remanded EB-3 Case: Tailoring

U.S. Citizenship 
and Immigration 
Services 
In Re: 20633721 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 13, 2022 
The Petitioner, a dry cleaner, sought to employ 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 "EB-3" immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent residence to work in a position that 
requires at least two years of training or experience. 
After the tiling's initial grant , the Director of the Nebraska Service Center revoked the petition's 
approval, concluding that the record at the time of approval did not establish that 1) the job offer was 
bona fide and 2) the Beneficiary possessed the minimum experience required for the offered position. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See Matter of Ho, 19 I&N Dec. 582, 589 (BIA 1988) (discussing the burden of proof in 
petition revocation proceedings); see also Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010) 
( discussing the standard of proof). 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. First , a prospective employer 
must obtain U.S. Department Of Labor (DOL) certification that: (1) there are insufficient U.S. workers 
able, willing, qualified , and available for an offered position; and (2) employment of a noncitizen in the 
position will not 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 
DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, if USCIS approves a petition , a 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. 
At any time before a beneficiary obtains lawful permanent residence, users may revoke a petition's 
approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by a 
record, the erroneous nature of a petition's approval justifies its revocation. Matter of Ho, 19 r&N 
Dec. at 590. 
users properly issues a notice of intent to revoke (NOrR) if the unexplained and unrebutted record 
at the time of the notice's issuance would have warranted the petition's denial. Matter of Estime, 19 
r&N Dec. 450, 451 (BIA 1987). The Agency properly revokes a petition's approval if a petitioner's 
NOrR response does not rebut or resolve the stated revocation grounds. Id. at 451-52. 
II. BONA FIDE JOB OFFER 
For the reasons explained in the NOrR, the Director questioned whether the job offer for an "alteration 
tailor" 1 is bona fide. The Director's decision did not, however, address the Petitioner's response. For 
example, although the Petitioner claims that it requires the Beneficiary's services because she is a 
"specialist in replacing zippers, buttons, and overlocking holes," 2 the labor certification does not 
indicate that the position has any "[s ]pecific skills or other requirements," nor is there any mention of 
specializing in zippers, buttons, or overlocking holes in the "job duties section." 3 
On remand, the Director should 1) address the Petitioner's arguments in response to the NOIR and on 
appeal and 2) determine whether the labor certification accurately reflects the requirements and duties 
of the proffered position. 
III. THE BENEFICARY'S QUALIFICATIONS 
A petitioner must establish a beneficiary's possession of all DOL-certified job requirements by a 
petition's priority date. Matter of Wing's Tea House, 16 r&N Dec. 158, 160 (Acting Reg'l Comm'r 
1977). This petition's priority date is October 28, 2015, the date DOL accepted the accompanying 
labor certification application for processing. See 8 C.F.R. 204.5( d) ( explaining how to determine a 
petition's priority date). 
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. users 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 labor certification indicates that the offered position requires at least two years of experience in 
the job offered and that the Beneficiary satisfied this requirement based upon her employment as a 
1 The job title used on the labor certification is "custom tailor." On the Form 1-140, Immigrant Petition for Alien Worker, 
it is "alteration tailor." 
2 The Petitioner also states that it "hired [ the Beneficiary] solely based on her excellent skills in zippers, buttons, and 
overlocking." 
3 It, therefore, would also appear that the Petitioner did not accurately describe the offered position on the labor 
ce1tification. 
2 
"custom tailor" in South Korea from January 17, 2010, until Febrnary 18, 2013. The Director 
concluded that the Beneficiary provided "conflicting information" and thus, "may have" submitted a 
"fabricated" experience letter and "misrepresented a material fact involving the labor certification." 
The NOIR, however, did not notify the Petitioner of additional derogatory evidence regarding her 
claimed prior experience. On her Febrnary 7, 2013, and June 5, 2013, E-2 nonimmigrant visa (NIV) 
applications, 4 the Beneficiary indicated that her "primary occupation" was "homemaker" and 
answered "no" to the question"[ w Jere you previously employed?" As noted above, the documentation 
regarding her employment in South Korea stated that she was employed until Febrnary 18, 2013. In 
addition, the Beneficiary did not include the claimed experience on the Form G-325A, Biographic 
Information, despite the clear instructions to list her employment for the last five years. 5 
The Beneficiary's responses on her NTV application and Form G-325A directly contradict her 
subsequent claims regarding her previous employment and qualifications for the proffered position. 
These inconsistencies must be resolved with independent, objective evidence pointing to where the 
trnth lies. See Matter of Ho, 19 T&N Dec. at 591. 
We would also note that the job duties as described on the labor certification are as follows: 
Provide alterations and adjustments, and redesign and resize clothing on clients' 
demands. Make made-to-measure clothing available to customer's specifications and 
measurements with high regards to garment, detail, design, and fit. 
According to the February 5, 2021 employment verification letter, the Beneficiary's ''job was to 
tailor[,] specifically [the] replacement of zippers and overlocking." Thus, on remand the Director 
should also determine whether, even if the Beneficiary were able to resolve the above inconsistencies 
and establish that she was employed as a tailor in South Korea, she held the requisite two years of 
experience in the job offered at the time of filing. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's priority 
date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of 
ability to pay must generally include copies of annual reports, federal income tax returns, or audited 
financial statements. Id. Although the Director's revocation indicated that the Petitioner had 
established its ability to pay, we withdraw the Director's conclusion on this issue. 
The labor certification states the proffered wage is $28,496 a year. According to the 2015 Form W-2, 
the Petitioner paid the Beneficiary a total of $30,000. However, the record indicates that the 
Beneficiary did not begin her employment with the Petitioner until July 1, 2015. As the Petitioner has 
not provided any explanation for this, we are left to question whether it actually paid the Beneficiary 
more than the proffered annual salary for six months of work. 
4 The Beneficiary is the spouse of an E-2 visa holder who owns a dry-cleaning business. 
5 The G-325A, which the Beneficiary signed on August 29, 2016, indicates that "[s]evere penalties are provided by law 
for knowingly and willfully falsifying or concealing a material fact." 
3 
We also note additional discrepancies among the tax documents which the Director did not address. 
For example, Line 13 of the 2015 Form 1120, U.S. Corporation Income Tax Return, lists the "Salaries 
and wages (less employment credits)" as $42,707, but according to the NYS-45, Quarterly Combined 
Withholding, Wage Reporting, and Unemployment Insurance Return, the Petitioner paid a total of 
$68,498.40 in wages in 2015. Based upon the documentation provided, we are unable to determine 
the accuracy of Line 13 of the Form 1120. 
The record lacks sufficient and credible evidence of the company's continuing ability to pay the 
proffered wage. See 8 C.F.R. § 205.5(g)(2). Further, given the numerous discrepancies and 
inconsistencies in the record, the Director may wish to request that the Petitioner provide official 
transcripts from the Internal Revenue Service for any and all required years. 6 
TV. MISREPRESENT A TTON 
To approve a Form I-140 petition, USCIS must determine that "the facts stated in the petition are true." 
Section 204(b) of the Act. A petition comprises its supporting evidence, including an accompanying 
labor certification. 8 C.F .R. § 103 .2(b )(1 ). Thus, USCIS cannot approve a petition if the facts stated 
on the labor certification are untrue. 
Misrepresentations are willful if they are "deliberately made with knowledge of their falsity." Matters 
of Valdez, 27 I&N Dec. 496,498 (BIA 2018) (cleaned up). A misrepresentation is material when it 
has a "natural tendency to influence, or [be] capable of influencing, the decision of the decision­
making body to which it was addressed." Id. Noncitizens' signatures on immigration applications 
establish "strong presumptions" that they knew the contents of the applications and assented to them. 
Id. at 499. 
For the reasons discussed above, it appears that the Beneficiary willfully misrepresented a material 
fact: her claimed, qualifying employment experience for the offered position. In addition, questions 
remain regarding the Petitioner's tax returns. The Director, therefore, should determine whether the 
Beneficiary and/or the Petitioner willfully misrepresented a material fact. 
VI. CONCLUSION 
Because the Director did not sufficiently address the response to the NOIR or notify the Petitioner of 
additional derogatory information and evidentiary deficiencies, we will remand the matter for issuance 
of a new NOIR and decision which consider both the Petitioner's responses and its arguments on 
appeal. See 8 C.F.R. § I 03 .2(b )( l 6)(i) (requiring USCIS to notify a petitioner of derogatory 
information of which it is unaware and to provide it with a rebuttal opportunity). The Director should 
also determine whether the Petitioner and/or the Beneficiary willfully misrepresented a material fact. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
6 We would also note that most of the submitted tax documentation was not signed by either the authorized representative 
of the petitioning entity or the tax preparer. 
4