remanded EB-3 Case: Procurement

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-C- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 3, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISlON 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR AUEN WORKER 
The Petitioner, a cabinet retailer, seeks to employ the Beneficiary as a procurement specialist. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(B)(3)(A)(i). This employment-based "EB-3" 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 two years of training or experience. 
The Director of the Nebraska Service Center initially approved the pet1t10n. The Director 
subsequently revoked the approval on the ground that .the record did not show that the Beneficiary 
was employed by the business for whom the she claimed to work in the years 2004-2007, and thus 
did not establish that the Beneficiary had the requisite experience to be eligible for skilled worker 
classification. 
On appeal, the Petitioner asserts that Director's revocation decision was improper because the 
documentation submitted by the Petitioner more than satisfied the evidentiary requirement in the 
regulation at 8 C.F.R. § 204.5(1)(3)(ii)(A) to establish the Beneficiary's qualifying experience. 
Upon de 1wvo review, we will withdraw the Director's decision and remand the case for further 
consideration. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 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). By approving the labor certification, DOL certifies that there 
are insufficient U.S. workers who are able, willing, qualified, and available for the offered position 
and that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. Second, the employer files an immigrant visa 
petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. Third, if USClS approves tpe petition, the foreign national 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. 
.
Matter of A-C- Corp. 
Section 205 of the Act, 8 U.S.C. § 1155, provides that "[the Secretary of the Department of 
Homeland Security] may, at any time, for what he deems to be good and sufficient cause, revoke the 
approval of any petition approved by him under section 204 [Procedure for Granting Immigrant 
Status]." 
The regulation at 8 C.F.R. § 205.2(a) provides that "[any USCIS] officer authorized to approve a 
petition under section 204 of the Act may revoke the approval of that petition upon notice to the 
petitioner ... when the necessity for the revocation comes to the attention of [USCIS]." Revocation 
of the approval of a petition under 8 C.F.R. § 205.2(a) may only be made with notice of intent to 
revoke the approval (NOIR) to the petitioner and the petitioner must be given the opportunity to 
respond and offer rebuttal evidence. 8 C.F.R. § 205.2(b). 
A NOIR "is not properly issued unless there is 'good and sufficient cause' and the notice includes a 
specific statement not only of the facts underlying the pr'oposed action, but also of the supporting 
evidence." Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). When a NOlR is based on an 
unsupported statement or an unstated presumption, or when the petitioner is unaware and has not 
been advised of derogatory evidence, revocation of the visa petition cannot be sustained. Id at 452. 
II. ANALYSIS 
At issue in this case is whether the NOIR was properly issued. In order to qualify for skilled worker 
classification, a beneficiary must possess at least two years of training or experience and meet the 
"educational, training or experience, and any other requirements of the individual labor 
certification." 8 C.F.R. § 204.5(1)(3)(ii)(B). The labor certification in this case requires a high 
school education and two years of experience a·s a procurement specialist. The labor certification 
requirements must be met by the priority date of the petition. 1 See Matter of Wing's Tea House, 
16 l&N Dec. 158, 159 (Acting Reg'I Comm'r 1977). 
The initial evidence submitted with the petition included copies of school records showing that the 
Beneficiary earned a high school diploma in Poland and a "certificate of employment" from 
, a company in Poland, stating that the Beneficiary was employed as a 
procurement specialist from September 2004 to May 2007. Approximately 14 months after 
approving the petition, the Director issued an NOIR which stated that "[a]ccording to USCIS 
records" additional evidence was needed to prove that the Beneficiary was employed by in 
Poland. The Director requested that tax statements or tax payment records be submitted to document 
the Beneficiary's employment from Septe1c11ber 2004 to May 2007. The Director stated that this 
evidence was essential to verify that the Beneficiary acquired the requisite experience as a 
procurement specialist. After considering the Petitioner's response to the NOIR, the Director found 
1 The priority date of a Form I-140 petition is the date the underlying labor certification was filed with the DOL. See 
8 C.F.R. § 204.S(d). In this case the priority dale is December 16, 2015. 
2 
.
.
Matter of A-C- Corp. 
that the record did not establish that the Beneficiary had the requisite experience for skilled worker 
classification. Accordingly, he revoked the approval of the petition. 
On appeal, the Petitioner asserts that the Director's decision was faulty because the documentation it 
submitted relating to the Beneficiary's employment met the evidentiary requirements of 8 C.F.R. 
§ 204.5(1)(3)(ii)(A). This regulation provides that experience requirementst in support of a petition 
for a skilled worker must be supported by letters from employers describing the beneficiary's job 
experience. The evidentiary requirement has been met in this case, the Petitioner maintains, with the 
"certificate of employment" and a subsequent affidavit from the former owner of 
Furthermore, since the Director did not indicate either in the NOIR or in the revocation decision that 
these documents lacked veracity, the Petitioner contends that there were no grounds for the Director 
to request additional evidence (tax records) of the Beneficiary's employment or to base his 
revocation decision on the non-production of such evidence. 
In accord with the Petitioner's arguments on appeal, we find that the Director's NOIR did not 
articulate a proper ground for revoking the approval of the petition. The NOIR did not include a 
specific statement of the facts underlying the proposed action or identify any supporting evidence, as 
required by Estime. Rather, it simply stated that "according to USCIS records" additional evidence 
of the Beneficiary's employment by would be needed. The NOIR did not indicate what 
USCIS records were involved or what facts they revealed. The NOIR did not advise the Petitioner 
of any derogatory information relating to the Beneficiary's alleged employment with did 
not allege that the initial letter from the former owner of lacked veracity, and did not 
explain why that letter no longer . sufficed as proof of the Beneficiary's employment. Due to these 
procedural and substantive shortcomings of the NOIR, the revocation decision cannot be sustaine.d. 
See Matter of Estime, 19 I&N Dec. at 452. 
III. CONCLUSION 
For the reasons discussed above, the NOIR was not properly issued. On remand, if the Director 
issues a new NOIR, it should include a specific discussion of the facts underlying the proposed 
action and provide notice of any derogatory information of which the Petitioner is unaware. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter of A-C- Corp., ID# 1522965 (AA<? July 3, 2018) 
3