dismissed EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 19240911 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 28, 2022 
The Petitioner , a gas station and grocery store, seeks to employ the Beneficiary as a manager. It 
request s classification of the Beneficiary under the third-preference, immigrant category as a skilled 
worker. 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 " category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status based on a job offer requiring at least two years 
of training or experience. 
The Director of the Texas Service Center initially approved the Form 1-140, Immigrant Petition for 
Skilled Worker (Form 1-140), but subsequently revoked the petition 's approval on notice . The 
Director concluded that the Petitioner did not establish that the Beneficiary possessed the minimum 
experience required for the offered position or demonstrate that a bona fid e job offer existed . The 
Director also determined that the Petitioner and the Beneficiary had willfully misrepre sented a material 
fact with respect to the Beneficiary's employment history. We dismissed the Petitioner 's subsequent 
appeal of the Director's decision and affirmed the Director's conclusions. The matter is now before 
us on a combined motion to reopen and motion to reconsider. 
In these proceedings, it is the Petitioner 's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S .C. § 1361; Matter ofCh awathe, 25 I&N 
Dec. 369, 375 (AAO 2010). Upon review , we will dismiss the combined motions. 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence . 8 C.F.R. 
§ 103.5(a)(2) . A motion to reconsider must state the reasons for consideration , establish that the prior 
decision was based on an incorrect application of law or U.S. Citizenship and Immigration Services 
(USCIS) policy and demonstrate that the decision was incorrect based on the evidence in the record 
of proceedings at the time of the decision . 8 C.F.R. § 103.5(a)(3) . We may grant motions that meet 
these requirements and demonstrate eligibility for the requested benefit. 
II. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker usually follows a three-step process. First, to permanently fill a 
position in the United States with a foreign worker, a prospective employer must obtain certification 
from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.e. § 1182(a)(5). 
If the Department of Labor approves a position, an employer must next submit the certified labor 
application with an immigrant visa petition to users. Section 204 of the Act, 8 U.S.e. § 1154. 
Finally, if users approves the immigrant petition, the beneficiary may apply abroad for an immigrant 
visa or, if eligible, for adjustment of status in the United States. See section 245 of the Act, 8 U.S.e. 
§ 1255. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, users may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.e. § 1155. users 
may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and unrebutted 
record at the time of the notice's issuance would have warranted the petition's denial. Matter of 
Estime, 19 I&N Dec. 450, 451 (BIA 1987). If a petitioner's NOIR response does not overcome the 
stated revocation grounds, users may revoke a petition's approval. Id. at 451-52. 
III. ANALYSIS 
The issues before us on motion are whether the Petitioner has (1) submitted new facts to warrant 
reopening and (2) established that our decision to dismiss its appeal was based on an incorrect 
application of law or users policy based on the record before us at the time of the decision. To 
succeed on a motion to reconsider, the Petitioner must specify the factual and legal issues raised on 
appeal that were decided in error or overlooked in our initial decision. 
In our previous decision, we affirmed the Director's revocation of the petition's approval because: (1) 
the Petitioner did not establish that the Beneficiary meets the minimum experience requirements for 
the requested classification or the experience requirement stated on the accompanying labor 
certification as required under 8 C.F.R. § 204.5(1)(3); (2) the record did not establish the existence of 
a bona fide job offer; and (3) the record contained unresolved inconsistencies regarding the 
Beneficiary's claimed employment history which supported the Director's determination that the 
Petitioner and the Beneficiary willfully misrepresented this information on the labor certification. We 
address the Petitioner's contentions on motion with respect to each of these issues below. 
A. The Beneficiary's Experience 
The Petitioner has offered the Beneficiary a position as the manager of its gas station and convenience 
store. The labor certification, filed with DOL on February 18, 2004, 1 states that this position requires 
24 months of experience in the offered job of "manager" and no training or education. The labor 
certification states that the Beneficiary gained the experience as a manager with: 
•• in Texas from September 2000 to February 2004; 
_______ in India from May 1997 to August 2000. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5( d). 
2 
The initial evidence submitted with the Form I-140 included a letter from the president of 
I ldated June 8, 2004. The letter states that the Beneficiary was employed as a store manager 
from November 2000 to May 2004, which differ from the dates of employment on the labor 
certification. The Petitioner's initial filing did not include evidence supporting the Beneficiary's 
claimed employment withl I 
In the notice of intent to revoke (NOIR), the Director identified inconsistencies in the Petitioner's 
claimed employment history and therefore determined that the record lacked sufficient reliable 
evidence of the Beneficiary's experience for the offered position. First, the Director found thatj I 
(which does business as I was incorporated in Texas in May 2001. The labor 
certification indicates that the Beneficiary started working there in September 2000, and the letter from 
the president of I I (the Beneficiary's paternal uncle) states that the Beneficiary 
commenced his employment in November 2000. Further, the Director emphasized that the record did 
not include evidence to support the Beneficiary's claimed employment with _______ in 
India. The NOIR provided the Petitioner an opportunity to submit additional evidence to demonstrate 
that the Beneficiary had the required 24 months of experience in the job offered as of the priority date. 
The Director specifically requested independent, objective evidence of the Beneficiary's previous 
employment, including, but not limited to, his wage and tax statements and individual income tax 
returns for the years 2000 to 2019. 
In response to the NOIR, the Petitioner did not address the inconsistencies in the record regarding the 
Beneficiary's dates of employment withl I Rather, the Petitioner asserted that the 
information provided regarding his employment with "is not being used for the purpose 
of demonstrating that the Beneficiary meets the minimum work experience requirements under the 
Labor Certification." The Petitioner's response also included evidence intended to establish the 
ongoing existence of the Beneficiary's claimed prior employer in India. However, the Petitioner did 
not submit any evidence confirming his employment as a manager for from 
May 1997 to August 2000, as stated on the labor certification. Further, the Petitioner did not submit 
any of the Beneficiary's income tax returns or wage and tax statements. 
The Director revoked the petition's approval, concluding that the Petitioner did not submit 
independent objective evidence to resolve the inconsistencies in the record and did not establish that 
the Beneficiary had the required 24 months of experience in the job offered. 
On appeal, the Petitioner did not dispute that the Beneficiary's dates of employment were listed 
incorrectly on the labor certification. The Petitioner asserted that the record nevertheless established 
that he gained at least 24 months of experience as a manager withl I The Petitioner 
provided evidence that I lwas incorporated in May 2001 and submitted federal tax returns 
forl I for the years 2002 to 2004 to demonstrate that it was doing business during that 
period. However, the Petitioner did not submit the Beneficiary's tax or pay records to corroborate his 
claimed employment withl I nor did it submit a new letter from this employer. 
The Petitioner also offered for the first time on appeal an employment letter addressing the 
Beneficiary's employment with The letter is from the owner ofl I 
_ who states that this business was formerly known as _______ He states that the 
Beneficiary was employed as a full-time manager from May 1997 to August 2020. Finally, the 
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Petitioner's appeal included affidavits from four individuals who state that they worked in sales 
positions forl !during that period and that the Beneficiary was their manager. 
In our decision dismissing the appeal, we addressed the evidence that was in the record before the 
Director at the time of revocation and acknowledged the newly submitted evidence. With respect to 
the new evidence, we emphasized that the Petitioner did not indicate that the evidence was previously 
unavailable or otherwise explain why it was not submitted in response to the NOIR, in which the 
Director had specifically requested evidence regarding the Beneficiary's prior employment. Citing 
to Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988), we noted that, under the circumstances, we 
need not consider evidence submitted for the first time on appeal. Nevertheless, we explained that, 
even if we did consider the new evidence, it would not be sufficient to establish that the Beneficiary 
had the required 24 months of experience in the job offered as of the priority date. Further, with 
respect to the previously submitted evidence, we acknowledged the Petitioner's assertion, through 
counsel, that the dates of employment were incorrectly listed on the labor certification. However, we 
emphasized that the Petitioner did not further explain the error, state the actual dates of the 
Beneficiary's employment withl I or provide any objective evidence to resolve the 
inconsistencies in the record. 
On motion, the Petitioner objects to our citation to Matter of Soriano and asserts that the instructions 
to Form I-290B, Notice of Appeal or Motion, specifically allow the filing party to submit new evidence 
in support of an appeal. The Petitioner asserts that the new evidence provided on appeal was not 
submitted in response to the NOIR because it had only a limited period to respond and that it provided 
what was available at the time. The Petitioner requests that we reconsider our prior determination 
regarding the Beneficiary's experience based on a complete review of the record. It re-submits the 
evidence previously provided on appeal and offers a new letter from the president ofl I 
who states that the Beneficiary worked there from May 2001 to May 2004. 
The Petitioner further asserts that we incorrectly indicated that the testimonial evidence in the record, 
attesting to the Beneficiary's prior employment, does not carry sufficient weight to meet the 
Petitioner's burden of proof The Petitioner emphasizes that the regulation at 8 C.F.R. 
§ 204.5(1)(3)(ii)(A) requires letters from employers and that applicable caselaw provides that letters 
from former co-workers may be submitted. In addition, the Petitioner states that the Beneficiary's 
employment with I ended more than 20 years ago and independent, objective 
evidence of his employment there is no longer available. 
Upon review, the Petitioner has not established that our prior determination on this issue was based 
on an incorrect application of law or USCIS policy or that it was incorrect based on the evidence 
before us at the time of the decision. 8 C.F.R. § 103.5(a)(3). Further, the newly submitted evidence 
(the letter from I I does not overcome the basis for our adverse determination regarding 
the Beneficiary's experience. 
The Petitioner asserts we improperly disregarded evidence submitted for the first time on appeal and 
in doing so, incorrectly concluded that the record does not establish that the Beneficiary has the 
minimum 24 months experience in the job offered. However, we explained in our decision why the 
new evidence submitted on appeal was not sufficient to overcome the deficiencies and unresolved 
inconsistencies in the record. 
4 
Specifically, with respect to the Beneficiary's claimed employment withl the labor 
certification indicates that he commenced employment with this company in September 2000, while 
a June 2004 letter from president ofl I and a Form G-325A, Biographic Information, 
signed by the Beneficiary in 2009 both indicate that he started work for this company in November 
2000. The Petitioner concedes thatl I was not incorporated until May 2001 and did not 
try to resolve these inconsistent dates in response to the NOIR. Further, the evidence submitted on 
appeal did not attempt to resolve these inconsistent dates. Rather, the new evidence submitted on 
appeal only corroborated that I I was incorporated in 2001 and that it was doing business 
between 2002 and 2004. 
At the time we issued our decision, the only evidence of the Beneficiary's employment with _ 
I I was the June 2004 letter from the company president (the Beneficiary's uncle) who provided 
dates of employment that were inaccurate. The Petitioner correctly states that the regulations require 
submission of letters from employers describing the beneficiary's prior experience. However, it 
remains the Petitioner's burden to satisfy the eligibility requirements for the requested classification 
by a preponderance of the evidence; submission of a letter from a prior employer does not 
automatically satisfy this burden. The "preponderance of the evidence" standard requires that the 
evidence demonstrate that the claim is "probably true," where the determination of "truth" is made 
based on the factual circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. 369, 
376 (AAO 2010) (quoting Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In adjudicating 
the petition pursuant to the preponderance of the evidence standard, USCIS must examine each piece 
of evidence for relevance, probative value, and credibility, both individually and within the context of 
the totality of the evidence, to determine whether the fact to be proven is probably true. Id. 
Where, as here, a letter from a prior employer contains an unresolved inconsistency, it is reasonable 
for the Director to request additional independent, objective evidence, in addition to the letter, pointing 
to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The Petitioner was 
instructed to provide pay statements, tax returns or other objective evidence of the Beneficiary's 
employment withl I did not respond to that request, and instead opted to rely solely on 
a letter from this employer which contained inaccurate dates. While the new employer letter submitted 
on motion indicates that the Beneficiary commenced employment with I in May 2021, 
the letter alone is not sufficient to resolve the inconsistencies noted above and to corroborate the 
Beneficiary's 24 months of experience with I Neither the employer nor the Beneficiary 
have explained their previous statements that he started working for in November 2020, 
prior to the company's incorporation. 
The Petitioner has also claimed that the Beneficiary does not need to rely on his experience with 
I I to meet the requirements stated on the labor certification because he gained more than 24 
months of experience in the job offered as an employee of I between 1997 and 
2000. The Petitioner maintains that we should have accepted new evidence submitted on appeal (the 
employment letter and affidavits from former co-workers) as evidence of the Beneficiary's qualifying 
experience and that we improperly excluded this documentation. 
However, we specifically addressed this evidence in our decision and explained why it was insufficient 
to corroborate the Beneficiary's 24 months of qualifying experience in the job offered. As noted in 
our decision, neither the employer letter nor the affidavits from co-workers include a description of 
5 
the Beneficiary's job duties; they simply identify his job title as "manager." The regulations state that 
any experience requirements for skilled workers must be supported by letters from employers that 
include a descri tion of the beneficiary's experience. 8 C.F.R. § 204.5(1)(3)(ii)(A). Further the letter 
is from and is not accompanied by evidence that I I and 
are in fact the same business, or by evidence that the person who signed the 
letter was an owner or officer of ________ __,during the Beneficiary's claimed dates of 
employment there. 
For the reasons discussed, the Petitioner has not established on motion that our prior determination 
was based on an application of the law or USCIS policy or that it was incorrect based on the evidence 
before us at the time of the decision. Moreover, the Petitioner has not submitted new evidence that 
would give us proper cause to reverse our decision on this issue. The record does not establish that 
the Beneficiary meets the experience requirements stated on the labor certification or the experience 
requirements for the requested classification. 
B. Bona Fide Job Offer 
A labor certification employer must attest that "[t]he job opportunity has been and is clearly open to 
any U.S. worker." 20 C.F.R. § 656.10(c)(8). This attestation "infuses the recruitment process with 
the requirement of a bona fide job opportunity: not merely a test of the job market." Matter of Modular 
Container Sys., Inc., 89-INA-228, 1991 WL 223955, at 7 (BALCA 1991) (en bane); see 20 C.F.R. 
§ 656.17(1). 
In the NOIR, the Director emphasized that there is a familial relationship between the Beneficiary and 
several of the Petitioner's officers, and that such relationships cast doubt on whether a bona fide job 
offer existed, whether the Beneficiary intended to work for the Petitioner and whether the Petitioner 
intended to hire the Beneficiary in the offered position. The Director requested evidence of the 
recruitment conducted for the offered position before the labor certification filing. The Director also 
specifically requested that the Petitioner provide a statement to show that a bona fide job offer exists, 
issued by an authorized official, on official letterhead, listing the Petitioner's name and address, the 
date and the signer's name and title. 
The Petitioner's response to the NOIR included copies of its recruitment efforts, its articles of 
incorporation and business registration documents, its 2004 income statement and unaudited balance 
sheet, and its quarterly federal tax returns for some quarters in 2006, 2017 and 2018. The Petitioner 
also asserted that it currently employs the Beneficiary in the offered position and it provided copies of 
six checks made payable to him from its operating account, which were identified by counsel as the 
Beneficiary's pay stubs. 
In the revocation decision, the Director found the Petitioner's evidence insufficient to establish that a 
bona fide job opportunity existed and emphasized that the decision was "not based on the familial 
relationship alone." We affirmed the Director's determination, noting that the record at the time of 
the NOIR's issuance did not demonstrate the existence of a bona fide job offer, and that the Petitioner 
did not submit all requested evidence in response to the NOIR. We specifically noted that the 
Petitioner did not address or provide additional evidence to establish the level of control or influence 
of the Beneficiary in hiring decisions, or other factors set forth in Matter of Modular Container 
6 
Systems, Inc. 2 Further, while we acknowledged that the Petitioner submitted several "paystubs" as 
evidence that it already employed the Beneficiary in the offered position, we noted that the handwritten 
paychecks submitted were not accompanied by evidence that the Beneficiary had cashed or deposited 
them, or evidence of actual payment of wages, such as IRS Form W-2, Wage and Tax Statement, or 
quarterly wage reports or tax returns listing the Beneficiary as one of the Petitioner's employees. 
On motion, the Petitioner asserts that the familial relationship between the Beneficiary and its owner 
should not result in a determination that the Petitioner does not intend to hire him in the offered 
position. The Petitioner also contends that the lack of the requested statement from the employer 
should not have led to a conclusion that there is a lack of a bona fide job opportunity. The Petitioner 
maintains that it provided pay stubs showing that it already employs the Beneficiary, evidence that it 
is doing business, and evidence that it completed the recruitment efforts required for the labor 
certification. The Petitioner maintains that the previously submitted evidence was therefore sufficient 
to show that the job was open to any qualified U.S. worker, and that the company intends to employ 
the Beneficiary in the position. However, the Director clearly requested a letter from the Petitioner in 
the NOIR, explained the reasons for requesting it, and asked that it include specific information which 
would aid in conducting the analysis described in Modular Container Systems. While the Petitioner 
questions the need for such a letter, we note that the Director advised the Petitioner that failure to fully 
respond to the NOIR may result in the revocation of the I-140 approval. The Petitioner has not 
established how we incorrectly applied the law or USCIS policy by determining that it had not met its 
burden to rebut the findings stated in the NOIR. 
On motion, the Petitioner submits a new letter signed by its president and co-owner, who confirms the 
Petitioner's intent to permanently employ the Beneficiary based on the terms and conditions set forth 
in the labor certification and states that a review of his job duties reflects that he does not control the 
hiring and firing process. The Petitioner states that "[t]his is a bona fide job offer and one that has 
been bona fide because we have had [the Beneficiary] on our payroll while his lawful permanent 
residence application remained pending." The Petitioner has consistently emphasized that it already 
employs the Beneficiary in support of its claim that it has a bona fide job opportunity. However, as 
discussed, it has not sufficiently corroborated his employment with probative evidence such as cashed 
paychecks, wage and tax statements, or federal or state tax filings identifying the Beneficiary as an 
employee of the company. Therefore, the new letter alone does not overcome our prior determination 
that the Director properly revoked the approval on this ground. 
C. Willful Misrepresentation of a Material Fact 
For an immigration officer to find a willful and material misrepresentation in visa petition proceedings, 
they must determine: 1) that the petitioner or beneficiary made a false representation to an authorized 
official of the U.S. government; 2) that the misrepresentation was willfully made; and 3) that the fact 
2 Those factors include whether the beneficiary (a) is in the position to control or influence hiring decisions regarding the 
job for which labor certification is sought; (b) is related to the corporate directors, officers, or employees; ( c) was an 
incorporated or founder of the company; (d) has an ownership interest in the company; (3) is involved in the management 
of the company; (t) is on the board of directors; (g) is one of a small number of employees; (h) has qualifications for the 
job that are identical to specialized or unusual job duties and requirements stated in the application; and (i) is so inseparable 
from the sponsoring employer because of his or her persuasive presence and personal attributes that the employer would 
be unlikely to continue in operation without the beneficiary. Modular Container, 1991 WL 223955, at *8-10. 
7 
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 of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). 
In revoking the approval of the petition, the Director found that the Petitioner and the Beneficiary 
willfully misrepresented the Beneficiary's qualifying employment on the labor certification. This 
determination was based on the unresolved discrepancies in the Beneficiary's dates of employment 
withl I We affirmed the Director's determination, noting that the Petitioner had not 
resolved the inconsistencies in the record with respect to the Beneficiary's experience withl I 
I I and had not provided evidence to support its claim that the inconsistency was the result of an 
inadvertent error. We concluded that substantial evidence supported the Director's determination that 
the Petitioner and the Beneficiary had willfully misrepresented his employment experience. 
On motion, the Petitioner repeats its previous claims that any inconsistencies in the Beneficiary's dates 
of employment with were both immaterial and not willful; however, we addressed 
these claims in our prior decision. The Petitioner maintains that "[t]he reality is that the Beneficiary 
meets the requirements with his first employer, ________ However, the Petitioner did 
not attempt to document the Beneficiary's employment with this em lo er until a ealing the 
revocation decision, when it submitted a letter from the owner of 3 The 
Petitioner's claim that the Beneficiary's employment with was immaterial to an 
evaluation of his qualifying experience remains unpersuasive. 
The Petitioner also attributes the employment dates provided on the labor certification to "a mistake 
committed by the petitioner's former attorney." However, the Petitioner does not explain why both 
the Beneficiary (on his Form G-325A, Biographic Information), and the former employer (in a June 
2020 letter), also listed employment dates that have since been confirmed to be inaccurate. As 
discussed above, the record includes no independent, objective evidence of the Beneficiary's 
employment withl I and the new letter from this employer, submitted on motion, is not 
sufficient to overcome the inconsistencies in the record. 
Finally, the Petitioner asserts, without citing to any relevant authority, that "USeIS is charged with 
demonstrating with clear, unequivocal and convincing evidence that there is a material 
misrepresentation." As noted above, the Petitioner has the burden to establish eligibility for the benefit 
sought. Section 291 of the Act. That burden does not shift to the government in cases where, as here, 
users notifies a petitioner of its intention to make a finding of willful misrepresentation of a material 
fact. 
The Petitioner has not submitted new evidence to warrant the reversal of our prior determination on 
this issue or established that our determination that it willfully mispresented material facts was based 
on a misapplication of law or users policy based on the record before us at the time of the decision. 
3 As noted above, the letter submitted to corroborate the Beneficiary's employment with does not 
meet the requirements for an experience letter provided at 8 C.F.R. § 204.5(1)(3)(ii)(A) and could not have established the 
Beneficiary's 24 months of experience in the job offered even if submitted as initial evidence with the Form 1-140. 
8 
IV. CONCLUSION 
For the reasons discussed, the Petitioner has not show proper cause for the reopening or 
reconsideration of our decision to dismiss its appeal. Accordingly, the motions will be dismissed. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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