dismissed EB-3 Case: Tailoring

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J.-C-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 17,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a dry cleaning services business, seeks to employ the Beneficiary as an alteration 
tailor. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant classification. See 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 2 years of training or experience. 
I 
The Director, Texas Service Center, denied the petition. The Director determined that the record did 
not establish that the Beneficiary had the 2 years of experience required by the labor certification. 
The matter is now before us on appeal. On appeal, the Petitioner submits additional evidence in 
support of the visa petition. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) 
must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the 
foreign national must 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. 
' As required by statute, an ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), approved by the DOL, must accompany the petition. By approving the labor 
certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, 
and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified 
that the employment of a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of the Act. 
(b)(6)
Matter of J.-C-, Inc. 
In these visa petition proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g, Tongatapu Woodcraft Haw., Ltd. v. Feldman. 736 F. 2d 1305, 1309 (9th Cir. 1984); 
lvfadanyv. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has authority to 
make preference classification decisions). 
The pfiority date of a petition is the date the DOL accepted the labor certification for processing. 
See 8 C.F.R. § 204.5(d). The priority date is used to calculate when the beneficiary of the visa 
petition is eligible to adjust his or her status to that of a lawful permanent resident. See 8 C.F.R. § 
245.1 (g). A petitioner must establish the elements for the approval of the petition at the time the 
priority date is established and continuing until the beneficiary obtains lawful permanent residence. 
See 8 C.F.R. §§ 204.5(g)(2), 103.2(b)(l), (12); see also Matter qfWing's Tea House. 16 I&N Dec. 
158, 159 (Acting Reg'l Comm'r 1977); lvfatter qf Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971 ). 
The issue on appeal is whether the record establishes that the Beneficiary had the expenence 
required by the labor certification as ofthe petition's priority date of February 27,2014. 
The regulation at 8 C.F.R. § 204.5(1)(3) provides: 
(ii) Other documentation-
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
II. PROCEDURAL HISTORY AND EVIDENCE OF RECORD 
On August 14, 2015, the Petitioner filed the instant Form 1-140, Immigrant Petition for Alien 
Worker. 1 The accompanying labor certification requires the Beneficiary to have 24 months of 
experience in the offered position of alteration tailor. The Beneficiary claims the following full-time 
employment experience on the labor certification: 
. • Alteration tailor, 
NY, from October 10, 2011, onward; and 
• Alteration tailor, NY 
from June 10, 2002, until September 30, 2011. 
1 The Petitioner also submitted two uncertified Forms ETA 750, Application for Alien Employment Certification, Part 
B,with the petition. 
2 
(b)(6)
Matter of J -C-, Inc. 
With the petition, the Petitioner submitted a letter dated August 1, 2015, from stating 
that the Beneficiary was employed full time as an alteration tailor with from June 10, 
2002, to August 22, 2004, and with from August 23, 2004, to July 24, 
2010. On August 25, 2015, the Director issued a Request for Evidence (RFE) to the Petitioner , 
indicating that the experience claimed by the Beneficiary with on the ETA Form 
9089 was inconsistent with that reflected on two uncertified Forms ETA 750 it had submitted with 
the Form 1-140, and that the discrepancies were not adequately explained by the record. The 
Director noted that the Forms ETA 750 reported that the Beneficiar y had worked for 
from June 10, 2002, through August 22, 2004, and for from August 23, 
2004, through July 24, 2010. 
Although the Director found that the experience letter submitted pursuant to 8 C.F.R. § 204.5(g)(2) 
supported the employment history the Beneficiary had claimed on the Form ETA 750, the Director 
informed the Petitioner that it was insufficient to resolve the identified inconsistencies, and that the 
Petitioner must submit independent , objective evidence in order to establish the Beneficiary's 
amended employment claims. The Director also requested the Beneficiary 's IRS Forms W-2, Wage 
and Tax Statements , for the years she claimed employment with and 
He further asked the Petitioner to provide a detailed explanation of the discrepancies 
in the Beneficiary ' s employment history. 
In response to the RFE, the Petitioner submitted: 
• The Beneficiary's November 17, 2015, affidavit offering an explanation for the inconsistencies 
between the ETA Form 9089 and the Form ETA 750; 
• Affidavits from four individuals regarding their personal knowledge of the Beneficiary's 
employment during the period June 10, 2002, through July 24, 2010; 
• A November 16, 2015, sworn statement from the Beneficiary's former employer 
and her father, explaining her employment at and at 
and 
• Copies ofthe Beneficiary's Forms W-2 and Forms 1040, U.S. Individual Income Tax Returns, 
for 2009 and 2010. 
In support of statement describing his business history, the Petitioner provi_9ed: 
• and his spouse' s IRS Forms 1040, U.S. Individual Income Tax Returns, for 2001 
through 2003, including their Schedules C for 2002 and 2003, which reflect two addresses for 
and 
• A business certificate for filed on November 5, 1999; 
• A February 26, 2002, lease for business space at accompanied by 
a rider restating the rental period as February 1, 2002, to January 31 , 2012/ 
2 
Although the first page of the accompan ying rider was missing in the Petitioner 's response to the RFE, it has been 
submitted on appeal. 
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(b)(6)
Matter of J -C-, Inc. 
• A March 24, 2006, notice of transfer of ownership of the building at to a new 
owner, addressed to at 
• A copy of the New York State (NYS) Department of State Division of Corporation's Entity 
Information showing the incorporation of on August 23, 2004; 
• Statements from the accountants responsible for preparing the tax returns for 
Corp. from 2004 through 2007, and in 2009, regarding the existence of two locations for 
• IRS Forms 1120, U.S. Corporation Income Tax Returns, tor fiscal 
years 2004 through 2009; 
• March and April 2011 bank statements addressed to at 
and 
• Copies of checks written by in 2011, which reflect the 
address. 
The Director denied the visa petition on December 2, 2015, finding that the Petitioner had not submitted 
sufficient independent, objective evidence to demonstrate that and, thereafter, 
had operated at from 2002 through 2010, or that the Beneficiary was 
employed full time as an alteration tailor at this address from June I 0, 2002, through July 24, 2010, as 
claimed by in the experience letter. He also noted that the Beneficiary had indicated on 
the Form ETA 750 that she had attended high school from September 1998 through February 2003, and 
that no independent objective evidence explained how she could have attended high school' while 
working full time at beginning June 10, 2002. Accordingly, he found that the Petitioner 
had not established that the Bene(lciary possessed the experience required by the labor certification. 
On December 30, 2015, the Petitioner appealed the Director's denial of the visa petition to this office. 
In support of its appeal, the Petitioner provided: 
• Forms I 040 for 2004 through 
2008; 
• January 27, 2016, sworn statement discussing his business history and his 
material support of the Beneficiary through 2010; 
• A February 13, 2002, Bill of Sale, Notification of Sale, Transfer and NYS Bulk Sale Release 
Notification reflecting February 26, 2002, purchase of " the 
. business located at along with the two riders to the February 13, 2002, sales 
contract; 
• The Beneficiary's January 26, 2016, affidavit explaining the reporting of her occupation as 
"employee" on her 201 0 income tax return and her February I1 , 2003, discharge from her high 
school, accompanied by the Beneficiary's transcripts from 
NY; 
• A January 26, 2016, letter from the accountant who prepared the Beneficiary's 
2010 tax return, explaining why he listed the Beneficiary as an "employee," rather than as an 
"alteration tailor"; 
• A December 31 , 2008, certificate reflecting the Beneficiary's 20 shares in 
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(b)(6)
Matter of J -C-, {?c. 
• A copy of a worker's compensation and employer liability policy notice, issued to 
for the period October 12, 2009, to October 12, 2010, with the 
address; 
• Billing statements/invoices mailed to the attention of at at 
during the period 2007 through 2010; 
• A second copy of February 26, 2002, lease agreement for space at 
and accompanying rider; and 
• A January 27, 2016, letter from 
responding to questions raised by the Director with regard to terminology in the Petitioner's 
Forms 1120. 
The Petitioner further provided documentation to establish that the Beneficiary resided with her father 
while she worked for him, including: 
• Copies of a July 27, 2004, deed documenting 
NY 
• A Residential Contract of Sale, dated April 2004; 
• An October 18, 2010, monthly mortgage statement for 
and 
• A January 15, 2011, Notice of Property Value for 
III. ANALYSIS 
purchase of the property at 
addressed to 
also addressed to 
On appeal, the Petitioner asserts that the evidence it has submitted in response to the Director's RFE 
and on appeal demonstrates that it is more likely than not that the Beneficiary was employed full­
time as an alteration tailor at and from June 10, 2002, 
through July 24, 201 0, or "at least [had] more than twenty-four months of experience prior to 
February 27, 2014, the date the ... ETA Form 9089 was accepted for processing." We disagree. . . 
Although we find the record to establish that it is more likely than not that operated a 
dry cleaning business, and, thereafter , at 
during the period claimed, it does not, for the reasons discussed below, similarly demonstrate 
that the Beneficiary has the 2 years of experience as an alteration tailor required by the labor 
certification. 
In response to the RFE's request for an explanation of the inconsistent end dates of the Beneficiary's 
employment with the Petitioner submitted a November 17, 
2015, affidavit from the Beneficiary. In her sworn statement, the Beneficiary asserts that the conflicting 
dates noted by the Director are the result of a faulty memory. She indicates that in preparing a resume 
to provide to the Petitioner for its use in completing the ETA Form 9089, she was confused as to the 
actual date she had left her prior employment. The Beneficiary also states that she "failed to distinguish 
the two different business entities" on her resume and that this error is, likewise, reflected on the ETA 
Form 9089. These assertions do not, however, explain the inconsistent end dates for the Beneficiary's 
previous employment. 
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(b)(6)
Matter of J. -C-. Inc. 
On the ETA Form 9089, which the Beneficiary signed as being true and correct under penalty of 
perjury on August 7, 2015, the Beneficiary claimed to have begun working for the Petitioner's dry 
cleaning business on October 10, 201 I ,3 and to have ended her employment with 
on September 30, 2011, approximately 10 days earlier. On the Form ETA 750, she again states 
t~J:it she began working for the Petitioner on October 10, 20 II, but left on 
July 24,2010, 14 months prior to beginning her new employment. 
Considering the lengthy gap that the Beneficiary now claims in her revised employment history, a 
period of more than a year, we do not find the Beneficiary's claims of a faulty memory credible. The 
Petitioner must support assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Even ifthe Beneficiary was confused about the exact 
date of her departure from her previous position, she more likely than not would have remembered the 
interval between jobs as being longer than the 10 days she indicated on the resume she provided to the 
Petitioner. Moreover, because the two end dates, September 30, 2011, and July 24, 2010, are different 
as to month, day, and year, the inconsistency cannot be explained as a typographical error, as suggested 
by the Petitioner in response to the Director ' s RFE. Therefore, we do not find the Beneficiary's 
affidavit sufficient to resolve the inconsistent accounts of her work history found in the ETA Form 9089 
and Form ETA 750. 
To establish the employment history stated by the Beneficiary in the Form ETA 750, the Petitioner has 
submitted affidavits from four individuals . who claim personal knowledge of the Beneficiary's 
employment during the period June 10, 2002, to July 24, 2010, as well as the Beneficiary's father. The 
Petitioner has also provided the Beneficiary's Forms W-2 and Forms 1040 tor the years 2009 and 2010, 
the only years in which has indicated he paid wages to the Beneficiary. 
Of the several affidavits provided, one is signed by who describes herself as a "close 
family friend," and states that she visited the Beneficiary's place of employment, and 
then at once or twice per week during the period 2002 to 
2010, and that she sometimes worked there as a cashier. attests that the Beneficiary began 
working full time for as an alteration tailor in June 2002 and that she saw her at the 
address until July 2010. further indicates that, in August 2004, the store's 
name was changed to 
However, the tax 
returns for do not indicate that any salaries or wages were paid to 
for her claimed services as a cashier in 2002 and 2003. The 2002 and 2003 tax returns 
for c;tt show no salaries or wages paid in those years.4 Further, the tax 
returns in the record do not indicate that any salaries or wages· were paid to for her 
claimed services as a cashier in 2005, 2006, and 2007. In 2005, 2006, and 2007, the personal tax 
' This date is confirmed by the Petitioner's November 20 , 2015 , letter, which is included in the record. 
4 The record does not contain the Schedule C to Form I 040 for for the period from January to August 
2004 . The personal tax return for shows that he received $14,000 in wages (presumably from 
and $13, 137 in business income (presumably from which would have been shown on 
Schedule C) in 2004. 
6 
(b)(6)
Matter of J-C-, Inc. 
returns for and the corporate tax returns for indicate that 
was the sole recipient of the $52,000 paid by the corporation m salaries and officer 
compensation each year. The evidence in the record does not support assertion that she 
worked at as a cashier. Doubt cast on any aspect of the Petitioner's evidence may lead 
to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support ofthe 
visa petition. l•.latter qf Ho, 19 I&N Dec. 582, 591 (BIA 1988). The affidavit of is not 
credible evidence of the Beneficiary's employment with See Matter of Chawathe, 
25 I&N Dec. at 376. 
I 
Another affidavit is signed by who states that he has known the BeneficiarY's father since 
2001, and that from 2002 to 2010, he "frequently filled in as ... [the] store manager of 
at and that he "spent many hours on a weekly basis working alongside [the] 
Beneficiary" who was employed there as an alteration tailor. states that the Beneficiary 
worked full time as an alteration tailor at from June 2002 to August 2004, and at 
from August 2004 to July 20 l 0. As noted above, the tax returns in the record 
do not support the assertions of that he worked at during several of the 
claimed years. The affidavit of is not credible evidence of the Beneficiary's 
employment with See }vfatter ofChawathe, 25 I&N Dec. ~t 376. 
Another affidavit comes from who states that he was the owner of a wholesale laundry 
service business that did business with and from March 2004 
until July 2010. He claims that he visited the store at on a weekly basis and knew the 
Beneficiary during that time period as she was employed there as an alteration tailor. However, the tax 
returns of do not support assertions that his wholesale laundry 
service business did business with during the entire claimed period. While 
tax returns for 2008 and 2009 list deductions for "wholesale laundry 
service," its 2004, 2005, 2006, and 2007 tax returns do not list any deductions for wholesale laundry 
service. Thus, the affidavit of is not credible evidence of the Beneficiary's 
employment with See Matter qfChawathe, 25 I&N Dec. at 376. 
In the two aft1davits signed by dated November 16, 2015, and January 27, 2016, 
asserts that he began training his daughter as an alteration tailor in February 2002 and that on June 
10, 2002, she began working on a full-time basis as an alteration tailor at his dry cleaning business at 
He also states that in August 2004, he reorganized his original business, 
renaming it and that the Beneficiary continued to work as an 
alteration tailor at the address until July 24, 2010. Although states that he 
did not pay the Beneficiary a salary for her work from 2002 through 2008, he notes that he provided her 
with material support during these years, and that this material support continued during 2009 and 2010, 
even though he was then paying her a salary. also states that to reward his daughter for her 
"faithful and dedicated work," he transferred a 10 percent interest in into her 
name in late 2008. 
In another affidavit, 
and that he visited at 
states that he has known the Beneficiary's father since 1999 
when it opened in February 2002, where he met 
(b)(6)
Matter of J-C- , Inc. 
the Beneficiary who was then in training to become an alteration tailor. He also states that from 2005 
until July 2010, his own laundry drop store business relied on the Beneficiary's tailoring skills at 
the new name of 
The above affidavits do not, however, sufficiently resolve the inconsistencies in the Beneficiary' s 
employment history. As indicated by the Director in his denial, inconsistencies in the record must be 
resolved by independent, objective evidence. Matter C?f Ho, 19 I&N Dec. at 591-92.5 
The Beneficiary's school transcripts conflict with the information provided in the affidavits. The 
Petitioner submitted the Beneficiary's high school transcripts from in 
NY. The transcripts show that the Beneficiary was enrolled as a high school student tfom 
the 
fall of 1998 to February 11, 2003. The Beneficiary states in her January 26, 2016, affidavit that she last 
attended classes in January 2002. She states that she did not return in June 2002, and did not "register 
or attend classes from June 2002" because she started working full time at However, 
her high school transcripts appear to show 
that she was registered for and attended several classes in the 
2002-2003 school year, including the following courses: 
• ESL5 R 
• ESL5 
• W. HIST 3 
• MATH A EXT 
• LIVNGENV 2E 
• BIOLAB ESL (two semesters) 
• MSWORD2 
• GIRLS PE 
I 
LUNCH (two semesters) •• 
Therefore, the transcripts contradict the Beneficiary's claim that she stopped attending high school in 
June 2002. Doubt" cast on any aspect of the Petitioner's evidence may lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter qf 
Ho, 19 I&N Dec. at 591. Further, as noted by the Director in his decision, if the Beneficiary was 
attending high school in the fall of 2002 and-the spring of 2003, it is unclear how she was also working 
full time as an alteration tailor at The inconsistencies in the record have not been 
resolved by independent, objective evidence. ld. at 591-92 
The Beneficiary's Forms W-2 and Forms 1040 for 2009 and 2010 also do not establish that she has the 
2 years of experience in the otiered position required by the labor certification. While the Beneficiary's 
Forms W-2 reflect that paid her $8200 in 2009 and $5200 in 2010, the 
5 Evidence in existence at the priority date will be considered more credible than evidence created after the fact, such as 
affidavits and letters . Further , relating to the independence and objectivity ofthe affidavits , we note that of the affidavits 
submitted by the Petitioner, one comes from the Beneficiary 's father and the others appear to be written by close personal 
friends. 'Nhile we have given each affidavit due consideration , the affidavits are not sufficient to overcome the unresolved 
inconsistencies in the record regarding the Beneficiary 's experience . 
8 
(b)(6)
Matter of J -C-, Inc. 
income they report is too low to demonstrate that she was employed on a full-time basis during these 
years. Even if the Beneficiary had been paid the minimum wage by her father, she would, had she 
worked 40 hours a week in 2009, have earned approximately $14,950. This total would have risen to 
$15,080 in 2010. 6 As a result, the submitted Forms W-2 establish do not establish that the 
Beneficiary was employed full-time as an alteration tailor in 2009 and 2010 by 
' 
The Director noted in Ills decision that neither of the Forms 1040 filed by the Beneficiary indicate her 
occupation. The Form 1040 for 2009 does not list any occupation, while her 2010 return identifies her 
only as an employee of Pursuant to a letter dated January 26, 2016, 
an accountant, stated that he classified the Beneficiary as an employee on the Form 1040 in 
2010 because she had a Form W-2 and therefore, per custom in his office, he listed her as an employee 
(rather than self-employed).7 However, despite this this explanation, the Beneficiary's tax returns do 
not provide independent and objective evidence that employed her as an 
alteration tailor in either 2009 or 2010. 
The Beneficiary's Forms W-2 and Forms 1040 establish only that the Beneficiary was employed by 
for some period of time in 2009 and 20 1'0, during which she performed 
unspecified work. Accordingly, they do not demonstrate that the Beneficiary had the 2 years of 
qualifying experience required by the labor certification as of the February 27, 2014, priority date. 
For the reasons just discussed, the Petitioner has not resolved the inconsistencies in the record with 
sufficient independent, objective evidence to demonstrate that the Beneficiary has the 2 years of 
experience as an alteration tailor required by the labor certification. Therefore, the Petitioner has not 
demonstrated that the Beneficiary is qualified for the offered position, or for classification as a 
skilled worker under section 203(b)(3)(A)(i) of the Act. 
IV. CONCLUSION 
A petitioner must establish the elements for the approval of a visa petition at the time of filing. 
Matter of Katigbak, 14 I&N Dec. at 49. For the reasons noted above, the record does not establish 
that the Beneficiary has the 2 years of employment experience in the offered position required by the 
labor certification. 
In visa petition proceedings , it is a petitioner ' s burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende , 26 I&N Dec. 127, 128 
(BIA 2013). Here that burden has not been met. 
6 In 2009, the minimum wage in New York was $7 .15 per hour until it was raised to $7.25 per hour on July 24, 2009. 
The mtmmum wage remained $7.25 per hour during 20 I 0. See . NYS Dept. of Labor , 
https ://www.labor.ny.gov /stats/minimum_wage .asp (last visited Dec. 16, 2016). In response to the RFE, the Petitioner 
asserts that the amounts show net income "after deducting considerations of housing, room and board she was provided." 
The record does not indicate how these amounts were calculated. 
7 
The accountant did not state that he had independent knowledge of the Beneficiary ' employment as an alteration tailor . 
9 
Matter of J -C-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter. of J-C-, Inc., ID# 07904 (AAO Jan. 17, 2017) 
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