dismissed EB-3 Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-. INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 21.2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a supermarket, seeks to employ the Beneficiary as a cashiers· supervisor. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant category. 
See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i). 8 U.S.C. ~ 1153(Bl(3)(A)(i). 
This employment-based 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 petition was initially approved. However. the Director of the Nebraska Service Center 
subsequently revoked the approvaL finding that the Petitioner and the Beneficiary had not 
adequately explained evidentiary inconsistencies concerning the Beneficiary's past employment and 
had willfully misrepresented the Beneficiary's work history. As a result the Director found that the 
evidence of record did not establish that the Beneficiary had two years of experience as a cashier. as 
required by the underlying labor certification to qualify for the proffered position and for 
classification as a skilled worker. 
On appeal the Petitioner submits a brief and copies of previously submitted documents. The 
Petitioner asserts that the evidentiary issues cited by the Director have been resolved. that the 
evidence establishes the Beneficiary's qualifying experience as a cashier. and that it refutes the 
Director's willful misrepresentation finding. The Petitioner requests that we reinstate the approval 
of the petition. 
Upon de novo 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).
1 
See section 
212(a)(5)(A)(i) of the Act. 8 U.S.C. ~ 1182(a)(5)(A)(i). By approving the labor certification. DOL 
1 
The date the labor ce1iification is tiled is called the "'priority date.'" S'ee 8 C.F.R. ~ 204.5(d). The Petitioner must 
establish that all eligibility requirements for the petition have been satis1ied fi·om the priority date onward. 
.
Matter (?fF-. Inc. 
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 tiles an immigr ant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 ofthe Act 8 U.S.C. ~ 1154. Third. 
if users approves the petition, the forei gn national applies 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. 
Section 205 of the Act, 8 U.S.C. ~ 1155, provides that the Secretary of Homeland Security may ·'for 
good and sufficient cause, revoke the approval of any petition." By regulation this revocation 
authority is delegated to any users officer who is authorized to approv e an immigrant visa petition 
"when the necessity for the revocation comes to the attention of [USCJS]." 8 C.F.R. ~ 205.2(a). 
users must give the petitioner notice of its intent to revoke the prior approval of the petition and the 
oppm1unity to submit evidence in oppo sition thereto, bctcne proc eedi ng vvith written notice of 
revoca tion. S'ee 8 C.F.R. ~ 205.2( b) and (c). 
II. ANALYSIS 
A. Required Experienc e 
A beneficiary must meet all of the education, training, experience, and other requirements of the 
labor certification as of the petition's priority date. See ~~faller of' Win;.; 's Tea House, 16 l&N Dec. 
158, 159 (Acting Reg'! Comm'r 1977). In this case, the petition was accompanied by a labor 
certification, with a priority date of April 30, 200 I. The labor certification stated that the minimum 
experience required to perform the dutie s of the protTered position was two years as a cashier s' 
supervisor or as a cashier /clerk. The Beneficiar y s tated on the labor certification that she met this 
requirement by virtue of her work as a cashier for an auto parts and accesso ries retailer. 
m South Korea, from January 1983 to May 1985. As evidence of the 
Beneficiary's employm ent at the Petitioner submitted a ""certi flcatc of experience" from 
the company's president, dated July 3, 2006. 
Howe ver, as was noted by the Director in two notice s of intent to revoke (NOIRs), the Beneficiar y's 
employment as claimed on the labor certification , contlicts with information on the Beneficiar y's 
nonimmigrant visa application forms (DS-156, DS-157, DS-158) submitt ed to the Department of 
State. Specifically, on the nonimmigrant visa application forms the Beneficiary made no menti on of 
employment with and claimed that the she was a hook store owner during that time 
period. The Director further informed the Petitioner that USCIS had contacted by 
telephone, and had not obtained convincing verification of the Beneficiary 's employment there. The 
Director also alerted the Petitioner that the Beneficiary admitted to having drafted the employment 
ver ification letter and mailing it to for the owner's signature and return to the 
Beneficiary. The discrepa ncies between the emplo yment histories report ed on the labor certitication 
and the Beneficiar y's nonimmigrant visa application forms , in conjunction with the Beneficiar y"s 
2 
.
!vfatter qf F-, Inc. 
delayed acknowledgement that she was the author of the employment verification letter from 
raise doubts as to the veracity of the Beneficiary's claimed employment. 
In response to the NOIRs the Petitioner submitted a letter from the Beneficiary stating the she ran a 
bookstore in South Korea, at the same time she was employed by According to 
the Beneficiary, she did not provide infonnation about her bookstore. on the labor 
certification because she thought users would consider her experience at "more 
objectively'' and "\vanted to avoid any possible misunderstanding" due to her overlapping 
employment periods with and 
The Petitioner asserts that the Beneficiary provided a logical explanation in her '\JOIR response letter 
for the omission of her employment with in the nonimmigrant visa application forms. 
In her letter the Beneficiary states that when she applied for a J-1 visa on Forms DS-156, DS-157. 
and DS-158 she thought that listing her ownership of the bookstore in her employment 
history would suffice because the time period there ( 1981-1984) overlapped with the time period she 
allegedly worked with (1983-1985) and therefore rendered the experience 
unimportant. 2 The Form DS-157, however. clearly asked the Beneficiary to list her last two 
employers, one of which would have been if she worked for that company, as claimed. 
in the years 1983-1985. Furthermore, Form DS-158 provided three separate blocks for the 
Beneficiary to list her present and previous 
employers. The Beneficiary listed the 
(October 1981 to November 1984) in block 1 and the advertising company (January 
1998 to 2001) in block 2, but left block 3 blank. Considering the formats and specific requests in the 
employment history sections of these OS forms, the Beneficiary's rationale for omitting 
from her employment history is unconvincing. If she was actually employed by in the 
years 1983-1985, as tirst claimed on her labor certification substitution form in 2006, there was no 
valid reason to omit that experience from her nonimmigrant visa application forms in 2002. 
The Petitioner's response to the NOIR also included letters from an alleged co-worker of the 
Beneficiary's at and from two former patrons of the bookstore \Vho stated that 
they remember the Beneficiary working there in the early 1980s. The letter from the co-\vorkcr at 
asse11s that he \Vas the company's general manager in the years 1982-
1990 and that the Beneficiary \Vas employed as a bookkeeper from January 1983 to May 1985. 
letter \Vas not supported by any independent evidence of his ovm employment by 
The letter did not indicate \vhether the Beneficiary worked full-time or part-time, and 
referred to the Beneficiary's work as ''bookkeeping tasks" without further explanation. Thus. the 
letter from does not confirm that the Beneficiary gained experience as a cashier or as a 
clerk, as required to qualify for the proffered position of cashiers' supervisor. As for the letters from 
the bookstore patrons, and they both asserted that they knew the 
2 
The Beneficiary claims to have owned and operated the 111 from October 1981 to November 
1984. which overlapped the time period she allegedly worked for from January 1983 to \1ay 1985. In her 
NO!R response letter the Beneficiary claimed that she juggled work hours between the two jobs, seven days a week, for 
almost two years. 
3 
.
Matter of F-. Inc. 
Beneficiary personally, that she owned and operated a bookstore called in the early 1980s, 
that they were both regular customers of that the Beneficiary turned the bookstore over to 
her sister after running it for a year or two, and that the Beneficiary then went to work at another 
company. stated that she later learned that the Beneficiary continued to attend to the 
bookstore after completing her day work at the other company. Neither nor 
identified , or provided any information about , the other company where the Beneficiary allegedly 
worked, what kind of job the Beneficiary held at that other company, whether her work was full 
time , or how long she worked there. Thus, the letters of and do not confirm that 
the Beneficiary was employed by or that she gained any qualifying experience there. 
For the reasons discussed above, the letters from and have little 
probative value as evidence that the Beneficiary gained at least two years of experience as a cashier 
or a clerk at 
The Petitioner's response to the NOIR also included another letter from CEO and 
owner. which stated that the original employment verification letter he signed had 
been drafted at his request by the Beneticiary" s lawyer in the United States and reiterated that his 
company employed the Beneliciary as a cashier and bookkeeper from January 1983 to May 1985. 
However, the Petitioner has not submitted any primary evidence of the Beneficiary's employment by 
in the years 1983-1985, such as pay statements, tax records, or other employment­
related documents from those years. Absent such evidence. the Petitioner's claims about the 
Beneficiary's employment at have little evidentiary weight, especially in view of the 
inconsistent employment histories provided by the Beneficiary. It is incumbent on the Petitioner to 
resolve any inconsistencies in the record by independent objective evidence. See Matter ollfo, 19 
I&N Dec. 582 , 591-592 (BIA 1988) . 
On appeaL the Petitioner asserts that USCIS was confused as to the identity of the person it 
contacted by telephone at to ascertain the Beneficiary's employment history with the 
company. According to the Petitioner, while USCIS thought the person it contacted at 
was the owner's father, it was actually the owner's son. In support of its contention that USCIS 
spoke with the owner's son, not his father. the Petitioner submits a family registry showing that the 
owner's son has the same name as the individual noted in the Director's NOfR. who was referred to 
as the owner's father. The family registry. however. does not report the name of the owner's father. 
The Petitioner claims that the Director drew erroneous conclusions about the history of 
and about the veracity of the employment verification letters hom based on a mistaken 
identity of the person contacted in Korea. Regardless of whom USC IS contacted by telephone at 
which cannot be veritied from the evidence submitted, the information provided by 
that company representative about the history of the company and the alleged employment of the 
Beneficiary was inconsistent with the inform ation stated in the employment verification letters 
provided by the Petitioner's owner and CEO. Accordingly, we do not agree with the Petitioner's 
assertion that the Director's decision hinged on mistaken identity. 
Rather, the salient facts are that ( 1) when was contacted to verify the Beneficiar y's 
alleged employment, inconsistent information was reported: (2) the Beneficiary admits to authoring 
the initial employment verification letter herself: and (3) the Beneficiary did not identify 
4 
.
Matter r?f F-. Inc. 
as a former employer on her nonimmigrant visa application forms that she completed 111 
2002 for the Department of State. 
These inconsistencies, coupled with the lack of documentary evidence of employment, raise doubt 
about the Beneficiary"s claimed employment. The Petitioner has not resolved these inconsistencies 
with objective evidence. Unresolved material inconsistencies may also lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in suppo11 of the requested immigration 
benefit. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Based on the foregoing analysis. we 
find that the Petitioner has not established that the Beneficiary was employed by as a 
cashier from January !983 to May 1985, which was the only qualifying experience claimed on the 
labor certification. 
The Petitioner alternatively asserts that the Beneficiary gained cash management experience as 
owner of the bookstore, and could just as easily have relied on that experience as qualifying 
her for the proflered position. The only evidence of the bookstore experience, however , are 
the letters from two old friends of the Beneficiary who assert that they patronized the store when it 
was owned and operated by the Beneficiary during the early 1980s, as well as the Beneticim-y's self­
serving letter in response to the NOIR. None of these documents indicates that the Beneficiary was 
performing the duties of a supervising cashier or a cashier/clerk. Moreover. the bookstore 
experience was not listed on the labor certification, which lessens the credibility of the evidence and 
facts assetied in the Beneficiary's letter and the third party statements. See Matter of Leung. 16 I&N 
Dec. 2530 (BJA 1976). For the reasons discussed above, we find that the record docs not establish 
that the Beneficiary gained any qualifying experience with the bookstore. 
Due to the inconsistencies and omissions in the documentation of record. we conclude that Petitioner 
has not established that the Beneficiary was employed by either or the 
bookstore, and has not established that she gained at least two years of qualifying experience at 
either business. Since the evidence does not establish that the Beneficiary has two years of 
qualifying employment, she does not meet the experience requirement of the labor certification. 
B. Eligibility for Classification as a Skilled Worker 
Although not addressed by the Director, we find that the record does not establish the Beneficiary's 
eligibility for classification as a skilled worker. Section 203(b)(3)(A)(i) of the Act allows for 
classification 
as a skilled worker if a beneficiary has at least two years of training or experience. As 
discussed above. the Petitioner has not established that the Beneficiary was employed at either 
or the bookstore for any period of time. As such, the record does not demonstrate 
her eligibility for the classification requested. 
C. Willful Misrepresentation of a Material Fact 
Although the record does not demonstrate the Beneficiary's eligibility tor the benefit sought. we do 
not find that the evidence in the record supports the Director's finding that the Petitioner and the 
Matter of F-. Inc. 
Beneficiary willfully misrepresented a material fact pertinent to the Form 1-140 petition. 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 ofM-. 6 I&N Dec. 149 (BIA 1954 ): lvfatter ofKai HinR 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 Hea(v 
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 ... Malter ofNR. 17 I&N Dec. 536, 537 
(BIA 1980). 
In his revocation decision. the Director found that the Petitioner and the Beneficiary willfully 
misrepresented a material fact by providing an employment history for the Beneficiary in the current 
proceeding which is inconsistent with the employment history provided in the Beneficiary's prior 
nonimmigrant visa applications. without a convincing explanation for the inconsistency. After 
reviewing and discussing the inconsistent documentation at issue. together with the evidence 
submitted in this proceeding for the purpose of attempting to explain the inconsistencies. we find 
that the record docs not support a finding that the Petitioner or the Beneficiary \Villfully 
misrepresented a material fact in this petition. Accordingly. we will withdraw the Director's finding. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary has at least two years of qualifying experience 
as a cashiers' supervisor or as a cashier/clerk. Accordingly. the Beneficiary does not meet the 
minimum experience requirement of the labor certification. and does not qualify for classification as 
a skilled worker. However. we withdraw the Director's finding that the Petitioner and the 
Beneficiary willfully misrepresented a material fact. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-. Inc .. ID# 536921 (AAO Dec. 21, 20 17)