dismissed EB-3 Case: Chef

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-S-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 28. 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a food and supermarket, seeks to employ the Beneficiary as a Korean specialty chef. 
It requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3 )(A)(i ), 8 U.S.C. 
§ 1153(B)(3)(A)(i). This employment-based immigrant classification allows a U.S. employer to 
sponsor a foreign national for lawful permanent resident status to work in a position that requires at 
least two years of training or experience. 
The Form 1-140, Immigrant Petition for Alien Worker. was initially approved. The Director of the 
Nebraska Service Center subsequently revoked the approvaL finding that the Petitioner and the 
Beneficiary had not adequately explained evidentiary inconsistencies concerning the Bencticimfs 
past employment. The Director concluded that the evidence of record did not establish that the 
Beneficiary had two years of experience as a Korean specialty cheL as required by the underlying 
labor certification to qualify for the proffered position. 
On appeal the Petitioner submits statements from its president and from the Beneficiary. The 
Petitioner asserts that the evidentiary issues cited by the Director have been resolved. that the 
Beneficiary did not intentionally misrepresent her employment history, and that the evidence 
establishes the Beneficiary's qualifying experience for the proffered position. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the U.S. Department of Labor (DOL). See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification. the 
DOL certifies that there are insufficient U.S. workers who are able. willing. qualified. and available 
for the offered position and that employing a foreign national in the position will not adversely atTcct 
the wages and working conditions of domestic workers similarly employed. See section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second. the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. Third. 
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Matter of F-S-S Inc. 
if USCIS approves the petition, the foreign national may apply for an immigrant visa abroad or, if 
eligible, adjustment of status in the United States. See section 245 of the Act. 8 U .S.C. ~ 1255. 
Section 205 of the Act. 8 U.S.C. § 1155, provides that the Secretary of Homeland Security may ''for 
good and sufficient cause, revoke the approval of any petition.'' By regulation this revocation 
authority is delegated to any officer of USCIS authorized to approve an immigrant visa petition 
"when the necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). 
USCIS must give the petitioner notice of its intent to revoke the prior approval of the petition and the 
opportunity to submit evidence in opposition thereto. before proceeding with written notice of 
revocation. See 8 C.F.R. § 205.2(b) and (c). 
II. ANALYSIS 
At issue in this case is whether the Beneficiary meets the terms of the labor certification. A 
beneficiary must meet all of the education, training. experience. and other requirements of the labor 
certification as of the petition's priority date.
1 
,','ee Matter of" Wing's Tea House, 16 I&N Dec. 158. 
159 (Acting Reg'! Comm'r 1977). 
In this case, the Form 1-140 petition was accompanied by a labor certification \Vith a priority date of 
July 30, 2015. The labor certification stated that the minimum experience required for the job 
offered was 24 months as a Korean specialty chef. According to the labor certification the 
Beneficiary met this requirement by virtue of her work as a Korean specialty chef for 
m South Korea. from February 2005 to 
April 2007. As evidence of the Beneficiary's employment at the Petitioner 
submitted a ''work experience certificate" from the restaurant's president. dated 
May 11,2015. 
The petition was initially approved, but the Director issued a notice of intent to revoke (NOIR) the 
approval in July 2016. The Director indicated that the Beneficiary's claim on the labor certitication 
to have worked as a Korean specialty chef at from February 2005 to April 2007 
conflicted with information on the Beneficiary's nonimmigrant visa application. dated June 24. 
2008, which stated that the Beneficiary was currently employed as a cook by in 
South Korea, and made no mention of any prior employers. Based on this 
inconsistent documentation the Director stated that it appeared the Beneficiary had misrepresented 
her qualifying experience for the proffered position. 
In response to the NOIR the Petitioner submitted a letter from the Beneficiary reiterating her claim 
to have worked for as a Korean specialty chef from February 2005 to April 
2007. Accompanying the Beneficiary's letter was another ''certificate of employment confirmation'' 
from stating that the Beneficiary was employed during the above time period. 
1 The "priority date" of a petition is the date the underlying labor certification was filed with the DOL. ,'-,'ec 8 C.F.R. 
§ 204.5(d). 
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Matter of F-S-S Inc. 
and a "certificate of business records & cessation., indicating that the restaurant opened in 2003 and 
closed in 2015. In addition. a ''national skill certificate .. was submitted which stated that the 
Beneficiary passed a test and was certified as a Korean food cooking technician in October 2006. 
After receiving the Petitioner's response to the NOIR. the Director issued a decision revoking the 
approval of the petition. The Director acknowledged the documents submitted in response to the 
NOIR, but indicated that the Beneticiary had not explained the different employment histories she 
provided on her nonimmigrant visa application (Forms DS-156 and DS-157) filed in .June 2008 
(asserting that she was currently employed as a cook by and had no prior 
employment) and the labor certification tiled in July 2015 (which assc1ied that her only prior 
employment was as a Korean specialty chef with from February 2005 to April 
2007). The Director noted that no objective documentary evidence had been submitted to 
demonstrate the Beneficiary's qualifying experience. such as certificates of income from the 
National Tax Service of Korea (NTSK). the government agency to which all employment in South 
Korea is required to be reported. The Director concluded that the Petitioner had not resolved the 
inconsistencies in the record concerning the Beneficiary's employment history. had not established 
the reliability and validity of the documentation submitted. and had not established that the 
Beneficiary met the minimum experience requirement of the labor ceriitication. 
On appeal the Petitioner characterizes the Beneficiary's non-inclusion of her alleged employment 
with on her nonimmigrant visa application in 2008 as an "omission in good 
faith" rather than an intentional misrepresentation of her employment history. In her statement 
accompanying the appeal the Beneficiary claims that she did not provide information about her 
employment at during her nonimmigrant visa interview in June 2008 because it 
was embarrassing in Korean culture to acknowledge being a restaurant worker. According to the 
Petitioner, the record is sufficient to establish that the Beneficiary had more than two years of 
experience as a Korean specialty chef before being hired by the Petitioner. 
We do not agree. The Beneficiary has not provided a persuasive explanation for the inconsistent 
employment histories she entered on the nonimmigrant visa application (Forms DS-156 and DS-157) 
she completed for the Department of State in 2008 and the labor certification tiled with the DOL in 
2015. While asse11ing on Form DS-156 that she was presently (June 2008) employed as a cook by 
on Form DS-157 the Beneficiary entered '·None" at the place where she was 
asked to list her last two employers. Thus , the Beneficiary did not identify as a 
former employer on Form DS-157, which conflicts with her claim on the labor certification in the 
current proceeding to have worked at that restaurant as a Korean specialty chef in the years 2005-
2007. The Beneficiary's claim that she omitted her job experience as a chef \Vith the 
restaurant from her nonimmigrant visa application because of the cultural stigma 
associated with such work in Korea is contradicted by the fact that elsewhere in the same application 
the Beneficiary stated that she was currently employed as a cook by We note 
as well that the Beneficiary did not list as a previous employer on the labor 
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Matter of F-S-S Inc. 
certification despite being directed on the form to list any employment that qualified her for the 
proffered position. 2 Adding further confusion to the Beneficiary's employment history. the cover 
letter from the Petitioner's president that was submitted with the Form 1-140 petition stated that the 
Beneficiary satisfied the minimum experience requirements for the job of Korean specialty chef 
because she "had worked as an Alteration Tailor for over 2 years." 
It is incumbent upon a petitioner to resolve any inconsistencies in the record hy independent 
objective evidence. Attempts to explain or reconcile such inconsistencies will not suffice \Vithout 
competent evidence pointing to where the truth lies. S'ee Malter o( llo. 19 J&N Dec. 582, 591-92 
(BIA 1988). Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of 
the petitioner's remaining evidence. See id. For the reasons discussed above. we find that the 
Beneficiary has not resolved the myriad evidentiary discrepancies in the record. 
Finally, there is no primary evidence of the Beneficiary's employment by in 
the years 2005-2007. such as pay statements, tax records, or other employment-related documents 
from those years , or certificates of income from NTSK as discussed by the Director in his decision. 
Based on the foregoing analysis. we find that the Petitioner has not established that the Beneticiary 
was employed by as a Korean specialty chef from February 2005 to April 
2007, which was the only qualifying experience claimed on the labor certification. 
Although not specifically mentioned by the Director, the record also does not establish the 
Beneficiary's eligibility for classification as a skilled worker. A petition requesting skilled worker 
classification "must be accompanied by evidence that the [beneficiary] meets the ... requirements of 
the labor certification. . . . The minimum requirements for this classification arc at least two years of 
training or experience.'' 8 C.F.R. § 204.5(1)(3)(ii)(B). As discussed above. the evidence of record 
does not establish that the Beneficiary has two years of experience or training. Therefore. the 
Beneficiary does not meet the minimum experience requirement to be eligible t(lr classification as a 
skilled \vorker. 
IlL CONCLUSION 
The Petitioner has not established that the Beneficiary has at least t\.vo years of qualifying experience 
as a Korean specialty chef. Accordingly, the Beneficiary does not meet the minimum experience 
requirement of the labor certification and does not qualify for classification as a skilled \Vorker. 
2 Since the alleged experience at was not listed on the labor certification. USC!S would look with 
disfavor on any attempt by the Beneficiary to rely on such experience as fulfilling the experience requirement of the 
labor certification. Even if the Beneficiary were to assert the experience in this proceeding. the fact 
that no such experience was certified by DOL on the labor certification would lessen the credibility of the Beneficiary' s 
claim. See Afatfer q{L eung, 16 I&N Dec. 2530 (BlA 1976) . 
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Matter ofF-S-S Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-S-S Inc., ID# 446267 (AAO Nov. 28, 2017) 
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