dismissed EB-3 Case: Automotive Repair

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wfjdng data deleted to 
dmy [PI warranted 
~~onicar of ~nal ~rivacv 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Petition: 
 Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Itn~nigration and Nationality Act, 8 U.S.C. 5 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 ("director"), denied the immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner operates an auto and truck repair service center. The petitioner seeks to employ the beneficiary 
permanently in the United States as an electronic equipment installer repairer, motor vehicles ("Auto 
Electrician, Foreign Cars"). 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 denial, the case was denied, as the petitioner did not establish that the beneficiary met the 
qualifications listed in the certified ETA 750. 
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 is properly filed, timely and makes a specific allegation of error in law or 
fact. 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 skilled worker. Section 
203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(i), provides for 
the granting of preference classification to qualified iln~nigrants 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. 
Here, the Form ETA 750 was accepted for processing by the relevant office within the DOL employment 
system on March 23, 2001. The proffered wage as stated on the Form ETA 750 is $14.00 per hour, for an 
annual salary of $29,120.00 based on a 40 hour work week. The Form ETA 750 was certified on August 19, 
2003, and the petitioner filed the 1-140 petition on the beneficiary's behalf on September 16, 2004. The 
petitioner listed the following information on the I- 140 Petition: date established: September 1980; gross 
annual income: $493,734; net annual income: $170,527; and current number of employees: three. 
The director issued a Request for Evidence ("WE") on April 7, 2005, requesting that the petitioner provide 
evidence regarding the petitioner's ability to pay the proffered wage from the priority date to the present, 
specifically to provide the petitioner's 2001, 2002, and 2004 federal tax returns. The RFE additionally 
requested the petitioner to identi@ whether it currently employed the beneficiary, and if so to provide Forms 
W-2 as evidence. Further, the RFE requested that the petitioner provide evidence that the beneficiary 
complied with the National Security Entry-Exit Registration System (NSEERS).~ 
' The submission of additional evidence on appeal is allowed by the instructions to the Form 1-2908, 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). 
NSEERS was established September 11, 2002 to monitor individuals entering and leaving the U.S. 
NSEERS required nonimmigrants from Iran, Iraq, Libya, Sudan, and Syria as designated by the Federal 
Register to comply with NSEERS registration at ports of entry, as well as nonimmigrants designated by the 
U.S. Department of State, and any other nonimmigrant regardless of nationality, identified by an immigration 
officer in accordance with 8 CFR 9 264.1(f)(2). The NSEERS requirement was expanded to include other 
groups of nationals, and nationals from the designated groups were to report for Special Registration in four 
On June 20, 2005, the petitioner responded to the RFE and provided the petitioner's federal tax returns for the 
years 2001, 2002, and 2004; the petitioner indicated that the beneficiary received his Employment 
Authorization Document ("EAD") around May 13,2005 and began work following receipt on June 15,2005; 
and the petitioner indicated that the beneficiary had complied with Special Registration, but was unable to 
provide evidence of his registration as CIS retained his passport. 
On June 28, 2005, the director issued a Response and Notice of Intent to Deny (NOID). The NOID provided 
that an Overseas Investigation conducted into the beneficiary's prior experience in May 2005 revealed that the 
beneficiary's purported prior experience was not legitimate. Specifically, the director provided in the NOID: 
A U.S. Consular Officer conducted an investigation and interviewed 
 of 
Auto Repair Center [who supplied a letter regarding the beneficiary's prior 
experience]. He stated that he does not know the beneficiary, did not issue him any work 
letter and did not sig 
 etter. 
 He stated that the gas stationlgarage was 
originally owned by This contradicts information provided in the 
experience letter, eneficiary worked for ~uto Repair Center 
from September 1992 to June 1997. 
Further, the NOID requested that the petitioner submit the prior requested information in response to the RFE 
related to the petitioner's ability to pay, along with inforn~ation regarding the beneficiary's NSEERs 
i 
registration.- 
 The petitioner responded to the NOID, and submitted the prior requested information in 
response to the RFE. Following consideration, on August 9, 2005, the director denied the petition on the 
basis that the Overseas Investigation revealed that the beneficiary's prior experience was not valid and, 
therefore, the petitioner had not established that the beneficiary had the required prior experience as set forth 
in the certified ETA 750. 
We will examine the evidence submitted to document the beneficiary's qualifications, and then examine the 
evidence submitted on appeal. In evaluating the beneficiary's qualifications, Citizenship and Immigration 
Services ("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 (Comm. 
1986). See also, Mandany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 
1006 (9th Cir. 1983); Stewart I.-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (lSt Cir. 
198 1). A labor certification is an integral part of this petition, but the issuance of a Form ETA 750 does not 
separate "call-in groups." Lebanon, the beneficiary's country of origin, was listed for call-in registration 
between January 27 and February, 7, 2003. See 68 Fed. Reg. 2366 (January 16,2003). Group 2 additionally 
included: citizens or nationals of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, 
Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen. Id. at 2366. Group 3 included citizens or 
nationals of Pakistan or Saudi Arabia. See 68 Fed. Reg. 33 (February 19,2003). Group 4 expanded NSEERS 
and Special Registration to include citizens or nationals of Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. 
Id. at 33. On December 2,2003, the Department of Homeland Security ("DHS") suspended the automatic 30- 
day and annual re-registration requirements for NSEERS. See littp://www.ice.g;ov/pi/ 
specialreg;isration/index.htm, accessed April 5,2007. 
The petitioner was given until June 30, 2005 to respond to the RFE. The petitioner's RFE response 
contained in the record of proceeding is date stamped that it was received on June 20, 2005, so that the 
documentation was timely received. It is not clear that the record of proceeding contained the petitioner's 
RFE response at the time that the NOID was issued. 
mandate the approval of the relating petition. To be eligible 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. 9 
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. 5 204.5(d). 
The beneficiary must demonstrate that he had the required skills by the priority date. On the Form ETA 
750A, the "job offer" states that the position requires two years of experience in the job offered: as an auto 
electrician, foreign cars, with job duties including: "Repair, overhaul, adjust, and rebuild electrical systems 
and units in foreign cars such as BMW, Volvo, Mercedes and trucks. Confer with customers and test cars to 
determine malfunction. Adjust ignition, distributors, etc. Repair or replace wiring. Rebuild starters, 
generators, etc." The petitioner listed educational requirements of grade school in Section 14, and listed no 
other special requirements for the position in Section 15. 
On the Form ETA 750B. signed bv the beneficialv on March 2. 2001. the beneficiarv listed his orior 
hours per week; and (2) (provided by amendment to Form ETA 750B, dated November 20, 2001) "working 
several short, part-time freelance jobs as a "Auto Electrician Foreign Cars"" fro111 March 1998 to tlie present, 
on a "job to job basis." The work was not done for one particular employer, and the beneficiary estimated that 
he worked five to six hours per week with job duties including "to repair, overhaul, adjust, and rebuild 
electrical systems and units in foreign cars." 
To document a beneficiary's qualifications, the petitioner must provide evidence in accordance with 8 C.F.R. 
5 204.5(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 skilled 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 this 
classification are at least two years of training or experience. 
As evidence to document the beneficiary's qualifications, the petitioner submitted the following letter: 
L+zuallulI, uaLGu AU~U~L 0, LUUL~, 
Dates of employment: September 1, 1992 to June 1, 1997; 
The petitioner initially listed that four years of experience was required, however, the experience 
requirement was changed to two years with DOL accepting the amendment prior to certification. 
Title: Auto Electrician of foreign cars; 
Job Duties: "he was employed on a full time basis . . . and was . . . responsible for the repair, overh 
[sic] and rebuild of electrical systems and units in foreign cars such as Volvo, Toyota, Honda, BMW, 
Mercedes, etc." 
The director then issued the RFE request and NOID, which out1 
 in the beneficiary's 
documented experience based on the overseas investigation wherein 
 stated that he did not 
know the beneficiary, and did not provide any letter pertaining to the beneficiary's prior work. In response, 
the petitioner submitted the following letters: 
2. of 'partnerowner" [sic] of Auto Repair 
Dates of employment: September 1, 1992 to June 1, 1997; 
Title: not listed; 
The letter provides: 
I am brother of partnerowner [sic] of ufo Repair 
center that I wrote recommendation letter [sic] for [the beneficiary] that he worked with us 
from 1 of September 1992 till 1 June 1997. As 1 am the manager of that repair center and in 
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the absence of 111y brotller I ~vrote it. Also, I have to report 
that [the beneficiary] has a nick name [sic] as and that everyone in niy area 
knows him as this nick name including Also I have to report that 
rented a gas station 4 years ago and still in the renting period contract I am 
responsible for the auto repair my self. So when a representative came 
him including my brother because 
everyone knows him a 
3. Letter fro of Interior, Republic of Lebanon, dated May 
14,2005; 
The letter provides: 
I, the undersigned, 
bD 
Mayor of Dedde, Hereby attest that [the beneficiary], born 
in 1975, under reg~stry num er edde 921, is a citizen and resident of our town, Dedde, and 
he is known in the town as "", since his childhood. There is no other person 
known in this town by that name other than [the beneficiary]. He is known to me personally 
and in evidence thereto, this certificate has been issued. 
The director's decision raised the following issues related to the additional evidence that the petitioner 
provided: 
 (1) in the interview with the consular investigator 
 stated that he did not know the 
beneficiary, that he did not issue any work letter, and that he 
 the experience letter; (2)- 
had provided that the original owner of the garage wa The original owner has the same surname 
as the petitioner's owner in the present case; (3) the NOID instructed the 
evidence related to the issue of the beneficiary's experience; the letter from 
would not be considered ob'ective evidence; (4) the director questio 
charge of the garage, that 
 did not sign the original letter himself, and further, if the beneficiary 
was known by a different hh name, w y t e alternate name that the beneficiary was known by was not in the 
letter; and (5) counsel's assertion that the Consular Officer used "intimidating methods" in the investigation. 
The director noted that did not repudiate the employment letter because he was intimidated; 
further, it was not clear why- 
 a statement himself to address the points raised in 
the - letter; and (6 
 etter and the beneficiary's use of another name, the 
evidence does not explain why 
 experience letter and did not use the name that the 
beneficiary was known by. 
 that Form G-325A filed with the beneficiary's 
adjustment of status application requires an individual to list other names used. The beneficiary did not list 
that he used, or was known by any other names. Accordingly, based on Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988), the beneficiary's experience was in question. "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." Id. at 591-592. 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." 
Id at 59 1-592. 
On appeal, counsel provides that there "is no inconsistency in any of the information submitted with regards 
banon and the past experience of the beneficiarv." Counsel resubmitted 
and the same' letter 'from 
 ~oinrel also sub~iiitted the 
following additional identical statements, which provided: 
I, the undersigned [name] resident of the village of [village name and 
 ~mber listed], 
hereb~. certify having seen the named [beneficiary] lvorking at the 
 Auto Repair 
Garage in the Electrical Reparations and Transmission Reparations 
deal [sic] with that Garage between the Year 1994 to 1997. 
ve statement, which was 
at Barsa El Koura; 
Regarding the additional evidence submitted, the statements are all identical, and do not explain the 
individual's relationship to the beneficiary or petitioner, other than being a resident of the village and the 
vague assertion that they dealt with the garage between 1994 and 1997. The statements list the beneficiary's 
given name, and the individuals do not refer to the beneficiary by his "nickname," which the petitioner asserts 
everyone used when referring to the beneficiary. Further, the statements submitted fail to comply with 8 
C.F.R. 3 103.2(b)(3), which provides that any translated document, "containing foreign language submitted to 
[CIS] shall be accompanied by a full English language translation which the translator has certified as 
complete and accurate, and by the translator's certification that he or she is competent to translate from the 
foreign language into English." The translations provided do not contain the certification that the translator is 
competent to translate from the foreign language into ~n~lish.~ 
We note that the declarations contain a stamp that they were provided to a sworn translator, an "expert 
before Courts of Law," and would appear to be similar to a notarized statement. In a notarized statement, an 
affiant would swear or affirm the statement before an officer authorized to administer oaths or affirmations 
after the officer confirms the declarant's identity, and administers the requisite oath or affirmation. See 
Black's Law Dictionary 58 (7th Ed., West 1999). Further, in lieu of notarization, a declaration may contain 
The petitioner did not provide any secondary evidence that the beneficiary worked for the company in question, 
such as pay statements, or other work records, which in connection with the declarations, may have bolstered the 
credibility of the documentation provided. Further, the statements provided fail to directly address the points 
raised in the director's decision. The petit 
 xplain any of the discrepancies as enumerated in the 
director's denial, and did not address why 
 did not sign the original work experience letter if he 
wrote the letter on the beneficiary's behalf. Further, the petitioner did provide 
 information from 
regarding the letter he initially provided, the investigation, and whether 
 was aware of the 
beneficiary based on his nickname. The evidence as a whole fails to address 
 in the denial, 
and the petitioner has failed to explain the inconsistencies in the evidence. See Matter of Ho, 19 I&N Dec. at 
591-592. Accordingly, the petitioner has failed to demonstrate that the beneficiary has the required two years 
of prior experience listed on the certified ETA 750. 
Based on the foregoing, the petitioner has failed to establish that the beneficiary meets the qualifications as set 
forth in the certified ETA 750. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought rernains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
the requisite statement, permitted by Federal law, that the signers, in signing the statements, certify the truth 
of the statements, under penalty of perjury. 28 U.S.C. 5 1746. The statements provided do not contain this 
language.