dismissed EB-3 Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re: 09184666 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: mL Y 6, 2020 
The Petitioner, tobacco store, seeks to employ the Beneficiary as retail manager. 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 the ground that the Petitioner did not 
establish that the Beneficiary had the requisite experience to meet the terms of the labor certification 
and to qualify for skilled worker classification. 
On appeal the Petitioner submits a brief and additional documentation, and asserts that the evidence 
establishes that the Beneficiary has the requisite experience to meet the terms of the labor certification 
and qualify for skilled worker classification . 
In visa petition proceedings it is the Petitioner's burden to establish 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. 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)(A)(i) 
of the Act, 8 U.S .C. § 1182(a)(5)(A)(i). 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 regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states that to qualify for skilled worker classification: 
. . . the petition must be accompanied by evidence that the [beneficiary] meets the 
educational, training or experience, and any other requirements of the individual labor 
certification .... The minimum requirements for this classification are at least two 
years of training or experience. 
To be eligible for skilled worker classification, therefore, the Beneficiary must meet the specific 
requirements of the labor certification and have at least two years ofrelevant experience (or training). 
All requirements must be met by the petition's priority date, 1 which in this case is November 1, 2018. 
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
In this case section H of the labor certification (Job Opportunity Information) specifies the following 
with respect to the requirements for the job of retail manager: 
4. 
5. 
6. 
6-A. 
8. 
10. 
10-A. 
10-B. 
14. 
Education: Minimum level required: 
Is training required for the job? 
Is experience in the job offered required? 
How long? 
Is an alternate combination of education 
and experience acceptable? 
Is experience in an alternate occupation acceptable? 
How long? 
Acceptable alternative occupation: 
Specific skills or other requirements: 
None 
No 
Yes 
24 months 
No 
Yes 
24 months 
Management 
None 
Thus, the labor certification requires two years of experience as a retail manager or in a related 
management occupation to qualify for the proffered position. In sections J and K of the labor 
certification the Beneficiary claimed that he gained re exprience required in section H by working 
at.__ _______ _.a wireless retail business in Texas, beginning on September 1, 2015. 
The Beneficiary's job title is identified as owner/member/manager. 
As evidence of the Beneficiary's experience the Petitioner submitted a letter from 1._ ____ __. 
I l Officer," on the letterhead ofl l and dated September 15, 2018. The 
letter stated that the Beneficiary had "been Associate with company as Owner / Member / Manjgel 
since Se,t. 1, 2015," and describing his job duties. Aside from identifying himself as an "officer" 
I Jdid not provide any details about his connection withl I 
The Director issued a request for evidence (RFE) in which the Petitioner was requested to submit 
additional evidence of the Beneficiary's qualifying experience. The Petitionerresponded with another 
letter from I Ion the letterhead ofl I dated August 8, 2019, in which he 
asserted that the Beneficiary worked foll-time in the business and provided a more detailed listing of 
his job duties, identified himself once again as an officer without farther details, and provided a 
telephone number where he could be contacted. 
1 The priority date of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. § 204.5( d). 
2 
The Director denied the petition, noting that the author of the employment verification letter from 
.__ ______ ~still had not identified his position or job title with the company in conformance 
with the regulation at 8 e.F.R. § 204.S(g)(l), which provides that: 
Evidence relating to qualifying experience or training shall be in the form of letter( s) 
from current or former employer(s) or trainer(s) and shall include the name, address 
and title of the writer, and a specific description of the duties performed by the alien 
or of the training received. If such evidence is unavailable, other documentation 
relating to the alien's experience or training will be considered [emphasis added]. 
The Director also indicated that a users officer had telephoned I I on September 4, 2019, 
at the number stated in his previous letter, and provided transcriptions of the two conversations the 
users officer had wit~ lthat day. According to the transcriptions I lconfirmed 
that the Beneficiary was "my friend and associate" and, in answer to the question of whether the 
Beneficiary's position was full-time or part-time, stated that "he only work[s] part-time." When the 
users officer asked whether he could speak with the Beneficiary, I lstated in the first 
phone call that the Beneficiary was not there and in the second phone call he indicated that neither he 
nor the Beneficiary was in the office. The users officer asked for the Beneficiary's phone number, 
but according to information in the Director's decision was put on hold byl land ultimately 
cut off without receiving the phone number. Based on the evidence ofrecord the Director concluded 
that the Petitioner did not establish that the Beneficiary had at least two years of qualifying experience 
by the priority date of November 1, 2018. 
On appeal the Petitioner submits an affidavit from the Beneficiary stating that he is the owner/manager 
ofl linl I Texas, that the business is primarily engaged in wireless retail, and 
that he has worked full-time in the business since September 1, 2015. The Petitioner also submits an 
affidavit fromJ I supplementing his two previous letters, stating for the first time 
that he owns a tax service franchise, I I in I IT exas, and since 2015 has handled 
"the financial aspect of the [Beneficiary's] business such as preparing and filing the tax returns." D I I states that "I prepared [the Beneficiary J's experience letter" (without specifying which one) 
and asserts that when the users officer called on September 4, 2019, he was unable to transfer the 
call because he was home taking care of his wife's health problem, that he was confused by the 
questions he was asked, that he wanted to clarify that the Beneficiary works full-time in his business, 
that he was at his office when the second call came, that the Beneficiary was unavailable then, and 
that after "some disturbance in the call" he tried to call the users officer back, but did not get through. 
The Petitioner also submits an affidavit from.__ _________ _, the owner of a candy store 
located next to.__ ______ ~ who states that she has known the Beneficiary since his business 
opened in 2015 and that the Beneficiary works full-time in his business. 
In addition to the above affidavits the Petitioner submits copies of the Beneficiary's individual income 
tax returns (Forms 1040) for each of the years 2015, 2016, and 2017. Each of the returns identified 
ofl I as the paid preparer. Each of the returns contains a '--------~ 
2 In his two prior letters~! ---~~pelled his first name ._I __ ___. 
3 
Schedule C (Profit or Loss from Business) which identified the Beneficiary as the owner of the "cell 
phone" business.__ _______ __. listed the income and expense items of the business, and 
recorded small net profits for each year. The returns also include small sums for "wages, salaries, tips, 
etc." earned by the Beneficiary each year, as well as larger sums for business income enerated from 
the Beneficiary's ownership interest in another company documented 
in Schedule E. The Petitioner submits a copy of a separate 2018 tax return for 
I tForm 1120S, U.S. Income Tax Return for an S Corporation) recording~1-.t-s-in_c_o_m_e_a-nd_. 
expense items and a modest net profit for the year. 
The information in the tax returns indicates that the Beneficiary derived income from various sources 
~ars 2015-2018 and amplifies the question first raised in the inconsistent statements of 0 
L___Jofwhether the Beneficiary actually works full-time in hisl I business and, 
if not, whether he gained the requisite experience before the priority date to meet the terms of the labor 
certification and qualify for classification as a skilled worker. I I has not explained why he 
stated in response to the RFE that the Beneficiary works full-time forl I c
1
angedl 
his sto on the phone by telling the USCIS officer that the Beneficiary works only part-time at 
l...,...-...,,.....~-_J,_,a,..n ... d.._t ... h..,,e ..... n .... r.,.e_,_v7ersed himself again on aqoeal by asserting that the Beneficiary works full-
time for .__ ______ __. Nor has I Jexplained why he was confused by the questions 
he was asked by the USCIS officer, since he had expressly provided his telephone number to USCIS 
for the purpose of providing further details about the Beneficiary's work with.__ _______ _.3 
Furthermore, the Petitioner has provided no details about the Beneficiary's other sources of income 
recorded in his individual tax returns, how much time he expends in those work activities, and how 
much time is left to run his business at I I· In sum, while the labor certification 
asserts that the Beneficiary's work with._ _______ _.is a full-time job (40 hours per week), 
I I contradicted that document at one point by stating that the work was only part-time, and 
the record does not make clear how much time, and what percentage of a typical workday, the 
Beneficiary actually expends performing job duties for, and gaining management experience with, 
I I 
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. 
For the reasons discussed above, we conclude that the Petitioner has not resolved the inconsistent 
information it has provided about the Beneficiary's experience with.__ _______ _. Therefore, 
the Petitioner has not established that the Beneficiary gained at least two years of qualifying experience 
by the priority date of November 1, 2018, as required to meet the terms of the labor certification and 
to qualify for skilled worker classification. 
3 In addition,! lhas not explained why he identified himself as an "officer" of,__ _____ __.n his first 
two letters but in his subsequent affidavit identified himself as the company's tax preparer and claimed no other relationship 
with the company. 
4 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary had at least two years of qualifying experience 
for the job offered by the priority date. Therefore, the Beneficiary does not meet the experience 
requirement of the labor certification and does not qualify for classification as a skilled worker. The 
appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 
ORDER: The appeal is dismissed. 
5