remanded EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 7858311 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 24, 2020 
The Petitioner seeks to employ the Beneficiary as a night manager of a convenience store under the 
third-preference immigrant classification 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). 
The Director of the Texas Service Center denied the petition . The Director concluded that the 
Beneficiary's prior attempt to obtain lawful permanent resident status through a fraudulent marriage 
barred the petition's approval. 
Upon de novo 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. To permanently fill a 
position in the United States with a foreign worker, a prospective employer must fust obtain 
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). DOL approval signifies that insufficient U.S . workers are able, willing, 
qualified, and available for an offered position . Id. Labor certification also indicates that employment 
of a foreign national will not harm wages and working conditions of U.S. workers with similar jobs. 
Id. 
If DOL approves a position, an employer must next submit the certified labor application 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 beneficiary meets the 
requirements of a DOL-certified position and a requested visa classification. Finally, if USCIS 
grants a petition, a 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. 
II. THE MARRIAGE FRAUD BAR 
USCIS cannot approve a petition if a beneficiary "attempted or conspired to enter into a marriage for 
the purpose of evading the immigration laws." Section 204( c) of the Act. In deciding if a marriage 
was a sham, USCIS must examine whether there is "substantial and probative evidence" of fraud 
warranting a petition's denial under section 204(c) of the Act. 8 C.F.R. § 204.2(a)(l)(ii). Directors 
should not ordinarily give conclusive effect to prior USCIS determinations. Matter of Samsen, 15 
I&N Dec. 28, 29 (BIA 1974) (citation omitted). Rather, they should reach their own, independent 
conclusions based on the evidence before them. Id. 
Here, the Director noted that in 2005 USCIS denied an immigrant petition filed for the Beneficiary 
by his U.S. citizen spouse. A district director found that the Beneficiary engaged in a sham 
marriage. It does not appear, however, that the Director folly reviewed and independently analyzed 
the evidence of record. Also, if an adverse decision stems from derogatory information that a 
petitioner is unaware of: USCIS must first notify the business of the information and afford it an 
opportunity to respond. 8 C.F.R. § 103.2(b )(l 6)(i). Before deciding this matter, the Director issued 
the Petitioner a written request for additional evidence (RFE). But the RFE questioned only the 
Beneficiary's qualifying experience for the offered position. Contrary to 8 C.F.R. § 103.2(b)(l6)(i), 
the RFE did not notify the Petitioner of evidence of marriage fraud or afford the company an 
opportunity to respond to such derogatory information. 
In addition, the Director applied the marriage fraud bar to this petition without benefit of recent case 
law. Since the petition's denial in 2006, the Board oflmmigration Appeals (BIA) has clarified that, 
in the context of marriage fraud, the term "substantial and probative evidence" means evidence 
"establish[ing] that it is more than probably true that the marriage is fraudulent." Matter of P. Singh, 
27 I&N Dec. 598, 607 (BIA 2019). 
For the foregoing reasons, we will withdraw the Director's decision and remand the matter. On 
remand, if the Director still finds section 204( c) of the Act applicable, he must notify the Petitioner 
of evidence of marriage fraud and afford the company an opportunity to respond. The Director 
should also reach an independent conclusion based on the evidence before him and apply current 
case law. 
III. THE REQUIRED EXPERIENCE 
Although unaddressed by the Director, the record also does not establish the Beneficiary's qualifying 
experience for the offered position. A petitioner must 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). 1 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 
1 This petition's priority date is May 6, 2003, the date an office in DOL's employment service system 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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impose additional criteria. 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). 
Here, the accompanying labor certification states that the minimum requirements of the offered 
position of night manager include neither training nor education. Rather, the labor certification 
states that the position requires at least two years of experience - in the job offered, as a convenience 
store manager, or as a "manager in any retail setting." 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained 
more than six years of foll-time, qualifying experience. He stated that a U.S. convenience store/gas 
station employed him as a "Manager/Cashier" from March 2000 until at least the petition's priority 
date in May 2003. He also stated that he managed a general store in Pakistan from November 1991 
to April 1994. 
As proof of qualifying experience, a pet1t10ner must submit letters from a beneficiary's former 
employers. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must include the employers' names, titles, and 
addresses, and describe a beneficiary's experiences. Id. 
The Petitioner did not submit a letter from the Beneficiary's claimed U.S. employer. 2 But the 
Petitioner submitted letters from the owner of the Pakistani general store. While the letters would 
confirm the Beneficiary's claimed former position, dates of employment, and job duties, the letters 
contain several deficiencies and anomalies, which must be addressed on remand. The first letter was 
submitted with the petition on November 14, 2005, and is undated. It is on store stationery and does 
not indicate whether the store remains open or not. The second letter is dated December 13, 2005 
and discloses that the store "is no longer in business." The letter does not address when the store 
closed. Whether the store reasonably issued the letters on its stationery, giving the impression that it 
remained open, cannot be determined without the store closing date. The letters also do not specify 
whether the Beneficiary worked on a foll- or part-time basis, which would help in determining if he 
has the foll two years of experience. Additionally, the letters' signatory appears to be the 
Beneficiary's father. The signatory's name matches that of the Beneficiary's father as listed in the 
Beneficiary's passport and in his application for adjustment of status. Given the foregoing 
deficiencies and uncertainties, letters alone from a relative in this case would not constitute 
sufficient independent, objective evidence of the Beneficiary's qualifying experience, and should be 
supported by additional evidence to corroborate the experience. The record therefore does not 
2 Evidence indicates that the Petitioner's former president/co-owner managed the U.S. convenience store/gas station that 
employed the Beneficiary from March 2000 until the petition's priority date in 2003. Online government records 
identify the Petitioner's former president/co-owner as the sole manager of the limited liability company that conducted 
business under the employer's name. See Tex. Comptroller of Pub. Accounts, ·Taxable Entity Search," 
https://mycpa.state.txus/coa/ (last visited Mar. 19, 2020). Online government records also show that, since 2003, the 
Petitioner's former president/co-owner has owned the single-family home listed as the Beneficiary's address on the Form 
1-140. See Ft. Bend Cent. Appraisal Distr., "Property Search," (last visited Mar. 19, 2020). The evidence suggests a 
business and personal relationship between the two men that began before the filing of the labor certification application, 
casting doubt on the bona fides of the job opportunity. See 20 C.F.R. § 656.20(c)(8) (2004) (requiring a labor 
certification employer to attest that "[t]he job opportunity has been and is clearly available to qualified U.S. workers"). 
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establish the Beneficiary's satisfaction of the mm1mum expenence requirement of the offered 
position. 
On remand, the Director should inform the Petitioner of the evidentiary deficiencies. The Director 
should also ask the company to submit independent, objective evidence of the Beneficiary's claimed 
qualifying experience, such as tax or contemporaneous business records. 
IV. CONCLUSION 
The Director did not properly apply the marriage fraud bar to the petition. The record also does not 
establish the Beneficiary's qualifying experience for the offered position. 
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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