remanded EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 8287461 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 7, 2020 
The Petitioner seeks to employ the Beneficiary as a convenience store night manager. 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 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 
expenence. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that (a) the Beneficiary possessed the experience required by the labor certification as of the 
priority date; and (b) the Beneficiary intended to work for the Petitioner on a permanent basis. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's 
decision and remand the matter for further proceedings consistent with our opinion and for the entry 
of a new decision . 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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) .1 See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). By approving the labor certification, the 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. See section 212(a)(5)(A)(i)(I)-(11) of the 
Act. 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, ifUSCIS approves the petition, 
the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
November 14, 2017. See 8 C.F.R. § 204.S(d). 
II. THE BENEFICIARY'S EXPERIENCE 
The Director determined that the Petitioner did not establish that the Beneficiary possessed the 
experience required by the labor certification as of the priority date. A beneficiary must meet all of 
the requirements of the offered position set forth on the labor certification by the priority date of the 
petition. 8 C.F.R. § 103.2(b)(l), (12); Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting 
Reg'l Comm'r 1977). 
In this case, the labor certification requires a high school diploma or GED and 24 months of experience 
in the job offered of convenience store night manager. Experience in an alternate occupation is not 
acceptable. The labor certification states that the Beneficiary qualifies for the offered position based 
on experience as a full-time store manager ( 40 hours per week) with I I in Pakistan, 
from August 6, 2007, to February 3, 2010, and from January 5, 2015, to July 31, 2015. 
In his denial notice, the Director determined that the "while the evidence accounts for at least 24 
months of work experience with.__ _______ _, the Petitioner has not established that the 
beneficiary gained experience performing the same duties as the proffered position." He cited Matter 
of Symbioun Techs., Inc., 2010-PER-01422, slip op. at 4 (BALCA Oct. 24, 2011) (citations omitted), 
for the proposition that experience in a job offered means experience performing the key duties of an 
offered position. 2 He focused on the duties of the position and stated that the Beneficiary did not have 
any experience overseeing and directing the operations of a gas station because .__ ______ __, 
was not a gas station. On appeal, the Petitioner asserts that the Beneficiary is qualified for the offered 
position. It states that the title of the offered job is "convenience store night manager," and the fact that 
the convenience store where the Beneficiary worked did not ofter gas "has no legitimate bearing on the 
beneficiary's ability to perform the job duties." 
Although a key job duty is the oversight of operations of a convenience store and gas station, the 
record is not clear whether this key duty requires specific knowledge that could only be gained at a 
convenience store with gas pumps. For example, if oversight of the gas station includes overseeing 
inspection, testing, and compliance issues related to the gas pumps; troubleshooting problems with the 
gas pumps; and/or repairing the pumps, then the Beneficiary would need experience overseeing and 
directing the operations of a gas station to perform the duties of the offered job. Therefore, we will 
remand the matter to the Director to further clarify the key duties of the offered job. 
Further, based on the deficiencies detailed below, we will also remand the matter to the Director to 
review whether the Beneficiary was employed at .__ ______ _,during the time periods specified 
on the labor certification. 3 Evidence relating to qualifying experience must be in the form of a letter 
2 Decisions of the Board of Alien Labor Certification Appeals (BALCA) do not bind USCTS. See 8 C.F.R. § 103.9(b) 
(stating that, in Department of Homeland Security (DHS) proceedings involving the same issues, precedent decisions of 
the Attorney General and the Board oflmmigration Appeals bind DHS officers). But USCTS defers to DOL's reasonable 
interpretations of its labor certification regulations. See Martin v. Occupational Safety & Health Review Comm ·n, 499 U.S. 
144, 152 (1991) (requiring one administrative agency to defer to another's reasonable interpretation of regulations that 
Congress authorized it to promulgate and enforce). 
3 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
2 
from a current or former employer and must include the name, address, and title of the writer, and a 
specific description of the duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). With the 
petition, the Petitioner submitted a letter dated August 5, 2015, froml l President of 
I I in Pakistan. He states that he has "access to all employee files" and, therefore, 
that he is "able to provide this letter to confirm" the Beneficiary's employment. He states that the 
Beneficiary worked as a store manager 45 hours per week from August 6, 2007, to February 3, 2010, 
and from January 5, 2015, to July 31, 2015, and he listed his duties. 
In a request for evidence (RFE), the Director indicated that information provided on the Beneficiary's 
nonimmigrant visa application submitted in July 2015 conflicts with the information provided on the 
labor certification in this case. The Beneficiary indicated on the nonimmigrant visa application that 
his present occupation was "not employed" and that he was a freelance artist, working as a 3D animator 
and motion graphic animator. The Beneficiary also indicated that he had previously worked as a 
motion graphic animator in Malaysia from February 2013 to December 2014.4 He did not disclose 
his purported employment with~------~ on his nonimmigrant visa application, and he did 
not list the Malaysian employment on the labor certification. In the RFE, the Director indicated that 
the Petitioner must provide independent, objective evidence to resolve the inconsistencies regarding 
the Beneficiary's prior experience. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).5 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other 
evidence submitted in support of the requested immigration benefit. Id. 
In response to the RFE, the Petitioner provided an affidavit dated May 21, 2019, from the Beneficiary. 
He stated that the 2015 nonimmigrant visa application asked him to provide his "primary occupation." 
He asserted that because his bachelor's degree was in creative multimedia, and he had been working 
on a freelance basis in 2013 and 2014 in that field and was entering the United States to obtain a 
master's degree in the same field, he did not list his employment wit~ las that job 
was "officially ending at the end of the month." However, the nonimmigrant visa application also 
required him to list his previous employment. In that section of the application, he listed his 
employment as a motion graphic animator in Malaysia from February 2013 to December 2014, but he 
did not list his purported experience as a store manager withl I from August 2007 
to February 2010. The reason for this omission is not clear. See id. Further, the Malaysian 
employment was not listed on the labor certification at Part K6 as required. See id. Additionally, the 
Beneficiary submitted his nonimmigrant visa application in July 2015 and, as detailed below, he 
obtained the letter from his father verifying his employment as a store manager in August 2015. Ifhe 
was entering the United States to solely pursue his education in creative multimedia as detailed in his 
affidavit, it is not clear why he obtained the work experience letter one month after submitting a 
nonimmigrant visa application that omitted this employment. See id. 
4 He signed the application and certified that its contents were conect and that any false or misleading statement may result 
in the permanent refusal of a visa or denial of entry in the United States. 
5 Evidence that a petitioner creates after USCIS points out the deficiencies in a petition is not independent and objective 
evidence. Independent and objective evidence is evidence that is contemporaneous with the Beneficiary's experience, 
such as paystubs, payroll records, tax returns, bank records, and/or personnel records. 
6 Part K required him to list all jobs held during the last three years, which would have included the Malaysian employment. 
3 
~nse to the RFE, the Petitioner also provided an affidavit dated May 10, 2019, froml I 
L__Jverifying the Beneficiary's employment atl lin Pakistan. He stated that he 
is the Beneficiary's father and that he pays all of his employees in cash on the last day of every month. 7 
He also stated that his company retains "payroll records for 12 months for internal accounts purposes," 
and, therefore, he does not have payroll records dating back to 2015. 8 The affidavit was dated and 
signed on May 10, 2019, but it was not notarized until May 11, 2019. It is not clear how the notary 
verified the authenticity of the document and its signer a day after the document was executed. See 
id. Further.I l identified himself as the President and sole owner of I I 
and affidavits in the record state that he worked at the store every day for decades until he semi-retired 
in 2016. However, if the Beneficiary began managing the store foll-time in 2007 as detailed on the 
labor certification, I ts role at the store during that time is unclear. See id. 
Additionally, in response to the RFE, the Petitioner also provided an affidavit dated May 11, 2019, 
froml l who states that he owns a shop near the~------~and that he has 
known the Beneficiary's family for "decades." He states that he saw the Beneficiary "working at their 
store daily as manager from 2007 until [ the Beneficiary] left for Malaysia sometime in 201 0" and 
again "from January 2015 until July 2015 when he left for the United States." The top of the affidavit 
is stamped "23 APR 2019" by 'I IAdvocate High Court," presumably to legitimize 
the affidavit. However, since the affidavit was not executed until May 11, 2019, it is not clear how 
.__ ______ __. stamped it weeks earlier on behalf of a "High Court." See id. 
The Petitioner also provided an affidavit dated May 10, 2019, from I I who states that 
he owns a shop near the .__ ______ __,and that he has known the Beneficiary's family for 
"decades." He states that he saw the Beneficiary "working at their store daily as manager from 2007 
until [the Beneficiary] left for Malaysia sometime in 2010" and again "from January 2015 until July 
2015 when he left for the United States." The affidavit was written in English but signed in Urdu, so 
it is not clear if the signer understood English. 9 See id. Further, the top of the affidavit is stamped 
"23 APR 2019" by 'I !Advocate High Court" presumably to legitimize the affidavit. 
Since the affidavit was not executed until May 10, 2019, it is not clear how ~-------~ stamped it weeks earlier on behalf of a "High Court." See id. 
Based on the deficiencies described above, the affidavits submitted in response to the RFE are not 
independent, objective evidence of the Beneficiary's employment. See Matter of Ho, 19 I&N Dec. at 
591-92. 10 Thus, we cannot affirmatively find that the Beneficiary possessed the minimum experience 
7 The record does not contain copies of monthly deposit slips reflecting deposits of the Beneficia 's wages into his bank 
account, nor does it contain any other evidence of his receipt of cash wages from L-----,-----___J.-- 7 
8 The record does not contain the Beneficiary's tax returns reflecting his income from~ ______ __.which may 
have verified his employment there. 
9 His accompanying personal identification card is written in Urdu and translated into English. 
10 The use of identical language across various letters or affidavits from supposedly different sources can indicate that the 
assertions in these documents are not credible. See Surinder Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006) (upholding 
an adverse credibility determination in asylum proceedings based in part on the similarity of the affidavits); see also Mei 
Chai Ye v. U.S. Dep 't. of Justice, 489 F .3d 517, 519 (2d Cir. 2007) ( concluding that an immigration judge may reasonably 
infer that when an asylum applicant submits strikingly similar affidavits, the applicant is the common source). In 
evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its quality. See Matter 
of Chawathe, 25 l&N Dec. 369,376 (AAO 2010) (quoting Matter of E-M-, 20 l&N Dec. 77, 80 (Comm'r 1989). 
4 
required by the labor certification as of the priority date. On remand, the Director should request 
additional evidence of the Beneficiary's qualifications and allow the Petitioner reasonable time to 
respond. 
III. BENEFICIARY'S INTENT TO WORK FOR THE PETITIONER 
The Director also determined that the Petitioner did not establish that the Beneficiary intended to work 
for the Petitioner on a permanent basis. A petitioner must be "desiring and intending to employ [ a 
foreign national] within the United States." Section 204(a)(l)(F) of the Act. It must intend to employ 
a beneficiary under the terms and conditions of an accompanying labor certification. See Matter of 
Izdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966). In the RFE, the Director noted that the 
Beneficiary was last admitted to the United States as a nonimmigrant student in 2015 to attend a 
master's level animation program in California, and that he intended to study animation and not work 
as a foll-time convenience store night manager. Thus, the Director asked the Petitioner to provide a 
sworn statement from the Beneficiary indicating whether he intends to work for the Petitioner in the 
offered job on a foll-time, permanent basis, or whether he intends to pursue farther studies or 
employment related to animation. In response, the Petitioner submitted an affidavit from the 
Beneficiary stating that he intends to work for the Petitioner in the offered position "on a foll-time 
basis" and that he does not "at this time, intend to pursue farther studies or employment related to 
animation." The Director noted that the Beneficiary did not "expressly state that he intends to work 
for the petitioner on a permanent basis." The Director concluded that: 
[i]n light of the beneficiary's education related to graphic animation, his experience as 
a freelance artist, and the resume and professional summary identifying him as an artist 
and multimedia designer, the evidence does not establish that the beneficiary intends 
to work for the petitioner as a convenience store night manager on a lasting, continuous, 
and permanent basis. 
On appeal, the Petitioner asserts that it and Beneficiary have indicated a good-faith intention to make 
and receive an offer of foll-time, permanent employment within the expectation of a job in the 
convenience store industry. It cites Matter of Cardoso, 13 I&N Dec. 228, 230 (BIA 1969), and Matter 
of Rajah, 25 I&N Dec. 127, 132 (BIA 2009), for the proposition that a beneficiary is not required to 
establish intent to remain at a certified job indefinitely. It states that "[a]n alien need not intend to 
remain at the certified job forever, but at the time of obtaining lawful permanent resident status, both 
the employer and the alien must intend that the alien be employed in the certified job." Matter of 
Rajah, 25 I&N Dec. at 132; see Yui Sing Tse v. INS, 596 F.2d 831,835 (9th Cir. 1979). 
The Petitioner has established that it is more likely than not that the Beneficiary intends to work for 
the Petitioner on a permanent basis. The Beneficiary has the required high school diploma, and the 
fact that he has college education in a field that differs from the offered job does not, in itself: preclude 
his intent to work for the Petitioner on a permanent basis. Further, although the Petitioner has not 
provided independent, objective evidence resolving the inconsistencies in the Beneficiary's prior 
qualifying employment, the fact that he may have also worked as an artist and multimedia engineer 
does not, in itself, preclude his intent to work for the Petitioner on a permanent basis. Thus, we will 
withdraw the portion of the Director's decision related to the Beneficiary's intent to work for the 
Petitioner on a permanent basis. 
5 
However, in April 2019, the Petitioner filed another Form I-140 on behalf of a different Beneficiary 
for the position of bookkeeper. The duties of a bookkeeper as detailed on that labor certification 
include reconciling daily transactions, recording numerical data, compiling reports and maintaining 
accounting records, and balancing accounts on a daily basis. DOL iCert, 
https://icert.doleta.gov/index.cfm?event=ehLCJRExtemal.dspCert&doc _id=3&visa _ class _id=6&id= 
1454977 (last visited Apr. 30, 2020). Those duties overlap with many of the duties of the offered job, 
including reconciling daily cash with sales receipts; preparing daily sales reports; and preparing 
payroll and sales tax ledgers. Based on the Petitioner's intent to hire a separate bookkeeper, it is not 
clear that it intends to employ the Beneficiary under the terms and conditions of the labor certification. 
Thus, we cannot affirmatively find that the job offer is bona fide. On remand, the Director should 
request additional evidence of the bonafides of the job offer and allow the Petitioner reasonable time 
to respond. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
6