dismissed EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 18, 2024 In Re: 33347447 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner operates a convenience store/gas station and seeks to employ the Beneficiary as its 
"morning store manager." The company requests his classification under the employment-based, 
third-preference immigrant visa category as a "skilled worker." See Immigration and Nationality Act 
(the Act) section 203(b)(3)(A)(i), 8 U.S.C. 1153(b)(3)(A)(i). Businesses may sponsor noncitizens for 
U.S. permanent residence in this category to work in jobs requiring at least two years of training or 
experience. Id. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate the Beneficiary's qualifying experience for the offered job or the 
requested immigrant visa category. The Director also found that the Beneficiary willfully 
misrepresented his experience on the accompanying certification from the U.S. Department of Labor 
(DOL). On appeal, the Petitioner contends that the Director misapplied legal standards, disregarded 
crucial evidence, and provided explanations that the record does not support. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 
2015), we conclude that, although the record does not support the Director's misrepresentation finding, 
the company has not established the Beneficiary's qualifying experience for the offered job and the 
requested immigrant visa category. We will therefore dismiss the appeal. 
I. LAW 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must obtain DOL certification that: there are insufficient U.S. workers able, willing, qualified, and 
available for an offered job; and a noncitizen' s permanent employment in the job would not harm wages 
and working conditions of U.S. workers with similar jobs. Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). 
Second, an employer must submit a DOL-approved labor certification with an immigrant visa petition 
to U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act. Among other 
things, USCIS determines whether a noncitizen beneficiary meets the requirements of a DOL-certified 
position and a requested immigrant visa category. 8 C.F.R. § 204.5(1)(3)(ii)(D), (4). 
Finally, if USCIS approves a petition, a beneficiary may apply for an immigrant visa abroad or, if 
eligible, adjustment of status in the United States. See section 245(a) of the Act, 8 U.S.C. § 1255(a). 
II. ANALYSIS 
A. The Required Experience 
At the time of filing a skilled-worker petition, a beneficiary must be able to perform "skilled labor 
(requiring at least 2 years training or experience)." Section 203(b )(3)(A)(i) of the Act. Also, by a 
petition's priority date, a petitioner must demonstrate a beneficiary's possession of all DOL-certified 
requirements for an offered job. See Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting 
Reg'l Comm'r 1977). This petition's priority date is June 29, 2017, the date DOL accepted the 
Petitioner's labor certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to 
determine a petition's priority date). 
When assessing a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification to determine the offered job's minimum requirements. The Agency 
may neither disregard labor certification terms nor impose unstated requirements. See, e.g., Madany 
v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority for setting the 
content of the labor certification") ( emphasis in original). 
The Petitioner's labor certification states the minimum requirements of the offered job of morning 
store manager as 24 months' experience "in the job offered" or as an assistant manager or a related 
occupation. The labor certification states that the job requires neither education nor training. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained more 
than 24 months' qualifying experience as an assistant manager. He stated that a cell phone retailer 
employed him part-time (20 hours a week) in Canada for about 12 months, from July 2016 to June 
2017. He also stated that a clothing store in Pakistan employed him foll-time (45 hours a week) for 
about 25 months, from January 2011 through February 2013. 
Unless otherwise specified, required experience on a labor certification means foll-time experience. 
See Matter ofBoodell & Domanskis, LLC, 2012-PER-01275, *3 (BALCA May 11, 2016) (accepting 
part-time experience as qualifying experience only because the labor certification so specified). The 
Petitioner therefore must demonstrate that, by the petition's priority date, the Beneficiary had at least 
two years' of foll-time, qualifying experience. 
Part-time experience gained by a beneficiary equals less than foll-time experience. The value of a 
beneficiary's part-time experience depends on the length of employment and the number of hours 
worked a week. For example, 29.5 months of part-time, 25-hour-a-week experience equates to 18.4 
months of foll-time, 40-hour-a-week experience. Matter of 1 Grand Express, 2014-PER-00783, *4 
(BALCA Jan. 26, 2018) (dividing 25 hours-a-week by 40 hours-a-week to get 0.625 and then 
multiplying that by 29.5 months to get full-time, equivalent experience of 18.4375 months). Under 
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that formula, the Beneficiary's 12 months of part-time, 20-hour-a-week experience in Canada equates 
to six months of full-time experience ( dividing 20 hours-a-week by 40 hours-a-week to get 0.5 and 
then multiplying that by 12 months to get full-time equivalent experience of six). 
The record supports the Director's finding that the Petitioner demonstrated the Beneficiary's part-time 
experience in Canada. But, because his part-time work equates to only six months of full-time 
experience, his part-time work, alone, does not qualify him for the offered job. Rather, the Petitioner 
must also demonstrate his possession of at least 18 months of full-time experience at the Pakistani 
clothing store to establish the requisite 24 months of qualifying experience. 
As proof of qualifying experience, petitioners must generally submit letters from beneficiaries' former 
employers. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must include the names, addresses, and titles of 
the employers, and describe the beneficiaries' experiences. Id. "If such evidence is unavailable, other 
documentation relating to the [noncitizen]'s experience or training will be considered." 8 C.F.R. 
§ 204.S(g)(l ). 
Consistent with 8 C.F.R. § 204.5(1)(3)(ii)(A), the Petitioner submitted a 2013 letter from the operations 
and store manager of the Pakistani clothing store. Consistent with the information on the labor 
certification, the letter states the store's full-time employment of the Beneficiary as an assistant 
manager from January 2011 through February 2013. 
In a notice of intent to deny (NOID) the petition, however, the Director noted evidence contradicting 
the Beneficiary's claimed qualifying experience. On an application for a U.S. visitor's visa in April 
2015, the Beneficiary attested that he then studied at a Canadian university. Asked by the application 
"Were you previously employed?" he stated: "No." The Beneficiary's negative reply casts doubt on 
his claimed qualifying experience in Pakistan from January 2011 through February 2013. Petitioners 
must resolve inconsistencies of record with "independent, objective evidence pointing to where the 
truth lies." Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
After receiving the NOID, the Petitioner submitted additional evidence in support of the Beneficiary's 
claimed qualifying experience. The additional materials include: a second letter and affidavit from 
the clothing store's operations and store manager; affidavits from the Beneficiary and a store 
supervisor; copies of Pakistani tax records showing the store's existence and ownership during the 
Beneficiary's purported tenure there; and a copy of a social media site of the store. 
In his initial affidavit, the Beneficiary stated that he did not believe the 2015 U.S. visa application 
required the disclosure of his claimed prior employment in Pakistan. He said: 
I honestly did not think it was necessary to include that information because I was 
getting paid in cash [in Pakistan], so I got nervous and did not know what was the 
correct response to that question. I did not intend to mislead the U.S. government about 
my work experience, I simply just did not include it. I was careless with this mistake, 
and I wish I could correct it, but I cannot. I can only correct it now on this I-140 
petition. 
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In a later affidavit, the Beneficiary stated that he did not "totally understand" the 2015 visa application 
form. He stated: 
I was particularly confused as to how to answer the question of prior work experience. 
I wasn't sure what relevance my old work experience back in Pakistan had to a quick 
pleasure trip to the U.S., and I didn't know ifthey would count that job anyway, because 
I was paid in cash, without any formal records. I'd been living in Canada for a couple 
of years by this point, and I was familiar with the West's more formal way of doing 
things. I was concerned that if I reported the job and then couldn't produce any pay 
stubs or other records, I might get in trouble, so I just left the line blank. 1 I now 
understand that that was the wrong thing to do, but at the time, I was just doing the best 
I could according to my understanding of what kind of thing the government wanted 
me to report. 
The Petitioner's evidence does not sufficiently demonstrate the Beneficiary's claimed qualifying 
experience. The Pakistani tax records demonstrate the clothing store's existence and ownership from 
January 2011 to February 2013. But, despite the letters and affidavits from the Beneficiary and 
employees of his purported former employer, the record lacks independent, objective evidence that he 
worked for the store. See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve 
inconsistencies with "independent, objective evidence pointing to where the truth lies"). 
The Petitioner cites newspaper articles regarding Pakistan's "undocumented economy." The articles 
state that many Pakistani workers, including employees of small businesses, avoid government 
taxation by working "off-the-books" or for unregistered businesses. These articles lend credence to 
the Beneficiary's claim that he received cash payment for his work in Pakistan. But the articles do not 
constitute independent, objective evidence that he worked for that particular clothing store for the 
claimed period. 
The Director had also found inconsistencies in the evidence of the Beneficiary's part-time qualifying 
experience in Canada. But the Petitioner demonstrated his Canadian experience by submitting 
evidence beyond letters from his former employer. The company submitted copies of his payroll 
records and Canadian government-issued wage statements for the relevant employment period. In 
contrast, the Petitioner has not submitted sufficient independent, objective evidence of his claimed 
qualifying experience in Pakistan. 
On appeal, the Petitioner argues that it satisfied the regulatory requirement by documenting the 
Beneficiary's claimed qualifying experience with letters from his former employer. See 8 C.F.R. 
§ 204.5(1)(3)(ii)(A). The company asserts that USCIS impermissibly required documentary proof 
beyond that stated in the regulation. 
To demonstrate beneficiaries' qualifying experiences, the regulation requires a minimum of letters 
from former employers. But the Petitioner's case requires additional proof because it contains 
contradictory evidence of the Beneficiary's claimed qualifying experience from January 2011 to 
1 Government records show that the Beneficiary answered the question on the visa application form. Asked "Were you 
previously employed?" he indicated "No." 
4 
February 2013. As previously discussed, on his 2015 U.S. visitor visa application, he attested to no 
prior employment. Faced with the inconsistent evidence, USCIS properly requested additional 
"independent, objective evidence pointing to where the truth lies." Matter ofHo, 19 I&N Dec. at 591. 
Thus, USCIS followed relevant case law by requesting evidence beyond the letters from the 
Beneficiary's claimed former Pakistani employer. 
In support of its argument, the Petitioner cites two federal court decisions overruling USCIS findings 
of insufficient evidence of qualifying experience. See Diamond Miami C01p. v. USCIS, No. 18 -
24411-Civ-Scola, 2019 WL 4954807 (S.D. Fl. Oct. 8, 2019); Betancur v. Roark, No. 10-11131-RWZ, 
2012 WL 4862774 (D. Mass. Oct. 15, 2012). 
These cases, however, are not persuasive. First, we need not follow the cited U.S. district court 
decisions in this matter. See Matter of Duarte-Gonzalez, 28 I&N Dec. 688, 690 n.2 (BIA 2023) 
(indicating that U.S. district court decisions lack precedential value). 
Second, the U.S. district court decisions are distinguishable from this case. Neither decision discusses 
Ho, which requires USCIS to resolve evidentiary inconsistencies regarding qualifying experience with 
independent, objective evidence beyond regulatory required letters from employers. See Matter of 
Ho, 19 I&N Dec. at 591; see also 8 C.F.R. § l 03. l 0(b) (requiring Department of Homeland Security 
officers to follow precedent cases of the Board oflmmigration Appeals (BIA) and the U.S. Attorney 
General in all proceedings involving the same issue). Other U.S. district courts have cited Ho and 
affirmed USCIS findings of insufficient evidence of qualifying experience. See Advanced Cabinets 
C01p. v. Mayorkas, No. 19 C 5930, 2021 WL 825608, *5 (N.D. Ill. Mar. 4, 2021) ("[I]t is well 
established that 'it is incumbent upon the petitioner' to resolve any ambiguities or inconsistencies in 
the record 'by independent objective evidence.'") ( quoting Matter of Ho, 19 I&N Dec. at 591 ); 
Estrada-Hernandez v. Holder, 108 F.Supp.3d 936, 946-48 (S.D. Cal. 2015) ("Petitioner is responsible 
for 'ambiguities in the record and it is incumbent upon the petitioner to resolve the inconsistencies 
with independent objective evidence.'" ( quoting Matter ofHo, 19 I&N Dec. at 591 ). 
U.S. courts of appeal have also relied on Ho when addressing evidentiary inconsistencies in 
employment-based immigrant visa petition proceedings. See AB Discount Depot, LLC v USCIS, 20-
3245-cv, 2022 WL 453378, *1 (2d Cir. Feb. 15, 2022) (affirming denial of a petition for a 
multinational manager under section 203(b)(1 )(C) of the Act); Love Korean Church v. Chertojf, 
549 F.3d 749, 754 (9th Cir. 2008) (remanding a petition for a special immigrant religious worker under 
section 203(b)(4) of the Act); Marllantas, Inc. v. Rodriguez, 806 Fed.Appx. 864,869 (11th Cir. 2020) 
( affirming denial of a petition for a multinational manager or executive under section 203(b )( 1 )( C) of 
the Act). Thus, the Petitioner's citations to the two U.S. district court decisions do not persuade us. 
For the foregoing reasons, the Petitioner has not demonstrated the Beneficiary's qualifying experience 
for the offered job and the requested immigrant visa category. We will therefore affirm the petition's 
denial. 
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B. The Alleged Misrepresentation 
The Director did not deny the petition based on her finding that the Beneficiary willfully 
misrepresented his qualifying experience on the labor certification. 2 But the determination jeopardizes 
his U.S. admissibility. See section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (rendering 
noncitizens inadmissible if they fraudulently or willfully misrepresented material facts while seeking 
visas, other documentation, U.S. admissions, or other U.S. immigration benefits). We will therefore 
review the finding. 
Misrepresentations are willful if they are "deliberately made with knowledge of their falsity." Matter 
of Valdez, 27 I&N Dec. 496, 498 (BIA 2018) (citations omitted). A misrepresentation is material 
when it has a "natural tendency to influence, or [be] capable of influencing, the decision of the 
decision-making body to which it was addressed." Id. Because of the potential, severe consequences 
to noncitizens and their petitioning employers, we must "closely scrutinize" the factual bases of 
material misrepresentation findings. See Matter ofY-G-, 20 I&N Dec. 794, 797 (BIA 1994). 
The Petitioner contests the Director's finding that the Beneficiary misrepresented his qualifying 
experience on the labor certification. The company contends that "the recitation of [ the Beneficiary]' s 
work history [ on the labor certification] was accurate." The company states: 
The only contrary information anywhere in the record is a stray comment, in an entirely 
different application, made under a mistaken interpretation of the question, which has 
been satisfactorily explained by [the Beneficiary]. This is not enough to hang a finding 
of misrepresentation on. 
As previously discussed, we find insufficient independent objective evidence to demonstrate the 
Beneficiary's claimed qualifying experience at the Pakistani clothing store. But the Beneficiary has 
offered a plausible explanation for his omission of the purported qualifying experience from the U.S. 
visa application. We will therefore withdraw the willful misrepresentation finding against him. 
III. CONCLUSION 
The record does not support the willful misrepresentation finding against the Beneficiary. But the 
Petitioner has not sufficiently demonstrated his qualifying experience for the offered job and the 
requested immigrant visa category. 
ORDER: The appeal is dismissed. 
2 As the Petitioner notes on appeal, the Director's decision alternates between accusing the Beneficiary and the Petitioner 
of the alleged misrepresentation. The record lacks evidence that the Petitioner had reason to doubt the Beneficiary's 
claimed qualifying experience in Pakistan. We therefore interpret the Director's decision to allege the Beneficiary's 
misrepresentation of his qualifying experience on the labor certification. 
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