dismissed EB-3 Case: Baking

- identifying data deleted to 
prevent clexfy unwmanted 
invh of ptmmal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PETITION: 
 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. 
 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. 
%!?iP4F Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 136 50617 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a bakery. It seeks to employ the beneficiary permanently in the United States as a baker. As 
required by statute, a Form ETA-750, Application for Alien Employment Certification approved by the 
Department of Labor, accompanied the petition. The director determined that the petitioner had not 
established that the beneficiary meets the petitioner's qualifications for the position as stated in the Form 
ETA- 750 as of the petition's priority date, and denied the petition accordingly. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or 
fact. The procedural history of this case is documented in the record and is incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153@)(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 slalled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who, at the time of petitioning for classification under this paragraph, hold baccalaureate degrees and 
are members of the professions. 
A labor certification is an integral part of this petition, but the issuance of a Form ETA-750 does not 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. 5 103.2(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 priority date in the instant petition is January 5,2000. 
On the Form ETA-750B, signed by the beneficiary on November 4, 1999, the beneficiary did not claim to 
have worked for the petitioner. The ETA-750 was certified by the Department of Labor on June 5,2002. 
The 1-140 petition was submitted on April 8, 2004. On the petition, the petitioner claimed to have been 
established in 1980, and to currently have 11 employees. The petitioner's 2000, 2001, and 2002 federal 
income tax returns reflect a net annual income of $54,026.00, $56,635, and $121,795.00, respectively. 
In a request for evidence (RFE) dated July 2, 2004, the director requested, in part, proof of the beneficiary's 
education and employment experience. The director specifically requested evidence that the beneficiary possesses 
eight years of grade school education, and three years of employment experience as described on the ETA-750. 
In response to the RFE, counsel submitted the following evidence pertaining to the beneficiary's education and 
employment experience: 
Sworn statement, dated 9/9/04, &om the beneficiary, declaring, in part: that he was employed at the 
bakery from January 1977 to December 1980; thatwas deceased and, 
therefore, his daughter, 1-1 served as the "representative" on the beneficiary's 
experience letter using the seal of her managmg brother, and that the 
bakery's new representative, - had issued a new experience letter with his 
own seal; 
WAC 04 136 50617 
Page 3 
Certification of Studies, dated 09/04/2004, from the National Educational System in Guadalajara, 
Jalisco, Mexico, crediting the beneficiary with primary education for the school period from 1975- 
1976; 
Letter, dated 09/01/04, from the Secretary of Education in Guadalajara, Jalisco, Mexico, listing the 
grades the beneficiary obtained in the first, second, and thn-d grades of secondary school (night 
shill), from 1976-1979; 
Letter, dated 09/11/04, from a representative of the Mexican bakery, ~anificadora- 
confirming that the beneficiary worked as a baker for the said business for more than three years, 
eight hours per day for six days a week, from January 1977 through December 1980; 
Letter, dated 09/10/04, from a fnend and former coworker of the beneficiary, stating that the 
beneficiary worked as a baker in the aery from 1977 to 1980; 
Letter, dated 09/10/04, from a delivery person for the bakery, stating that the beneficiary 
worked at the bakery from 1977 to 1980; 
Letter, dated 09/10/04, from a person who presently works in the area of the ' bakery, 
stating that the beneficiary worked at the 
 bakery from 1977 to 1980; and 
Photos of the "' bakery. 
The petitioner's submissions in response to the RFE were received by the director on September 22,2004. 
On October 1,2004, the director sent a Notice of Intent to Deny (NOD) to the petitioner, stating, in part: 
It is unreasonable to assume that the beneficiary at fourteen years of age was employed as a baker 
with a "vast knowledge in preparing breads, cakes[,] conchas, rolls, empanadas, cookies and all 
types of international bread ordered for special occasions"; 
The letters submitted by co-workers of the beneficiary and the photos of the bakery do not qualify 
as evidence of experience. Experience letters must be submitted by the owner or supervisor of the 
beneficiary; and 
The beneficiary also submitted evidence that while he was employed as a baker six days a week he 
was also attending school full time. It is also unreasonable to assume that a fourteen year old would 
work beyond full time and be able to attend school. 
In response to the NOD, counsel submitted a letter, dated October 26,2004, stating, in part: 
[Vhe claim of "vast knowledge" refers to [the beneficiary] when he finished worlang for 
~anificadora 
 not when he started worlung there; 
[The beneficiary] submitted a sworn statement stating that on October 30, 1999 he was unable to 
obtain a letter of employment from Panificadora d his previous employer, - 
Orozco, because the latter was by then already deceased. . . . was at that 
WAC 04 136 50617 
Page 4 
time the "official representative" of her father's estate, and as such she was the rnana er of the 
bakery. . . . [Vhe new representative of [the petitioner] [is] now her brother, 
G and 
[The beneficiary] attended school fiom 1977 to 1980 at night. . . . It was only by attending night 
school that [the beneficiary] was able to work a full-time job during the day for [the petitioner] 
from 7 A.M. to 3 P.M. 
The petitioner's submissions in response to the NOlD were received by the director on October 28,2004. 
In a decision dated July 14, 2005, the director determined: that the letters fiom and 
are insufficient evidence of employment because they are not written by the direct 
supervisor or employer of the beneficiary; that the petitioner did not submit contracts or pay statements to 
corroborate the claims in such letters; that neither the son or daughter of the deceased owner of Panificadora 
Diana were employed at the said business during the time of the beneficiary's alleged employment, the son was 
only 11 years old during the beneficiary's alleged employment period, and therefore the deceased owner's son 
and daughter are unqualified to write letters describing the beneficiary's "vast knowledge"; that the letters fiom 
the local businessman and deliveryman are insufficient evidence of the beneficiary's employment because it is 
unreasonable to assume that such persons could remember and verify the beneficiary's employment experience; 
that an overseas investigation conducted by the U.S. Consulate in Guadalajara found no reliable sources to verify 
the beneficiary's claimed employment; and that a check with the Mexican Social Security Institute revealed no 
employment record for the beneficiary. The director therefore denied the petition. 
On appeal, counsel submitted a brief and copies of previously submitted documentation. Counsel stated, in part, 
that the petitioner never received a copy of the overseas investigation report, which only confirmed that the 
investigator failed to find a source to verify the beneficiary's employment at the Diana bakery and his social 
security record. Counsel stated further: 
The petitioner has established by a preponderance of the evidence that the beneficiary worked at 
Diana bakery for more than three years from January 1977 to December 1980 in Jalisco, Mexico. 
Moreover, the CSC has abused its discretion by ignoring a letter fiom 
who was the supervisor of the beneficiary at bakery, even thoug hCSCm requeste a etter . 
from either the beneficiary's former employer (the now deceased or supervisor, 
back in October 1,2004 . . . The CSC fbrther abused its discretion when only an affidavit is needed 
to prove an alien meets the requirements for a job offered. Lu-Ann Bakey Shop, Inc. V. Nelson, 
705 F. Supp. 7 (D.D.C. 1988). . . . 
On January 20,2006, counsel submitted a "supplemental brief' and included a copy of a decision from the Ninth 
Circuit Court of Appeals, Lin v. Gonzales, 2006 US. App. LEXlS 675 (gh Cir. 2006). Counsel stated, in part, as 
follows: 
In Lin v. Gonzales, supra, the Ninth Circuit Court of Appeals dealt with the issue of the nature of 
evidence required to support an [IT'S] adverse credibility finding in an asylum case. . . . 
The Ninth Circuit determined that the IT discounted the probative value of the three documents 
based only upon speculation and conjecture and without support from the record. Lin at *9. The 
Court stated that the IT based his speculation on what a document should look like based solely on 
an "American-based view of government forms." Id. at *20. 
WAC 04 136 50617 
Page 5 
On February 10,2006, counsel submitted a second "supplemental brief' and included a copy of Memorandum 
from Acting Deputy Director, U.S Citizenship and Immigration Services (CIS), Matter of 
Chawathe (January 11, 2006), regarding the standard of proof in administrative immigration proceedings. 
Counsel stated, in part, as follows: 
In our case, the petitioner and beneficiary submitted 19 items of evidence, each one indisputably 
relevant and probative. The director did not find any reasons to impeach the credibility of any of 
these items. . . . 
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). 
The regulation at 8 C.F.R. 9 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) fi-om 
current or former employer(s) or trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
To determine whether a beneficiary is eligible for an employment-based immigrant visa as set forth above, CIS 
must examine whether the alien's credentials meet the requirements set forth in the labor certification. 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 Infra-Red 
Commissaly of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). The Application for Alien 
Employment Certification, Form ETA-750A, blocks 14 and 15, sets forth the minimum education, training and 
experience that an applicant must have for the position of baker. On the ETA 750A submitted with the instant 
petition, blocks 14 and 15 describe the requirements of the offered position as follows: 
14. Education (number of years) 
Grade School 8 
High School Blank 
College Blank 
College Degree Required None 
Major Field of Study None 
Training - yrs 0 
Experience 
Job Offered Yrs 3 
Related Occupation Yrs 0 
Related Occupation (specify) None 
15. Other Special Requirements None 
WAC 04 136 50617 
Page 6 
The beneficiary states his qualifications on Form ETA-750B. On the ETA-750B submitted with the instant 
petition, in block 11, for information on the names and addresses of schools, colleges and universities attended 
(including trade or vocational training facilities), the beneficiary states the following: 
Schools, Colleges Degrees or Certificates 
and Universities, etc. Field of Study From To Received 
Guadalajara, Jallsco, Mex~co 
General studies 0911969 
 0611975 Completed 
Escuela Secundaria por Night school/ 0911975 0611979 Completed 
Cooperacion General education 
Guadalajara, Jalisco, Mexico 
On the ETA-750B submitted with the instant petition, in block 15, for information on the beneficiary's qualifying 
work experience, the beneficiary states the following: 
Name and Address Kind of 
of Emplover Name of Job From To Business 
Bakery 
The issue is whether the beneficiary met all of the requirements stated by the petitioner in block 14 of the 
labor certification as of the day it was filed with the Department of Labor. 
At the outset, the AAO notes that the record contains inconsistencies regarding the beneficiary's education. 
On the ETA-750B submitted with the instant petition, in block I 1, the beneficiary states that he took "General 
studies" from 0911969 to 0611975. The record, however, does not contain any evidence to corroborate this 
claim. Rather, a document from the Secretary of Education of the State of Jalisco, dated 09/01/2004, 
accredited the beneficiary with one year of primary education for the school year from 1975 to 1976. Further, 
on the ETA-750B submitted with the instant petition, in block 11, the beneficiary also states that he took 
secondary school classes at night from 0911975 to 0611979. This information conflicts with the document, 
dated 09/01/04, from the Secretary of Education, Regional Union of Educational Services, Center 1 Region, 
Scholastic Control Section, in Guadalajara, Jalisco, Mexico, who states, in part, that the beneficiary took 
evening classes for secondary grades one, two, and three £rom 1976-1977, from 1977-1 978, and from 1978- 
1979. The 09/01/04 document does not indicate that the beneficiary commenced his secondary school classes 
in September 1975, as reflected on the ETA-750B. The record contains no explanation for these 
inconsistencies. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) states: Doubt cast 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. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988) states: 
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. 
The AAO also notes that the record contains inconsistencies regarding the beneficiary's work experience. On 
the ETA-750B submitted with the instant petition, in block 11, the beneficiary states that he worked as a 
WAC 04 136 50617 
Page 7 
baker of Latin American specialties at the 
 in Guadala'ara Jalisco, Mexico from 0 111977 to 
1211980. The record contains an affidavit from - dated 0611 8/05, who declares, in 
part, that he, the affiant, was 11 years old and the beneficiary 14 years old when the beneficiary began to work 
for the petitioner. The record also contains letters, dated June 20, 2005, from the beneficiary's father and 
mother declaring, in part, that their son was employed by the petitioner when he was 14 years old. The record 
also contains a letter, dated 1211 8/05, from a neighbor certifying, in part, that the beneficiary was 14 years old 
when he began working for the petitioner. The record, however, reflects that if the beneficiary had begun to 
work for the petitioner in 0111977, then he would have been just barely 13 years old. As these letters contain 
the identical error, the AAO must question whether the opinions expressed in each letter are the views of each 
author. Further, in his 09110104 letter, identifies himself as the beneficiary's co-worker 
and fiend. It is only after the director issued his Notice of Intent to Deny, dated 10101104, stating. in  art. that 
-, . , 
the record contained no experience letters by the petitioner's owner or supervisor of the beneficiary, that 
rnitted letters, dated 0611 8/05 and 1211 8105, 
was the beneficiary's supervisor. It is not clear, 
been the beneficiary's supervisor, when he 
previously described their relationship as mere co-workers and hends. Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988) states: Doubt cast 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. Matter of Ho, 
19 I&N Dec. 582, 591-592 (BIA 1988) states: 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. It is also noted 
that in a letter dated October 26, 2004, counsel asserts, in part: "[at is not uncommon in Mexico for young 
men to begin worlung at an early age to support themselves and their often poor extended family." Counsel, 
however, provides no evidence in support of his assertion. The assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. See 
Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of 
evidence that the beneficiary is fully qualified for the benefit sought. Matter of Martinez, 21 I&N Dec. 1035, 
1036 (BIA 1977); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 
1965). 
Based on the foregoing analysis, the evidence in the record fails to establish that the beneficiary meets the 
petitioner's qualifications for the position as stated in the Form ETA- 750 as of the petition's priority date. The 
decision of the director to deny the petition was correct, based on the evidence in the record before the 
director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.