remanded EB-3 Case: Stonemasonry

U.S. Citizenship 
and Immigration 
Services 
InRe : 21302090 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 8, 2022 
The Petitioner seeks to employ the Beneficiary as a stonemason under the third-preference, immigrant 
visa category 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). This category allows a U.S. business to sponsor a 
foreign national with at least two years of training or experience for lawful permanent resident status. 
The Texas Service Center Director denied the Form I-140, Immigrant Petition for Alien Workers, 
concluding that the Petitioner did not establish that the Beneficiary possessed the experience required 
for the position or the immigrant classification. 
The matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 I&N 
Dec. 369,375 (AAO 2010). We review the questions in this matter de nova. Matter of Christo 'sine ., 
26 I&NDec. 537,537 n.2 (AAO 2015). Upon de nova review, we conclude that a remand is warranted 
in this case. 
I. LAW 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing, qualified, and availableforan offered position; and (2) employment of a non citizen 
in the position would not harm wages and working conditions of U.S. workers with similar jobs. See 
section 212(a)(5)ofthe Act, 8 U.S.C. § 1182(aX5). Second, an employer must submit an approved 
DOL ETA Form 9089, Application for Permanent Employment Certification (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 DOL-certified position and a requested immigrant visa category. 8 C.F.R. 
§ 204.5(1). Finally, ifUSCIS approves a petition, anoncitizen beneficiary 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 
The Beneficiary applied for a nonimmigrant visitor's visa in 2016. As the Director noted, the 
application for that visa requested the Beneficiary's work history for the previous five years in which 
he indicated he worked in the masonry industry from November of 2013 to January of 2014, and his 
present work was in the restaurant business. The Beneficiary entered the United States utilizing that 
nonimmigrant visa in the same year. 
The Petitioner filed the labor certification in January of 2019. On that labor certification the employer 
indicated that the position required 24 months of experience. The labor certification also reflects the 
Beneficiary worked in the masonry industry for two employers; the first from February of 2007 to 
June of 2010 (Employer 1 ), and the second from July of 2010 to April of 2014 (Employer 2). The 
Petitioner filed the petition in October of 2019 supported in part by an experience letter noting the 
Beneficiary's work for Employer 1 from 2007 to 2010. 
In August of 2020, the Director issued a notice of intent to deny (NOID) allegingthatthe Beneficiary's 
nonimmigrant visa application did not support his claims that he accumulated seven years of 
experience as a stone mason. The Director recognized three months of work in the masonry indus1Iy 
and noted inconsistencies between the Beneficiary's claimed work history and the information 
contained in his visa application. In addition to the Beneficiary's work in the masonry industry, the 
Director noted he was affiliated with an educational institution from 2007 to 2010 and listed the course 
of study as accounting sciences. Ultimately, the Director alleged that the Petitioner had failed to 
demonstrate the Beneficiary possessed the requisite 24 months of experience for the position. 
Responding to the NOID, the Petitioner provided a letter from Employer 2, and an affidavit from the 
Beneficiary explaining his work and education history among other evidence. The Director conceded 
it was plausible why some of the work history was not included on the visa application since it only 
requested information relating to the most recent five years. But the Director concluded the 
Petitioner's response to the NOID did not provide a plausible explanation for the inconsistency 
between the nonimmigrant visa application and the labor certification as it relates to the dates of the 
Beneficiary's experience. In doing so, the Director stated it was the Petitioner's burden to resolve any 
inconsistencies in the record and that they had failed to provide independent and objective evidence 
to support their explanations for the date-related discrepancy. 
The Petitioner appeals the Director's decision and provides a new affidavit from the Beneficiary, a 
second letter from Employer 2, and a time line representing how his part-time university attendance at 
night could overlap with his daytime employment with Employer l. After reviewing the Petitioner's 
claims and the evidence in the record, we conclude that the Petitioner has provided sufficient objective 
and independent documentation that resolves the concerns the Director expressed in the denial 
decision. Here, our conclusion relates only to the resolution of the discrepant information the Director 
raised in its denial notice. 1 
1 On remand, the Directormay wish to inquire whethertheBeneficiary's foreign experience was fullorpart time in nature 
in accordance with the terms and conditions specified in the laborcertificationandtherequestedimmigrantvisa categ01y. 
Additionally. the Director could inquire why Employer 1 's experience letter submitted on appealis in English but the first 
letter from that employer was in Portuguese and was accompanied by an English translation. 
2 
We will remand the matter to the Director for consideration of whether the Petitioner has satisfied the 
remaining statutory eligibility criteria under the third-preference, immigrant visa category for skilled 
workers. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
3