remanded EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR.27,2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER· 
The Petitioner, a liquor store, seeks to employ the Beneficiary as a '·marketing and display 
manager/cashier" and requests classification of ·her as a skilled worker. See Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i); 8 U.S.C. § 1153(b)(3)(A)(i). The skilled worker 
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 Texas Service Center denied the petition, concluding that the Petitioner has not 
established that the Beneficiary met the experience requirements stated on the labor certification. 
The matter is now before us on appeal. 
Upon de novo review, we will remand the matter to the Director in accordance with the following. 
I. BACKGROUND· 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain 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. § 1182(a)(5)(A)(i). By approving the labor cettification, 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. Section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer may tile 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 USCIS 
approves the petition, the foreign national may apply for an immigrant visa abroad or, if eligible, 
adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255. 
1 The date the labor certification is filed, in cases such as this one, is called the "priority date." 
Matter of P-, Inc. 
II. LAW AND ANALYSIS 
A. Beneficiary's Experience 
Section 203(b)(3)(A)(i) of the Act provides for the granting of preference classification to qualified 
immigrants who are capable of performing skilled labor (requiring at least two years training or 
experience), not of a temporary nature, for which qualified workers are not available in the United 
States. See also 8 C.F.R. § 204.5(1)(2). 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states: 
' 
If the petition is for a skilled worker, the petition must be accompanied by evidence 
that the alien meets the educational, training or experience, and any other 
requirements of the [labor certification]. The minimum requirements for this 
classification are at least two years of training or experience. 
The determination of whether a petition may be approved for a skilled worker is based on the 
requirements of the job offered as set forth on the labor certification. See 8 C.F.R. § 204.5(1)(4). The 
labor certification must require at least two years of training and/or experience. Relevant post­
secondary education may be considered as training. See 8 C.F.R. § 204.5(1)(2). 
Accordingly, a petition for a skilled worker must establish that the job offer potiion of the labor 
certification requires at least two years of training and/or experience, and the beneficiary meets all of 
the requirements of the offered position set forth on the labor certification. 
In evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor 
certification to determine the required qualifications tor the position. USCIS must examine "the 
language of the labor certification job requirements" in order to determine what the petitioner must 
demonstrate that the beneficiary has to be found qualified tor the position. Madany v. Smith, 696 
F.2d 1008, 1015 (D.C. Cir. 1983). 
The priority date in this matter is June 5, 2015. Here, Pait H.6 of the ETA Form 9089, Application 
tor Permanent Employment Certification (labor certification), states that the Beneficiary must have 
36 months of experience in the job offered, which as indicated in Part H.3 is a marketing and display 
manager; cashier. 
The assigned O*Net code 2 for the position is 41-1011, First Line Supervisors of Retail workers. Part 
H.11 states the job duties as follows: 
2 O*NET is the current occupational classification system in use by DOL. See O*Net Online, http://online.onetcenter.org. 
(accessed on March 27, 2017). 
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Matter of P-, Inc. 
Developing promotions and marketing strategies for store and for individual products; 
organizing displays of products and promotional materials in store; sampling of 
product; ordering product in accordance with inventory needs; storage and 
organization of inventory; and separation and collection of empty containers for 
redemption. Duties will include some cashier work; 3 including assisting customers 
with questions about merchandise, operating cash register and bagging and packing 
customer purchases. 
Part K of the labor certification indicates that the Beneficiary worked 25 hours per week as a liquor 
store clerk for at in Massachusetts from 
June 1, 2013 until June 5, 2015, and that she worked 30 hours per week as a liquor store associate 
for at m Massachusetts from April 1, 2001 unti I 
June 5, 2015. 
The Director noted discrepancies in the experience .letters from and 
because the job titles, duties , wording and the format of the letters are the same. The 
Director also indicated that these job titles and duties differ from what is stated on the labor 
certification. The Director issued the Petitioner a request for evidence (RFE) to provide an 
opportunity to resolve these discrepancies. In response to the RFE, the Petitioner submitted a letter 
from and a letter from which each provided additional 
details of the Beneficiary's work experience. 4 The Petitioner submitted Forms W-2 issued to the 
Beneficiary for from 2001 to 2015 and for from 2012 to 
2015. 5 The Director noted that the labor certi tication and the experience letters stated that the 
Beneficiary began working at on June l, 2013. [n denying the petition , the 
Director held that the Petitioner had not resolved the discrepancies in the record regarding the 
Beneficiary ' s experience. 
On appeal, the Petitioner has submitted a letter from the president of 
indicating that the start date listed in the experience letter was an unintentional error and that the 
Beneficiary had been working there from September 2012 to March 2016. We note that a 
comparison ofthe two experience letters from indicates that nearly all of the 
' Duties as a cashier would appear to fall under a separate O*Net code, of 41-20 II , Cashier s. 
4 
We note that the author of the. letter from has the same surname as the Beneficiary. We acknowledge that 
this is a common surname in India; however, because of the other inconsistencies regarding the Beneficiary's experience 
noted herein, the Petitioner must provide independent, objective evidence to establish whether the Beneficiary is related 
to the president or other corporate officers of See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988) 
(inconsistencies in the record must be resolved by independent objective evidence). 
5 Similarly, we note that the author of the letter from has the same surname as the Beneficiary . We 
acknowledge that this is a common surname in India ; however , because of the other inconsistencies regarding the 
Beneficiary 's experience noted herein, the Petitioner must provide independent , objective evidence to establish whether 
the Beneficiary is related to the president or other corporate officers of See Malf er of Ho, 19 I&N Dec. 582 , 
591-592 (B lA 1988) (inconsistencies in the record must be resolved by independent objective evidence) . 
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Malter of P-. Inc. 
job duties stated on the May 23, 2016letter corresponds with the duties stated on the March 28,2016 
letter. 
However, we note the following discrepancies regarding the Beneficiary's employment experience 
that were not raised by the Director. The record contains three different Forms G-325 completed by 
the Beneficiary on different dates. On a Form G-325A filed with the Beneficiary's Fonn 1-485, 
Application to Register Permanent Residence or Adjust Status, in 2004 containing the Beneficiary's 
biographic information, she states that she worked as a bookkeeper for tfom 200 I until the 
date of the Beneficiary's signature in 2004 and as a cashier for in 2000 but does not 
specify \Vhich months. The two other Fonns G-325A that the Beneficiary signed in 2005 in 2006 
state that she \Vorked as a cashier for from 2001 until the date of her signature and as a cashier 
for from October 2000 to December 2000. The 2005 Form G-325A states that the 
Beneficiary \vas living in Florida from April through December 200 I when she was allegedly 
working for in Massachusetts. The experience letter from the president of states that 
the Beneficiary worked there as a merchandising and promotion assistant working 25 to 30 hours per 
week. The labor certification indicates that the Beneficiary worked as a "liquor store associate 30 
hours per week, where she was involved in "marketing and display , tastings of products, ordering 
product, stocking inventory, redemption of containers and helping at the counter." 
In addition, the record contains the prior experience letter from the president of 
stating that the Beneficiary \'V'Orked there as a merchandiser for 30 hours per week from 
July 2013 until at least the date of the letter in March 2016. This conflicts with the information 
contained in the labor certification, which states that she was employed for 25 hours as a "liquor 
store clerk," where she did "bookkeeping, ordering of product, and setting up marketing displays ." 
The individual tax returns submitted for the Beneficiary do not clarify her position title with either 
company as page two ofthe Forms 1040 lists her position as "job." 
We also note that the Forms W-2 conflict with evidence in the Beneficiary's tax returns, which 
contain Schedule C Forms that list income from her own businesses operated from her home address 
for 2011, 2012, 2013, and 2014. At least one tax return notes that the income is "management 
income." A search of corporate records for the state of Massachusetts reveals that the Beneficiary is 
the Director of three companies, and which ':vere 
formed in 2001,2006 , and 2011 , respectively.
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All of the above inconsistencies cast doubt on the prior and nev.dy submitted letters. Matter of Ho, 
19 I&N Dec. 582, 591-592 (BIA 1988). As the Petitioner has not had an opportunity to address 
these deficiencies, we will remand the petition to the Director. The director may request any 
additional evidence considered pertinent. Similarly , the petitioner may provide additional evidence 
within a reasonable period of time to be determined by the director. Upon receipt of all the 
evidence, the director will review the entire record and enter a new decision. 
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We further note that the Beneficiary ' s address as stated on the labor certification and her personal tax returns, 
111 Massachusetts is the same address as advertised online for -----
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Matter of P-, Inc. 
B. Bona Fide Job Offer 
Under 20 C.F.R. §§ 626.10(c)(8) and 656.3, the petitioner has the burden when asked to show that a 
valid employment relationship exists, that a bona fide job opportunity is available to U.S. workers. 
See Matter of Amger Corp., 87-INA-545 (BALCA 1987). A relationship invalidating a bonafide 
job offer may arise where the beneficiary is related to the petitioner by "blood" or it may "be 
financial, by marriage, or through friendship." See Matter o( Sunmart 374, 00-INA-93 (BALCA 
May 15, 2000). The Beneficiary's individual tax returns state her address as in 
Massachusetts. We note that the Petitioner's owner has at least one other business 
affiliation with an individual who uses this same address. Specifically, the Petitioner's owner is 
registered as the Director of with another individual who is registered as the 
President of this this company and who reports the same address at 
Massachusetts. This calls into question whether the Petitioner's president had a pre­
existing relationship with the Beneficiary. Therefore, the Petitioner must clarify the nature of the 
Beneficiary's relationship, whether she is personally related, and/or the extent of any prior financial 
relationship with the Petitioner's owner. Accordingly, the Director may address this issue and 
whether a bonafide job offer exists on remand. 
III. CONCLUSION 
For the reasons stated 
above, the matter will be remanded to the Director tor consideration of whether 
the Beneficiary meets the experience requirements of the position offered and whether there is a bona 
fide job offer. 
ORDER: The decision of the Director of the Texas Service Center is withdrawn. The matter is 
remanded to the Director for further proceedings consistent with the foregoing 
opinion and for the entry of a new decision. 
Cite as Matter ofP-. Inc., ID# 143363 (AAO Mar. 27, 2017) 
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