dismissed EB-3 Case: Retail Distribution And Sales

U.S. Citizenship 
and Immigration 
Services 
In Re: 05823080 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: JAN. 13, 2020 
The Petitioner, a retail food and liquor distribution and sales business , seeks to employ the Beneficiary 
as a market development consultant. 1 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 Nebraska Service Center initially approved the petition , but subsequently revoked 
the approval on the grounds that the evidence did not establish that the Beneficiary had the requisite 
educational credential and work experience to meet the terms of the labor certification and to qualify 
for skilled worker classification. 
On appeal the Petitioner submits a brief and asserts that the documentation of record establishes that 
the Beneficiary has the requisite education and work experience to qualify for the job offered under 
the terms of the labor certification and to qualify for classification as a skilled worker. 
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. 
1 On the labor certification the position is called a wine marketing consultant. 
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 USCIS officer who is authorized to approve an immigrant visa petition "when the 
necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). 
II. ANALYSIS 
The Petitioner requests classification of the Beneficiary as a skilled worker. 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. 
See also Matter o_f Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). To be 
eligible for skilled worker classification, therefore, the Beneficiary must meet all specific requirements 
of the labor certification and have at least two years of relevant experience ( or training). 
A. Minimum Requirements of the Labor Certification 
In this case section Hof the labor certification (Job Opportunity Information) specifies the following 
with respect to the education, training, and experience requirements for the job of market development 
consultant: 
4. 
4-B. 
5. 
6. 
6-A. 
7. 
8. 
9. 
10. 
Education: Minimum level required: 
What field of study? 
Is training required for the job? 
Is experience in the job offered required? 
How long? 
Is an alternate field of study acceptable? 
Is an alternate combination of education 
and experience acceptable? 
Is a foreign educational equivalent acceptable? 
Is experience in an alternate occupation acceptable? 
Associate's 
Any Field 
No 
Yes 
24 months 
No 
No 
Yes 
No 
The Beneficiary must meet all of the labor certification requirements by the petition's priority date,2 
which in this case was April 16, 2007. 
In determining the minimum requirements of a proffered position, we must examine "the language of 
the labor certification job requirements." Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). 
2 The priority date of a petition is the date the underlying labor ceitification was filed with the DOL. See 8 C.F.R. 
§ 204.S(d). 
2 
USCIS must examine the certified job offer exactly as it is completed by the prospective employer. 
See Rosedale Linden Park Company v. Smith, 595 F.Supp. 829,833 (D.D.C. 1984). Our interpretation 
of the job's requirements must involve reading and applying the plain language of the labor 
certification application form. Id. at 834. 
1. Beneficiary Does Not Meet the Educational Requirement 
As stated in section H of the labor certification, the minimum level of education required for the 
proffered position is "associate's" or a foreign educational equivalent. Section J of the labor 
certification asserts that the Beneficiary achieved an "associate's" level education in the field of 
marketing at the University ofc=] India, in 1983. As evidence of this education the record includes 
copies of transcripts from the University of-c=]indicating that the Beneficiary completed two years 
of coursework in a bachelor of science ro ram in the years 1981-1983 and an academic evaluation 
from asserting that the two years of study at the University of 
were equivalent to an associate of science degree in the United States. The record also includes 
~a_n_o-th~er evaluation from a professor at I I University asserting that the Beneficiary's two years 
of academic coursework at the University o~ I and more than 16 years of work experience in 
marketing and related areas are equivalent to a bachelor of arts in marketing in the United States. 3 
In his revocation decision the Director found that the Beneficiary did not meet the minimum 
educational requirement of the labor certification because an associate' s degree is required by the labor 
certification and the Beneficiary has no such degree. 
On appeal the Petitioner makes inconsistent claims about the minimum educational requirement of the 
labor certification and the Beneficiary's educational credentials. After acknowledging that the labor 
certification "requires that [the] Beneficiary have an Associate's Degree in any Field," the Petitioner 
changes course and asserts that an associate's degree "is not required by the labor certification" 
because a foreign educational equivalent is allowed, which the Beneficiary has by virtue of his two 
years of coursework at the University of c=] The Petitioner then appears to change course once 
again by citing thel !evaluation (which assessed the Beneficiary's two years of coursework 
at the University ofLJ with no degree as equivalent to a U.S. associate of science degree, and 
claiming that the "Beneficiary has an Associate of Science Degree." Id. at 6. 
The plain language of the labor certification indicates that the minimum educational requirement for 
the proffered position is an associate's degree. The labor certification also states that a "foreign 
educational equivalent" is acceptable. The logical interpretation of the term "foreign educational 
equivalent," which must be read in conjunction with the labor certification's basic requirement of an 
associate's degree, is that a foreign degree which is equivalent to a U.S. associate's degree is 
acceptable. The transcripts in the record show that the Beneficiary took two years of courses at the 
University ofi I They do not show that this coursework earned the Beneficiary an associate's 
degree, or any other kind of degree. 
' This cval uation was ptC'.riour'; sub~ittf d to USCIS in connection with nonimmigrnnt petitions seeking 11-1 B status fot 
the Beneficiary. Unlike the evaluation, it does not claim that the Beneficiary's two years of academic 
coursework at the University ot standing alone, is equivalent to any kind of degree in the United States. 
3 
If the Petitioner meant to allow for two years of university-level coursework to substitute for an 
associate's degree, that intent could have been expressed in section H.8 of the labor certification, which 
asks whether an alternate combination of education and experience would be acceptable and, if so, 
what level of education and how many years of experience. However, the Petitioner answered "No" 
to the question of whether an alternate combination of education and experience was acceptable. 
In accord with the foregoing analysis, we find that the Beneficiary does not meet the minimum 
educational requirement of the labor certification. 
2. Beneficiary Does Not Meet the Experience Requirement 
As stated in the labor certification, in addition to the educational requirement discussed above, 24 
months of experience in the job offered is required for the proffered position. In section K of the labor 
certification only one job is listed for the Beneficiary prior to his employment with the Petitioner. 4 It 
was with~-------~ inl I California, where the Beneficiary claims to have been 
employed as a market development consultant 20 hours per week from April 28, 2003, to January 29, 
2007. The regulation at 8 C.F.R. § 204.5(g)(l) 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. 
In the revocation decision the Director pointed out that no employment verification letter or other 
documentation had been submitted as evidence of the Beneficiary's employment with ~ 
~-----~I, in compliance with the above regulation, or why such evidence was unavailable. The 
Director also observed that letters had been submitted from other purported employers of the 
Beneficiary, but that none of that employment was listed on the labor certification which lessened the 
credibility of the asserted work experience, citing Matter of Leung, 16 I&N Dec. 2530 (BIA 197 6). 
The Director concluded that the Petitioner did not establish that the Beneficiary met the minimum 
experience requirement of the labor certification. 
On appeal the Petitioner submits a photocopied letter from the president/owner ofl I 
(so identified on the letterhead), who "confirmed" that the Beneficiary was emploied at~ 
.__ _____ _.I from April 28, 2003 to January 29, 2007, as a market development consultant and 
described his job duties. The Petitioner does not explain why no such letter was submitted earlier in 
this proceeding. Even if we accept the letter as credible, however, it does not establish that the 
Beneficiary gained two full years of experience in the job offered because, as indicated in the labor 
certification, the work was only 20 hours per week, and thus half-time. While we have found that 
4 While the labor certification states that the Beneficiary began working for the Petitioner as a market development 
consultant on January 30, 2007, none of the experience gained between then and the priority date of April 16, 2007, counts 
as qualifying experience because the labor certification states at section J .21 that the Beneficiary did not gain any qualifying 
experience in a substantially comparable position to the job offered. 
4 
part-time employment can count toward fulfilling labor certification experience requirements, 5 we will 
only count part-time employment as a proportionate fraction of foll-time employment. Based on the 
information in the labor certification that the Beneficiary worked 20 hours a week atl I D we find that the Beneficiary's 45 months of half-time employment equates to 22.5 months of foll­
time employment, which is less than the 24 months required by the labor certification. 
The Petitioner also points to the previously submitted letters from four companies in India who 
assertedly employed the Beneficiary in sales and marketing positions over a 17-year period from June 
1983 to July 2000. These letters appear unreliable for two main reasons. As discussed by the Director, 
none of the alleged employment was listed in section K of the labor certification (Alien Work 
Experience) despite the instruction at the beginning of this section to list, in addition to jobs held in 
the previous three years, "any other experience that qualifies the alien for the job opportunity for which 
the employer is seeking certification." Furthermore, all four letters have mismatching fonts and 
spacing issues which raise questions about their authenticity. 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). No independent objective evidence 
has been submitted to resolve the inconsistencies regarding the four employment verification letters 
discussed above. Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability 
of the petitioner's remaining evidence. See id. 
Thus, the Petitioner has not established that the Beneficiary had at least 24 months of experience as a 
market development consultant as of the priority date. Accordingly, he does not meet the experience 
requirement of the labor certification. 
B. Eligibility for Classification as Skilled Worker 
Since the record does not establish that the Beneficiary meets all the requirements of the labor 
certification or that he has 24 months of qualifying experience, he does not meet the regulatory 
requirements at 8 C.F.R. § 204.5(1)(3)(ii)(B) for skilled worker classification. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary has the requisite education and experience to 
meet the requirements of the labor certification and to qualify for skilled worker classification. 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 See, for example, the non-precedent decisions in Matter of G-D- Corp., ID# 835847 (AAO May 3, 2018), and Matter of 
T-R-S-, ID# 1108577 (AAO Aug. 1, 2018), which draw on case law from the Board of Alien Labor Certification Appeals 
(BALCA). While BALCA decisions are not binding on the AAO, they are instructive on certain issues and may provide 
guidance in our adjudication of particular cases. 
5