remanded EB-3 Case: Insurance

U.S. Citizenship 
and Immigration 
Services 
In Re : 8993529 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 19, 2021 
The Petitioner, an operator of an insurance agency, seeks to employ the Beneficiary as a manager under 
the third-preference, immigrant visa category for "other workers." See Immigration and Nationality Act 
(the Act) section 203(b)(3)(AXiii), 8 U.S.C. § l l 53(b)(3)(AXiii). 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner didn't demonstrate the Beneficiary's possession of the minimum employment experience 
required for the offered position. The Director also found that the Petitioner and the Beneficiary 
misrepresented the Beneficiary's qualifying experience on the accompanying certification from the 
U.S. Department of Labor (DOL). 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also 
MatterofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard of proof). Upon de 
nova review, we will withdraw the Director's decision and remand the matter for entry of a new 
decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an "other," or unskilled, worker generally follows a three-step process . First, a 
prospective employer must apply to DOL for certification that: ( 1) there are insufficient U.S. w01kers 
able, willing, qualified, and available for an offered position; and (2) the employment of a non citizen in 
the position won't harm wages and working conditions of U.S. workers with similar jobs. See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5) . 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. 
Among other things, USCIS determines whether a noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, if USCIS approves a petition, a designated noncitizen 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. THE REQUIRED EXPERIENCE 
A petitioner must establish a beneficiary's possession of all DOL-certified, job requirements of an 
offered position by a petition's priority date. Matter a/Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). 1 When evaluating a beneficiary's qualifications, USCIS must examine 
the job-offer portion of an accompanying labor certification to detennine a position's minimum 
requirements. USCIS may neither ignore a certification term, nor impose additional requirements. 
See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the 
authority for setting the content of the labor certification") ( emphasis in original). 
The accompanying labor certification states the minimum requirements of the offered position of 
manager as one year of experience "in the job offered." Experience "in the job offered" on a labor 
certification means "experience perfonning the key duties of the job opportunity" listed on the labor 
certification. See, e.g., Matter of Symbioun Techs., Inc., 2010-PER-O 1422, slip op. at 4 (BALCA Oct 
24, 2011 ). The certification states that the position requires neither training, experience, special skills, 
nor other requirements. The certification also indicates that the Petitioner won't accept experience in 
an alternate occupation. 
On the labor ce1iification, the Beneficiary attested that, by the petition's priority date, he gained about 
15 months of full-time, qualifying experience. He stated that a store in Pakistan employed him as a 
manager from June 2014 to September 2015. 
Pursuant to 8 C.F.R. § 204.5(1)(3)(ii)(A), the Petitioner submitted a letter from the Beneficiaty's 
claimed fonner employer. Consistent with the information on the labor certification, the letter from a 
store manager states the Beneficiary's former position and employment dates and describes his 
expenence. 
The Director's notice of intent to deny (NOID) the petition, however, notes a discrepancy in the 
Beneficiary's claimed experience. On applications for a U.S. student visa in Pakistan in November 
and December of 2015, the Beneficiary described himself as a student. Asked on the applications 
"Were you previously employed?" he indicated "No." The Beneficiary's answers on the visa 
applications conflict with his claimed, qualifying experience at the store from June 2014 to September 
2015. The discrepancies are especially concerning because he purportedly ended his qualifying 
experience just a few months before filing his visa applications. A petitioner must resolve 
inconsistencies of record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
The Petitioner's NOID response included a written statement from the Beneficiary. Because he had 
never applied for a visa before, the Beneficiary stated that he first obtained guidance from officials at 
the U.S. university where he planned to study. He said he relied on the advice of school officials, who 
purportedly told him that he needn't disclose his prior employment experience on the visa application 
because the work didn't relate to his intended field of study. The Beneficiary also stated: "I really 
thought that my prior work experience of 1 year as Manager in retail wasn't material and didn't matter 
1 This petition's priority date is March 2 9, 2019, the date DOL accepted the accompanying labor certification application 
for processing. Sec 8 C.F.R. § 204.S(d) ( explaining how to determine a petition's priority date). 
2 
since I was applying for the engineering field of study." The Beneficiary stated that, in hindsight, he 
realizes that he should've disclosed his prior employment, but said: "There was no intent to 
misrepresent the facts." 
The Petitioner also submitted another letter from the manager of the store where the Beneficiary 
purp01iedly worked. The managerreiterated the information in the prior letter and stated that the store 
paid the Beneficiary and other employees in cash. The manager said the employees received monthly, 
written "vouchers" stating their earnings, which they submitted to him in exchange for cash. The 
record contains copies of vouchers in the Beneficiary's name that he purportedly received from June 
2014 to September 2015. The Petitioner also provided copies of the Beneficiary's purported offer 
letter, employment agreement, and a letter from the store's purported tax advisor. The advisor stated 
that Pakistani law didn't require the Beneficiary to pay income taxes on his wages because his pay 
didn't exceed the minimum taxable amount of 300,000 Pakistani rupees. 2 
The tax advisor's statements are consistent with on line information from the Pakistani government 
We therefore accept the unavailability of the Beneficiary's Pakistani income tax returns. The Director 
faulted the vouchers for omitting the number of hours and days the Beneficiary worked, and his "year­
to-date" income. The offer letter and employment agreement, however, state the full-time position's 
monthly salary and workdays. The vouchers indicate that the Beneficiary received the full salaiy each 
month from June 2014 to September 2015. The vouchers therefore support a reasonable inference that 
he worked every day on a full-time basis during the period. 
The Director rejected the letters from the store manager. Finding that the manager's signatures on the 
letters don't match, the Director questioned the authenticity and reliability of the documents. 
Adjudicators may discount documents without the need for expe1i, forensic evidence if the materials 
contain obvious "hallmarks of fraud," such as misspellings, overwriting, incorrect information, 
alterations, or unexplained similarities to other documents ofrecord. Matter of O-M-0-, 28 I&N Dec. 
191, 194-95 (BIA 2021 ). But the differences in the signatures on the letters from the Beneficiaty's 
purported former employer aren't obvious or extreme enough to render the documents facially 
unreliable. As the Petitioner argues, signatures can vary over time and depending on circumstances. 
The record lacks other indicia of a false signature. The record therefore doesn't supp01i the Director's 
rejection of the letters from the store manager. 
For the foregoing reasons, the record doesn't support the Director's denial based on insufficient 
evidence of the Beneficiary's experience. We will therefore withdraw that portion of the decision. 
Other evidence, however, casts doubt on the Petitioner's proof of the Beneficiary's claimed 
experience. First, the Beneficiary's affidavit isn't credible. The record lacks corroborating evidence 
that U.S. university officials advised him on completing the student visa application. Moreover, U.S. 
school officials wouldn't likely tell a foreign student to knowingly misrepresent information on a visa 
application. The U.S. Department of State (DOS) clearly advises visa applicants that, by submitting 
applications, they certify under penalty of perjury that they have read and understood the applications' 
questions and that their answers are true and correct to the best of their knowledge and beliefs. See, 
e.g., DOS, "DS-160: Frequently Asked Questions," https://travel.state.gov/content/travel/en/us-
2 Based on current exchange rates, that monthly amount equals about$ l ,714, or$20,568 a year. 
3 
visas/visa-information-resources/forms/ds- l 60-online-nonimmigrant-visa-application/ds-160-
faq s. html (last visited Nov. 19,, 2021 ). 
In addition, the Beneficiary had no reason to conceal prior employment on the visa applications, as it 
would have likely bolstered his visa eligibility. Student visa applicants must demonstrate their 
intentions to return to their home countries after completing U.S. studies. See section 101 (a)(l 5)(F) 
of the Act, 8 U.S.e. § 1101(a)(15)(F) (requiring a nonimmigrant student to have "a residence in a 
foreign country which he [or she] has no intention of abandoning"). The Beneficiary's prior 
employment in Pakistan represented an additional connection to his home country, increasing the 
likelihood of his return. See DOS, "Student Visa," https://travel.state.gov/content/travel/en/us­
visas/study /student-visa.html (last visited Nov. 19, 2021) (stating that a consular officer may request 
additional evidence of a student visa applicant's "intent to depart the United States upon completion 
of the course of study"). 
The record also contains additional derogatory information. A commercial database of global business 
information describes a Pakistani business with the same name and address as the Beneficiary's former 
employer as a "wholesaler" of "auto parts/supplies." On the labor certification and in his affidavit, 
the Beneficiary refened to his fonner employer as a "retail store." The record, however, doesn't 
establish that his purpmied former employer operated a retail store. 
In addition, in support of the visa applications, the Beneficiary reportedly told U.S. officials that his 
father owns a "spare parts" business in Pakistan. If the business of the Beneficiary's father is the same 
one operated by the Beneficiary's former employer, the letters and materials from the employer may 
be biased in favor of the Beneficiary and wouldn't constitute independent, objective evidence of his 
qualifying experience. See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve 
inconsistencies ofrecord "by independent objective evidence"). The possible ownership and control 
of the former employer by the Beneficiary's father cast doubt on the reliability of the business's 
evidence. 
The Director didn't notify the Petitioner of this additional, derogatory evidence or provide the 
company an opportunity to respond to it. See 8 e.F.R. § 103 .2(b )( l 6)(i) (requiring users, before 
issuing an adverse decision, to inform a petitioner of material derogatory information of which it may 
not be aware and an opportunity to respond). We will therefore remand the matter. 
On remand, the Director should issue the Petitioner a new NOID discussing the relevant, derogatory 
evidence and explainingwhy the record doesn't establish the Beneficiary's possession of the minimum 
experience required for the offered position. The Petitioner must resolve the discrepancies of record, 
including the nature of his purported former employer's business and his father's influence on it, if 
any. The Petitioner must submit independent, objective evidence of his claimed qualifying experience. 
III. THE ALLEGED MISREPRESENTATIONS 
users approves a filing if "the facts stated in the petition are true" and the beneficiary qualifies for 
the requested immigrant visa category. Section 204(b) of the Act. A petition includes any supporting 
evidence - including a labor certification. 8 e.F.R. § 103 .2(b )(1 ). Thus, users can't approve a 
petition if the facts stated on an accompanying labor certification are untrue. 
4 
The Director concluded that the Petitioner and Beneficiary misrepresented the Beneficiaiy's 
qualifying experience on the labor certification application. As previously discussed, despite the 
purported termination of the Beneficiary's qualifying employment at a Pakistani store just a few 
months before he sought a U.S. student visa, he attested on visa applications that he had no prior work 
expenence. 
The Petitioner didn't demonstrate the Beneficiary's possession of the qualifying experience to which 
he attested on the labor certification. But the record lacks sufficient evidence of a misrepresentation. 
The Director must fully consider the letters and vouchers from the Beneficiary's purported, former 
employer. Also, the Petitioner hasn't yet had an opportunity to respond to the additional, derogatoiy 
information regarding the nature of his former employer's business and his father's possible influence 
on the enterprise. 
If the Director believes that the record supports a finding of a misrepresentation of the Beneficiaiy's 
experience on the labor certification application, the new NOID should so state and explain, allowing 
the Petitioner a chance to respond. 3 
IV. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record also doesn't establish the Petitioner's ability to pay 
the proffered wage of the offered position. A petitioner must demonstrate its continuing ability to pay 
a proffered wage, from a petition's priority date until a beneficiary obtains lawful permanent residence. 
8 C.F.R. § 204.5(g)(2). If a petitioner employs less than 100 people, as here, evidence of ability to 
pay must include copies of annual repmis, federal tax returns, or audited financial statements. Id. 
The labor certification states the proffered wage of the offered position of manager as $46,654 a year. 
As previously noted, the petition's priority date is March 29, 2019. 
The Petitioner submitted copies of its federal income tax returns for 201 7 and 2018. Contrary to 
8 C.F.R. § 204.5(g)(2), however, the record lacks regulatory required evidence of the Petitioner's 
ability to pay in 2019, the year of the petition's priority date, or thereafter. The Petitioner therefore 
hasn't demonstrated its ability to pay the proffered wage from the petition's priority date onward. 
On remand, the new NOID should ask the Petitioner to submit copies of annual reports, federal tax 
returns, or audited financial statements for 2019, 2020, and, if available, 2021. The Petitioner may 
also submit additional evidence of its ability to pay in those years, including proof of any wages it 
3 A finding of willful misrepresentation in these proceedings wouldn't constitute a determination of the Beneficiaty's 
admissibility to the United States. See section 212(a)(6)(C)(i) of the Act (stating that non citizens who willfully 
misrepresent material facts when seeking visas render themselves inadmissible). Visa petition proceedings are 
inappropriate fora for making substantive, admissibility determinations. Matter of 0-, 8 I&N Dec. 2 9 5, 2 96 97 (BIA 
1959). USCIS decisions, however, should include specific findings and conclusions on any material issues of law or fact 
that arise in a case, including issues of fraud or material misrepresentation. See 8 C.F.R. § I 03.3(a)(l )(i); see also 5 U.S.C. 
§ 5 5 7 ( c ). Thus, if USC IS determines that the Beneficia1y willfully misrepresented his qualifying experience, he may later 
be found inadmissible in separateproceedings. 
5 
paid the Beneficiary and materials supporting the factors stated in Matter of Sonegawa, 12 I&N Dec. 
612, 614-15 (Reg'l Comm'r 1967). 
Also, as the Director found, the Petitioner must demonstrate its ability to pay the combined proffered 
wages of this and another petition it filed after this petition's priority date. 4 See Patel v. Johnson, 
2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's approval where, as of 
the filing's grant, a petitioner didn't demonstrate its ability to pay the combined proffered wages of 
multiple petitions). To enable USCIS to calculate the total amount of combined proffered wages the 
Petitioner must demonstrate its ability to pay, the company must provide the proffered wage and 
priority date of its other petition. 
If supported by the record, the new NOID may notifythe Petitioner of any additional, potential grounds 
of denial. The Director, however, must provide the Petitioner a reasonable opportunity to respond to 
all issues raised on remand. Upon receipt of a timely response, the Director should review the entire 
record and enter a new decision. 
V. CONCLUSION 
Based in part on additional derogatory information of which the Petitioner may not be aware, the 
record doesn't establish the Beneficiary's qualifying experience for the offered position. The 
Petitioner also hasn't demonstrated its required ability to pay the combined proffered wages of this 
and another petition from this petition's priority date onward. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
4 USC IS records identify the Petitioner's other petition by the receipt numbd._ _____ ___, 
6