dismissed EB-3 Case: Auto Repair

Identifying data dekted to 
prevent dead$ unwarranted 
Bvaeioa of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
 8s 
In re: 
Petition: 
 Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 4 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, California Service Center, denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner's business relates to diesel and foreign auto repair. 
 The petitioner seeks to employ the 
beneficiary permanently in the United States as a diesel mechanic. As required by statute, the petition filed 
was submitted with Form ETA 750, Application for Alien Employment Certification, approved by the 
Department of Labor (DOL). As set forth in the director's November 22, 2003, denial, the case was denied 
based on the petitioner's failure to demonstrate that the beneficiary met the qualifications set forth in the 
certified labor certification. Further, the record reflected multiple inconsistencies in the beneficiary's 
background. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal.' 
The record shows that the appeal was timely filed. The procedural history in this case is documented by the 
record and incorporated into the decision. Further elaboration of the procedural history will be made only as 
necessary. 
The petitioner has filed to obtain permanent residence and classify the beneficiary as a slalled worker. Section 
203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(3)(A)(i), provides for 
the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, 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. 
In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the alien labor 
certification to determine the required qualifications for the position. CIS may not ignore a term of the labor 
certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 
I&N Dec. 401, 406 (Cornm. 1986). See also, Mandany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. 
Zrvine, Znc. v. Landon, 699 F.2d 1006 (9Ih Cir. 1983); Stewart Znfra-Red Commissary of Massachusetts, Znc. v. 
Coomey, 661 F.2d 1 (1" Cir. 1981). A labor certification is an integral part of ths petition, but the issuance of a 
Form ETA 750 does not mandate the approval of the relating petition. To be eligble for approval, a beneficiary 
must have all the education, training, and experience specified on the labor certification as of the petition's 
priority date. 8 C.F.R. $ 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting 
Reg. Comm. 1977); Matter of Katigbak, 14 I. & N. Dec. 45,49 (Reg. Comm. 1971). The priority date is the 
date the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. See 8 C.F.R. tj 204.5(d). 
The beneficiary must demonstrate that he had the required slalls by the priority date of January 29,2001 .2 On 
the Form ETA 750A, the "job offer" states that the position requires two years of experience in the job 
offered, as a diesel mechanic with job duties including: "Repairs and maintains diesel engines used to power 
1 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 
 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
2 
 The labor certification was approved on January 21, 2003, and the petitioner filed the 1-140 on the 
beneficiary's behalf on March 20,2003. 
Page 3 
automobiles and trucks. Uses handtools, precision measuring instruments and machine tools. Diagnoses 
trouble, disassembles engines, examines parts for defects and excessive wear. Reconditions and replaces 
parts, such as pistons, bearings, gears, valves, and bushings, using engine latches, boring machines, handtools, 
and precision measuring instruments. Welds and cut parts, using arc-welding and flame cutting equipment." 
The petitioner listed no education requirements in Section 14, and listed no other special requirements for the 
~osition in Section 15. 
On the Form ETA 750B, the beneficiary listed his prior experience as: (1 
 290 S. 
Arroyo Pkwy., Pasadena, CA, DieselIForeign Automobile Mechanic, September 1998 to December 2000, 
forty hours per week; and (2) unemployed, January 1998 to September 1998. The beneficiary signed the ETA 
750B on February 22,2001. 
To document a beneficiary's qualifications, the petitioner must provide evidence in accordance with 
8 C.F.R. 3 204.5(1)(3): 
(ii) Other documentation- 
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. If the petition is for a slulled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for ths 
classification are at least two years of training or experience. 
On August 21, 2003, the Service issued a Notice of Intent to Deny ("NOID") requested evidence to 
corroborate and verifv evidence. as well as to address inconsistencies in the record. In resuonse to the NOID, 
the petitioner sent a revised lett'er from o include his job title and his hours'worked. Based on 
the evidence submitted, the Service Center noted that a number of inconsistencies in the record remained, 
including: (1) the beneficiary listed experience on Form G-325A not listed on Form ETA 750; (2) dates of 
the beneficiary's experience verified conflict with dates listed on Form G-325; (3) the beneficiary's job title 
was listed as diesel mechanic for the petitioned for position, but an individual tax return filed lists him as a 
clerk, and notes of a CIS interview record his position title as Gas Station Manager; and (4) the beneficiary 
listed that he worked in California, but records show that the beneficiary had a Nevada driver's license. 
Based on the numerous inconsistencies in the evidence, the Service Center denied the case. See Matter of Ho, 
19 I&N Dec. 582, 591 (BIA 1988), which states: "Doubt raised on any aspect of the petitioner's proof may, 
of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support 
of the visa petition." Further, "It is incumbent on the petitioner to resolve any inconsistencies in the record by 
independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent 
objective evidence pointing to where the truth, in fact, lies will not suffice." Matter of Ho, 19 I&N Dec. at 
591-592. 
As evidence to document the beneficiary's qualifications, the petitioner submitted the following letters: 
located at 290 S. Arroyo Parkway, Pasadena, CA 91 105, signed by 
ates o emp oyrnent: eptem er 
 8 to December 27,2000, forty hours per week; 
Title: foreign automobile diesel mechanic; 
Job Duties: "repaired and maintained diesel engines used to power automobiles and trucks. Used 
handtools on precision measuring instruments and machine tools. Diagnosed trouble, disassembled 
engines, examined parts for defects and excessive wear. Reconditioned and replaced parts such as 
pistons, bearings, gears, valves, and brushings, using engine latches, boring machines, handtools, and 
prevision [sic] measuring instruments, welded and cut part, using arc-welding and flame cutting 
equipment." 
Title: "foreign kutomobile ~iesel mechanic" 
Salary: $12.50 per hour 
On the Form G-325A submitted with the beneficiary's 1-485 Adjustment of Status application, the beneficiary 
listed that he has been employed as a diesel mechanic with: (1) the petitioner since March 2000; and (2) was 
previously employed as a diesel mechanic for a shop located at 20900 Ventura Boulevard, in California from 
May 1998 to March 2000. The G-325A shows several inconsistencies: the G-325A does not list the position 
with - the prior experience verified. Further, the G-325A lists that the beneficiary was 
employed with the petitioner since March 2000, when the letter provided by his employer shows that his 
employment began almost a year later, in January 200 1. 
Further, the Service Center raised the issue that the beneficiary listed work with an entirely different employer 
on Form on G-325, which was not on the ETA 750B. The petitioner contends that the prior attorney who 
prepared the case did not consider the beneficiary's position with y 1998 to March 
2000 to be relevant and did not list that experience on the ETA was part- 
time and the position only required two years of experience, 
met by virtue-of his position with- e, therefore, according to present counsel, did not list 
the part-time experience. The pe 1 loner no es 
 e beneficiary was unable to obtain payroll records to 
. - 
confirm his employment with has the gas station owners had changed. This explanation does 
not, however, account for why t e G-325A was not completed properly in February 2003 by his present 
attorney to account for all the beneficiary's experience. 
Further, the dates listed for the beneficiary's part-time employment with 
 on the G-325A, 
conflict with the experience listed on the ETA 750, which had listed the 
 &om 
January 1998 to September 1998. According to the petitioner, the prior attorney recorded the wrong dates for 
the beneficiary's time period of "unemployment." The petitioner contends that the beneficiary was 
unemployed from January 1998 only until May 1998, most of the time period the beneficiary was in his home 
country, and he obtained employment shortly after his April 1998 U.S. entry. By way of explanation, the 
petitioner offers that the prior attorney handed the beneficiary a "blank form to sign," and that the beneficiary 
We note that is unclear whether -the beneficiary's former employer is related to 
the owner of the beneficiary's current employer. 
Page 5 
did not speak, write, or read English at the time that he signed the blank ETA 750, and accordingly was not 
aware of this error. We note the same objection as above, that this explanation does not account for why the 
G-325A was not completed properly in February 2003 by his present attorney to account for all the 
beneficiary's experience. 
The Service Center noted additional inconsistencies in the record. The beneficiary had listed that he was a 
"clerk and not a diesel mechanic, in the occupation field on his 2001 tax ret~rn.~ The petitioner explains this 
deficiency noting that the tax returns were prepared by an accountant, and the beneficiary relied on what the 
accountant prepared. 
Additionally, the beneficiary was required to register under NSEERS, the National Security Entry-Exit 
Registration system.' The Service Center noted that at the time of registration, on January 3, 2003, the 
beneficiary had provided during his NSEERS registration that he worked as a Gas Station Manager, instead of 
as a diesel mechanic, the petitioned for position. The petitioner claims that the owner was sick, and when he 
was sick the beneficiary would substitute and work as the Manager. The petitioner submitted documentation 
to show that the owner had health issues in 1992, and documentation to verify some testing in November 
2002. No information was supplied to show that the petitioner had continuing health issues in January 2003. 
Further, the Service Center raised the issue that the beneficiary had a Nevada driver's license, but that 
according to the ETA 750, and form G-325A, he resided and worked in California, and the documentation did 
not reflect that the beneficiary ever lived in Nevada. The petitioner explains that since California was 
restrictive in issuing licenses to foreign nationals without proper immigration status, that the beneficiary 
sought to obtain his license from Nevada, since Nevada did not have the same restrictions. However, the 
petitioner contends that the beneficiary has never lived in Nevada, and that the address listed on the driver's 
license is a "private mailbox." 
The beneficiary signed an affidavit, attesting to the same responses set forth by the petitioner to the issues that 
the Service Center raised: that he was unemployed before he came to the U.S.; that he signed a blank ETA- 
750, his English was poor, and he assumed that the attorney would prepare the form correctly; that he had 
worked part-time fo between May 1998 and March 2000; that a friend recommended an 
accountant and he th rmation was correct on his tax returns, that the accountant "assumed" 
that he was a "clerk" since the beneficiary worked at a gas station; that he told the officer at his NSEERS 
interview that he was a diesel mechanic and was managing the station since his employer was ill; and that he 
had applied for a Nevada driver's license since he could not obtain a California license, but that he had never 
resided in Nevada. 
The petitioner submitted pay records to confirm the beneficiary's employment with the petitioner. The pay 
records, dated from March 3 1, 2001 through September 9, 2003, reflect that the beneficiary was typically paid 
$500 a week during this time period, for an annual salary of $26,000. A letter provided by the petitioner 
notes that they employ the beneficiary at a rate of $12.50 per hour, which equates to $26,000 per year. While 
the petitioner is not required to pay the beneficiary the proffered wage of $40,000 until obtains permanent 
residence, we note that the wage the beneficiary is currently being paid significantly less than the $40,000 
4 
 We note that the beneficiary's individual tax return is not contained in record before the AAO. 
5 
 NSEERS was instituted initially in 2002 as a precursor to the US VISIT system to record and track the exit 
and entry of nonirnmigrants into and out of the U.S. Pursuant to NSEERS, certain groups of nationals were 
required to attend interviews or call-in registrations during specified time periods. 
Page 6 
proffered wage. If the beneficiary is currently working as a diesel mechanic, the petitioner would need to raise 
his salary $14,000 upon obtaining permanent residence. 
The petitioner offered no new evidence or no further independent evidence on appeal. We find that the 
petitioner has not met the burden in Matter of Ho: "It is incumbent on the petitioner to resolve any 
inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies will not suffice." 
Matter of Ho, 19 I&N Dec. at 59 1-592. The petitioner has failed to provide independent objective evidence to 
explain the numerous inconsistencies in the record. Therefore, the petitioner has not demonstrated that the 
beneficiary meets the certified requirements listed in the labor certification, and the petition will remain 
denied. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.