dismissed EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 06409520 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 16, 2020 
The Petitioner , a convenience store with a gas station , seeks to employ the Beneficiary as a night shift 
manager. It request s 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 Texas Service Center denied the petition . The Director found that the Petitioner 
did not establish that the Beneficiary had the requisite experience to meet the terms of the labor 
certification and to qualify for skilled worker classification. The Director also found that the 
Beneficiary willfully misrepresented her work experience on the labor certification , which was 
material to her eligibility for the immigration benefit sought in this proceeding . 
On appeal the Petitioner asserts that previously submitted documentation establishes that the 
Beneficiary had the requisite experience for the job offered and the requested visa classification, and 
that the Beneficiary did not misrepresent any material fact regarding her prior employment on the 
labor certification. 
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. § 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 , 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. 
II. ANALYSIS 
A. Beneficiary's Experience 
To qualify for classification as a skilled worker a beneficiary must have at least two years of training 
or experience. 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 which in this case is April 14, 2016. See Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). The first issue on appeal is whether the 
Beneficiary has two years of qualifying experience to meet the requirements of the labor certification 
and to qualify for skilled worker classification. 
The labor certification that accompanied the Petitioner's Form 1-140, Immigrant Petition for Alien 
Worker (1-140 petition), filed in December 2016, states that the minimum experience required for the 
proffered position of night shift manager is 24 months in the job offered or in a related position such 
as store supervisor or store manager. According to the labor certification the Beneficiary met this 
reruirement by working 50 hours a week as a store supervisor/store ifanagerl atl I a retail store 
in !India, from June 1, 2011, to June 30, 2014. The job wit is the only employment 
experience listed for the Beneficiary on the labor certification. As evidence of this job the Petitioner 
submitted with the 1-140 petition a letter dated July 21, 2015, from I , J who identified 
himself as the manager ofl 11 I stated that the Beneficiary had been employed as the 
store supervisor from June 2011 to June 2013 and as the store manager from July 2013 to June 2014. 
The Director issued a notice of intent to deny (NOID) in March 2019, citing a prior visa application 
filed by the Beneficiary on August 1, 2014, on which she stated that she was not previously employed 
and that she was a university student enrolled in a master of commerce program from July 2012 until 
February 2014, which she did not complete. The Director pointed out that the information on this visa 
application conflicted with the employment information on the labor certification underlying the 
instant petition, and appeared to indicate that the Beneficiary misrepresented her employment 
experience on the labor certification. The Petitioner was advised to submit documentary evidence to 
resolve these conflicts and establish the Beneficiary's eligibility for skilled worker classification. 
In response to the NOID the Petitioner submitted an affidavit from the Beneficiary who stated that she 
filed her application for a student (F-1) visa with the Department of State (Form DS-160) through a 
consultant who only requested information about her schooling and not about her experience in 
completing the application form. The Beneficiary conceded that she did not mention her work 
experience at I I to the consultant, or in her consular interview, ostensibly because she did not 
consider it relevant in her student visa application. The Beneficiary indicated that she also did not 
mention some additional experience she had atl I a children's clothing store, over three time 
periods totaling seven months of work from April 2009 to May 2011. 2 The Beneficiary claims that 
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). 
2 The Beneficiary's alleged experience at I I was not listed on the labor ce1tification. The failure to list work 
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she was able to work at I I while going to school because her schedule was flexible and her 
master's degree studies were an online distance learning program. While acknowledging that the 
Beneficiary's failure to mention her work experience on the student visa application was a 
misrepresentation, the Petitioner contends that it was not material to the immigration benefit sought in 
that application and should not be used to draw negative conclusions about the Beneficiary's work 
experience in the instant petition. 
In denying the petition the Director found that the Petitioner's response to the NOID did not resolve 
the discrepancy between the labor certification in the instant proceeding and the previously filed 
student visa application with regard to the Beneficiary's employment history. The Director noted that 
the Beneficiary signed and submitted her student visa application in August 2014 with a specific denial 
of any prior employment experience, which directly contradicted her claim on the subsequent labor 
certification that she worked forl lfrom 2011 to 2014. The Director concluded that the Petitioner 
failed to establish that the Beneficiary met the experience requirements of the labor certification, and 
that the Beneficiary willfully misrepresented a fact that was material to the skilled worker 
classification she seeks in the instant proceeding by asserting on her labor certification to have work 
experience atl I 
On appeal the Petitioner refers to the previously submitted employment verification letter froml I 
I I and asserts that it is good evidence of the Beneficiary's job experience atl I because it 
complies with the regulation at 8 C.F .R. § 204.5(g)(l ), which provides that "[ e ]vidence relating to 
qualifying experience ... shall be in the form ofletter(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 alien ... " We do not agree with the Petitioner's claim that I ts letter meets 
the substantive requirements of 8 Cll:....§....,204.S(g)(l). The letter provides few details about the 
Beneficiary's alleged employment at L__J stating simply that as the store supervisor and later store 
manager she "follow[ed] up the Accounting and Human Resource departments working under her." 
I Is letter does not provide "a specific description of the duties performed" by the Beneficiary, 
as the regulation requires, and does not indicate how many hours per week the Beneficiary worke4-fur, 
,...Q!!I...Q!!,POSe of determining length of employment. Moreover, the vague job duties described byLJ 
L__Jdo not appear to match up with the more detailed description of the Beneficiary's alleged job 
duties in section K of the labor certification. I lis described as a "retail store" and I I 
asserts that it has accounting and human resource departments. But he offers no information about 
the size and scale of the store as a whole, those departments in particular, or the specific duties related 
to accounting and human resources that were assertedly performed by the Beneficiary. For all of the 
reasons discussed above the letter froml I does not have sufficient evidentiary weight to 
establish that the Beneficiary acquired any qualifying experience atj I 
Furthermore, the Beneficiary has still not furnished a persuasive rationale for the conflicting 
information about her employment history on her application for a student visa in 2014 and the labor 
certification supporting the instant petition in 2016. On the Form DS 160 in 2014 the Beneficiary 
entered "Not employed" in the box asking for her "Primary Occupation" and answered "No" to the 
experience on a labor certification lessens the credibility of the claimed experience and supporting evidence. See Matter 
of Leung, 16 T&N Dec. 2530 (BIA 1976). 
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question "Were you previously employed?" Furthermore, while asserting that she applied for her 
student visa through a consultant who never asked for information about her work experience, the 
Beneficiary specifically answered "No" to the question "Did anyone assist you in filling out I this 
application?" The Beneficiary's assertion that she did not think work experience at was 
relevant in her student visa application does not explain her answers to specific questions on the 
application form in which she clearly stated she had no work experience. The statements on the 
Beneficiary's student visa application totally contradict the informatiol providld on the labor 
certification in 2016, claiming that she had three years of employment with 
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. Neither the Petitioner nor the Beneficiary has provided independent 
objective evidence to resolve the inconsistencies in the record involving the Beneficiary's alleged 
employment byl I The affidavits of interested parties, like those submitted by the Beneficiary 
and her father in response to the NOID, do not constitute independent objective evidence. Nor have 
any official employment records, pay statements verifiably issued to the Beneficiary, or other 
contemporary documentation of the Beneficiary's alleged employment been submitted. 
We conclude, therefore, that the evidence of record does not establish that the Beneficiary gained any 
qualifying experience withl lin the years 2011-2014, as alleged on the labor certification. Thus, 
the Petitioner has not established that the Beneficiary has the requisite two years of experience to meet 
the labor certification requirements and to qualify for skilled worker classification. Accordingly, we 
will dismiss the appeal. 
B. Willful Misrepresentation of a Material Fact 
The second issue on appeal is whether the Beneficiary willfully misrepresented a material fact on the 
labor certilcation bf asserting that she had qualifying work experience as a store supervisor and store 
manager at 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); 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 his decision the Director recounted the facts that the Beneficiary specifically stated on her student 
visa application in 2014 that she had no previous employment, that she contradicted this statement on 
the labor certification in 2016 by claiming that she was employed at I !from 2011 to 2014, and 
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found that this employment claim on the labor certification constituted a willful misrepresentation of 
a material fact for the purpose of obtaining an immigration benefit. 
On appeal the Petitioner asserts that this finding is refuted by the evidence in the record - specifically, 
the letter from the manager ofl land the affidavits from the Beneficiary and his father attesting 
to the Beneficiary's employment atl I from 2011 to 2014. According to the Petitioner, these 
materials establish that the Beneficiary did work fo~ I We do not agree. As previously 
discussed, the letter froml ~s manager is substantively deficient in that it does not provide "a 
specific description of the duties performed" by the Beneficiary, as required by the regulation at 
8 .C.F.R. § 204.S(g)(l), and the vague duties it does describe do not line up with the job duties 
described in the labor certification. This lack of specificity in thel I letter and its inconsistency 
with the labor certification tends to lessen the reliability of the asserted employment. Nor do the 
affidavits from the Beneficiary and her father have much evidentiary weight since they are not 
supported by any independent objective evidence of the Beneficiary's employment. Moreover, the 
Beneficiary has not adequately explained why she answered "No" on her student visa application to 
the question of whether she had been previously employed if: as she claims in the current I-140 
proceeding, she was actually employed byl I for three years prior to the filing of the student visa 
application. The Beneficiary's claim that the student visa application was handled by a consultant 
who did not ask for any information about her employment experience is contradicted by her answer 
of "No" on that very application to the question of whether anyone had assisted her in filling out. 
Based on the documentation of record and the conflicting evidence discussed above, we agree with 
the Director that the Beneficiary made a false representation to the DOL when she claimed on the 
labor certification to have been employed by I I as a store supervisor and store manager from 
2011 to 2014, that this misrepresentation was willfully made since she specifically declared under 
penalty of perjury in section L of the labor certification that the information about her employment 
history was true and correct, and that this misrepresentation was material to the Beneficiary's ability 
to meet the terms of the labor certification and her eligibility for the skilled worker classification which 
requires two years of qualifying experience. Accordingly, we will not disturb the Director's finding 
that the Beneficiary willfully misrepresented a material fact about her employment history on the labor 
certification for the purpose of obtaining the immigration benefit sought in this I-140 proceeding. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary had at least two years of qualifying experience 
by the priority date of April 14, 2016. Therefore, the Beneficiary does not meet the requirements of 
the labor certification and does not qualify for classification as a skilled worker. The record also 
indicates that the Beneficiary willfully misrepresented a material fact about her employment history 
on the labor certification. 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. 
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