dismissed EB-3 Case: Tailoring

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-D-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 5, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a dry cleaning and tailoring business, seeks to employ the Beneficiary as an 
alterations tailor. It requests classification of the Beneficiary as an "other worker" under the third 
preference immigrant classification. Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(iii), 8 U.S.C. § I I 53(B)(3)(A)(iii). This employment-based immigrant classification 
allows a U.S. employer to sponsor for lawful permanent resident status a for"ign national who is 
capable of performing unskilled labor that is not temporary or seasonal in nature and requires less 
than two years of training or experience. 
The Director of the Texas Service Center denied the petition, finding that the Petitioner had not 
adequately explained evidentiary inconsistencies concerning the Beneficiary's employment history 
and had not established that the Beneficiary met the minimum experience requirement of the labor 
certification. The Director also found that the Petitioner and the Beneficiary willfully 
misrepresented material facts, and invalidated the labor certification. 
The Petitioner filed an appeal, which we dismissed. We found that the Beneficiary made a filise 
claim on the labor certification about her experience and submitted false evidence thereof with the 
petition, and that the Petitioner had not resolved the evidentiary discrepancies in the record. We 
affirmed the Director's finding that the Petitioner did not establish the Beneficiary's qualification for 
the offered position as well as the Director's invalidation of the labor certification based on a linding 
of fraud or willful misrepresentation of a material fact against the Beneficiary. 
The matter is now before us on a motion to reconsider. Upon review, we will deny the motion. 
I. LAW 
A motion to reconsider must establish 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. 8 C.F.R. § l03.5(a)(3). A motion to reconsider must be supported by a 
pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. 
Citizenship and Immigration Services (USC IS) or Department of Homeland Security (DHS) policy. 
!d. We may grant a motion that satisfies these requirements and demonstrates eligibility for the 
requested immigration benefit. 
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Ma!(er ofO-D-C-. Inc. 
II. ANALYSIS 
On moti on. the Petitioner asserts that the evidence of record establishes that the Benetic iarv has the 
requisite e~pe ri e nce to meet the term s of the labo r certifica tion 1 and co ntend s that we" erred in 
affirmin g the tinding of willful material misrepresenta tion and invalid ation of the labo r 
certificati on.~ However, as discussed below, the Petitioner's motion does not establish that our 
appellate decision was based on an incorrect application of law or policy and that the decision was 
incorre ct based on the ev idence in the record of proceedings at the time of the decision. 
In this case, the labor certification states that the minimum experience required tor the pro ffered 
position of alterations tailor is s ix months in the job offered or in tailoring general ly. The labo r 
certificati on states that the Benefic iary met this requirement by v irtue of her em ploymen t as 
"assistant manager, producti on" by a tailoring company in South Korea , from 
Februa ry I 0, 2003, to Jul y 8, 20 II. This job is the only experience listed on the labor certification. 
In our decision on appea l we noted that the Petit ioner had submitted conflic ting evidence regarding 
the dates of the Beneficiary 's em ployment at and whether it was full- or part-time 
employm ent. Moreover, when the company' s owner, , was contacted by a U.S. State 
Department oftic ial in South Korea he stated that ~e did not rec all employin g the Benefici ary and 
did not write the initial certificat e of employment that was submitted with the petition . 
subseq uently changed his s tory, asserte d that the Beneficiar y had been emp loyed by 
and produced a new certificate stating that this empl oyment actual ly began on February I 0, 2008, 
tive years later than originally asse rted. We also noted that in other imm igration i"ilings the 
Benefici ary made no mention of any employment as a tailor with and ident ified other 
work she had performed in South Korea as a restaurant owner and at a bank. In view of t hese 
multipl e unresolved discr epancies, and the admission that the dates and nature of the emp loyme nt 
originally claimed of the labor cert ification were not true , we concluded that false evidence of 
1 
A beneficiary must meet all of the education, training, experience, and other requirements of the labor certification as 
of the petition's priority date.1 See A,fatter of Wing' s Tea House, 16 I&N Dec. 158, 159 (Acting Reg' l Comm·r 1977). 
The "priority date" of a Form 1-140 petition is the date the underlying labor certification was filed with the DOL. See 
8 C.F.R. § 204.5(d). The priority date in this case is October 29,20 14. 
2 As outlined by the Board or Immigration Appeals, a material misrepresentation requires thai one willfully makes a 
n1aterial misstatement to a government official for the purpose of obtaining an immigration benefit to which one is not 
entitled. Mauer of Kai Hing /-lui. 15 I&N Dec. 288, 289-90 (BIA 1975). The tenn. "willfully'' means knowing and 
intentionally. as distinguished fi·om accidentally. inadvertently, or in an honest belief that the facts arc otherwise. See 
A'latter of Tijam, 22 I&N Dec. 40!!, 425 (BIA 1998); Mau er of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 
1979). To be considered material, the misrepresentation must be one which "tends to shut off a line of inquiry which is 
relevant to the ali en's eligibi I ity. and which might well have resulted in a proper determination that he be excluded." 
Maller of Ng, 17 l&N Dec. 536 , 537 (BIA 1980). A labor certification is subject to invalidation by DHS upon a llnding 
of fraud or willful misrepresentation of a material fact involving the labor certification application. 20 C.F.R. 
§ 656.30(d) 
2 
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Malter r~f 0-D-C-. Inc. 
employment had been submitted and dismissed the appeal, affirming the Director's finding that the 
Beneticiary willfully misrepre sented the Beneticiary's experience on the labor certification. 
On motion the Petitioner asserts that the Director erred in his findings that there were num erous 
evidentiary inconsistencies concerning the Beneficiary's work experience and that fraud was 
committed. The Petitioner contends ·that the only inconsistencies in the record are the Beneficiary's 
starting date of employment with , now conceded to be February I 0, 2008, rather than 
February I 0, 2003, and the nature of her employment, now concede d to be part-time rather than full­
time but, accordi ng to the Petitioner, still amounting to more than six months of qualifying 
employment. The Petitioner claims that these inconsistencies were resolved by the documentation it 
subm itted in response to the Director's notice of intent to deny (NOID) that preceded the denial 
decision. We do not agree. 
The docum enta tion submitted in response to the NOID included a new certificate from 
stati ng that employed the Benefici ary from February 10, 2008, to Jul y 8, 201 I; a 
statement of monthly working days from listing the Beneticiary's alleged monthly worki ng 
day total s from February 2008 to July 20 II ; and a cash payment stateme nt from listing the 
Benef-iciary's alleged monthly pay from February 2008, to July 2011. All three of these documents 
were prepared by and dated June 15, 2016, long after the Beneficiary's purported 
employment by They were not corroborated by any contemporaneous documentation 
such as pay stateme nts from to the Beneficiary, personnel or tax records of 
from the years 2008-20 II , or any other employment-related materials from dating from 
2008 to 2011 .. Nor did the Petitioner subm it any cert i ticates of income for the years 2008-2011 from 
the , the government agenc y to which all employment in 
South Korea is required to be reported. Thus, the Petitioner did not subm it any object ive, 
independent evide nce of the Beneficiary's employment by as required to resolve 
evidentiary inconsistencies in the record. See Maller r~lHo, 19 l&N Dec. 582,591-92 (BlA 1988) . 
This evidentiary deficiency was not reri1edied on appeal or on motion. 
The Petitioner also asse rts that the restaurant and bank experience mentioned in connection with 
other immigration tiling s was either immat erial in the current proceedings (in the case of the 
restaurant) or suftic ientl y documented (in the case of the bank). 1 With regard to the res taurant, the 
record include s evidence of the Beneficiary's ownership of a Chinese restaurant in South Korea from 
November I, 20 II, to April 30, 2012. The Petitioner asserts that the Beneficiary did not list this 
experience in her employment history on the Form G-325A she submitted with an application tor 
change of status (Fo rm l-485 ) filed in 2015 because "ownership" is not the same as ~'employment." 
Restaurant ownership is a type of self-employment , however, and the Form G-325A requested a 
listing of the applicant's employment for the last five years, which included 2011 and 2012. Not 
listing the restaurant operation on the Form G-~25A, while perhaps technicall y defe nsible, did not 
help to reconcile the cont1icting evidence regarding the Benefici ary's work experience. The 
Beneficiary's past work, including ownership of a restaurant, is material because the Beneficiary's 
inconsistent charac terizati on of her employment history raises concerns abo ut the credibility of the 
statements being made . As for the bank employment , the record includes a certifica te of work 
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Matler of 0-D-C-. Inc. 
experience from in . South Korea, stating that the Beneficiar y was employed from 
July 9, 1988, to April 2, 2002, with four leaves of absence for maternity leave. We note , however, 
that one of the periods identified by as maternity leave - October 14, 1995, to 
September 12, 1996- clo sely overlaps the time period- Decemb er I, 1995, to September 12, 1996-
in which the Beneficiary claims to have worked for a South Korean tailoring busines s, 
A certificate of employment from has been submitted as evidence of this 
alleged employment, but the Beneficiary has not explained the apparent conflict between her claims 
of simultaneou sly working for a tailor and being on maternity leave. Here agai n, the Petitioner has 
not provided objective, independent evidence of the Beneficiary' s claimed emp loyment. Malter of 
Ho, 19 I&N Dec. 591-92. 
For the reasons discussed above - in particular the lack of primary contemporaneous evidence that 
the Beneficiary was employed by from 2008 to 2011, which could reduce the 
materiality of the evidentiary discrepancies regarding the Benefic iary's overall employment history 
- the Petitioner has not shown that our decision to dismiss the appeal was based on an incorrect 
application of lmv or of USC IS or DHS policy. 
III. CONCLUSION 
The Petitioner has not met the requirements for a motion to reconsider. Accordingly, we will not 
disturb our previous decision in which we upheld the Director 's findings that the Petitioner did not 
establi sh the Beneficiar y's qualification for the offered position under the terms of the labor 
certification and atlirmed the invalidation of the labor certification based on a ti nding of fraud or 
willful misrepre sentation of a material fact by the Beneficiary. 
ORDER: The motion to reconsider is denied. 
Cite as Maller r~{O-D-C. Inc., ID# 985830 (AAO Apr. 5, 2018) 
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