dismissed EB-3 Case: Baking

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PUBLIC COpy
u.s. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
WAC-04-242-53645
Office: CALIFORNIA SERVICE CENTER Date: SfP 2 9 2006
INRE: Petitioner:
Beneficiary:
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. § 1153(b)(3)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe 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
www.uscis.gov
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, the petition is accompanied by a Form ETA 750, Application for Alien Employment
Certification, approved by the Department of Labor. The director determined that the petitioner had not
established that the beneficiary has the requisite experience as stated on the labor certification petition. The
director denied the petition accordingly.
On appeal, counsel submits a letter and additional evidence.'
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.
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. § 103.2(b)(l), (12).
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter ofKatigbak, 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. § 204.5(d).
The priority date in the instant petition is April 30, 2001.
Citizenship and Immigration Services (CIS) must look to the job offer portion of the 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 Infra-Red Commissary ofMassachusetts, Inc. v. Coomey, 661
F.2d 1 (lst Cir. 1981).
The certified Form ETA 750 in the instant case states that the position of baker requires two (2) years of
experience in the job offered. On the Form ETA 750B, signed by the beneficiary on April 26, 2001, the
beneficiary set forth his work experience. He listed his experience as "Self-Employed" from March 2000 to
the present, and as a "Baker" for _inLos Angeles, California from January 1997 to March 2000.
He provided no further information concerning his working experience as a baker on this form, which was signed
by the beneficiary under a declaration under penalty of perjury that the information was true and correct.
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
ofSoriano, 19 I&N Dec. 764 (BIA 1988). The AAO will first evaluate the decision of the director, based on the
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then
be considered.
Page 3
The instant 1-140 petition was submitted on August 31, 2004 with a copy of an experience letter from _
_ the sole proprietor of El Quetzal Bakery #52 located at 1205 W. Venice Boulevard, Los Angeles,
California 90006 to corroborate the information represented on the Form ETA-750B pertinent to the
beneficiary's qualifications as required by the above regulation.
The director issued a request for additional evidence (RFE) on September 23, 2004 requesting the petitioner
to provide evidence for the petitioner's ability to pay as well as to "[p[rovide the beneficiary's W-2's from
1997 to 2000 while employed by El Quetzal Bakery #4" in an effort to substantiate the beneficiary's claimed
experience. In response to the director's RFE, counsel submitted a letter from the beneficiary instead of the
W-2 forms for the beneficiary. The beneficiary stated in his letter that: "[d]ue to my current immigration
status, I was paid cash. Therefore, I am unable to prove [sic] you W-2's for the years of 1997 to 2000."
On January 20, 2005, the director denied the petition finding that the evidence submitted had not established
that the beneficiary met the minimum requirements listed on the Form ETA 750 at the time the request for
certification was filed, and therefore, the beneficiary was not qualified.
On appeal counsel submits other forms of evidence than W-2 forms to substantiate that the beneficiary has
exceeded the minimum requirements for experience under 8 C.F.R. § 204.5(l)(3)(ii)(B) and asserts that the
newly submitted evidence establishes the beneficiary's qualifications for the proffered position.
The issue in the instant case is whether the petitioner established the beneficiary's requisite experience as
required by the proffered position on the Form ETA 750.
The regulation at 8 C.F.R. § 204.5(g)(l) states in pertinent part:
Evidence relating to qualifying experience or training shall be in the form of letter(s) from
current or former employer(s) of 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.
The record shows that the petitioner submitted a photocopy of an experience letter from _. The
petitioner did not explain where the original copy is kept. This letter was dated April 22, 2001, on a computer
created letterhead of El Quetzal Bakery #4, signed by the owner of the business. The letter came without any
supporting documents. In visa petition proceedings, the burden is on the petitioner to establish eligibility for
the benefit sought. See Matter ofBrantigan, 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 1997); Matter ofPatel, 19 I&N Dec. 774 (BIA 1988); Matter ofSoo Hoo, 11
I&N Dec. 151 (BIA 1965). Generally, when something is to be established by a preponderance of evidence,
it is sufficient that the proof establish that it is probably true. Matter ofE-M-, 20 I&N Dec. 77 (Comm. 1989).
The evidence in each case is judged by its probative value and credibility. Each piece of relevant evidence is
examined and determinations are made as to whether such evidence, either by itself or when viewed within
the totality of the evidence, establishes that something to be proved is probably true. Truth is to be
2 Although the letter was on the letterhead of El Quetzal Bakery #4, the owner claimed later in his notarized
statement dated February 16,2005 that the #4 was a typographical error.
Page 4
determined not by the quantity of evidence alone, but by its quality. Matter of E-M-, 20 I&N Dec. 77
(Comm. 1989).
The regulation at 8 C.F.R. § 204.5(g)(2) states that the director may request additional evidence in appropriate
cases. The director requested the petitioner to submit the beneficiary's W-2 forms for 1997 to 2000 from the
former employer. However, the petitioner submitted a statement from the beneficiary instead of his W-2
forms from the former employee. The beneficiary claimed that he had no W-2 forms for these years because
he was paid cash, and therefore, they were not available. The form ETA 750B indicates that the beneficiary
was self-employed since March 2000. If the beneficiary was paid cash from 1997 to 2000 as full time
employee compensation, then that income should have been reported on his tax returns or other
documentation since the amount would have been over the minimum exemption for tax filing. However, the
beneficiary did not provide any documentary evidence to support his assertions. Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The non-existence or other unavailability of required
evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). If CIS fails to believe that a fact
stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.c. § 1154(b); see also
Anetekhai v. INS., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7,
10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7,15 (D.D.C. 2001).
The record contains an ori~notarized statement dated February 16, 2005 from _I
submitted with the appeal. __February 16, 2005 statement declares in pertinent part that: "I
employed [the beneficiary] as a Baker from 1997 to 2000. Due to his immigration status, I paid him cash."
According to first letter dated April 22, 2001 the beneficiary worked as a full time baker for his
business from January 6, 1997 to March 15,2000. The February 16,2005 statement does not indicate how
much the beneficiary was paid; therefore, it is not clear whether the beneficiary worked on full time basis or
not. If the beneficiary had worked and had been paid as a part time employee or even independent contractor
on an as-needed basis, the part time experience from January 1997 to March 2000 would not be sufficient to
meet the minimum experience requirement of two full time years. "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 ofHo, 19 I&N Dec. 582, 591-592 (BlA 1988).
On appeal counsel asserts that newly submitted evidence su~the beneficiary at work, the former
employer's tax returns and the operating permit supports __February 16, 2005 statement and
substantiates the beneficiary's qualifications for the proffered position. Counsel submits eight photos of the
beneficiary working in a bakery. However, the photos do not show when, where and with whom these photos
of the beneficiary were taken. Counsel does not explain how these photos evidence that the beneficiary
worked as a full time baker at El Quetzal #5 located at 1205 W. Venice Blvd., Los Angeles, California from
January 1997 to March 2000, and how they establish that the beneficiary was paid cash during the
employment. Submitted Public Health Operating Permit issued by County of Los Angeles to El Quetzal #5 in
1993, 1995, 1999, and 2004 establishes that the business exists and operates during these years. However,
they do not demonstrate the beneficiary's experience as a full time baker with this bakery from January 1997
to March 2000.
Counsel also submits individual income tax returns for the years 1997 through 2000 as
evidence to substantiate the beneficiary's experience with El Quetzal #5. El Quetzal #5 is alleged as a sole
Page 5
proprietorship, which the beneficiary claimed to have worked for and is alleged the sole
proprietor. Unlike a corporation, a sole proprietor reports income and expenses from the businesses on his
individual (Form 1040) federal tax return each year. The business-related income and expenses are reported
on Schedule C and are carried forward to the first page of the tax return. After completely reviewing the
Schedule C's for all these years, the AAO notes that the name of proprietor reported on these tax returns is
instead of !though they filed a joint individual tax return on Form 1040
and the name of business is El Quetzal Bakery instead of El Quetzal #5. No evidence in the record indicates
••••• ..,5 title and position with the business, nor was any explanation given as to why such a letter was
unavailable from the sole proprietor. Counsel did not submit any evidence showing the relationship between
El Quetzal Bakery and El Quetzal #5. The April 22, 2001 letter and February 16, 2005 statement are not
accepted as primary evidence concerning the beneficiary's experience from an employer or trainer as required
by the regulation at 8 C.FR § 204.5(g)(1).
In addition, the AAO also notes from the Schedule C's for El Quetzal Bakery that the business did not have wage
or labor expense in any single year during this period from 1997 to 2000; in the other words, it did not pay anyone
any amount of money as salaries or wages in those years either as an employee or independent contractor.
Counsel did not explain why the business did not have any wage expenses despite _ claim that the
employer paid the beneficiary for his full time work. Counsel did not explain how the tax returns support _
_ statement. Furthermore, the Schedule C's show that the business had net income of $10,300 in 1997,
$8,360 in 1998, $10,170 in 1999 and $10,095 in 2000 without any wages paid. Therefore, the Schedule C's do
not support the beneficiary's full time employment with El Quetzal Bakery.
For the reasons discussed above, the AAO finds that the petitioner did not establish with regulatory­
prescribed evidence the beneficiary's two years of experience as a baker, and further failed to establish that
the beneficiary is qualified for the proffered position. Counsel's assertions and new evidence submitted on
appeal fail to overcome the ground of denial in the director's decision.
In visa petition proceedings, the burden of proving eligibility 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.