dismissed EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 15920504 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 28, 2021 
The Petitioner, a gas station grocery store, seeks to employ the Beneficiary as a manager. It requests 
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 . 
After the filing's initial grant, the Director of the Texas Service Center revoked the petition's approval. 
The Director concluded that the Petitioner did not provide sufficient evidence of the Beneficiary's 
qualifying experience for the offered position or that a bona fide job offer existed. The Director also 
found that the Petitioner and the Beneficiary willfully misrepresented a material fact with respect to 
the Beneficiary's employment history . 
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 ofChawathe, 25 I&N 
Dec. 369, 375 (AAO 2010). The Administrative Appeals Office (AAO) reviews the questions in this 
matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 
review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position . 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. lfUSCIS approves 
the petition, a foreign national may finally 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. 
At any time before a beneficiary obtains lawful permanent residence, however, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by the record, a petition's erroneous approval may justify its revocation. Matter of Ho, 
19 l&N Dec. 582,590 (BIA 1988). By regulation this revocation authority is delegated to any USCIS 
officer who is authorized to approve an immigrant visa petition "when the necessity for the revocation 
comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a) . USCIS must give the petitioner notice of its 
intent to revoke the prior approval of the petition and the opportunity to submit evidence in opposition 
thereto, before proceeding with written notice ofrevocation. See 8 C.F.R. § 205 .2(b) and ( c ). A notice 
of intent to revoke (NOIR) "is not properly issued unless there is 'good and sufficient cause ' and the 
notice includes a specific statement not only of the facts underlying the proposed action, but also of 
the supporting evidence." MatterofEstime, 19 l&NDec. 450,451 (BIA 1987). Per MatterofEstime, 
"[i]n determining what is 'good and sufficient cause' for the issuance of a notice of intention to revoke, 
we ask whether the evidence of record at the time the notice was issued, if unexplained and unrebutted, 
would have warranted a denial based on the petitioner's failure to meet his or her burden of proof." Id. 
II. THE BENEFICIARY'S EXPERIENCE 
The Petitioner here is a gas station grocery store that was established in 1995 and has approximately 
four employees. The underlying labor certification was filed with DOL on February 18, 2004 .1 The 
labor certification states that the offered position requires no training or education and 24 months of 
experience in the offered job of manager. Experience in an alternate occupation is not accepted. 
On the labor certification, the Petitioner asserts that the Beneficiary gained the following experience 
as a manager: 
• Withl lin Texas, from September 2000 to February 10, 2004 (the date 
the labor certification was signed); and 
• Wit~ lin India, from May 1997 to August 2000. 
The initial evidence submitted with the petition included a letter from the president oft.__ ____ __. 
dated June 8, 2004. The letter states that the Beneficiary was employed as a store manager from 
November 2000 to May 2004. The initial filing did not include evidence supporting the Beneficiary's 
claimed employment wit~ lin India . 
Following the approval of the petition, the Director identified inconsistencies in the Beneficiary's 
claimed employment history. Specifically, the Director found that a search of registered businesses 
in Texas revealed thatl lwas first incorporated in May 2001, several months after the 
Beneficiary claims to have begun employment in 2000, and that the business did not begin operating 
until 2004. Further, the Director identified the author of the letter and president ofl ! as 
the Beneficiary's paternal uncle. This information cast doubt as to the Beneficiary's claimed 
qualifying experience for the offered position. 
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 Director sent the Petitioner a NOIR providing the details of the derogatory information regarding 
the incorporation and business operations ofl I The Director also questioned the 
existence ot1 I in India, as the record did not include evidence to support this 
claimed employment. The Director gave the Petitioner an opportunity to respond and establish that 
the Beneficiary met the requirement of 24 months of experience as a manager as of the priority date, 
and that the Petitioner and the Beneficiary did not willfully misrepresent the Beneficiary's experience 
on the labor certification. He specifically requested the following evidence: 
• Independent objective evidence of the Beneficiary's previous employment, to 
include his wage and tax statements for all periods of employment for the years 
2000 to 2019; and 
• Copies of the Beneficiary's income tax returns for the years 2000 to 2019. 
The Director issued the NOIR for good and sufficient cause. The dates of employment that the 
Beneficiary provided on the labor certification contradict the dates in the letter and the business 
registration information for his claimed employer. The Petitioner must resolve inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). Thus, the record lacked sufficient reliable evidence of the Beneficiary's qualifying 
experience for the offered position or the requested visa classification. 
In response to the NOIR, the Petitioner submitted photographs of a business license and the interior 
and exterior of what it asserts isl I in India. The Petitioner did not submit all of 
the requested evidence, including any of the Beneficiary's income tax returns or wage and tax 
u~s, or address the inconsistent information in the business registration dates of ~ 
The Director concluded that the Petitioner did not submit independent objective evidence to resolve 
the inconsistencies and verify the Beneficiary's qualifying employment and revoked the petition's 
~l. The Director noted that, although the business address matches the address ot1 I 
l___Jiisted on the labor certification, the business license in the photograph was issued in February 
2016 to ,....._ ____ ~ __ __, identifying the business as a hotel. He further noted that the 
photographs of the store show the operation of a business, but do not demonstrate that the Beneficiary 
was employed there as a manager from May 1997 to September 2000. 
On appeal, the Petitioner asserts that, although the dates were not listed correctly on the labor 
certification, the Beneficiary gained the minimum required 24 months of experience withl I I I as reflected on the labor certification and in the employment letter. The Petitioner submits 
the articles of incorporation and federal tax returns forl I for 2002 to 2004, and 2019. 
Although the Petitioner submits new evidence to demonstrate that I I was an operating 
business from 2002, the Petitioner does not explain why this evidence was not submitted in response 
to the Director's NOIR. Nor does the Petitioner assert that this information was unavailable at any 
2 The regulation at 8 C.F.R. § 103.2(b)(l4) states that the failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 
3 
time. Therefore, we need not consider this evidence for the first time on appeal. See, e.g., Matter 
of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) ( citation omitted). Further, the articles of incorporation 
and tax returns fo~ I do not represent independent objective evidence of the Beneficiary's 
qualifying experience as a manager. The Petitioner did not submit the Beneficiary's tax or pay records 
to support his claimed employment, as specifically requested by the Director. 
The Petitioner asserts, through counsel, that the dates of employment were incorrectly listed on the 
labor certification. However, the Petitioner does not explain how this error occurred or even state the 
actual dates of the Beneficiary's employment with I I Assertions made without 
supporting documentation are of limited probative value and do not carry the weight to satisfy the 
Petitioner's burden of proof. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998). The labor 
certification states that the Beneficiary began employment withl ,I in September 2000. 
However, the employment letter and a Form G-325-A, Biographic Information, signed by the 
Beneficiary in 2009, both state that he began employment in November 2000. The tax returns state 
that the business was not incorporated until 2001. Doubt cast on any aspect of the petitioner's evidence 
also reflects on the reliability of the petitioner's remaining evidence. See Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). Additionally, the employment letter froml I is signed by the 
Beneficiary's uncle. Where the author is identified as a relative, USCIS, in its discretion, may assess 
the credibility and afford less weight to such evidence. 3 Therefore, the Petitioner has not established 
by a preponderance of the evidence that the Beneficiary gained 24 months of qualifying employment 
witH I 
On appeal the Petitioner asserts that the Beneficiary also gained qualifying employment witH'------' 
I 1 ! as listed on the labor certification. It submits an employment letter dated September 
22, 2020 from the owner of,___ _____ ___,(formerlyl 1 J The letter states 
that the Beneficiary was employed as a full-time manager from May 1997 to August 2000. The 
Petitioner also submits affidavits dated September 2020 from four individuals claiming to have been 
former coworkers of the Beneficiary while he was a manager at~------~from May 1997 
to August 2000. The Petitioner does not indicate that this evidence was previously unavailable, despite 
the Director's specific request in the NOIR for evidence regarding the Beneficiary's prior employment 
including specific job titles, dates of employment and descriptions of his job duties. Therefore, we 
need not consider this evidence for the first time on appeal. See, e.g., Matter of Soriano, 19 I&N Dec. 
764, at 766. 4 
Here, the Petitioner relies only on testimonial evidence from the Beneficiary's former employers and 
coworkers to establish his claimed employment experience, without providing independent, objective 
evidence in support of this testimony. Based on unresolved inconsistencies in the record, further 
independent evidence is required. The record does not include evidence contemporaneous with the 
Beneficiary's employment, such as income tax or payroll records, to corroborate his claimed 
3 Probative evidence beyond a letter or affidavit may be considered when submitted to resolve inconsistencies or 
discrepancies in the record. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Ultimately, to determine whether 
a petitioner has established eligibility for a requested benefit by a preponderance of the evidence, USCIS must examine 
each piece of evidence - both individually and within the context of the entire record - for relevance, probative value, and 
credibility. Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
4 Even ifwe considered this evidence in support of the Beneficiary's claimed experience, neither the letter from the owner, 
nor the statements from the Beneficiary's former co-workers include a description of the Beneficiary's job duties. 
4 
employment with either employer. It is the Petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 
25 I&N Dec. 799, 806 (AAO 2012). 
As the inconsistencies in the record have not been resolved, the Petitioner has not established with 
independent, objective evidence that the Beneficiary possesses the required 24 months of experience 
in the offered position, as required by the labor certification. We affirm the Director's revocation of 
the approved petition on this basis. 
III. BONA FIDE JOB OFFER 
The petitioner has the burden of establishing that a bona fide job opportunity exists when it is asked 
to show that the job is clearly open to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 
1987); see also 8 U.S.C. § 1361; 20 C.F.R. § 656.17(1). 
In the NOIR, the Director also noted that a familial relationship exists between the Beneficiary and 
several of the Petitioner's officers. He found that these 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. Additionally, 
he specifically requested that the Petitioner submit 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 responded to the NOIR providing 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 provided copies of 
six checks it made payable to the Beneficiary. The Petitioner's counsel identified the checks as the 
Beneficiary's pay stubs. 5 
In revoking the petition's approval, the Director noted the Board of Alien Labor Certification Appeals 
decision in Matter of Modular Container Systems, Inc. 89-INA-288 (BALCA 1991 ), which sets forth 
the factors to be examined in determining whether a bona fide job offer exists. 6 He states that his 
5 We note that the checks do not appear to have been issued on a regular schedule, as the day of the month varies, with 
checks dated July 31 and August 25, 2018 and others dated December 4, 2019, January 4, 2020, February 20, 2020 and 
March 12, 2020. Additionally, the copies include only the front of the handwritten checks and do not show evidence that 
any of the checks were cashed or deposited. The varying pay schedule without evidence of actual payment of wages, 
including an Internal Revenue Service Form W-2, Wage and Tax Statement, casts doubt on the Petitioner's claim to have 
employed the Beneficiary. 
6 Those factors include such items as 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 incorporator or founder of the company; ( d) has an ownership interest in the company; ( e) is involved in the 
management of the company; (f) 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. 
5 
decision is "not based on the familial relationship alone," but that the Petitioner's evidence did not 
establish that "the recruitment for the offered position in this matter was not influenced by the 
Beneficiary ... " Thus, he concluded that it appeared that a bona fide job offer never existed. 
On appeal, the Petitioner's counsel states that the Director did not review the documented recruitment 
efforts. However, the Petitioner does 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 Systems, Inc. Also absent from the record is a statement from the Petitioner 
confirming the bona fide job offer. Although the Director, in his decision, identifies the cover letter 
from the Petitioner's counsel as the "Petitioner's statement," the assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's letter cannot be substituted for an actual 
statement from the Petitioner itself confirming the bona fide nature of the job offer to the Beneficiary. 
The record at the time of the NOIR's issuance did not demonstrate the existence of a bona fide job 
offer. Thus, on this ground, USCIS properly issued the NOIR. Because the Petitioner did not submit 
all requested evidence in response to the NOIR, and because the record on appeal does not demonstrate 
the bona fide job offer by a preponderance of the evidence, we affirm the Director's decision to revoke 
the petition's approval on this basis. 
IV. WILFULL MISREPRESENTATION OF A MATERIAL FACT 
To find a willful and material misrepresentation of fact an immigration officer 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 of M-, 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). 
Accordingly, 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 United States government; 2) that the misrepresentation was willfully 
made; and, 3) that the fact 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. at 288. 
Here, the Director found that the Petitioner and the Beneficiary willfully misrepresented the 
Beneficiary 's qualifying employment on the labor certification . He also found that the Petitioner 
willfully misrepresented the availability of the job opportunity to U.S. workers on the labor 
certification . 
On the labor certification the Petitioner and the Beneficiary claimed qualifying experience withD 
I !beginning in 2000. However, the record establishes, and the Petitioner does not dispute, that 
this business did not exist until 2001. The Petitioner's counsel states that "evidence is clear that the 
6 
minimum experience required under this petition is satisfied." However, as discussed above, the 
Petitioner has not submitted sufficient evidence of the Beneficiary's actual dates of employment with 
I lor his job duties. Nor does the record include sufficient independent objective evidence 
of the Beneficiary's experience withl I 
The Petitioner's counsel states in the NOIR response that the Beneficiary's employment history with 
I I "is not being used for the purpose of demonstrating that the Beneficiary meets the 
minimum work experience requirements under the labor certification. Therefore, this information is 
not material to the petition." However, the f°)y evidence aj qualifying experience submitted with the 
petition was the letter from the owner of.__ ____ __. If the Petitioner were relying on other 
qualifying experience, it could have provided e-vidence of this with the petition, but it did not. Thus, 
it appears that, until the Petitioner was notified of the derogatory inf01mation regarding the discrepant 
dates of employment, it was relying on the Beneficiary's qualifying employment wit~ I 
and this information was material to the requested benefit. 
The Petitioner has not resolved the inconsistencies in the claimed experience, and it has not provided 
evidence to support counsel's claim that the inconsistency was the result of an inadvertent error. As 
such, substantial evidence supports the Petitioner's and the Beneficiary's willful misrepresentation of 
his experience on the labor certification. Further, the Petitioner has not established that the job offer 
to the Beneficiary was bona fide. Therefore, we affirm the Director's finding of willful 
misrepresentation of a material fact against the Petitioner and the Beneficiary. 
V. CONCLUSION 
The Petitioner has not established that the Beneficiary meets the minimum experience requirement as 
set forth on the accompanying labor certification. The record includes unresolved inconsistencies with 
respect to the Beneficiary's claimed employment history and suppo1ts the Director's finding that the 
Petitioner and the Beneficiary willfully misrepresented this information on the labor certification. The 
record also does not demonstrate the bona jides of the job offer. 
ORDER: The appeal is dismissed. 
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