dismissed EB-3 Case: Retail Supervision

U.S. Citizenship 
and Immigration 
Services 
MATTER OFF-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIGN WORKER 
The Petitioner, a supermarket, seeks to employ the Beneficiary as a cashiers' supervisor. 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 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 Nebraska Service Center initially approved the petitiOn, but subsequently 
revoked the approval after concluding that the Petitioner and the Beneficiary had not adequately 
explained evidentiary inconsistencies concerning the Beneficiary's past employment and had 
willfully misrepresented the Beneficiary's work history. As a result, the Director concluded that the 
Petitioner had not established that the Beneficiary had a minimum of two years of experience as a 
cashier, as required by the underlying labor certification, and had willfully misrepresented a material 
fact. We dismissed the subsequent appeal and also found that the Petitioner had not established that 
the Beneficiary was eligible for the requested classification. 
The matter is now before us on motion to reconsider. The Petitioner submits additional evidence 
and asserts that the record is sufficient to establish that the Beneficiary has the two years of 
experience in the proffered position, as required on the labor certification. 
Upon review, we will deny the motion. 
I. LAW 
A motion to reconsider must establish that, based on the record at that time, our prior decision 
misapplied law or policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must also be supported by 
a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of United 
States Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy. 
We may grant a motion that satisfies these requirements and demonstrate eligibility for the requested 
immigration benefit. 
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Maller ofF-, Inc. 
II. MOTION TO RECONSIDER 
A. Beneficiary's Experience 
A beneficiary must meet all of the education, training , experience, and other requirement s of the 
labor certification as of the petition's priority date. See Malter of Wing's Tea House, 16 I&N Dec. 
158, 159 (Acting Reg'l Comm'r 1977). In this case, the petition was accompanied by a labor 
certification, with a priority date of April 30, 2001. The labor certification stated that the minimum 
experience required to perform the duties of the proffered position was two years as a cashiers' 
supervisor or as a cashier /clerk. The Beneficiary stated on the labor certitication that she met this 
requirement by virtue of her work as a cashier for an auto parts and accessories reta iler named 
South Korea, from January 1983 to May 1985. The 
Director found that because the evidence of the Beneficiary ' s claimed quali fying experience was 
contradictory, it was not sufficient to establish that she had a minimum of two years of qualif ying 
experience as a cashier, as required on the labor certification. Our prior decision, incorp orated by 
reference, upheld the Director's decision on this issue, citing to numerous instances where the 
evidence of the Beneficiary's claimed qualifying experience was inconsistent and contradict ed other 
intormation in the record. 
On motion to reconsider, the Petitioner submits new evidence that it states is sufficient to 
demonstrate that the Beneficiary has at least two years of qualifying experience as a cashier, as 
required on the labor certification. However , the Petition er's new filing does not meet the 
requirements of a motion to reconsider because it does not establi sh that, based on the record at the 
time, our prior decision misapplied law or policy. The Petitione r does not submit any pertinent 
precedent or adopted decision , statutory or regulatory provision, or statement of U.S. Citizen ship and 
Immigration Services (USCIS) or Department of Homeland Security policy to demonstrate that our 
prior decision was incorrect. We will theretore deny the motion to reconsider . 
The Petitioner did not file a motion to reopen , which is the proper venue in which to address new facts or evidence. 
However, even if the Petition er had submitted its new evidence in a motion to reopen, the newly provided information 
would be insufficient to establish the Beneficiary has the required qualifYing experience as a cas hier . For examp le, on 
motion the Petitioner provides a letter from who states that he worked as a gene ra l manag er at 
from 1982 until the end of 1991, and that the Beneficiary worked for the company as a full-time bookkee per 
from January 1983 until May 1985. 1 However, does not describe the Beneficiary's duties as a bookkee per or 
provide sufficient information to show that her experience as a bookkeeper involved cashier duties. adds that 
he was attaching a picture of himself with the Beneficiary at a company picnic in 1984 ; however. the pic ture is not 
contained within the reco rd; therefore , we are unable to assess it. 
The information in the new letter from 
letters in the record from 
is also inconsi stent with previously submitted 
the president of In his 2006 Jetter, 
included evidence of his employment at in the form of a certifica te from the 
in South Korea indicating that he worked at from January I, 1988, to Decem ber 7, 1991. 
The Petitioner asserts that the national pension coverage did not exist prior to 1988 and, as a con sequence, claims there is 
no evidence of employment for prior to 1988 . 
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Matter of F-. Inc. 
stated that the Beneficiary worked as a cashier at for 40 hours per week from 
January 1983 to May 1985. describ ed the Beneficiary's duties as follow s: "operated 
cash register to itemize and total customer's purcha se[,] .... collec ted cash, check or charge 
payments, stocked shelves and marked prices on item s[, and] . . . . weighted items and bagged 
merchandis e." In his May 20, 2013, again asserted that the Benefi ciary worked as a 
full-time cashier from January 1983 through May 1985. Neither letter from states that 
the Beneficiary performed any duties as a bookkeeper; whereas the new letter from 
reflects only that the Beneficiary worked as a bookkeeper. Because the new letter from 
is inconsistent with prior employment experience letters in the record, it is not sufticient to 
establish that the Beneficiary has qualifying experience at 
On motion, the Petitioner also provides a statement from the Beneficiary's sister, who indicates that 
the Beneficiary operated bookstore from the early 1980s until it closed in November 1984. 
The Beneficiary ' s sister claims to have worked at the bookstore on weekday s while the Beneficiary 
worked at She also states that the Beneficiary return ed to the bookstore after her day 
work at and was there until closing. The Beneficiar y' s sister attest s that the bookstore 
was small , that there were no additional emplo yees, and that duties involved arranging books on 
shelves after receiving them from publishers , finding books for customer s, and bookkeepin g of sales. 
However, the Beneficiary's sister does not assert that the Benefic iary perform ed work as a cashier at 
bookstore, nor does she claim to have any first-hand knowledge of the dutie s that the 
Beneficiary performed at in order to establish that she performed duties as a cashier at 
that company. Consequently , the letter from the Beneficiar y's sister does not s upport the 
Petitioner 's claim that the Beneficiary gained qualifying experi ence as a cashier or clerk at either 
as claimed on the labor certification , or at Sooran g bookstore. 
The Petitioner includes an article indicating that the Beneficiary was the owner of bookstore in November 19SO; 
however, the article provides only her job title and does not discuss her duties or the length of her experience with the 
bookstore with any specificity. Moreover, the date in 1980 that the Beneficiary is described as h aving been at the 
bookstore conflicts with the dates that she had previously claimed to be working there. Specifically, in a statement dated 
March 5, 2016, the Beneficiary claimed to have opened and operated bookstore in from 1 981 to 
November 1984. Moreover, as discussed in our prior decision, the Beneficiary indicated on a S tate Department Form 
DS-158 that she worked at Book Store from October 1981, to November 1984. As a consequence, the article 
raises additional contradictory information about the Beneficiary's claimed experience at the bookstore a nd otherwise 
contains insufficient information to establish that the Beneficiary gained at least two years of qualifying experience as a 
cashier, as required by the labor certification. 
On motion , the Petitioner also provided an evaluation of the Ben efi ciary's experi ence at 
bo-okstore. In his evaluation , profes sor of accounting at the College of 
Busines s at University, asserts that he finds it extremely unlikely that the Beneticiary 
would not have had to perform cash management duties as part of her work at bookstore 
and that, in his opinion, the Beneficiary would have had to be proficient in those dutie s. H owever, 
confirmed that he had not observed the Beneficiary working at the bookstore and 
therefore he did not claim to have based his statement on first-hand knowledge of her actual duties. 
also proffered his o pinion that the Beneficiary "wou ld not have presented any cash 
management experience from another compan y as 
an alternat ive of her bookstore experience" unless. 
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Mauer of F-. Inc. 
her experience at the bookstore was significant. The basis for asse rtion abo ut the 
Beneficiary's state of mind when she claimed only to have qualifying experience employment at 
on the labor certification rather than book store, is not apparent. USCIS may 
treat a credentials evaluation as an advisory opinion. Matter of Caron lnt '1. Inc., 19 I&N Dec. 791, 
795 (Comm ' r 1988). If an evaluation is inconsi stent with other evidence or "is in any way 
questionable," however, USCIS may reject it or give it lesser evidentiary weight. ld. In this case, 
for the reason s discussed in our appellate decision and here on motion, the record has been and 
remains contradictory and inconsistent with respect to the Benefici ary's employment at 
and bookstore. Consequently, opinion letter is not sufficient to establish that 
the Beneficiary has qualifying experience as a cashier , or a bookke eper with cashier duties, at either 
company. 
Accordingly, the Petition er has not estab lished on motion that our prior decision was based on an 
incorrect application of law or policy , and is denied for this reason. In the alternate, based on the 
prior and new inconsistencie s and omissions in the documentation of record discussed in our prior 
opinion and above, the Petitioner has not established that the Bene ficiary was employed by either 
or the bookstore, and has not established that she gained at least two years of 
qualifying experience at either business . Since the evidence does not establish that the Beneficiary 
has two years of qualifying employment as a cashier, she does not meet the experience requirement 
of the labor certification. 
B. Eligibility for Classification as a Skilled Worker 
In our prior appellate decision, we also had concluded that the record did not establish the 
Beneficiary' s eligibility for classification as a skilled worker because the Petiti oner had not establish 
that she has a least two years of training or experience. Section 203(b)(3)(A)(i) of the Act allows for 
classification as a skilled worker if a beneficiar y has at least two years of train ing or experience. On 
motion, the Petitioner has not overcome this finding and, as discussed above, provides addi tional 
contradictory evidence regarding the nature and timing of the Beneficiary's claimed job at 
and bookstore in Korea . Consequently, the Petitio ner has not established that the 
Beneficiary was employ ed in any position at either or the bookstore for any 
period of time. As such, the record does not demonstrate she has two years of train ing or 
experience, as required to establish her eligibility for the classifica tion requested. 
C. Bona Fide .lob Opportunity and Ability to Pay 
As an additi on
al matter, the Petitioner appears to have ceased opera tions m 2017, and its 
authorization to transact business was terminated by the state of Virginia as of , 2017 .2 
Accordingly, in any additional proceeding the Petitioner must establish that it has not in fact ceased 
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Matter ofF-, Inc. 
operations, that the claimed job opportunity has remained bonafide, that it still intends to employ the 
Beneficiary in the capacity claimed on the labor certification, and that it has had the continuing 
ability to pay the Beneficiary the proffered wage from the April 30, 2001, priority date onward. 
Ill. CONCLUSION 
The Petitioner has not shown proper cause for reconsideration of our prior decision, nor has the 
Petitioner demonstrated eligibility for the benefit sought. 
ORDER: The motion to reconsider is denied. 
Cite as Matter ofF-, Inc., ID# 01372371 (AAO May 31, 2018) 
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