dismissed EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 07963809 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 22, 2020 
The Petitioner, a convenience store with gas station, 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 petition on two grounds: the Director determined 
that the Petitioner did not establish its continuing ability to pay the proffered wage from the priority 
date onward or that the Beneficiary had two years of qualifying experience by the priority date, as 
required to meet the minimum requirements of the labor certification. The Petitioner filed an appeal, 
which we dismissed on the same grounds. 
The matter is now before us on a motion to reopen and a motion to reconsider. Upon review, we will 
withdraw our previous finding that the Petitioner has not established its continuing ability to pay the 
proffered wage from the priority date onward, but affirm our finding that the Petitioner has not established 
that the Beneficiary gained at least two years of qualifying experience by the petition's priority date. 
Accordingly, we will dismiss the motions. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence. See 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must demonstrate that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. See 8 C.F.R. § 103.5(a)(3). 
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 which in this case is September 6, 2017. See Matter of 
1 The priority date of a petition is the date the underlying labor certification is filed with the Department of Labor. See 
8 C.F.R . § 204.S(d). 
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 pe1manent residence. See 8 C.F.R. § 204.5(g)(2). 
II. ANALYSIS 
A. Motion to Reopen 
1. Petitioner's Ability to Pay the Proffered Wage 
The Petitioner has supplemented the record with additional documentation on motion. Based on all 
of the evidence now before us and the totality of the Petitioner's circumstances, as in Matter ofSonegawa, 
12 I&N Dec. 612 (Reg'1 Comm'r 1967), we determine that the Petitioner has estab1ished, by a preponderance 
of the evidence, its continuing ability to pay the proffered wage from the priority date onward. 
2. 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 of store manager is 24 months in the 
job offered or in a related managerial position. According to the claimed experience on the labor 
certification the Beneficiary met and exceeded this requirement with more than ten years of experience 
as a manager/owner at I I in I I Pakistan, before the priority date of 
September 6, 2017. 
With its initial evidence the Petitioner submitted a copy of a letter dated July 16, 2018, on the letterhead 
o~ I inl ~akistan, signed by I I stating that the 
Beneficiary was "manager/owner" of the business from June 1, 2007 to September 6, 2017. In 
response to a request for evidence (RFE) the Petitioner augmented the record with an affidavit from 
I I dated December 28, 2018, stating that he had a business partnership with the 
Beneficiary in which he owned 40% and the Beneficiary owned 60% ofl I that 
the Beneficiary managed all aspects of the business, and that in the Beneficiary's absence 2I I 
was managing the business. The Petitioner also submitted an affidavit from the Beneficiary reiterating 
the information provided by another affidavit from a customer stating that he had known 
the Beneficiary "since he opened up his.__ _______ ____. business," some photos of the store, 
and copies of tax records from Pakistan's Federal Board of Revenue documenting three years of tax 
returns filed b~ I 
The Director found that none of the foregoing documentation established that the Beneficiary was a 
co-owner, co-manager, or co-partner ofi I withl I or that the 
Beneficiary gained any qualifying experience at that business. The Director concluded that the 
evidence of record did not establish that the Beneficiary had 24 months of qualifying managerial 
experience, as required to meet the minimum experience requirement of the labor certification. 
2 The petition indicates that the Beneficiary came to the United States with a B-2 visa in Ap1il 2018. 
2 
On appeal the Petitioner submitted a copy of a deed of partnership between the Beneficiary and 
I ~ in connection withl I dated May 25, 2007, as well as affidavits 
from five suppliers and three customers of the business attesting to their interaction with the 
Beneficiary. In our decision dismissing the appeal we discussed certain inconsistencies and 
evidentiary deficiencies in the Petitioner's claims and supporting documentation with respect to the 
Beneficiary's alleged role in the business. Most importantly, while the deed of partnership dated in 
2007 purportedly granted the Beneficiary a 60% interest in .__ ________ _.there was no 
official documentation in the record corroborating that the Beneficiary either co-owned or managed 
the business in succeeding years. We noted that the tax filings with the Pakistani ovemment covering 
three fiscal years from July 1, 2015, through June 30, 2018, were from alone and did 
not mention the Beneficiary as a co-owner of: or in any other way associated with, .__ _____ _. 
I I We also noted that there were no Pakistani tax returns in the record from the Beneficiary 
showing that he had an ownership interest in ( or was employed and paid by)I I 
We indicated that the affidavits in the record from individuals in Pakistan who claim a connection to 
the business as customers or suppliers would have more credence if supplemented by business records 
confaming the Beneficia1y's role in the business. We concluded that the record contained no 
independent objective evidence that the Beneficia1y gained any qualifying experience as a store 
manager wit~ I 
In support of the motion to reopen the Petitioner submits an affidavit from a Pakistani citizen. I,...__ _ ___, 
I I who states that he started I I in 19983 and when he retired in 2007 
he gave the business td I his longtime employee and the Beneficia his nephew. 
The Petitioner claims that the Beneficiary was an emplo ee of during the 
years 2002-2007, when it was wholly owned by his uncle,.__ ___ _, and submits a copy of a notice 
which appears to have been issued in October 2002 by a Pakistani health officer to the Beneficiary at 
I I advising the business to obtain the license to operate as required by law within 
seven days. The Petitioner also submits a copy of a document entitled "Display Agreement (For 
Snacks)" purportedly signed by the Beneficiary on behalf of 1 I and a representative 
of a Pakistani company inl Ion August 1, 2016. According to the Petitioner, these materials 
confirm the Beneficiary's long-time association withl I as an owner and 
manager. 
With regard to the notice from the Pakistani health official in 2002, the Petitioner asserts that the 
Beneficiary was managing the store at the time the health inspectors arrived because his employment 
atl !actually began in 2002, not in 2007 as indicated in the labor certification. 
According to the labor certification the Beneficiary worked a~ I as manager/ 
owner from June 1, 2007, to September 6, 2017 (the priority date of the petition). The Petitioner 
contends that the labor certification only required that jobs in the last three years be listed in the work 
experience section for the Beneficiary, and that experience before 2007 was therefore not required to 
be listed. However, the instructions at section K (Alien Work Experience) state that in addition to all 
jobs in the last three years "any other experience that qualifies the [Beneficiary] for I the job I 
opportunity" should also be listed. Thus, any managerial experience the Beneficiary had with 
I I from 2002 to 2007 should also have been listed in the labor certification. The failure 
3 The previously submitted tax filings fro~ lalso state that the business started in 1998 . .__ ____ ___,3 
to list work experience in a labor certification lessens the credibility of the claimed experience and 
supporting evidence. See Matter of Leung, 16 I&N Dec. 2530 (BIA 1976). Moreover, as no 
experience was listed for the years 2002-2007, we may assume that any employment the Beneficiary 
may have had with.__ ________ __,if any, in those years was non-managerial in nature, and 
therefore non-qualifying for the job opportunity in the labor certification. 
As for the "Display Agreement (for Snacks)" between the I I and another Pakistani 
company, dated August 1, 2016, it contains two longhand iterations of what the Petitioner contends is 
the Beneficiary's signature, neither of which appears to match any of the three signatures previously 
submitted by the Beneficiary - on the labor certification, on the deed of partnership, and on the 
affidavit submitted in response to the RFE. Therefore, the evidentiary weight of the "Display 
Agreement ( for Snacks)" is questionable. Furthermore, even if there is an authentic signature of the 
Beneficirrv on the documer, there is no indication as to the Beneficiary's job title or specific role 
with the~------~- in 2016. 
In its motion brief the Petitioner states that the Beneficiary had requested copies of his tax returns from 
the Pakistani government, and that they would be submitted as soon as the tax returns arrived. No 
such documentation has been received by us, however, nor any further communication from the 
Petitioner on that matter. The Petitioner requests that we review the Beneficiary's Form DS-160 which 
he completed to obtain his B-2 visitor's visa in 2016 and thereby confirm that the employment 
experience claimed in that application is the same as that claimed in the instant petition. The 
infmmation provided in a Fmm DS-160, however, cannot substitute for primary evidence of the 
Beneficiary's work experience that his Pakistani tax returns would furnish, if the Beneficiary did 
indeed work for and receive compensation from.__ ________ _. The Petitioner has provided 
no explanation for the continued omission of the Beneficiary's Pakistani tax returns from the record.4 
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. In connection with this burden it is incumbent 
upon a petitioner to resolve any inconsistencies in the record by independent objective evidence. 5 
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. 
In view of the ongoing evidentiary deficiencies discussed above, we conclude that the Petitioner has 
not established on motion that the Beneficiary gained at least two years of qualifying experience with 
~--------' by the priority date of September 6, 2017, as required to meet the terms of the 
4 The regulation at 8 C.F.R. § 103.2(b )(14) provides that the failure to submit requested evidence which precludes a material 
line of inquiry shall be grounds for denying the benefit request. 
5 One specific inconsistency which we noted in our previous decision involved the photos of the business that had been 
submitted in response to the RFE. Four of the photos show the business name above the shop entrance aJ I I I while a fifth photo of the business name (not located above the store entrance) identifies the business asl I I I ( emphases added). No explanation has been provided by the Petitioner for this inconsistency. 
4 
labor certification and to be eligible for classification as a skilled worker. Therefore, we will dismiss 
the motion to reopen on this issue. 
2. Motion to Reconsider 
The Petitioner does not assert that that our previous decision with regard to the Beneficiary's 
experience was based on an incorrect application of law or policy, as required for a motion to 
reconsider under 8 C.F.R. § 103.5(a)(3). Therefore, we will dismiss the motion to reconsider on this 
issue. 
III. CONCLUSION 
The Petitioner has established its continuing ability to pay the proffered wage from the priority date 
onward. Accordingly, we will withdraw the Director's finding to the contrary. However, the 
Petitioner has still not established that the Beneficiary gained at least two years of qualifying 
managerial experience by the priority date of September 6, 2017. Therefore, the petition cannot be 
approved. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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