remanded EB-3 Case: Jewelry Retail

U.S. Citizenship 
and Immigration 
Services 
In Re : 14442576 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 2, 2022 
The Petitioner, a jewelry store operator, seeks to employ the Beneficiary as assistant shift manager. The 
company requests her classification under the third-preference, immigrant visa category for skilled 
workers. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that the Petitioner falsely concealed a personal relationship between 
a company owner and the Beneficiary, barring the petition's approval. 
In revocation proceedings, the Petitioner bears the burden of establishing eligibility for the requested 
benefit by a preponderance ofevidence. See Mattera/Ho, 19 I&NDec . 582,589 (BIA 1988) (citation 
omitted) (discussing the burden of proof); see also Matter ofChawathe, 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 a skilled worker generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: ( 1) there are insufficient U.S. 
workers able, willing, qualified, and availableforan offered position; and (2) employment of a noncitizen 
in the position would not 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 
DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, if USCIS approves a petition, a beneficiary 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. 
"[A]t any time" before a beneficiary obtains lawful permanent residence, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition's approval if the unexplained 
and unrebutted record at the time of the notice's issuance would have warranted the petition's denial. 
Matter of Es time, 19 I&N Dec. 450,451 (BIA 1987). If a NOIR response does not rebut or resolve 
the alleged revocation grounds, USCIS properly revokes a petition's approval. Id. at 451-52. 
II. THE ALLEGED MISREPRESENTATION 
The Director found that, on the accompanying labor certification application, the Petitioner falsely 
concealed a friendship between the Beneficiary's father-in-law and the company owner who signed 
the petition and certification. As currently constituted, the record does not support revocation on this 
basis. We will therefore withdraw the Director's decision. 
Evidence, however, indicates that the signatory of the petition and labor certification is not the sole 
owner of the petitioning corporation. A copy of the Petitioner's federal income tax return for 2016, 
the most recent of record, indicates the company's ownership by three, unidentified shareholders. The 
record does not indicate whether the Beneficiary is related to any of the shareholders. On remand, the 
Director may wish to request additional evidence regarding this issue. 
III. THE BENEFICIARY'S QUALIFICATIONS 
Although unaddressed by the Director, the record at the time of the NOIR's issuance did not 
demonstrate the Beneficiary's minimum qualifications for the offered position or the requested 
immigrant visa category. A skilled-worker position must require at least two years of training or 
employment experience. Section 203(b )(3)(A)(i) of the Act. "Relevant post-secondary education" 
may count as training. 8 C.F.R. § 204.5(1)(2) (defining the term "skilled worker"). A petitioner must 
also demonstrate a beneficiary's possession of all DOL-certified job requirements of a position by a 
petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 
1977). I 
In evaluating a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification to determine a position's minimum requirements. USCIS may 
neither ignore a certification term, nor impose additional requirements. See, e.g., Madany v. Smith, 
696F.2d 1008, 1015 (D.C. Cir.1983)(holdingthat"DOL bearstheauthorityforsettingthecontent 
of the labor certification") ( emphasis in original). 
The labor certification states the minimum requirements of the offered position of assistant shift 
manager as a U.S. associate degree, or a foreign equivalent degree, in business administration. The 
1 This petition's priority date is May 9,201 7, the date DOL accepted the labor certification application for processing. See 
8 C.F.R. § 204.5(d)(explaininghowto determine a petition's priority date). 
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labor certification states that the Petitioner will not accept a degree in an alternate field of study. The 
certification also indicates that the position requires neither training nor employment experience. 
On the labor certification application, the Beneficiary attested that, by the petition's priority date, a 
Pakistani university awarded her an associate degree in business administration. The Petitioner 
submitted copies of a "Bachelor of Commerce" diploma and an accompanying transcript from the 
university. The company also provided an independent, professional evaluation of the foreign 
credential, stating its equivalency to a U.S. associate degree. 
The record did not establish the degree's issuance in the required field of study. The Petitioner 
indicated on the labor certification application that the offered position requires a degree in "business 
administration." Asked on the application "Is there an alternate field of study that is acceptable?" the 
Petitioner marked "No." The diploma submitted by the Petitioner identifies the degree as a "Bachelor 
of Commerce" from the university's faculty of "Management & Administrative Sciences." The 
transcript indicates the Beneficiary's studies at a college of '"Commerce & Economics." The 
university documents do not mention the term "business administration." The record therefore did not 
establish the degree's issuance in the requisite field of study. 
Also, the record did not establish the Beneficiary as the degree's recipient. The recipient's name on 
the diploma and transcript differs from that of the Beneficiary listed on the Form I-140 petition and 
accompanying labor certification. A copy of the Beneficiary's marriage certificate explains the 
difference in her last name. But the university documents and marriage certificate reflect a different 
first name than indicated on the petition, labor certification, and birth certificate. The discrepancy in 
the Beneficiary's first name casts doubt on her claimed receipt of the Pakistani degree. See Matter of 
Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies of record with independent, 
objective evidence pointing to where the truth lies). 
For the foregoing reasons, the Petitioner did not demonstrate the Beneficiary's qualifications for the 
offered position or the requested immigrant visa category. We will therefore remand the matter. On 
remand, the Director should issue a new NOIR explaining the evidentiary deficiencies and requesting 
additional proof of the Beneficiary's qualifications. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The record at the time of the NOIR's issuance also did not 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). Evidence of ability to pay must generally include copies of annual reports, 
federal tax returns, or audited financial statements. Id. 
The labor certification states the proffered wage of the offered position of assistant shift manager as 
$45,219 a year. As previously noted, the petition's priority date is May 9, 2017. Thus, at the time of 
the petition's approval in August201 7, the Petitioner had to demonstrate its ability to pay the proffered 
wage in 2017. 
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The Petitioner submitted a copy of its federal income tax return for 2016. The record, however, lacks 
regulatory required evidence of the company's ability to pay in 2017, the year of the petition's priority 
date. Thus, on remand, the new NOIR should ask the Petitioner to provide copies of an annual report, 
federal tax return, or audited financial statements for 201 7. The Petitioner may also submit additional 
evidence of its ability to pay, including proof of any wages it paid the Beneficiary that year or 
documentation supporting the factors stated in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 
Comm'r 1967). 
If supported by the record, the new NOIR may include additional potential revocation grounds. The 
Director, however, must afford 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 
The record does not support the Director's revocation of the petition's approval. The Petitioner, 
however, did not demonstrate its ability to pay the proffered wage of the offered position or the 
Beneficiary's qualifications for the position and the requested immigrant visa category. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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