dismissed EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 14721478 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 15, 2021 
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. 
§ 1153(B)(3)(A)(i). This employment-based "EB-3" immigrant classification a11ows 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 Petitioner then file a motion to reopen and a motion 
reconsider. In our decision dismissing the motions we withdrew our previous finding that the 
Petitioner did not establish its ability to pay the proffered wage , but affinned our other previous finding 
that the Petitioner did not establish that the Beneficiary gained at least two years of qualifying 
experience by the priority date of September 6, 2017. 
The matter is now before us on another motion to reopen and motion to reconsider . The Petitioner 
reiterates its claim that the Beneficiary has the qualifying experience required by the labor certification. 
Upon review, 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 
Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
II. ANALYSIS 
A. Motion to Reopen 
The labor certification that accompanied the Petitioner's Form I-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. The labor certification claims that the Beneficiary met 
and exceeded this requirement with more than ten years of experience as a manager/owner atl I 
I I a general store and milk shop located inl I Pakistan, from 
June 1, 2007, to the priority date of September 6, 2017. 
During the course of these proceedings the Petitioner submitted numerous documents in support of its 
claim that the Beneficiary gained the alleged experience withl I - including copies of a 
partnership deed between the Beneficiary andl I ideptifying these two individuals as 
the owner/operators oti ,I affidavits froml I and the prior O"{Der otil 
~--tidentified as the Beneficiary's uncle), letters from customers and suppliers ofl I 
a couple of business records, and tax filings by~-----~ with the Pakistani government, in 
addition to some color photographs of the store. In our previous decisions we discussed various 
evidentiary shortcomings and discrepancies in the record that raised questions as to whether the 
Beneficiary actually worked and gained managerial experience atl I For example, there 
were no tax records from Pakistan documenting the Beneficiary's ownership and operation (along 
withl ~ ofl !during the years 2007-2017. We also noted in both of our 
earlier decisions that the photographs of the shop in Pakistan were inconsistent in that four of them 
identified the business name asL I while a fifth identified the business name as 
With its current motion the Petitioner submits copies of tax records on the letterhead of Pakistan's 
Federal Board of Revenue which appear to document the Beneficiary's income tax filings, with 
income from a business, during the years 2013-2020. In view of the evidentiary issues we have 
discussed in our previous decisions, however, we have reservations about the authenticity of these 
documents. The overall credibility of the Petitioner and the Beneficiary is not enhanced by their failure 
to address the inconsistent business names in the photographs which we pointed out in two earlier 
decisions. As initially noted in our dismissal of the appeal, and referenced again in our dismissal of 
~ious combined motion, four photographs show a business sign reading 
L___J above the shop entrance. Another photograph of the business sign without the shop entrance 
below reads l I Neither the Petitioner nor the Beneficiary hal provider any 
explanation for why the business name appears as I I in four photographs and ' in a 
fifth photograph. Furthermore, a close inspection of the photographs seems to indicate that the 
business signs were not an original part of any of the photos. The hue, texture, and shading of the 
1 The priority date of an employment-based immigrant petition is the date the underlying labor certification is filed with 
the Department of Labor. See 8 C.F.R. § 204.S(d). 
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~--------~ signs are different from the other parts of those photographs, and it looks 
as though the business signs were separately affixed or photo-shopped to a pre-existing photograph 
( or photographs) of the shop entrance. Similar internal inconsistencies apply to the photograph of the 
~---------" sign that looks like it's affixed to a separate photo of an awning over the 
store entrance. Thus, it does not appear that any of the photographs containing both the business name 
and a view of the store are authentic. As stated by the Board of Immigration Appeals in a recent 
decision: "Courts have long recognized that Immigration Judges may find that documents are not 
genuine if they contain 'hallmarks of fraud,' which include misspellings, overwriting, incorrect 
information, and alterations." Matter of O-M-0-, 28 I&N Dec. 191, 194 (BIA 2021). The BIA's 
observation is directly applicable in this case as well. 
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. The failure of the Petitioner and the Beneficiary to explain the 
inconsistencies in their photographic evidence casts doubt on the reliability of all the evidence 
submitted in these proceedings in support of the Petitioner's claim that the Beneficiary gained at least 
two years of qualifying experience atl I in Pakistan. 
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. The Petitioner has not met that burden with 
the evidence submitted in the current motion. It has not established that the Beneficiary gained at least 
two years of qualifying experience as a store manager in Pakistan by the priority date of September 6, 
201 7, as required to meet the terms of the labor certification and to be eligible for classification as a 
skilled worker. Therefore, we will dismiss the motion to reopen. 
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. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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