dismissed EB-3 Case: Retail Business

U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF M-W- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 15, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a wireless retail business, seeks to employ the Beneficiary as a store manager. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ l 153(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 pet1t1on on two grounds: The Director 
determined (1) that the Petitioner did not establish that the Beneficiary had two years of qualifying 
experience, as required by the terms of the labor certification and for classification as a skilled 
worker, and (2) that the Petitioner did not establish its continuing ability to pay the proffered wage 
from the priority date onward. 
On appeal the Petitioner submits additional evidence and asserts that the record establishes its 
continuing ability to pay the proffered wage and the Beneficiary's qualifying experience. 
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. § l 182(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, 
if USCIS 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. 
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Matter ofM-W- Inc. 
To qualify for classification as a skilled worker a beneficiary must have at least two years of training 
or experience. See 8 C.F.R. § 204.5(1)(3)(ii)(B). A beneficiary must also meet the specific 
educational, training, experience, or other requirements of the labor certification. Id All 
requirements must be met by the petition's priority date.1 See Matter of Wing's Tea House, 16 I&N 
Dec. 158, 159 (Acting Reg'l Comm'r 1977). In addition, the petitioner must establish its ability to 
pay the proffered wage of the job offered from the priority date until the beneficiary obtains lawful 
permanent residence. See 8 C.F.R. § 204.5(g)(2). 
11. ANALYSIS 
The issues in this case are whether the Beneficiary had two years of qualifying experience required 
by the labor certification and for skilled worker classification, and whether the Petitioner has had the 
continuing ability to pay the proffered wage from the priority date onward. 
A Beneficiary's Experience 
The labor certification that accompanied the Petitioner's Form 1-140, Immigrant Petition for Alien 
Worker, states that the minimum experience required for the job offered is 24 months as a store 
manager, sales manager, or in a related position. According to the labor certification the Beneficiary 
met this requirement by working as a sales manager for a general trading 
business in Pakistan, from July 1, 2008, to November 28, 2012. 2 
The regulation at 8 C.F.R. § 204.5(g)(l) provides that "[e]vidence relating to qualifying experience 
shall be in the form of letter(s) from current or former employer(s) ... and shall include the name, 
address, and title of the writer, and a specific description of the duties performed by the [beneficiary] 
.... " With its initial evidence the Petitioner submitted a copy of a letter dated October 25, 2016, on 
the letterhead of in Pakistan, ostensibly signed by its president, 
stating that the Beneficiary was employed as a sales manager from July 1, 2008, to 
November 28, 2012. In a request for evidence (RFE) the Director expressed some doubt about this 
evidence and requested independent objective evidence of the Beneficiary's employment by 
such as the Beneficiary's official employment records, tax records, or other pertinent 
documentation from the years 2008 to 2012. In response to the RFE the Petitioner submitted a copy 
of a job offer letter dated March 15, 2008, on the letterhead of and bearing the 
signature of its president, for the sales manager position. The letter did not identify 
the person to whom the job offer was made. The Petitioner also submitted copies of a series of cash 
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). In this case, the priority date is November 28, 2015. 
2 The labor certification lists another job for the Beneficiary as an accountant/administrator for m 
United Arab Emirates, beginning on February I, 2013, and still going at the time the time the labor certification 
was filed on November 28, 2015, but the Petitioner has not claimed this job as qualifying experience for the Beneficiary 
in the course of this proceeding. 
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Matter ofM-W- Inc. 
vouchers ostensibly recording monthly salary payments to the Beneficiary between October 2008 
and November 2012. 
In his decision the Director found that the job offer letter of March 2018 lacked credibility because it 
did not include the Beneficiary's name anywhere on the document, and that the cash vouchers were 
likewise questionable because they were not official documents. The Director noted that the 
Petitioner did not submit the independent objective evidence specifically requested in the RFE, such 
as the Beneficiary's official employment records or tax records from 2008 to 2012. The Director 
concluded that the Petitioner did not establish by a preponderance of the evidence that the 
Beneficiary gained any qualifying experience at and therefore did not establish 
that the Beneficiary had 24 months of experience as a store manager as of the priority date, as 
required to meet the minimum experience requirement of the labor certification and for classification 
as a skilled worker. 
On appeal the Petitioner states that neither nor the Beneficiary filed any tax 
returns in Pakistan, and therefore the cash vouchers previously submitted are the only evidence of 
wages paid by to the Beneficiary. As new evidence the Petitioner submits a 
cover page to the job offer letter from which identifies the Beneficiary as the 
recipient of the job offer. The Petitioner apologizes for not submitting the cover page with the rest 
of the job offer letter that was submitted in response to the RFE, but offers no explanation for the 
omission of that part of the document with its previous submission. This two-part submission of 
what the Petitioner claims to be a single document raises additional concern about the authenticity of 
the job offer letter, which the Petitioner has not adequately addressed. 
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 
As discussed above, the record still contains no independent objective evidence of the Beneficiary's 
alleged employment by No official employment records have been submitted, 
nor any tax records documenting the Beneficiary's employment. Moreover, the job offer letter, cash 
vouchers, and supposed employment verification letter from lack credibility. In 
an attempt to verify the Beneficiary's claim to have been employed by USCIS 
conducted a site visit to the address in where the business reputedly operated , and contacted 
the proprietor of the business whose name appeared on all of the letters and cash 
vouchers submitted in this proceeding. advised USCIS that == was 
not started until 2013 , that the Beneficiary never worked there, and that ___ did not issue 
any employment-related letters or salary receipts to the Beneficiary. 
In view of this derogatory information from Pakistan , we issued a notice of intent to dismiss (NOID) 
on February 13, 2019 , advising the Petitioner of the information in the report we received from 
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Matter ofM-W- Inc. 
USCIS officials and giving the Petitioner 33 days to submit evidence in rebuttal of the foregoing 
information. In the NOID we also advised that the information received from Pakistan raised the 
question of whether the Petitioner and the Beneficiary willfully misrepresented material facts 
regarding the Beneficiary's employment history by submitting fraudulent documentation. We 
further advised the Petitioner that a finding of fraud or willful misrepresentation of a material fact 
involving the labor certification may result in the invalidation of the labor certification. The 
Petitioner did not respond to the NOID within the 33-day time period, or at any time up to the date 
of this decision. 
Based on the entire record, we conclude that the Petitioner has not established that the Beneficiary 
was ever employed by Therefore, the record does not establish that the 
Beneficiary gained at least two years of qualifying experience as required to meet the terms of the 
labor certification and to be eligible for classification as a skilled worker. On this ground alone the 
petition cannot be approved. 
B. Finding of Willful Misrepresentation of Material Fact 
In addition, we find that the Petitioner and the Beneficiary willfully misrepresented a material fact 
on the labor certification by claiming that the Beneficiary was employed by in 
Pakistan, from July 2008 to November 2012. 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 and/or the 
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 this case the labor certification states in box 2 of section K (Alien Work Experience) that the 
Beneficiary was employed as a sales manager by in from July 2008 to 
November 2012. Based on the evidence of record, previously discussed, we find that this statement 
was a false representation of the Beneficiary's employment history to U.S. government officials 
authorized to review and certify the labor certification and to adjudicate the subsequent immigrant 
petition. We also find that this misrepresentation was willfully made by both the Petitioner and the 
Beneficiary since the Beneficiary and the Petitioner ' s president each signed the labor certification (in 
sections L and M, respectively) below a declaration under penalty of perjury that the information 
provided in the labor certification was correct. Moreover , the record does not contain any rebuttal 
from the Petitioner or Beneficiary concerning the misrepresented experience. In addition , as 
discussed in the prior section , the Beneficiary ' s e xperience is central to determining the 
Beneficiary ' s eligibility for the offered position and requested classification of skilled worker. It is 
therefore a material fact. Thus, the three elements identified in the preceding paragraph to warrant a 
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Matter ofM-W- Inc. 
finding that the Petitioner and the Beneficiary willfully misrepresented a material fact in the labor 
certification have been met. 
Furthermore, the regulation at 20 C.F.R. § 656.30(d) provides: 
( d) Invalidation of labor certifications. . . . Additionally, after issuance, a labor 
certification is subject to invalidation by the DHS or by a Consul of the Department 
of State upon a determination, made in accordance with those agencies' procedures or 
by a court, of fraud or willful misrepresentation of a material fact involving the labor 
certification application .... 
Based on the finding of willful misrepresentation of a material fact, we will invalidate the labor 
certification. Accordingly, the petition is not approvable on the additional ground that it is not 
supported by a valid labor certification. 
C. Petitioner's Ability to Pay the Proffered Wage 
The regulation at 8 C.F.R. § 204.5(g)(2) provides that: 
Any petition filed by or for an employment-based immigrant which requires an offer 
of employment must be accompanied by evidence that the prospective United States 
employer has the ability to pay the proffered wage. The petitioner must demonstrate 
this ability at the time the priority date is established and continuing until the 
beneficiary obtains lawful permanent residence. Evidence of this ability shall be 
either in the form of copies of annual reports, federal tax returns, or audited financial 
statements. . . . . In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by [USCIS]. 
The labor certification states that the proffered wage for the store manager position is $56,000 per 
year. In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether 
the beneficiary was employed and paid by the petitioner during the period following the priority 
date. In this case, the Petitioner has not employed the Beneficiary at any time since the priority date. 
Accordingly, the Petitioner cannot establish its ability to pay the proffered wage based on wages 
paid to the Beneficiary. 
If a petitioner has not employed the beneficiary and paid him (or her) a salary equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or audited 
financial statement(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, the petitioner would be considered able to pay the proffered wage during 
that year. 
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Matter ofM-W- Inc. 
The record includes copies of the Petitioner's federal income tax returns, Forms 1120, U.S. 
Corporation Income Tax Returns, for the years 2015 and 2016. As recorded in the tax returns, in 
2015 the Petitioner had net income of $10,2813 and net current assets of $42,035,4 and in 2016 had 
net income of $60,704 and net current assets of $103,983. Thus, the Petitioner has established its 
ability to pay the proffered wage in 2016 based on either its net income or its net current, both which 
exceeded the proffered wage that year. In 2015, however, the Petitioner's net income and net 
current assets were both well below the proffered wage. Taking the higher figure on the tax return, 
the deficit between net current assets and the proffered wage was $13,965. 
On appeal, the Petitioner asserts that its proffered wage obligation in 2015 was only $6,054.72, 
representing that portion of the year between the priority date of November 28, 2015, and December 
31, 2015. Although we will not prorate the proffered wage, we will consider the effect of a short 
time period between the priority date and the end of the priority date year in the context of our 
totality of the circumstances analysis. 
USCIS may also consider the totality of the Petitioner's circumstances, including the overall 
magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Sonegawa, 12 I&N Dec. 612. USCIS may, at its discretion, consider evidence 
relevant to the petitioner's financial ability that falls outside of its net income and net current assets. 
We may consider such factors as the number of years the petitioner has been doing business, the 
established historical growth of the petitioner's business, the petitioner's reputation within its 
industry, the overall number of employees, whether the beneficiary is replacing a former employee 
or an outsourced service, the amount of compensation paid to officers, the occurrence of any 
uncharacteristic business expenditures or losses, and any other evidence that USCIS deems relevant 
to the petitioner's ability to pay the proffered wage. 
In this case, the Petitioner states that it began operations in 2010 and had three employees at the time 
the petition was filed in 2016. The tax returns in the record show that the Petitioner's gross receipts 
totaled approximately $3.2 million in 2015 and $4.9 million in 2016. While those figures do 
indicate a substantial increase in business volume from 2015 to 2016, there are no other tax returns 
or other business records to show whether the Petitioner has a historical pattern of growth. There is 
no evidence in the record, and the Petitioner does not assert, that it incurred any uncharacteristic 
business expenses or losses in 2015 to account for its low net income and net current assets that year, 
which were below the proffered wage. The 2015 and 2016 tax returns state that the Petitioner 
expended only $46,500 on wages and salaries in 2015 and $41,000 in 2016. The petition indicates 
that the store manager job for which the Petitioner seeks the Beneficiary's services is a new position. 
So the proffered wage of $56,000 would be a new expense for the Petitioner which it has not 
previously covered. Finally, although the Petitioner contends that we should prorate the proffered 
3 For a C corporation, like the Petitioner, net income (or loss) is recorded at page 1, line 28, of the Form 1120. 
4 For a corporation net current assets (or liabilities) are the difference between its current assets, entered on lines 1-6 of 
Schedule L, and its current liabilities, entered on lines 16-18 of Schedule L. 
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Matter ofM-W- Inc. 
wage in 2015, weighing the time period in question against the negative factors discussed above, we 
do not find that the Petitioner has demonstrated its ability to pay the proffered wage for 2015 
through a totality of the circumstances analysis. 
Based on the foregoing factors, we find that the Petitioner has not established its continuing ability 
to pay the proffered wage from the priority date onward based on the totality of its circumstances. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. The 
Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The approval of the ETA Form 9089, case number ETA A-15322-
41162, is invalidated under 20 C.F.R. § 656.30(d), based on the willful 
misrepresentation of a material fact. 
Cite as Matter ofM-W-Inc., ID# 1607412 (AAO Apr. 15, 2019)