsel with appropriate 
attorney discipline authorities or an explanation of why not. Matter of Lozada, 19 T&N Dec. 637, 639 (BIA 1988), aff'd, 
857 F.2d 10 (1st Cir. 1988). Here, the Petitioner did not meet any of the Lozada requirements. 
4 
Matter of N-M- LLC 
498 (BIA 2018); and 3) has a "natural tendency to influence, or [be] capable of influencing, the 
decision of the decision-making body." Id. (citations omitted). 
A. Misrepresentation 
Here, the record supports the Beneficiary's misrepresentation of her qualifying experience on the 
labor certification. As previously indicated, she attested that she worked full-time in the offered 
position of inventory specialist at a restaurant in Mexico from December 2012 to December 2016. A 
letter from the restaurant supported the attestation, but her prior application for a U.S. visitor's visa in 
July 2016 undermines her claim. On the visa application, the Beneficiary listed her primary occupation 
as a "homemaker" and stated that, from March 2010 to March 2014, a firm employed her in Mexico as 
a sales executive selling products to construction companies. Also, contrary to the information on the 
labor certification, the Beneficiary and the restaurant stated that it initially employed her for more than a 
year on a part-time basis. These discrepancies cast significant doubt on the Beneficiary's claimed, 
qualifying experience. See Matter of Ho, 19 I&N Dec. at 591. 
Also, the explanations of the inconsistencies by the Beneficiary and the Petitioner are unconvincing. 
The Beneficiary attributed the discrepancies on the visa application to her misunderstanding of the 
application form and technical difficulties in completing the online submission. But she did not merely 
omit the restaurant as her employer on the application; she affirmatively misstated her then-current, full­
time occupation. The Petitioner submitted copies of the Beneficiary's purported payroll records with 
the restaurant. But Internet information indicates that the payroll records are in the name of a payroll 
administration company related to the Petitioner, rendering the records biased and unreliable. Counsel 
asserted that the Beneficiary's employment as a sales representative from March 2010 to March 2014 
"was actually based with [the restaurant]." But counsel's assertion does not constitute evidence. Also, 
the Beneficiary's start date would conflict with the information on the labor certification and the 
restaurant's letters, and would not explain why the restaurant described her position as an inventory 
specialist or why it would provide sales services to construction companies. In addition, the record does 
not explain how the Beneficiary maintained full-time employment in Mexico from December 2012 to 
December 2016 - plus a part-time job there for part of that time - while spending so much time in the 
United States during the period. For the foregoing reasons, the record establishes that the Beneficiary 
misrepresented her qualifying experience on the labor certification. 
B. Willfulness 
The record also indicates that the Beneficiary deliberately misrepresented her employment on the labor 
certification as an inventory specialist from December 2012 to December 2016. When the Beneficiary 
applied for a U.S. visitor's visa in July 2016, she stated her occupation as "homemaker" and indicated 
that another firm in Mexico employed her as a sales representative from March 2010 to March 2014. 
Yet, the Beneficiary signed the labor certification, certifying under penalty of perjury that she worked 
full-time in Mexico as an inventory specialist during the period. A foreign national's signature on an 
immigration-related form establishes a "strong presumption" that the signatory knew the form's 
contents and assented to them. See Matters of Valdez, 27 I&N Dec. at 499. Neither the Petitioner 
nor the Beneficiary has rebutted that presumption. Thus, the record indicates that the Beneficiary 
deliberately and affirmatively misrepresented her employment history on the labor certification. 
5 
Matter of N-M- LLC 
C. Materiality 
Finally, the record supports the materiality of the misrepresentation. The offered position requires two 
years of full-time experience in the offered position of inventory specialist. The Beneficiary listed her 
only qualifying experience with the restaurant in Mexico from December 2012 to December 2016. 
On appeal, the Petitioner argues that the misrepresentation of the Beneficiary's employment history was 
immaterial because she worked full-time for the restaurant in the offered position for more than the 
requisite two-year period, from March 2014 to December 2016. As previously discussed, however, the 
record lacks independent, objective evidence of the Beneficiary's purported qualifying experience from 
2014 to 2016. Because the payroll administrator appears to be affiliated with the Petitioner, the copies 
of the Beneficiary's payroll records are unreliable. Also, if the Beneficiary worked full-time as an 
inventory analyst for the restaurant from March 2014 to December 2016, the record does not 
sufficiently explain why she stated her primary occupation as "Homemaker" on the July 2016 visa 
application. The Beneficiary's employment experience is required to show her qualifications for the 
offered position; the misrepresentation of that experience therefore has a natural tendency to influence 
any eligibility determination. As such, it is material. 
For the foregoing reasons, we affirm the Director's finding that the Beneficiary willfully misrepresented 
a material fact on the labor certification. 
IV. INVALIDATION OF THE LABOR CERTIFICATION 
Although unaddressed by the Director, the record also supports invalidation of the accompanying 
labor certification. Unless accompanied by an application for Schedule A designation or 
documentation of a beneficiary's qualifications for a shortage occupation, a petition for a skilled 
worker must include a valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). As previously 
indicated, USCIS may invalidate a labor certification after its issuance upon a finding of fraud or 
willful misrepresentation of a material fact involving the certification application. 20 C.F.R. 
§ 656.30( d). As the Director found, and we affirm, that the Beneficiary willful misrepresented a 
material fact on the labor certification. We will therefore invalidate the labor certification. 
V. CONCLUSION 
The Petitioner did not demonstrate the Beneficiary's possession of the minimum experience required 
for the offered position by the petition's priority date. The record also establishes that the 
Beneficiary willfully misrepresented her qualifying experience on the accompanying labor 
certification. As such, the labor certification has been invalidated and the petition is left unsupported 
by a valid labor certification. We will affirm the petition's denial for the foregoing reasons, with 
each considered an independent and alternate ground of denial. A petitioner bears the burden of 
establishing eligibility for the requested benefit. Section 291 of the Act; 8 U.S.C. § 1361. Here, the 
Petitioner did not meet that burden. 
6 
Matter of N-M- LLC 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The ETA Form 9089, case number A-17235-79035, is invalidated 
under 20 C.F.R. § 656.30(d), based on the Beneficiary's willful 
misrepresentation of a material fact. 
Cite as Matter of N-M- LLC, ID# 463 7 519 (AAO July 30, 2019) 
7