dismissed EB-3 Case: Retail Flooring

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-F-S- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 23, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a retail flooring supplier, seeks to permanently employ the Beneticiary in the United 
States as a product line manager. 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(b)(3)(A)(i). This classification allows a U.S. employer to 
sponsor a foreign national with at least 2 years of training or experience for lawful permanent 
resident status. 
The Director, Texas Service Center, denied the petition, concluding that the record did not establish 
that the Beneficiary possessed the education, experience, and training required on the submitted 
ETA Form 9089, Application for Permanent Employment Certification (labor certification), and that 
the Petitioner did not establish that a bona fide job offer exists for the Beneficiary. The Director 
fm1her invalidated the underlying labor certification, entering a finding of fraud or willful material 
misrepresentation, based on misrepresentations made regarding the Beneficiary's experience. 
The Petitioner filed a motion to reopen and motion to reconsider with the Director, asserting that that 
Director erred in his findings. The Director dismissed the motion to reopen and motion to 
reconsider, finding that the motion did not meet regulatory requirements. 
The matter is now before us on appeal. We agree with the Director's decision to dismiss the motion 
to reopen and reconsider. The Petitioner did not provide new evidence that would change the 
outcome of the case, nor did the Petitioner cite to pertinent case law to show that the original 
decision was incorrect. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i), provides immigrant classification to skilled 
workers. See also 8 C.F.R. § 204.5(1)(2). A petition for skilled worker must be accompanied by a 
valid, individual labor certification, an application for Schedule A designation, or documentation of 
a beneficiary's qualifications for a shortage occupation. 8 C.F.R. § 204.5(1)(3)(i). 
Matter of T-F-S- Inc. 
The determination of whether a petition may be approved for a ski lied worker is based on the 
requirements of the job offered as set forth on the labor certification. See 8 C.F.R. ~ 204.5(1)( 4 ). The 
labor certification must require at least 2 years of training and/or experience. Relevant 
post-secondary education may be considered as training. See 8 C.F.R. ~ 204.5(1)(2). 
In addition, the beneficiary must possess 2 years of training and/or experience, see 8 C.F.R. 
§ (1)(3)(ii)(B), and otherwise meet all of the requirements ofthe oflered position set forth on the labor 
certification by the priority date ofthe petition. 8 C.F.R. ~ 103.2(b)(l), (12). See Mafler of Wing's 
Tea House, 16 l&N Dec. 158, 159 (Acting Reg'! Comm'r 1977); see al.'l·o Matter of Katigbak. 
14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
Accordingly, a petition for a skilled worker must establish that the job offer pmiion of the labor 
certification requires at least 2 years of training and/or experience, that the beneficiary has at least 2 
years of training and/or experience, and that the beneficiary otherwise meets all of the requirements of 
the offered position set forth on the labor certification. The Petitioner must also establish that it has 
the ability to pay the proffered wage from the priority date onward. 
II. ANALYSIS 
A. The Record Does Establish that a Bona Fide Job Offer Exists 
The Director found that the record did not establish that a bonafide job offer as a product manager 
existed at the time of filing of the labor certification in October 2012 or continues to exist. After a 
review of the record, including evidence submitted on appeal, we find that the Petitioner has 
established by a preponderance of the evidence that a bonafide job offer existed at the time of tiling 
of the labor certification and continues to exist. 
In the denial, the Director cited concerns about the Beneficiary's ownership of a tile business, the 
Beneficiary's participation in industry events with two other companies during the time he claimed 
to be working for the Petitioner, and evidence from the Internet that a company in New York may 
also be related to or owned by the Beneficiary. On appeal, the Petitioner satisfactorily addresses 
each of the Director's concerns and emphasizes that the Beneficiary has been employed by the 
Petitioner since before 2012, when the labor certification was tiled, and continues to be employed by 
the Petitioner to date in H-lB status. Evidence submitted supports the Petitioner's assertions. The 
Beneficiary's continued employment is evidence of a bonafide job offer. Given the evidence in the 
record, we find that the Petitioner has established that it is more likely than not that a honafide job 
oppmiunity existed at the time of tiling of the labor certification and continues to exist. We 
therefore withdraw the Director's finding to the contrary. 
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Matter ofT-F-S-lnc. 
B. The Record Does Not Establish the Beneficiary's Qualifying Experience for the Offered Position 
The Director further found that the record did not establish the Beneficiary's qualifying experience 
for the position. A beneficiary must meet all of the requirements of the offered position set forth on 
the labor certification by the priority date of the petition. 8 C.F.R. § 1 03.2(b )(1), (12). See Wing's 
Tea House, 16 I&N Dec. at 159; see also Katigbak, 14 I&N Dec. at 49. The priority date of the 
petition is October 18, 2012. 1 The required education, training, experience, and skills for the 
proffered position of product line manager are set forth at Part H of the labor certification. The labor 
certification states that the position has the following minimum requirements: 
H.4. 
H.6. 
H.6-A. 
H.8. 
H.14. 
Education: minimum level required: None. 
Is experience in the job offered required for the job? Yes. 
If Yes, number of months experience required: 48. 
Is there an alternate combination of education and experience that is 
acceptable? No. 
Specific skills or other requirements: Knowledge with floor supplies 
industry. 
As noted above, a petition for a skilled worker must establish that, among 
other things, the 
Beneficiary possesses the required training and/or experience as of the priority date. A petitioner 
must support a beneficiary's claimed qualifying experience with letters from employers. 8 C.F.R. 
§ 204.5(g)(l ). The letters must include the employers' names, addresses, and titles, and descriptions 
of a beneficiary's experience. !d. 
Here, the proffered position requires 4 years of experience as a product line manager. Part K of the 
labor certification states that the Beneficiary qualifies for the offered position based on experience as 
a product line manager with from February 
15, 1999, to June 18, 2004. 
The record contains a January 13, 2014, letter from General Manager, 
stating that the Beneficiary was employed as a product line manager from July 26, 2001, 
to June 15, 2006. 
The letter and labor certification are inconsistent regarding the Beneficiary's dates of employment. 
The Director noted this inconsistency in the notice of intent to deny and provided the Petitioner with 
notice of other derogatory information that contradicted the Petitioner's claims regarding the 
Beneficiary's prior employment. Specifically, the Director pointed out that according to publically 
available information, was not incorporated until June 26, 2001; that the 
1 
The priority date is the date the DOL accepted the labor ce11ification for processing. See 8 C.F.R. ~ 204.5(d). 
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(b)(6)
Matter ofT-F-S-lnc. 
Beneficiary had stated on a February 18, 2004, visa application that he was employed as "Secretary" 
of at that time; and that the Beneficiary stated on a 
September 28, 2007, visa application that he was presently employed as the managing director of 
and that he did not have any other previous employers. The Director stated that this 
information contradicted the Beneficiary's claimed employment with and 
instructed the Petitioner to respond with independent objective evidence to overcome the 
inconsistencies presented. 
In response, the Petitioner stated that the start date of employment used in the employment letter 
reflected incorporation in 2001, and that the end date used was the date 
when the Beneficiary also began spending more time on his own business. The Petitioner 
stated that the Beneficiary's true dates of employment with were a hybrid of 
the dates reported in the labor certification and letter, and were February 15, 1999, to June 15, 2006. 
The Petitioner did not address the absence of the Beneficiary's employment with 
on the previously submitted visa application. 
The Petitioner also submitted the following letters attesting to the Beneficiary's employment: 
• A letter dated March 11, 2015, from stating that he has known the Beneficiary 
"both personally and in the business of for many years.'' 
• A letter dated March 11, 2015 from who states that the Beneticiary 
and "I have worked together at for several years.,. 
• A letter dated March 11, 2015, from stating that the Beneficiary "has 
been the go to guy over the past 12 years." 
• A letter dated November 2, 2015, from Supervisor, stating that the 
beneficiary "has been working at for a period of time." 
• A letter dated November 2, 2015, from the Beneficiary's spouse, stating that the Beneficiary 
was employed by from February 1999 to June 2006. 
The evidence submitted does not overcome the inconsistencies presented. First, the Petitioner·s 
reliance on the above letters is misplaced. None of the letters in question contirm the dates of 
employment cited in either the original employment letter or the labor certification. In fact, the first 
four letters refer to the Beneficiary's employment in the present tense, indicating that as of the date 
the letter was written in 2015, the Beneficiary was still employed by contrary 
to the evidence in the record. Importantly, the letters do not represent contemporaneous objective 
documentary evidence of the Beneticiary' s employment at during the claimed 
time period, but were rather produced only after the Director questioned the Beneficiary's 
employment history. The Petitioner must resolve inconsistencies in the record with independent 
objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent 
objective evidence pointing to where the truth, in fact, lies, will not suffice. See Matter of Ho, 
19 I&N Dec. 582, 591-592 (BIA 1988). 
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Matter ofT-F-S-lnc. 
The Petitioner's claim that the Beneficiary was employed prior to the actual incorporation of the 
business is likewise not supported by documentary evidence such as employment records, pay stubs, 
or any other evidence from the time period the Beneficiary claims to have been employed. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing 
Matter of Treasure Craft of Calffornia, 14 I&N Dec. 190 (Reg' I Comm' r 1972) ). Further, the 
Beneficiary's statement tbat he continued to work with after June 2004, while 
also devoting more time to his own tile business, is not sufficient to explain the 
discrepancies presented. The Petitioner has not provided evidence that the Beneficiary was 
employed by both businesses during the same period of time or explained how the Beneficiary split 
his between the two entities, such that we could evaluate his position or calculate the true time of 
employment with As noted, going on record without supporting documentary 
evidence is not suf1icient to establish the Beneficiary's eligibility. See Jd. 
Moreover, the Petitioner has not responded to or explained why the Beneficiary's employment with 
was not included on his prior visa applications. The absence of this 
employment on the applications raises doubt as the veracity of the claims made. Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. !d. In sum, the 
Petitioner has not established that the Beneficiary was employed as a product line specialist with 
for the claimed time period. 
The Petitioner also asserted that, in the alternative, U.S. Citizenship and Immigration Services 
(USCIS) should consider the Beneficiary's employment with when evaluating his prior 
experience. In support of this contention, the Petitioner submitted a letter from 
Partner, of stated that his 
company has acted as the accountants for since its incorporation in 2001 and that he can 
confirm the Beneficiary has acted as the managing director of the business. As noted above, the 
Petitioner did not include the Beneficiary's experience with on the labor certification. In 
Matter ofLeung, 16 I&N Dec. 2530 (BIA 1976), the Board's dicta notes that the beneficiary's 
experience, without such fact certified by DOL on the beneficiary's labor certification, lessens the 
credibility of the evidence and facts asserted. Here, the record does not contain any evidence that 
the Beneficiary was employed with as a product line manager for any period of time. The 
letter from attests to the Beneficiary's ownership and role as managing director, but 
it not sufficient to establish that the Beneficiary was employed or has any experience as a product 
line manager. 
On motion to the Diretor, the Petitioner submitted results from a lie detection test conducted by 
The Petitioner claims that the responses in this lie detection test 
corroborate the Beneficiary's claimed experience. However, the question that the Petitioner 
highlights do not actually relate to the experience in question. Specifically, the Beneficiary was 
asked "[d]o you have more than (5) years experience in Business Management?" This question does 
not concern the Beneficiary's experience as a product line manager in general or his claimed 
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Matter ofT-F-S-lnc. 
experience with the 
claims, the results of the lie detection 
regarding the Beneficiary's experience. 
or Therefore, contrary to the Petitioner's 
examination do not corroborate the Petitioner's claims 
The Petitioner must provide independent objective evidence of the Beneficiary's employment in 
order to overcome the noted discrepancies in the record. Here, the Petitioner has not done so and as 
such, the Petitioner has not established that the Beneficiary has the claimed experience with 
or any other qualifying experience. For the foregoing reasons, we find that the 
Petitioner has not established that the Beneficiary possessed the experience required by the terms of 
the labor certification. 
C. Invalidation of the Labor Certification 
The Director further found that the Petitioner or Beneficiary had committed fraud or willful 
misrepresentation in tiling this petition, and that as such, invalidated the labor certification. The 
regulation at 20 C.F.R. § 656.30(d) provides: 
(d) Invalidation of labor certifications. After issuance, a labor certification may be 
revoked by ETA using the procedures described in Sec. 656.32. 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. If evidence of such fraud or willful 
misrepresentation becomes known to the CO or to the Chief, Division of Foreign 
Labor Certification, the CO, or the Chief of the Division of Foreign Labor 
Certification, as appropriate, shall notify in writing the DHS or Department of State, 
as appropriate. A copy of the notification must be sent to the regional or national 
office, as appropriate, of the Department of Labor's Office of Inspector General. 
Upon review of the record, we find that the Petitioner and Beneficiary willfully misrepresented 
material facts in this case and will therefore affirm the invalidation of the labor certification. 
Specifically, the discrepancies described above regarding the Beneficiary's employment history lead 
us to conclude that the documents submitted to show that the Beneficiary was employed by 
are neither true nor credible. 
Section 212(a)(6)(C) of the Act provides: 
Misrepresentation. - (i) In general. - Any alien who, by fraud or willfully 
misrepresenting a material fact, seeks to procure (or has sought to procure or has 
procured) a visa, other documentation, or admission into the United States or other 
benefit provided under this Act is inadmissible. 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
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(b)(6)
Matter ofT-F-S- Inc. 
willfully make a material misstatement to a government official for the purpose of obtaining an 
immigration benefit to which one is not entitled. Matter of Kai Hing Hui, 15 T&N Dec. 288, 289-90 
(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 ofTijam, 
22 I&N Dec. 408, 425 (BIA 1998); Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 
1979). To be considered material, the misrepresentation must be one which "tends to shut off a line 
of inquiry which is relevant to the alien's eligibility, and which might well have resulted in a proper 
determination that he be excluded." Matter ofNg, 17 I&N Dec. 536, 537 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings, the officer must determine: 1) that the petitioner or beneficiary made a false 
representation to an authorized official of the United States government; 2) that the 
misrepresentation was willfully made; and 3) that the fact misrepresented was material. See 
Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961 ); 
Matter ofKai Hing Hui, 15 I&N Dec. at 288. 
We will first address our finding of willful misrepresentation of material fact against the Petitioner. 
First, the Petitioner provided USCIS with false documents intended to establish that the Beneficiary 
worked abroad for as a product line manager for 4 years. A misrepresentation 
can be made to a government official in an oral interview, on the face of a written application or 
petition, or by submitting evidence containing false information. INS Genco Op. No. 91-39, 1991 
WL 1185150 (April 30, 1991 ). Here, the submission of false experience letters in support of the 
petition constitutes a false representation to a government official. We also find that the Petitioner 
willfully made the misrepresentation. The Petitioner submitted a copy of the false experience Jetter 
with the original petition and continues to intentionally submit the same letter despite notification of 
the existence of contradictory facts in the record. Further, the evidence is material to the 
Beneficiary's eligibility. To be considered material, a false statement must be shown to have been 
predictably capable of affecting the decision ofthe decision-making body. Kungys v. US, 485 U.S. 
759 (1988). In the context of a visa petition, a misrepresented fact is material if the 
misrepresentation cut off a line of inquiry which is relevant to the eligibility criteria and that inquiry 
might well have resulted in the denial of the visa petition. See Np;, 17 l&N Dec. at 537. The 
misrepresentations cut off a potential line of inquiry regarding the Beneficiary's employment 
history, which is directly material to the Beneficiary's eligibility. S'ee 8 C.F.R. § 204.5(1)(3)(ii)(B). 
We next address the Beneficiary's willful misrepresentation of material fact. The Beneficiary 
attested to his prior experience in part K of the labor certification, affirming that the experience 
reported was true and correct. However, as was discussed above, we do not find the claims credible. 
Moreover, we find the representation made on the labor certification to constitute a false 
representation to a government official. We also find that this misrepresentation was willful. As 
noted, the Beneficiary's claims on the labor certification directly contradict his prior claims of 
experience reported in a visa application. Finally, the Beneficiary's misrepresentation was material 
to the Beneficiary's eligibility. The misrepresentations cut otT a potential line of inquiry regarding 
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Matter ofT-F-S- Inc. 
the Beneficiary's employment history, which is directly material to the Beneficiary's eligibility. See 
8 C.F.R. § 204.5(1)(3)(ii)(B). 
In light of the contradictory evidence and information we described above. we find that the 
Petitioner and Beneficiary knowingly submitted documents containing false statements in an effort 
to mislead USCIS on an element that is material to the Beneficiary's eligibility for a benefit sought 
under the immigration laws of the United States. See 18 U.S.C. §§ 1001, 1546. Therefore, we 
hereby affirm the finding of willful misrepresentation of a material fact against the Petitioner and 
Beneficiary and affirm the invalidation of the underlying labor certification. This finding of willful 
material misrepresentation shall be considered in any future proceeding where admissibility is an 
Issue. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter oj"T-F-S- Inc., ID# 76760 (AAO Feb. 23, 2017) 
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