dismissed EB-3 Case: Truck Driving

U.S. Citizenship 
and Immigration 
Services 
In Re : 25234526 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 20, 2023 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner seeks to employ the Beneficiary as a truck driver. It requests classification of the 
Beneficiary under the third preference employment-based immigrant visa category . Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(iii) , 8 U.S.C. § 1153(b) (3)(A)(iii) . This immigrant 
visa category allows a U.S. business to sponsor a foreign national for lawful permanent resident status 
based on a job offer requiring less than two years of training or experience . 
The petition was initially approved . The Director of the Nebraska Service Center subsequently 
revoked the approval of the petition concluding the record did not establish that the Beneficiary met 
the minimum requirements for the position. The Director further concluded that the Beneficiary 
misrepresented material facts in order to procure an immigrant visa. The Petitioner later filed an 
appeal we dismissed . However , we withdrew the Director's determination the Beneficiary had 
willfully misrepresented material facts. The matter is now before us on a motion to reopen and motion 
to reconsider. 
It is the Petitioner's burden to establish eligibility for the requested benefit by a preponderance of the 
evidence . Matter ofCha wathe, 25 I&N Dec . 369, 375-76 (AAO 2010) . Upon review, we will dismiss 
the motion to reopen and the motion to reconsider. 
I. MOTION TO REOPEN 
A motion to reopen is based on factual grounds and must ( 1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence . 8 C.F.R. 
§ 103.5(a)(2). We may only grant a motion that meets these criteria and establishes eligibility for the 
requested benefit. 
We acknowledge that in part 2 of the Form I-290B, Notice of Appeal or Motion , the Petitioner selected 
1.f. indicating that it intended to file both a motion to reopen and a motion to reconsider. However , 
the Petitioner only submitted a brief discussing a motion to reconsider and did not submit any new 
evidence to support a motion to reopen. For this reason, the motion to reopen must be dismissed. 
II. MOTION TO RECONSIDER 
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. § 103.5(a)(3). The regulation at 8 C.F.R. § 103.S(a)(l)(i) limits our 
authority to reconsider to instances where the Petitioner has shown "proper cause" for that action. 
Thus, to merit reconsideration, a petitioner must not only meet the formal filing requirements ( such as 
submission of a properly completed Form I-290B with the correct fee), but also show proper cause for 
granting the motion. We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
In dismissing the Petitioner's prior appeal, we agreed with the Director's conclusion that the Petitioner 
did not demonstrate that the Beneficiary had the required experience for the position listed in the labor 
certification. 1 We concluded that the Petitioner did not submit sufficient evidence to support its 
assertion that the Beneficiary had retracted his prior employment experience only after being pressured 
by a Department of State (DOS) consular officer. We emphasized that the Petitioner did not submit 
documentary evidence to establish that he was employed as a folltime truck driver abroad with 
I I from January 2015 to March 2016 as claimed, nor evidence to demonstrate that the consular 
officer pressured or intimidated him into acknowledging that this employment was "not consistent 
with the facts." Further, we determined that the submitted evidence was insufficient to demonstrate 
the Beneficiary's asserted experience as a truck driver while with the Polish military from April 1992 
to October 1993, since he did not disclose this experience in the labor certification as required. 
On motion, the Petitioner contends that we erred in not considering the Beneficiary's experience as a 
truck driver gained while he was a member of the Polish military, only because it was not listed in the 
labor certification. The Petitioner asserts that this experience was not included in the labor certification 
because documentation to substantiate it had not yet been available at that time, causing the 
Beneficiary to list more recent experience. The Petitioner states that there is no basis in the statues or 
regulations requiring us to not consider experience outside that listed in the labor certification and 
asserts that it has provided sufficient evidence of his required experience as a truck driver with the 
Polish military. The Petitioner points to two employment certificates issued by the Polish Army, one 
of which was provided on appeal, and contends that we did not sufficiently consider this evidence. 
Upon review, we conclude that we did not err in dismissing the Petitioner's prior appeal. First, as 
discussed in our prior decision, the Beneficiary acknowledges that he signed a statement following his 
DOS interview in October 2019, under the threat of penalty for knowingly making a false statement, 
affirming that he did not work forl I as a truck driver from January 2015 to March 2016 as 
claimed in the labor certification. The Beneficiary further declared in the statement that "I was running 
my own business! during this period. The Petitioner continues to assert that the 
Beneficiary was coerced into signing this statement by the DOS consular officer and threatened that 
if he did not sign the statement he "and his previous employer would face legal consequences." 
However, the presence of the Beneficiary's signature on the statement creates a strong presumption 
that he knew its contents and assented to it. See Matter of A.J Valdez, 27 I&N Dec. 496, 499 (BIA 
1 As discussed in our prior decision, the labor ce1iification indicated that the offered position required 12 months of 
experience as a truck driver and a commercial driver's license (CDL) within 30 days from employment. The labor 
certification further reflected that no alternative to this required experience would be accepted. 
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2018). Therefore, the Petitioner and Beneficiary have not demonstrated that his statement to the DOS 
consular officer was coerced based solely on his unsupported assertions. 
Further, the Petitioner and Beneficiary appear to abandon their assertion that this employment should 
be considered to establish his required experience. For instance, the Petitioner states on motion that 
"we do not want to repeat and we agree to omit this proof of experience with from the 
record." Therefore, we will no longer consider this experience with __ claimed in the labor 
certification. However, the Beneficiary's actions, in signing a statement acknowledging that this 
employment did not take place and now abandoning it, cast serious doubt on his assertions. 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). Unresolved material inconsistencies 
may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Id. 
It is in this light that we consider the Petitioner's contention that we did not sufficiently consider the 
Beneficiary's claimed experience as a truck driver with the Polish military between April 1992 and 
October 1993. Again, as noted in our prior decision, the Beneficiary did not disclose this claimed 
experience in the labor certification. We emphasized that the application's instructions require the 
listing of "all jobs the alien has held during the past 3 years" and "any other experience that qualifies 
the alien for the job opportunity" ( emphasis added). We determined that the omission of the 
Beneficiary's military truck driving experience from the labor certification application casted doubt 
on this claimed prior experience. See Matter of Leung, 16 I&N Dec. 12, 14 (Distr. Dir. 
1976), disapp'd of on other grounds by Matter of Lam, 16 I&N Dec. 432,434 (BIA 1978) (finding a 
claim of additional qualifying experience by an application for adjustment of status to be unreliable 
where he did not state the experience on his labor certification application). 
The provided evidence related to the Beneficiary's claimed employment as a truck driver with the 
Polish military is insufficient to overcome the discussed material discrepancies on the record. For 
instance, the Petitioner provided two translated "certificates" from the "Military Refill Command in 
I tone dated in October 2019 and the other in March 2021, and a European driver's license issued 
in 2005. However, there are discrepancies between the two submitted certificates. For instance, the 
certificate dated in October 2019 indicates that the Beneficiary was employed with the Polish military 
as a "driver," while the certificate dated in March 2021 reflects that we worked in the position of 
"Driver, with a specialization: truck driver (with a load of up to 24 tons)." This discrepancy leaves 
question as to whether the Beneficiary was employed fulltime as a truck driver, since this suggests his 
employment could have also included driving various automobiles, and not trucks folltime. 
In addition, the certificate from October 2019 indicates that the Beneficiary's birth date is 
I 11975," while the certificate from March 2021 shows his birthdate is 11972." Likewise, 
the certificate from 2019 reflects that it was signed by the "Commander, Military Refill Command in 
I I and includes the name of the commander, while the latter certificate from March 2021 does 
not include the name of the signed commander. In sum, these unresolved discrepancies leave 
uncertainty as to the authenticity of these documents. See Matter of Ho, 19 I&N Dec. at 591-92. 
Further, it is also noteworthy that neither of these documents reflects contemporaneous evidence of 
the Beneficiary's military service or his experience as a truck driver for the required one year. 
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Evidence the Petitioner created after noted deficiencies and inconsistencies will not be considered 
independent and objective evidence. Id. 
The military certificates provided by the Petitioner also did not provide the Beneficiary's specific 
duties during his claimed engagement as a truck driver with the Polish military. For instance, the 
certificates reflect that the Beneficiary was a driver, and perhaps specialized in driving trucks "with a 
load of up to 24 tons," but they do not set forth his specific duties in this role. Therefore, the certificates 
do not sufficiently confirm, particularly when considered with other noted material discrepancies on 
the record, that the Beneficiary had the required experience to perform the stated duties of his proposed 
position in the United States. 2 For example, not only do the provided certificates not specify the 
specific duties the Beneficiary performed while driving for the Polish military, but there is little other 
indication from him, or the record, about the duties he performed in this asserted role. Again, as we 
have noted, there is also no contemporaneous evidence of his claimed service in the military as a truck 
driver for the required one year. 
Therefore, in sum, the Petitioner and Beneficiary have submitted conflicting and insufficient evidence 
to substantiate that he was employed for the required one year with the Polish military between April 
1992 and October 1993 as claimed. Further, this evidence is insufficient to overcome the other 
material discrepancies on the record, including a signed statement from the Beneficiary submitted to 
DOS where he acknowledges that he fabricated his claimed truck driving experience on the labor 
certification. For these reasons, we conclude that we were correct to dismiss the Petitioner's prior 
appeal, as it has not established that our prior dismissal of its appeal was inconsistent with applicable 
law or policy. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
2 Section H.11 of the labor certification indicates that the duties of the position include: 
Drive a truck. Unload truck. Check vehicles to ensure that mechanical safety, and the emergency 
equipment is in good working order. Follow appropriate safety procedures for transporting dangerous 
goods. Inspect loads to ensure that cargo is secure. Maintain logs of working hours or of vehicle service 
or repair status, following applicable state and federal regulations. Secure cargo for transport, using 
ropes, blocks, chain, binders, or covers. Long distance routes: CA, AZ, FL, IL, CDL within 30 days of 
employment. 
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