dismissed EB-3 Case: Service Station

U.S. Citizenship 
and Immigration 
Services 
In Re: 17773679 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 20, 2021 
The Petitioner, a service station, seeks to employ the Beneficiary as an assistant manager. It requests 
"other worker" classification for the Beneficiary under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 U.S .C. § 1153(b )(3)(A)(iii) . 
This employment-based "EB-3" immigrant classification allows a U.S. employer to sponsor for lawful 
permanent resident status a foreign national who is capable of performing unskilled labor that requires 
less than two years of training or experience and is not of a temporary or seasonal nature. 
The Director of the Texas Service Center initially denied the petition on the ground that the Petitioner 
and the Beneficiary willfully misrepresented the Beneficiary's employment history. On appeal we 
determined that the misrepresentation finding alone did not warrant the petition's denial. Accordingly, 
we withdrew the Director's decision and remanded the case for further consideration . 
After issuing a notice of intent to deny (NOID) the petition, and reviewing the Petitioner's response 
thereto, the Director issued a new decision denying the petition on the ground that the evidence of 
record did not establish that the Beneficiary gained at least 12 months of experience in the job offered, 
as required to meet the terms of the labor certification and to qualify for the requested visa 
classification. 1 In addition, the Director found that the Beneficiary willfully misrepresented a material 
fact regarding his work experience on the labor certification, and stated that this finding must be 
considered in any future proceeding involving his admissibility to the United States. 
The matter is once more before us on appeal. The Petitioner asserts that the Director's decision was 
erroneous, that its previously submitted evidence establishes that the Beneficiary has the qualifying 
experience required by the labor certification, and that the Beneficiary did not willfully misrepresent 
his employment history on the labor certification. 
The AAO reviews the questions in this matter de novo. See Matter of Christo 's Inc., 26 I&N Dec. 
537, 537 n.2 (AAO 2015). It is the Petitioner's burden to establish eligibility for the requested benefit 
by a preponderance of the evidence. See Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawathe, 
25 I&N Dec. 369, 375 (AAO 2010). Upon de novo review, we will dismiss the appeal. 
1 The Director also determined that the Petitioner established its ability to meet its proffered wage obligations to the instant 
Beneficiary and another 1-140 beneficiary in accordance with the requirements of 8 C.F .R. § 204.5(g)(2) . 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies 
that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered 
position and that employing a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition (Form I-140) with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
approves the petition, the foreign national may 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. 
II. ANALYSIS 
The instant petition was filed with USCIS on April 12, 2018, accompanied by a labor certification that 
was filed with the DOL on September 22, 2017, and certified by the DOL in March 2018. 
A. Labor Certification Requirements and the Beneficiary's Experience 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(D) states that "[i]f the petition is for an unskilled (other) 
worker, it must be accompanied by evidence that the alien meets any educational, training and 
experience, and other requirements of the labor certification." All requirements must be met by the 
petition's priority date, 2 which in this case is September 22, 2017. See Matter of Wing's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg'! Comm'r 1977). The only requirement for the proffered position 
of assistant manager, as indicated in section Hof the labor certification, is 12 months of experience in 
the job offered. According to sections J and K of the labor certification the Beneficiary met the 
experience requirement of section H by virtue of a job with 'I I 
i~ I Bangladesh, working as a manager from July 15, 2010 to November 30, 2012. 
As its initial evidence of the Beneficiary's work experience the Petitioner submitted a letter dated 
07 /11/16 froml I Proprietor, on the letterhead of 
I ~' id I stating that the Beneficiary was employ~e_d_a_s _a_m_a_n_a_g-er_fi_r_om_J_u_ly ..... 
20 l Oto November 2012 and listing the job duties he allegedly performed. In response to the Director's 
initial NOID in March 2019 the Petitioner submitted some additional documentation, including a 
second letter froml.__ __ _.t s proprietor,! l stating that the Beneficiary "used to manage our 
store every day after he finished his school . . . [ and] I used to pay him cash ... "I I also 
stated that "[ a ]s a small business, we are not required from Bangladesh government to pay payroll 
taxes, so we don't have any payroll system in our company." The Petitioner also submitted a letter 
from another employee ot1 lwho asserted that he had worked for the company since 2009 and 
that the Beneficiary was his supervisor from July 2010 to November 2012. In addition, the Petitioner 
submitted two ledgers, in a foreign language (presumably Bengali) with English translations, which 
2 The priority date of an employment-based immigrant petition is the date the underlying labor certification is filed with 
the DOL. See 8 C.F.R. § 204.S(d). 
2 
listed monthly salary payments purportedly made by~I --~I to the Beneficiary during the years 
2011 and 2012. 
Following the AAO's remand decision and the issuance of a second NOID by the Director in July 
2020, the Petitioner submitted a third letter froml l's proprietor,! I with a more 
comprehensive description of the job duties allegedly performed by the Beneficiary as a manager 
during the ]ears 2010-2012. In addition, the Petitioner submitted a second letter from the employee 
ofl who claimed to have been supervised by the Beneficiary in the years 2010-2012 and now 
stated that he was a manager himself: as well as a letter from a nearby store owner who did business 
withl I and stated that he remembered the Beneficiary working there as a manager for 
approximately two years during the time frame of 2010-2012. 
In a decision dated January 19, 2021, the Director denied the pet1t1on. Noting that the labor 
certification requires experience in the job offered, the Director indicated that the Beneficiary's alleged 
experience as the manager of a store selling electronics products is not the same experience as 
managing, or assistant managing, a service station. Even if managerial experience at an electronics 
store would be considered qualifying experience for the job offered, the Director stated that the record 
lacked objective independent evidence that the Beneficiary was actually employed byl I The 
Director indicated that the Petitioner had not identified the provision in Bangladeshi law which 
allegedly exempted the Petitioner and the Beneficiary from reporting the Beneficiary's income in the 
years 2010-2012, despite being requested to do so in the previous NOID. The Director alluded to the 
fact that the Beneficiary did not claim any work experience atl I on an earlier nonimmigrant 
visa (NIV) application filed in 2012 for an F-1 (student) visa. While the Beneficiary claimed that the 
omission of the alleged work experience on the NIV application was a mistake and that he did not 
think his employment history was relevant to a student visa application, the Director indicated that the 
record did not establish what was relevant and what was not in an F-1 visa application, and that the 
Beneficiary's explanation for the non-inclusion of his alleged work experience in that application was 
"not persuasive." The Director determined that the Petitioner had not resolved the evidentiary 
discrepancies regarding the Beneficiary's alleged experience with I I and cited the legal 
authority for USCIS to "reject a fact stated in the petition if it does not believe it to be true." Section 
204(b) of the Act; see also Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bake,y 
Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). The Director concluded that the Petitioner did not establish that the Beneficiary had 
the requisite experience, as claimed in the labor certification, to qualify for the proffered position. 
On appeal the Petitioner asserts that the Director did not provide a legal basis for the denial of the 
petition because he did not specify which statement of the Beneficiary's employment history was false 
-whether on the NIV application in 2012 stating that the Beneficiary had no employment experience, 
or the labor certification application in 2017 stating that the Beneficiary was employed byl I 
in the years 2010-2012. According to the Petitioner, if the denial of any current or prior employment 
on the NIV application of 2012 was invalid, then the employment history as stated on the subsequent 
labor certification application (that the Beneficiary worked forl I in the years 2010-2012) 
would be correct. The Petitioner also contends that the Director did not give proper consideration to 
the documentation it submitted concerning the Beneficiary's alleged employment witH I 
3 
We do not agree with the Petitioner's claims. First of all, the Director did not have to determine which 
of the inconsistent employment histories stated in the prior applications 3 was true and which was not. 
It was sufficient for the Director to conclude, as he did, that the Petitioner did not resolve the 
inconsistencies in the record with the evidence it submitted and therefore did not meet its burden, per 
Matter of Chawathe, to establish that the Beneficiary gained the 12 months of experience required by 
the labor certification to qualify for the job offered. At the same time, it is clear from the decision as 
a whole that the Director gave considerable weight to the Beneficiary's initial denial of any 
employment history on his NIV application in 2012, which preceded by five years the labor 
certification application on which the Beneficiary claimed for the first time that he was previously 
employed b~ I Contrary to the Petitioner's charge, the language of the Director's decision 
indicates that he did consider the documentation submitted by the Petitioner in support of the 
Beneficiary's claim to have worked forc===J_as well as the Beneficiary's explanation(s) for the 
omission of his alleged employment withL__J from the NIV application in 2012, filed at a time 
when he was allegedly working there. Moreover, we agree with the Director's assessment of that 
evidence. 
In its appeal brief the Petitioner asserts that the Director failed to acknowledge that the salary ledgers 
listing the alleged monthly payments b~ Ito the Beneficiary in 2011 and 2012 were copies of 
the company's "actual detailed payroll records for [the Beneficiary] recorded near the actual time of 
( contemporaneously with) his employment." It is not at all clear from an inspection of those ledgers, 
however, that they are in fact contemporaneous payroll records, as claimed. The Bengali language 
documents bear no authenticating marks, such as notary seals from 2011 and 2012, certifying that the 
payments listed for each month during those two years were actually recorded at that time. 4 No other 
documentary evidence been submitted to corroborate the Beneficiary's alleged salary payments from 
I lin 2011 and 2012. While the Petitioner asserts that no such documentation was generated 
in 2010, 2011, and 2012 because! land the Beneficiary were exempted under Bangladeshi law 
from reporting the Beneficiary's income, the only supporting evidence submitted by the Petitioner is 
a circular from Bangladesh's National Board of Revenue dated 12/08/2012, in Bengali with an English 
translation, 5 whose substance does not appear to support the reporting exemption claim. The Petitioner 
has not explained how the information provided in the circular exempt~dl I and the Beneficiary 
from reporting the Beneficiary's alleged income in 2010, 2011, and 2012. 
The Petitioner asserts in the appeal brief that the three letters from I I's owner, supplemented 
by the letters of an employee of1 I and a nearby shop owner, contain detailed information about 
the Beneficiary's employment and establish that the job duties he performed as a manager with 
I I qualify him for the job offered under the terms of the labor certification. The probative value 
3 In addition to the F-1 visa application in 2012 which stated that the Beneficiary had no emnlovmrt history, and the labor 
certification application in 2017 which stated that the Beneficiary was employment byl . in the years 2010-2012, 
the Beneficiary filed an adjustment of status application (Form I-485) concurrently with the ~stant T-11° petition in 2018 
on which he stated, consistent with the labor certification application, that he was employed b ~---~-in the years 2010-
2012. 
4 We also note that the English translations of the Bengali language documents do not comport with the requirements of 
8 C.F.R. § 103.2(b)(3), which provides that "[a]ny document containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation which the translator has certified as complete and accurate, and by the 
translator's ce1tification that he or she is competent to translate from the foreign language into English." 
5 This translation also fails to comport with the requirements of 8 C.F.R. § I 03.2(b)(3). 
4 
of these letters is tempered, however, by the fact that the Beneficiary denied any such employment in 
the F-1 visa application he filed in 2012, at the exact time he now claims to have been working for 
I I Not until five years later, on the labor certification a]:plication underlying the current 1-140 
petition, did the Beneficiary claim that he worked forl in the years 2010-2012. We also note 
that the Beneficiary's birthdate was November 8, 1994, which means that he was only 15 years old 
when he allegedly began working at Lutfullah in July 2010, and that he had just turned 18 at the time 
his employment allegedly ended in November 2012. Despite his young ageJ l's owner asserts 
that the Beneficiary worked the entire time as a manager. 6 While perhaps not impossible, the 
Beneficiary's age raises additional concerns about the veracity of his claimed experience. 
For the reasons discussed above, we conclude that the evidence of record does not establish that the 
Beneficiary gained any experience in a managerial position withl !during the years 2010-
2012. Therefore, the Petitioner has not met its burden of establishing that the Beneficiary had at least 
12 months of qualifying experience by the priority date of September 22, 2017, as the labor 
certification requires. We will dismiss the appeal on that ground. 
B. Willful Misrepresentation of a Material Fact 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts. For an 
immigration officer to find a willful and material misrepresentation of fact, he or she must determine 
that ( 1) the petitioner or the 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, 1 7 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). 
In the denial decision issued on January 19, 2021, the Director found that the Beneficiary willfully 
misrepresented a material fact in the labor certification by claiming work experience that he did not 
have. 7 The Director referred to the Beneficiary's NIV application in May 2012 in which he stated that 
he was "not employed" currently and that he had not been "previously employed." The Director cited 
the Beneficiar,'s statement that he had no independent objective evidence of his claimed employment 
withl Jsuch as wages reported to the Bangladeshi government. The Director referred to the 
affidavits submitted by the Beneficiary in which he indicated that a third-party company,! I 
~--------' assisted him in preparing the NIV application, which he claims not to have 
read himself before it was submitted to the U.S. Consulate. The Director stated that the Beneficiary 
did not claim, and the record did not indicate, that I I completed the NIV application without 
relying upon information furnished by the Beneficiary, and that the Beneficiary's claim not to have 
6 At the end of his third and final letterl l's owner stated that the Beneficiary was hired as an assistant manager and 
promoted to manager, though eve1ywhere else in his three letters he refen-ed to the Beneficiaiy's job just as manager. 
7 While stating that the Petitioner, by signing the 1-140 petition, took legal responsibility for the truth and accuracy of all 
the evidence submitted in support thereof (including the labor certification), the Director made no finding that the Petitioner 
willfully misrepresented any material fact in this proceeding. 
5 
read the contents of his NIV application was "not persuasive." Since the NIV application specifically 
asked for information about the applicant's work experience, the Director stated that it would have 
been provided by the Beneficiary on his NIV application in May 2012. As no such information was 
provided on the NIV application, the Director determined that the Beneficiary "knowingly and 
intentionally misrepresented his work experience on the labor certification" filed in 201 7 by claiming 
that he was employed byl lin the years 2010-2012. Finally, the Beneficiary's claim that his 
work history was irrelevant in his application for an F-1 student visa was rejected by the Director 
because the record did not establish that the Beneficiary was not required to accurately report his work 
history on his NIV application. The Director concluded that the willful misrepresentation of a material 
fact finding against the Beneficiary "shall be considered in any future proceeding where admissibility 
is an issue." 
On appeal the Petitioner reiterates its contentions that the Beneficiary's failure to "mention his 
employment" on his NIV application was (1) incorrect, but not a knowing or intentional 
misrepresentation, and (2) not material to the Beneficiary's application for an F-1 student visa. The 
Petitioner requests that we refer to the notarized statement submitted by the Beneficiary in response 
to the Director's initial NOID, which is the first of three statements submitted by the Beneficiary 
during these proceedings. In that initial statement the Beneficiary indicated that after his application 
for admission to a U.S. university was accepted he was referred tq I for assistance in preparing 
his NIV application for an F-1 student visa. According to the Beneficiary, he was given a two-page 
questionnaire b)i._ __ _.lwhich was filled out for him byl I, a consultancy 
inl I for students wanting to study abroad, and returned by him to I I which utilized the 
questionnaire to complete the Beneficiary's NIV application. The Beneficiary asserted that he did not 
read the contents of either the two-page questionnaire filled out by~ or the NIV application 
completed by I I In a subsequent statement submitted with the Petitioner's appeal of the 
Director's initial decision the Beneficiary asserted that the I I agent did not ask about his 
employment history and did not mention the need for any employment information in filling out his 
NIV application. In his third statement, submitted in response to the Director's second NOID, the 
Beneficiary acknowledged his mistake in not reviewing the NIV application before its submission, but 
reiterated his claim that he did not think that whether or not he had worked was relevant to his 
application for an F-1 student visa. 
We are not persuaded by the Beneficiary's statements. It is not plausible that the two-page 
questionnaire allegedly filled out bye=] and the NIV application allegedly filled out b~ lwere 
completed without direct input from the Beneficiary, including information about his employment 
history since that information would not have been known toe=]orl I Therefore, the statements 
on the Beneficiary's NIV application that he was not currently employed or previously employed must 
have been based on information provided by the Beneficiary. No other explanation has been provided 
for those answers on the NIV application. The Beneficiary's claim that he did not think his alleged 
employment history was relevant in the NIV application seeking an F-1 student visa is unconvincing. 
The Beneficiary had no discretion to decide on his own what requested information was relevant, and 
what not, on his application. In any event, the Beneficiary did not leave the employment questions 
blank on the NIV application, which might support his claim that he thought the information was 
irrelevant. Instead, the Beneficiary answered the questions by stating that he was not currently and 
had not previously been employed. Not until five years later, in completing the labor certification 
6 
application requiring 12 months of qualifying experience for the proffered position of assistant 
manager, did the Beneficiary for the first time claim that he had previously been employed by 
I I 
Based on the evidence of record and for the reasons discussed above, we conclude that Beneficiary 
willfully misrepresented a material fact on the labor certification by claiming previous experience with 
I I and that this finding must be considered in any future proceeding involving the 
Beneficiary's admissibility to the United States. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary had at least 12 months of experience in the job 
offered by the priority date of September 22, 2017. Therefore, the Beneficiary does not meet the labor 
certification's minimum experience requirement and does not qualify for the requested visa 
classification. The appeal is dismissed on that ground. 
The evidence of record also establishes that the Beneficiary willfully misrepresented a material fact 
regarding his employment history on the labor certification. 
ORDER: The appeal is dismissed. 
7