dismissed EB-3 Case: Caregiver

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 Immigrant Petition for Alien Worker as an Other Worker pursuant to section 203(b)(3) 
(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 9 1 153(b)(3)(iii) 
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. 
mu o ert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: the Director, California Service Center, initially approved the employment-based preference 
visa petition. In connection with the beneficiary's Application to Register Permanent Resident or Adjust Status 
(Form I-485), the director served the petitioner with notice of intent to revoke the approval of the petition (NOIR). 
In a Notice of Revocation (NOR), the director ultimately revoked the approval of the Immigrant Petition for Alien 
Worker (Form 1-140). The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
director's decision will be affirmed and the petition will be denied. 
Section 205 of the Act, 8 U.S.C. 1155, states that "[tlhe Attorney General [now Secretary, Department of 
Homeland Security], may, at any time, for what he deems to be good and sufficient cause, revoke the 
approval of any petition approved by him under section 204." The realization by the director that the 
petition was approved in error may be good and sufficient cause for revoking the approval. Matter of Ho, 19 
I&N Dec. 582,590 (BIA 1988). 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582,590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
In order to properly revoke a petition on the basis of an investigative report, the report must have some 
material bearing on the grounds for eligibility for the visa classification. The investigative report must 
establish that the petitioner failed to meet the burden of proof on an essential element that would warrant the 
denial of the visa petition. Observations contained in an investigative report that are conclusory, speculative, 
equivocal, or irrelevant do not provide good and sufficient cause for the issuance of a notice of intent to 
revoke the approval of a visa petition and cannot serve as the basis for revocation. Matter of Arias, 19 I&N 
Dec. 568 (BIA 1988). 
On December 14, 2005, the director issued a Notice of Intent to Revoke (NOIR) to the petitioner stating that 
the 1-140 petition was approved in error because an overseas investigation in Ormoc City, the Philippines, 
could not confirm the beneficiary's claimed previous work experience as a caregiver. 
The director referenced a statement written by the American Embassy investigator based on an on-site visit to 
thein Ormoc City, The Philippines. The director stated that the embassy statement 
indicated that the embassy investigator showed a xeroxed copy of an employment verification for household 
domestic worker document to 1, owner and head nurse of the clinic. The director 
stated that after she read the contents of the employment verification document, ~rs.claimed that 
she could not remember an employee by the beneficiary's name and that she had never recommended any 
caregiver as an employee of th-. The director stated that also 
stated that she only signs certifications and recommends employees who worked with the clinic as nurses, not 
as caregivers or domestic workers. The director stated that an addendum to the employment certification was 
April 27, 2003 and witnessed by the U.S. embassy investigator that stated Mrs. 
did not remember any employee by the name of the beneficiary or had never recommended a 
caregiver as an employee. Based on the investigative report, the director stated that the beneficiary was not 
eligible for the classification sought and that good and sufficient cause existed to deny the beneficiary the 
benefit sought. 
In response to the NOIR counsel stated that there were glaring deficiencies in the NOR. Counsel stated that 
the field investigation was not conducted until over nine years had passed since the employment verification 
document was signed. Counsel pointed out that the - 
 where the beneficiary's 
claimed employment took place is in the same city and address as indicated on the original ETA 750 signed 
on August 30, 1994. counsel states that citizenship and Immigration Services (CIS) itself established that the 
medical clinic does actually exist and perfonns functions that the beneficiary has claimed to perform. 
Counsel then stated that the field investigator made two very obvious mistakes in his report. With regard to 
~rs claiming that she cannot remember an employee by the name 0-1 and has 
never recommended any caregiver as an employee, counsel stated that the employment verification is only 
proof that the beneficiary did work as the medical clinic and is not a recommendation to any other employer. 
Counsel also noted that in the addendum to the employment certification document signed by Mrs. 
it does not state that Mrs. did not si 
 the employment verification document. 
Counsel asserted that the addendum only stated that Mrd did not remember an employee with the 
beneficiary's name and that she never recommends a caregiver as an employee. 
Counsel states that Mrs. therefore did not state that she did not recognize her signature or that her 
signature on the employment verification document was forged. Counsel stated that the employment 
verification document was notarized and that CIS must give weight to the notarized signature, unless CIS can 
show that the signature is forged. d that the field investigator on two different occasions gave 
the employment verification to Mrs. o review and in both instances she stated that she could not 
remember the name of the individual. Counsel asks whether it is so hard to believe that a person cannot 
remember an employee after over nine years have gone by. Counsel stated that there is no indication of the 
size of the medical clinic or of how many employees it has or has had in the past nine years. Counsel stated 
that CIS cannot summarily deny the existence of the notarized signature of the affiant because the affiant 
cannot remember the name from so long ago. Counsel stated that all the investigator has accomplished is to 
legally establish that the person who signed an employment verification document some nine years ago, did 
not remember the beneficiary's name. Furthermore counsel asserted that the employment verification for 
household domestic worker was never presented as a recommendation for employment as the field 
investigator suggests. Counsel stated the employment verification document was rather offered to establish 
prior work history with the background stipulated on the ETA 750. Counsel reiterated that Mrs 
never stated that the beneficiary did not work at the medical clinic, bur rather that she did not remem 4Y! er er 
name. Counsel stated that the beneficiary's former employer never stated that she did not sign the 
employment verification document or did not recognize her signature. Counsel concluded by stating that 
unless there is something Mher that the investigator and CIS have not alleged, there is nothng in the 
allegations that should cause the previously approved 1-140 petition to be revoked. 
Counsel also submitted an unsworn affidavit signed by the beneficiary that stated she was employed from 
December 1989 to May 1992 at the 
 at 0rm& City, Philippines and that during the 
beneficiary's employment at the clinic she cared for sick patients, cleaned the clinic, prepared and served 
meals and snacks and assisted persons with walkers, canes and wheelchairs. The beneficiary stated that she 
knew that ~rs.as the person who needed to certify her work history and that she requested the 
clinic verify her employment and it was done through a notary which was required by the clinic. The 
beneficiary affirmed that the employment verification for household domestic workers is a valid document 
signed by Mrs.- 
On February 8, 2006, the director revoked the petition. The director reviewed counsel's comments submitted 
in response to the NOR. The director then cited to a sworn statement conducted under oath in connection 
with the beneficiary's interview for adjustment of status on December 20,2002 in Fresno, ~alifornia.' 
The narrative record of the first sworn statement stated the following: 
My prior experience working out of my own home consists of: In the Philipines (sic) I was a 
home economics teacher (and handicrafts) in Ormoc City. I taught there for 10 years. In 
I began in 1957 and worked for 2 years. Then I got married 1959 and 
working there again in 1962 until 1968. I stopped working because I 
had too many children: 
I did not work out of the home at all until I came to the U.S. in 1992. That is the only work I 
have ever done, the only employment I have ever done. 
When I came to the U.S. I came to live with my siste-and my brother in 
law - 
The second sworn statement stated the following: 
When I was 21 years 01 
 c in Ormoc City, Philipines. 
The name of the clinic: 
 I helped in cleaning the 
people. That was the on 
 of work. I did that for 1 
- - 
one year to get a little bit money.(sic) 
The petitioner, the brother in law of the beneficiary, and the beneficiary signed both sworn statements. 
The director then noted that the employment verification letter submitted to the record with the initial petition, 
-. 
stated the beneficiary was employed as a household domestic worker at 
 from December 
1989 to May 1992. The director also noted that although the sworn statement taken in December 2002 
claimed the beneficiary was 21 years old when she worked at the clinic, the employment verification letter 
submitted with the petition stated that the beneficiary began her household domestic duties some 35 years 
later. 
As established by the Form 1-648, Memorandum Record of Interview made in Examinations, the interview 
was conducted in English, with no interpreter present. The record reflects two sworn statements signed by 
both the petitioner, the beneficiary's brother-in-law, and the beneficiary. 
The director also stated the beneficiary claimed she helped to clean people while employed at the clinic, but 
that the beneficiary in the instant position would be required to perform the following duties, as described on 
the ETA 750: 
Clean house (22 rooms, 6 bathrooms); assist twenty-give (25) frail elderly residents with 
Alzheimer's disease, dementia, heart attack and stroke victims, cancer and kidney disease, 
diabetic and incontinent, assist with bed bath, shower, sponge bath, tub bath, ambulating, 
exercising, shaving, hair care, assist with medications, provide mouth care, bowel care, skin 
care, personal hygiene (clean the body of dirt, feces, urine) vacuum, wash dishes, wash-iron- 
dry clothes and linens, hand wash soft clothes, straighten rooms, change diapers every four 
hours; change urine bag every week, clean up mess and make beds, prepare and serve meals, 
snacks, help those with walkers and canes and wheel-chair bound residents with their needs. 
The director noted that the petitioner's I140 indicated that the petitioner had five current employees to 
perform the stated duties. 
The director then noted that the affidavit signed by the beneficiary dated January 2006 in which the 
beneficiary stated she worked at the from 1989 to 1992, is contradictory to her sworn 
statement before a CIS official in December 2002. 
The director noted counsel's comments submitted in response to the NOIR. The director noted counsel stated 
that the investigation did not establish that Mrs. d not sign the employment verification 
document, but rather that she did not remember an beneficiary's name and that she never 
recommends a caregiver as an employee. The director appears to state that Mrs 
 s statement could 
also be construed to mean that the document was not prepared or signed by Mrs 
 The director then 
stated that the petitioner had not submitted sufficient evident to rebut the NOIR and had not overcome the 
grounds for revocation. 
On appeal, counsel states on the Form I-290B that CIS misapplied the facts with regard to the revocation and 
that CIS attempts to prove a fact without evidence. Counsel also states that CIS failed to meet its burden of 
proof with re evocation. In a subsequent brief, counsel states that the director failed to discuss the 
fact that Mrs. never said that she did not sign the employment verification document, and also that 
she never stated that the beneficiary never worked for her. 
Counsel also states that the director failed to discuss the fact that nine years had lapsed since the signing of ht 
notarized em lo ent verification form and the questioning of the contents of the document. Counsel states 
that Mrs. *could have told the investigator that the signature was not hers or that she never had her 
signature notarized by the notary; however, she did make either statement. Counsel states that Mrs. 
simply stated she could not remember signing the document2. Counsel also takes exception to the 
director's reference to the fact that the employment verification document might also not been prepared or 
The record and the investigative report does not reflect any such statement by Mrs. 
= 
Page 6 
signed by ~rsince she stated that she never recommended a caregiver as an employee. Counsel 
states that if the director wanted to prove that Mrs. id not sign the notarized document, all they 
had to do was ask her. Counsel states that rather than doing this, the 
 that since ~rs.- 
said that she couldn't remember the employee, it could mean that Mrs. 
 did not sign the document. 
Counsel then asserts that the director made a mistake by attempting to turn the beneficiary's notarized work 
em~lovment verification document into something that is not. Counsel states that the document is not a 
d " 
statement that ~rsnever signed the document, nor is it a letter of recommendation. Counsel states 
that nowhere on the document does it state that it is a letter of recommendation. Counsel states that the 
document is just proof of prior employment, as stated on the document. 
Counsel then states that the director in his NOIR brings up a new argument that was not discussed or 
addressed previously. Counsel states that the director alleges that there are signed sworn statements. Counsel 
states that these statements were never provided to the petitioner or to the beneficiary for review and 
response. Counsel states that the narrative was never signed by the beneficiary, and cannot be used against the 
petitioner or beneficiary as the director is attempting to do. Counsel states that there is no proof of when the 
narrative was completed or if the examiner was able to understand completely the broken English being 
spoken by the beneficiary at the time. 
Counsel then asserts that the narrative does confirm that the beneficiary did work at the Gatchalian Medical 
Clinic as claimed although the dates may have been wrong. Counsel states that the wrong dates may be due to 
the examiner's misunderstanding of the answer or the confusion on the part of the beneficiary as to the nature 
of the question. Counsel states that the only signed statement is the one where the beneficiary stated that she 
worked for the clinic. Counsel then states that it is clear that the CIS failed to give the beneficiary a copy of 
any statements that were allegedly made by her. Counsel also states that the director's decision is unclear, at 
best, in its logic and the use of the admitted facts of the petition. Counsel submits an affidavit from the 
beneficiary. In her unsworn affidavit, the beneficiary states the following: 
I remember being called to the Immigration Office for an interview on my immigration 
application that were filed with them. 
I also remember that I was extremely nervous of going into a governmental office. We hear 
many rumors of government offices being very unfair to persons and this has remained with me 
during my childhood thru adulthood. 
I do not understand or speak English very good. I read even worse than I speak and understand 
the language. 
I remember being asked questions and talking with the officer and I remember being given a 
paper and told to sign my name at a certain place. I was never read what the paper said nor 
could I read it by myself. 
The petitioner was in the office at the same time and when I began to ask him questions in my 
native language (sic) I was told to stop talking by the [CIS] officer and speak English. I 
became even more nervous during the interview process. 
Philippines. I do not remember ever saying I was 21 years old at the time. This is not true and 
I would never haed [sic] said that , if I had been allowed to have the document interpreted to me 
at the time. 
With the above in mind I hereby set my hand to this affidavit [sic] this 'day of February 
knowing full well the serious consequences that can arise from a false swearing. 
Upon review of the record, the ETA 750 submitted to the record states in Part A that the minimum 
requirements for the position is three months of work experience as a household domestic worker/practical 
nurse. The beneficiary indicated on the Form ETA 750 Part B, that she worked full time from July 1992 to 
the time of signing the ETA 750, namely July 8, 1994 as 
 for the petitioner. 
The beneficiary also indicated that she had worked for 
 rmoc City, Leyte, 
Philippines from December 1989 to May 1992, also as a 
 The petitioner did 
not submit a letter of work verification for the beneficiary's employment from July 1992 to July 8, 1994. The 
beneficiary's experience, if documented, with the petitioner totals two years of wo 
prior to the 1994 priority date. The beneficiary's claimed work experience with 
totals two and a half years. 
With regard to the director's notice of intent to revoke the petition, the AAO notes that the director did not 
refer to the contradictory statements contained in the statements made by the beneficiary in her 2002 
adjustment of status interview, but rather relied on the findings of an investi ation conducted in the 
Philippines. The memorandum of investigation, dated May 6, 2003, stated that Mrs disowned the 
subject and the work employment verification certification purportedly signed by Mrs. However, 
an examination of the certification and Mrs. 
b 
statement on the certification indicates Mrs. 
erely stated that she "did not remem er any employee by the name of 
 and that 
a caregiver as an employee." Thus, the embassy invest 
the conclusions of the director that therefore the beneficiary did not work for th 
some time.4 
Thus, the investigative report is viewed as conclusory and immaterial ' 
 the statements do not 
establish that the beneficiary never worked at the clinic or that either Mrs. 
 or someone else never 
did work verifications for the clinic's domestic workers/caregivers. See Matter of Arias, 19 I&N Dec. 568 
(BIA 1988). 
No specific date was identified in the affidavit. 
4 
 It is noted that if the beneficiary did in fact work for the when she was 21 years, it could very 
well be that she would have used her maiden name, rather than her married name. 
Page 8 
Nevertheless the record does contain two sworn statements, handwritten by the interviewing officer, with 
regard to the beneficiary's work experience. The two statements clearly state at the bottom the following 
"I have read or have had read to me the foregoing statement and I swear it is a true and complete record of my 
interview to the best of my knowledge and belief."5 
While the three pages of notes do not contain any attempt on the part of the interviewing officer to clarify 
what the beneficiary stated on the statements and what she had previously stated on her ETA 750, counsel has 
had the opportunity to clarify these contradictory statements on appeal. Although the director did not clearly 
state the reasons for the notice of intent to revoke the instant petition, namely, the beneficiary's contradictory 
statements made at her adjustment of status interview, he did provide a complete verbatim record of the 
beneficiary's testimony as written by the examinations officer, in his revocation decision. Thus, counsel and 
the beneficiary were provided an opportunity to clarify these contradictory statements on appeal. 
As previously stated, 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. Furthermore, 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. With regard to her employment 
as a domestic household worker/caregiver in the Philiu~ines. neither counsel nor the ~etitioner have  resented 
- . . 
any more probative evidence of the beneficiary's employment with - from 
December 1989 to May 1992. The fact that the signer of the letter could not remember the beneficiary is 
significant enough to raise a doubt. Furthermore, neither counsel nor the petitioner have provided any 
clarification for the contradictory statements made at the beneficiary's adjustment of status interview. 
Counsel's assertion that the beneficiary did work for the clinic but simply forgot the dates of employment is 
not persuasive. As correctly noted by the director, the difference in employment claimed in the beneficiary's 
adjustment of status interview and her statement on the ETA 750 is 35 years. 
The beneficiary's explanation that she never stated she had worked for when she 
was 21 years old is not viewed as sufficient to clarify the beneficiary's contradictory statements. The 
additional statements made by the beneficiary at her adjustment of status interview that she never worked out 
of the home since she stopped working in 1968 until her arri. _.- -__ ---- 
unclarified. If this statement is correct, that the beneficiary did not work fo 
1992. 
In sum, the director has good and sufficient cause to revoke the instant petition, pursuant to Section 205 of the 
Act, 8 U.S.C. 1155 and as discussed in Matter of Estime, 19 I&N 450 (BIA 1987)). The realization by the 
director that the petition was approved in error may be good and sufficient cause for revoking the approval. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). With regard to the investigation conducted in the 
Philippines, the investigation report does not appear to have sufficient weight to be the basis of the revocation 
5 
 It is noted that contrary to counsel's assertion, both sworn statements are signed by both the beneficiary 
and the petitioner, her brother-in-law. 
Page 9 
of the petition. While the areas of information explored by the investigator are material to the grounds for 
eligibility for the visa classification, namely, the beneficia 's previous work experience, the report itself is 
conclusory in nature. For example, because Mrs. stated that she did not remember an employee 
with the beneficiary's name, the investigator concluded that the beneficiary had not worked for the 
- If ~rs.w ad been asked to verify the validity of the employment 
document or of her signature, or a been asked to check any employee records for the period of December 
1989 to May 1992, and had then stated that her signature was not correct, or her employment records showed 
no one by the beneficiary's name, the investigator's report and conclusions would have had much more 
probative weight. Matter of Arias. 
Nevertheless the inability of counsel and the petitioner to clarify the beneficiary's contradictory statements at 
her adjustment of status interview with regard to her previous employment with the statements made on her 
Form ETA 750, are sufficient to deny the instant 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." Therefore the director's decision with 
regard to the revocation of the instant petition is affirmed, and the petition is revoked. 
With regard to her claimed previous employment with the petitioner, as stated previously, the beneficiary 
indicated that she had worked for the petitioner for two years at the time the ETA 750 petition was filed. The 
record also reflects that the beneficiary received her first aid course certification initially in 1992, which was 
another requirements outlined on the ETA 750. When the petitioner was asked for verification of the 
beneficiarv's ~revious emplovment in the field of domestic household workerlcaregiver in a reauest for 
< - 
further evidence dated June 6, 2002, the petitioner submitted the work verification letter from 
However, the petitioner did not submit any evidence as to the beneficiary's employment with 
the petitioner prior to the 1994 priority date. Furthermore, under 20 C.F.R. 626.20(~)(8) and 656.3, the 
petitioner has the burden when asked to show that a valid employment relationship exists, that a bonafide job 
opportunity is available to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987). 
 A 
relationship invalidating a bonafide job offer may arise where the beneficiary is related to the petitioner by 
"blood" or it may "be financial, by marriage, or through friendship." See Matter of Summart 374,OO-INA-93 
(BALCA May 15, 2000). Thus, in the instant petition, since the petitioner is owned by the sister and brother- 
in-law of the beneficiary, evidentiary documentation of the beneficiary's employment in the proffered 
position prior to the priority date would have to include actual W-2 documents, or paychecks given to the 
beneficiary to establish the requisite three months of prior work experience. 
The director's decision to revoke the petition, based on the petitioner's inability to establish the beneficiary's 
three months of requisite work experience, shall stand, and the petition will be revoked. As stated previously, 
the investigative report from the Philippines by itself is not viewed as sufficient to support the revocation of 
the instant petition. 
ORDER: 
 The appeal is dismissed. The petition is revoked.