remanded EB-3 Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re : 18425482 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 2, 2022 
The Petitioner , a retail store, seeks to employ the Beneficiary as an assistant manager under the third­
preference, immigrant visa category for "other workers ." See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii) . This employment-based "EB-3" immigrant 
classification allows a U.S. employer to sponsor for lawful permanent residence a foreign national 
who is capable of performing unskilled labor that requires less than two years of training or experience 
and is not of a temporary or seasonal nature. 
The Director of the Texas Service Center denied the petition . The Director concluded that the 
Petitioner did not demonstrate the Beneficiary's possession of the minimum employment experience 
required for the offered position . 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. Section291 oftheAct, 8U.S.C. § 1361;MatterofChawathe, 25 I&NDec. 369,375 
(AAO 2010). Upon de nova review, we will withdraw the decision of the Director. The matter is 
remanded for the entry of a new decision consistent with the foregoing 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. workers 
able, willing, qualified, and available for an offered position; and (2) the employment of a noncitizen 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. ANALYSIS 
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 of 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 determine 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 performing the key duties of the job opportunity" listed on the labor 
certification. See, e.g., Matter of Symbioun Techs., Inc., 2010-PER-01422, slip op. at 4 (BALCA Oct. 
24, 2011). The duties of the position described in the labor certification are as follows: 
Assist manager to coordinate the business activities. Assist management with 
budgeting, accounting and purchasing. Maintains inventory by checking merchandise 
to determine inventory levels anticipating customer demand. Monitor sales activities 
to ensure that the customers receive satisfactory service and quality goods. 
The labor certification states that the position requires neither training, experience, special skills, nor 
other requirements. The certification also indicates that the Petitioner will not accept experience in an 
alternate occupation. 
In support of claimed qualifying experience, a petitioner must submit a letter from a beneficiary's 
former employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must state the employer's name, title, and 
address, and "a description of . . . the experience of the [beneficiary]." Id. If such a letter is 
unavailable, USCIS will consider other evidence ofa beneficiary's experience. 8 C.F.R. § 204.5(g)(l). 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained about 
four years and nine months of full-time, qualifying work experience. He stated that while serving in 
the Bangladesh military he was employed as an assistant manager from June 2013 to March 2018. 
Section K.9 of the labor certification, which requests details about the work experience, such as "duties 
performed, use of tools, machines, skills, qualifications .... " and information about his employer, such 
as the employer's phone number and the name of his supervisor, simply contains the statement "see 
attached." However, the Petitioner did not provide the referenced attachment to the labor certification. 
In the initial filing with the petition, the Petitioner provided employment letters to document the 
Beneficiary's work experience. The Director initially issued a request for evidence (RFE) seeking 
1 This petition's priority date is March 29. 2018, the date DOL accepted the accompanying labor certification application 
for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
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additional evidence of the Petitioner's ability to pay the proffered wage. Later, after reviewing the 
Petitioner's response to the RFE, he denied the petition concluding that the Petitioner did not establish 
that it could pay the proffered wage. 
The Petitioner filed a motion to reopen the petition with the Director. The Director granted the motion, 
withdrew the denial of the petition, then issued a notice of intent to deny (NOID) the petition, 
indicating that the record contained inconsistent and insufficient evidence of the Beneficiary's 
qualifications for the position. Specifically, the Director indicated in the NOID that the submitted 
employment letters reflected the Beneficiary's employment with the Bangladesh military in various 
capacities and did not sufficiently document his asserted work experience. The Director further 
discussed the information that the Beneficiary provided to the United States Department of State 
(DOS) in his nonimmigrant visa application in which he described his employment with the 
Bangladesh military as follows: 
Presently I am serving as a GS0-2 (Coordination) of Director, Administration Bureau, 
HQ DFGI. I work as a confidential staff officer of Director and coordinate 
administrative matters with the HQ DGFI and other bureaus in Bangladesh. 
The Petitioner provided evidence in response to the Director's NOID. The Director reviewed the 
evidence, including evidence provided in response to the NOID, then denied the petition a second 
time, concluding that the record did not sufficiently document that the Beneficiary's possessed at least 
one year of work experience in the position offered. Specifically, the Director rejected the submitted 
work experience letters and other evidence provided in support of the petition, concluding that the 
evidence did not persuasively demonstrate that the Beneficiary's asserted duties as a "coordinating 
officer," "visa officer/protocol officer," and "assistant manager" of a military canteen store were 
sufficiently analogous to the civilian assistant manager position offered in the Petitioner's retail store 
to qualify as work experience in the position offered. The Director further determined that the 
evidence did not provide sufficient, consistent detail about the actual duties that the Beneficiary 
performed while in the Bangladesh military. 
On appeal, the Petitioner submits relevant evidence addressing the Beneficiary's work experience 
credentials, to include a sworn statement from the Beneficiary, letters from Bangladesh military 
officers, and an employment certificate issued by the Bangladesh military. Thus, we will withdraw 
the Director's decision and remand the matter back to the Director to consider this evidence in the first 
instance and determine whether the Petitioner has demonstrated that the Beneficiary qualifies for the 
third-preference "other worker" visa category, and whether he meets the specific requirements of the 
labor certification ( one year of work experience in the offered position). 
On remand, the Director may wish to issue a new NOID outlining aspects of the evidence in the record 
that he deems deficient and allowing the Petitioner an opportunity to respond. The Director should 
consider the entire record, including any new evidence submitted and, if deficient, must state how the 
record fails to demonstrate eligibility for the classification sought under the pertinent regulatory 
scheme. As such, we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision. 
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