dismissed EB-3 Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re: 6199189 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 7, 2020 
The Petitioner seeks to employ the Beneficiary as an assistant manager of a gas station/retail store. 
The company requests her classification under the third-preference, immigrant classification for 
skilled workers. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b )(3)(A)(i). 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that the Petitioner did not demonstrate the Beneficiary's 
possession of the minimum employment experience required for the offered position or the 
requested visa classification . The Director also found that the Beneficiary willfully misrepresented 
her qualifying experience on the accompanying certification from the U.S. Department of Labor 
(DOL). 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 
of the Act, 8 U.S.C. § 1361. 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 DOL 
certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). DOL approval 
signifies that insufficient U.S. workers are able, willing, qualified, and available for an offered position. 
Id. DOL certification also indicates 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 a requested visa 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. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, USCIS may 
revoke a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. 
§ 1155. If supported by the record, the erroneous nature of a petition's approval justifies its 
revocation. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). 
USCIS may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and 
unrebutted record would have warranted the petition's denial. Matter of Estime, 19 I&N Dec. 450, 
451 (1987). The Agency properly revokes a petition if a petitioner's NOIR response does not 
overcome the stated revocation grounds. Id. at 451-52. 
II. THE REQUIRED EXPERIENCE 
A skilled worker must have at least two years of training or experience. Section 203(b )(3)(A)(i) of 
the Act. A petitioner must also demonstrate a beneficiary's possession of all DOL-certified job 
requirements of an offered position by a petition's priority date. 1 Matter of Wing's Tea House, 16 
I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). When evaluating a beneficiary's qualifications, 
USCIS must examine the job-offer portion of an accompanying labor certification. 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 assistant 
manager as a U.S. high school diploma, or an equivalent foreign educational credential, and two 
years of experience in the job offered. The Beneficiary's educational qualifications are not at issue. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, she gained 
more than three years of foll-time, qualifying experience in Pakistan. She stated that, from 
September 2011 through October 2014, she worked as an assistant manager at a retail store. 
Pursuant to 8 C.F.R. § 204.5(1)(3)(ii)(A), the petition included a letter from the store's owner related 
to the Beneficiary's claimed, qualifying experience. 
The Director's NOIR, however, noted discrepancies between the labor certification and the 
Beneficiary's application for a U.S. nonimmigrant visitor's visa in October 2014. Her visa 
application stated her "Primary Occupation" as "homemaker" and indicated that she had "No" prior 
employment. The NOIR also noted that the store's letter describes the Beneficiary's former job 
duties exactly as the labor certification states the duties of the offered position. 
The Director issued the NOIR for good and sufficient cause. The employment information on the 
Beneficiary's visa application contradicts her listed employment on the labor certification and casts 
doubt on her claimed qualifying experience. A petitioner must resolve inconsistencies of record 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 
591. Also, the verbatim job duties on the labor certification and in the store's letter suggest that the 
1 This petition's priority date is April 22. 2016, the date DOL accepted the accompanying labor certification application 
for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
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store owner copied the Beneficiary's duties from the certification, rather than stating them from 
personal knowledge or business records. Thus, as of the NOIR's issuance, the record lacked 
sufficient reliable evidence of the Beneficiary's possession of the minimum experience required for 
the offered position or the requested visa classification. The record therefore would have warranted 
the petition's denial. 
The Petitioner's NOIR response included affidavits from the Beneficiary and her spouse. The 
Beneficiary reiterated her claimed employment at the store in Pakistan. She attested that the store 
paid her in cash and that, rather than deposit the money in a bank, she spent it on living expenses for 
her and her family. She stated that she did not have to pay taxes on the income. The Petitioner also 
submitted a letter from a Pakistani accountant explaining that, if employees' annual salaries fall 
below government-designated minimums, Pakistani workers need not pay taxes and their employers 
need not withhold money from their pay. 
The couple also attested that, because they applied to visit the United States together, the 
Beneficiary's spouse completed the online, visa applications for both of them. The Beneficiary's 
spouse stated that he completed his application "in complete detail," but filled in the Beneficiary's 
form with "only the information wherein I was certain." He stated that, contrary to the form's 
instructions, he did not indicate the Beneficiary's high-school level education or her employment 
outside the home on her application. He stated that he "did not feel that it was vital information ( due 
to the fact that we were applying for mere visit to U.S. and not any education or employment visa)." 
The couple attested that, at a later interview regarding their applications, a U.S. consular officer did 
not ask the Beneficiary about her education or employment. The couple described the visa 
application's "[n]on-mention" of the Beneficiary's education and employment as "an innocent and 
inadvertent mistake on our part." 
The couple's explanation for concealing the Beneficiary's experience on her visa application is 
unconvincing. The Beneficiary's spouse attested that he completed her application only with 
information of which he was "certain." But if, as of the application's filing and for the three years 
immediately preceding it, the Beneficiary worked full-time and spent her pay on her family's living 
expenses, her spouse would have likely been "certain" of her employment. Also, as the website of 
the U.S. consulate in Pakistan indicates, applicants for visitor visas must demonstrate strong 
economic and social ties to Pakistan - such as the existence of family members, property, or 
employment - to show that they would likely return to the country after visiting the United States. 
See U.S. Dept. of State, "Apply For A U.S. Visa," Business/Tourist Visa, 
https://www.ustraveldocs.com/pk/pk-niv-typeb1b2.asp (last visited Dec. 12, 2019). Indeed, the 
Beneficiary's spouse submitted evidence that, before the couple received their visitor visas, U.S. 
consular officers visited his business and requested documentary evidence of its activities and his 
ownership of it. Thus, if the Beneficiary was truly working at the store in Pakistan, the couple 
would have likely disclosed her employment on the application to increase their chances of obtaining 
visas. 
The NOIR response also contained additional, documentary evidence of the Beneficiary's claimed, 
qualifying experience. These materials, however, do not establish her claimed employment. An 
updated letter from the store's owner describes the Beneficiary's former duties in words other than 
those listed on the labor certification. But, without independent evidence corroborating the letter's 
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contents, it is insufficient. See Matter of Ho, 19 I&N Dec. at 591 (requiring independent, objective 
evidence to resolve inconsistencies of record). Also, the updated letter does not explain why the 
store owner's prior letter described the Beneficiary's former job duties exactly as the labor 
certification stated the duties of the offered position. 
The Petitioner also submitted a 2011 letter on store stationery offering employment to the 
Beneficiary. If the store issued an offer letter to the Beneficiary, however, the record does not 
explain why, more than seven years later, the store would have a duplicate, original, signed and 
stamped letter available to submit. The record therefore does not establish the authenticity of the 
2011 letter. See Matter of Ho, 19 I&N Dec. at 591 (stating that doubts cast on any aspect of a 
petitioner's proof may lead to a reevaluation of the sufficiency and reliability of remaining evidence 
of record). 
Copies of income tax receipts and invoices document the store's existence, address, and owner 
during the Beneficiary's claimed tenure there. But these materials do not demonstrate the store's 
employment of her in the offered position. The Petitioner also submitted copies of the store's 
purported "muster rolls" from September 2011 through October 2014. These monthly records, 
which the store's owner signed and stamped, purportedly list its employees, their dates of 
employment, and the amounts paid to them. The record, however, does not establish the store's 
preparation of these rolls at the time the Beneficiary worked there. The Petitioner also has not 
demonstrated that the store regularly prepared such rolls before and after the Beneficiary's claimed 
tenure at the store. The record therefore does not establish the reliability of the muster rolls. 
On appeal, the Petitioner notes that the Beneficiary's visa application concealed not only her 
experience, but also her secondary-level education. Despite the omission of the Beneficiary's 
education on the application, USCIS found that she had the foreign equivalent of a U.S. high school 
diploma. The Petitioner therefore argues that, despite the application's concealment of the 
Beneficiary's employment, USCIS should similarly find that she meets the experience requirements 
of the offered position and requested visa classification. 
USCIS treated the Beneficiary's educational and experience qualifications differently, however, 
based on the evidence of record. The Beneficiary's visa application indicates that she lacks 
secondary education. But the Petitioner provided a I opy of j "higher secondary certificate" in her 
name from the Board of Intermediate Education in Pakistan. The certificate constitutes 
independent, objective evidence from a government agency. USCIS therefore gives the certificate 
great evidentiary weight. In contrast, as proof of the Beneficiary's employment, the Petitioner 
submitted documentation from the store, her claimed former employer. The store's evidence is not 
as independent or objective in nature as documents from a government agency. We therefore give 
the store's evidence less weight. 
Counsel also asserts that, because Pakistani culture identifies a wife's primary responsibility as her 
family's home, the Beneficiary's spouse truthfully identified her "Primary Occupation" on the visa 
application as "homemaker." Counsel's assertion, however, does 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 record does not establish the role of women in Pakistan's culture, nor 
did the Beneficiary's spouse cite that role as a reason for his response on the application. The 
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Petitioner must substantiate counsel's statement with independent evidence, which may include 
affidavits and declarations. 
For the foregoing reasons, the Petitioner has not demonstrated the Beneficiary's possession of the 
minimum experience required for the offered position or the requested visa classification. We will 
therefore affirm the petition's denial. 
III. MISREPRESENTATION 
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). USCIS may invalidate a certification 
after its issuance upon a finding of "fraud or willful misrepresentation of a material fact involving 
the labor certification application." 20 C.F.R. § 656.30( d). 
Misrepresentations are willful if they are "deliberately made with knowledge of their falsity." 
Matters of Valdez, 27 I&N Dec. 496, 498 (BIA 2018) (citations omitted). A misrepresentation is 
material when it has a "natural tendency to influence, or [be] capable of influencing, the decision of 
the decision-making body to which it was addressed." Id. ( citation omitted). 
Here, the Director found that the Beneficiary willfully misrepresented her qualifying experience on 
the labor certification application. Based on the misrepresentation, however, the Director did not 
invalidate the labor certification. 
As noted above, the Beneficiary stated on her nonimmigrant visa application completed on October 
21, 2014 that her primary occupation was "homemaker" and that she had "no" prior employment. 
Later on the ETA Form 9089 filed on her behalf on April 22, 2016, she claimed employment 
experience, signed, and attested to having worked from September 1, 2011 until October 30, 2014. 
On the date that her nonimmigrant visa form was submitted, she was purportedly employed. As she 
had no reason to misrepresent her experience on the visa application, and the two statements 
conflict, the later claim would misrepresent her true experience and close off a line of inquiry. The 
misrepresentation was material to whether she qualified for the labor certification. The information 
submitted does not resolve the inconsistency in her claimed experience. As such, substantial 
evidence supports the Beneficiary's willful misrepresentation of her experience on the ETA Form 
9089. 
IV. CONCLUSION 
The Petitioner has not demonstrated the Beneficiary's possession of the mm1mum expenence 
required for the offered position or the requested visa classification. Substantial evidence also 
supports the Director's finding that the Beneficiary willfully misrepresented her qualifying 
experience on the labor certification application. We will therefore affirm petition's revocation. 2 
2 A copy of the Petitioner's federal income tax return for 2015 identifies one of the company's shareholders by the same 
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ORDER: The appeal is dismissed. 
family name as the Beneficiary and her spouse. A copy of the Petitioner's federal tax return for 2016 indicates 
additional company owners, but omits the pages that would identity them. The Petitioner attested that, as of the filing of 
the labor certification application, the Beneficiary had no family relationships to the company's owners, officers, or 
incorporators. But the common family name of the Beneficiary, her spouse, and the 2015 shareholder and the 
company's addition of undisclosed owners in 2016 raise a question whether she might have shared a family relationship 
with a principal of the corporation as of the application's filing. Thus, in any future filings in this matter, the Petitioner 
must submit a complete copy of its federal income tax return for 2016 and disclose any family relationships between the 
Beneficiary and the company's owners, officers, or incorporators as of the application's filing. See Matter of Modular 
Container S:vs., Inc., 89-TNA-228, slip op. at *9 (BALCA July 16, 1991) (en bane) (holding that a foreign national's 
relationship to a petitioning corporation's director, officer, or employee may indicate the unavailability of the offered job 
to U.S. workers). 
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