dismissed EB-3 Case: Cook

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-M- CORP . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 11, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a convenience store, seeks to employ the Beneficiary as a cook. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification. 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 petition was initially approved. However, the Director of the Texas Service Center subsequently 
revoked the approval, finding that the Petitioner did not establish that the Beneficiary had at least two 
years of qualifying experience, as required by the terms of the labor certification and for the requested 
classification of skilled worker. We dismissed a subsequent appeal. Matter of C-M- Corp., ID# 
1095157 (AAO Feb. 15, 2019). The matter is now before us on a motion to reopen and motion to 
reconsider. 
On motion, the Petitioner submits additional documentation and asserts that it has established by a 
preponderance of the evidence that the Beneficiary has the requisite experience to meet the terms of 
the labor certification and qualify for the skilled worker classification. 
Upon review, we will deny the motion to reopen and deny the motion to reconsider. 
I. MOTION REQUIREMENTS 
A petitioner must meet the formal filing requirements of a motion and show proper cause for granting 
the motion. 8 C.F.R. § 103.5(a)(l). A motion to reopen must state new facts and be supported by 
documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must establish that our 
decision was based on an incorrect application of law or policy and that the decision was incorrect 
based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
Matter of C-M- Corp. 
II. ANALYSIS 
At issue on motion is whether the evidence of record establishes that the Beneficiary had at least two 
years of experience as a cook by the petition's priority date, 1 as required to meet the terms of the labor 
certification and to qualify for classification as a skilled worker. 
A. Minimum Requirements of the Labor Certification 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12); Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). In this case, the labor certification 
requires two years of experience in the job offered of cook. The labor certification states that 
Beneficiary was employed as a cook by the Hotel.__ _______ _. India, from May 1995 to 
September 1997. With the petition, the Petitioner submitted an undated letter bearing the signature of 
I I on the letterhead of Hotel I I certifying that the Beneficiary was 
employed as claimed on the labor certification. The letter does not list the title of the writer as required 
by 8 C.F.R. § 204.5(1)(3)2 and does not confirm her foll-time employment. It also lists the employee's 
name as I a I and not.__ _____ ____. A Form G-325A, Biographic Form, for 
the Beneficiary in the record states that she has not used any other names. Thus, it is not clear that the 
letter references the Beneficiary. Thus, the initial petition was approved in error because the record 
did not establish the Beneficiary's qualifications for the offered job. 
The Director revoked the petition's approval on the ground that the evidence ofrecord did not establish 
that the Beneficiary had two years of qualifying experience as a cook, as required by the labor 
certification. On appeal, the Petitioner asserted that the record establishes the Beneficiary's work 
experience as a cook at the I I Hotel in India from 1995 to 1997. 
Following the Petitioner's appeal, we referred this case to USCIS officials in India for farther 
investigation. Following an inrstjgatjon we issued r notice of intent to dismiss the appeal (NOID). 
Accordin to an affidavit from.__----;::=====:::;------,!, dated July 31, 2017, he stated that he currently 
lived ,........-------,.------.1 in I I India; that he was the sole owner/proprietor of the 
Hotel~-----~ from 1991 until 2002; and that he employed the Beneficiary as a cook from 
May 1995 to September 1997. We advised the Petitioner that according to government records, 
I I was never the owner of Hotel I l Government records confirmed that 
the Hotell lwas in operation from 1991 to 2002; that it had 13 partners until 2000; that 12 of 
the partners withdrew in 2000; and that the remaining partner ran the business as sole proprietor until 
the hotel closed in 2002. I lwas not listed in the records as a partner or owner of 
Hotell lat any time from 1991 to 2002. 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.5( d). The priority date in this case is April 16, 2002. 
2 Evidence relating to qualifying experience must be in the form of a letter from a current or former employer and must 
include the name, address, and title of the ·writer, and a specific description of the duties performed by the beneficiary. 8 
C.F.R. § 204.5(1)(3). 
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Matter of C-M- Corp. 
We also advised the Petitioner that a site visit to the address .__ _______ _.identified in July 
201 7 as his residence - - revealed that the current resident is not I I 
I thatl I was identified as the property owner; and that all residents of the 
.========~I are C7 family members and Hindu. 3 Accordin to the current resident of 0 
~------~[ I I never lived in the .......... ------------1 residential 
community. This information was confirmed by another resident ofth who stated 
that he had been a resident since 2002; that house numberOwas owned b and that 
nobody by the name of~------~had ever lived in the~--~-- ......... 
Based on the information described above, we advised the Petitioner that it appeared ._I ___ ___, 
I ldid not reside at as claimed in his July 2017 affidavit, and that he 
never had an ownership interest in the Hotel ~--~ where he claimed to have employed the 
Beneficiary as a cook from 1995 to 1997. 
In response to our NOID, the Petitioner asserted that that the property located at..__ ___ ....,.... __ _ 
is owned byl l notl O I The Petitioner submitted 
an affidavit froml I who confirmed that he is the owner ofl k that he 
does not live there; and that he rented the house to I , lfrom January 
5, 2017, to March 31, 2018. An additional affidavit from I lconfirmed that he rented the house 
from I I and asserted that he sublet a room to "Mr. .__ _______ ___, a.k.a. 
I I' for the three month eriod from June 1, 201 7, to August 31, 
2017. According to the Petitioner, since ------r--------' and I I I lare the same person, the address Mr..__ __ ~identified as his residence in his 2017 affidavit 
was correct. 
On appeal, we found that while the documentation may indicate that the owner of the residential 
property at ________ ~ is it does not clearly show that..__----:;:::::::::===;--~-
ever lived there as a tenant. We stated that both~ __ ___,and I I assert thatl I rented 
'------~--...,,. tol ttrom January 5, 2017, to March 31, 2018. SincP-I I was no 
longer the tenant of the pro17ertv after March 31 ?IO 18, we determined that "it is inexplicable how he 
could have sublet a room tol .... _ -------~-from June 1 to August 31, 2018." 
We noted two affidavits in the record stating that .__ ____________ __. alias 
lived at "for three months until August 2017." 
._A_c_c_o-rd_1 __ n_g_t_o_t_h_e_P_e_ti-ti~oner,I lwas not available to clarify this matter because he is retired 
and living in a remote village in India. We stated that no independent, objective evidence has been 
submitted, such as a sublease agreement or rental payments, to confirm Mr. I I residence at 
from June through August 2017. Based on the entire record, including the 
results of our onsite investigation, we concluded that the Petitioner has not established that Mr. 
I !resided al I l, in July 2017. 
We also found that Mr. I I assertion that he was the sole owner/proprietor of the Hotel 
~--~I from 1991 to 2002 is contradicted by government records confirming that the hotel was co­
owned by 13 partners from 1991 to 2000, and by one remaining individual for the next two years until 
3 The record does not establish whether..__ _____ ___,is Hindu. 
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Matter of C-M- Corp. 
the hotel closed in 2002 . .__ _______ ~was not listed in the office records as either a partner 
or an owner of the hotel at any time from 1991 to 2002. The office records do indicate that 
.__ ____________ ~was one of the 13 partners from 1991 to 2000, and that he was 
the sole ro rietor from 2000 to 2002. Two affidavits claim thatl I 
and are the same erson with the former being his official name. We noted in 
our appeal decision that .__ _______ ___, had not acknowledged a second name, and that 
government records or other official documents have not been submitted to show that I I 
I lhas a second name. 4 
Furthermore, we stated that even if we accepted the Petitioner's contention that I I 
and I I are the same person, government records indicate that 
._M_r...,.I ===.1-w_a_s _n_,ot the sole owner/proprietor of the Hotell I from 1991 to 2000, but rather one 
of 13 partners during those years. Finally, we stated that there is no primary evidence in the record, 
such as an employment contract or pay statements, documenting any employment of the Beneficiary 
by the Hotell I For all of the reasons discussed above, we concluded that the Petitioner has 
not established that the Beneficiary had two years of qualifying experience as a cook by the priority 
date of April 16, 2002, as required by the labor certification. 
On motion, the Petitioner asserts that .__ _______ ~sublet a room from I luntil August 
31, 2017, not August 31, 2018, as indicated in our appeal decision. It states that by relying on an 
erroneous fact, we incorrectly found an inconsistency in the record that does not exist. We agree that 
the date listed in one portion of our decision was incorrect. However, the error did not alter our 
ultimate decision in this case. Based on the USCIS site visit, we found inconsistencies in Mr. 
I Flaim that he lived in thel !residential community. The current resident 
of the property and former resident of the housing complex stated that he never lived there, and he did 
not own the property. Because of these inconsistencies, we required independent, objective evidence 
of his residency there. The Petitioner must resolve inconsistencies in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). We stated that a sublease agreement or evidence of rental payments would be independent, 
objective evidence of his subtenancy. 
On motion, the Petitioner submits an affidavit dated March 13, 2019, from 
.__ ______ __.alias.__ _______ _,' stating that he sublet the premises from June 1, 2017, 
to August 31, 2017. However, no independent, objective evidence has been submitted, such as a 
sublease agreement or evidence ofrental payments, to confirm Mr.I ~ residence at the subject 
address from June 1, 2017, through August 31, 2017. 
Next, the Petitioner asserts on motion that the new affidavit from'--------------~ 
alias .__ _______ ___, clarifies his two names and the circumstances under which the 
discrepancies found in the 201 7 affidavit occurred. He asserts that his parents came to D from 
4 Presumably, there would have been a partnership agreement detailing the circumstances under which the 13 individuals 
operated the hotel. It may have identified a managing partner or partners with hiring and firing rights; it may have detailed 
their responsibilities, if any, at the hotel; and it may have identified any aliases of the partners. However, a partnership 
agreement was not submitted to the record. None of the other partners have corroborated the Beneficiary's employment 
at the hotel. 
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Matter of C-M- Corp. 
~ and that is why he is called c===J, He indicates that the representation that that he was the 
sole owner/proprietor of the Hotel~ from 1991 to 2002 resulted from a "clerical error." He 
claims that he doesn't speak English well and the "notary typist made a mistake when he prepared my 
statement." However, it is not clear why all of his affidavits are written in English, instead of in his 
native language and translated into English, if he doesn't speak English well. Further, the 2017 
affidavit consistently refers to Hotell I as his business, not a business he co-owned with 12 
other partners when the Beneficiary purportedly worked there. 5 Thus, his claim of "clerical error" is 
not credible. 
A few errors or minor discrepancies are not reason to question the credibility of a foreign national or 
an employer seeking immigration benefits. See Spencer Enters. Inc. v. U.S., 345 F.3d 683, 694 (9th 
Cir. 2003). However, anytime a petition includes numerous errors and discrepancies, and a petitioner 
fails to resolve those errors and discrepancies after USCIS provides an opportunity to do so, those 
inconsistencies will raise serious concerns about the veracity of a petitioner's assertions. Doubt cast 
on any aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). In 
this case, the discrepancies and errors catalogued above lead us to conclude that the evidence of the 
Beneficiary's prior employment is not credible. The Petitioner has not overcome the inconsistencies 
in the record with independent, objective evidence of the Beneficiary's employment as a cook at the 
I !Hotel in India from 1995 to 1997. Id. 
On motion the Petitioner also submits an affidavit from"---:'"-;::::==========:;--:-' "a customer 
of Hotel and resident of " statin that had two names, 
and and that he was known to be the owner '--------;======.--------' of Hotel I I while it was in operation. It asserts that _.__ ____________ ___. alias 
I lwas the "last and only owner" of the hotel from 2000 to 2002 and that as such, 
he was authorized to issue the Beneficiary's experience letter for her employment there from May 
1995 to September 1997. However, the record contains no official documents showing that 
'---------~ had two names, such as government-issued identification or court documents 
referencing his two names; and it contains no independent, objective evidence of the Beneficiary's 
employment at Hotel I I such as an employment contract, payroll records, paystubs, and/ or tax 
records. 
On motion, the Petitioner also asserts that the AAO abused its authority by relying on the USCIS site 
visit report and failing to consider the Petitioner's documentation and explanations. This claim is 
without merit, as we have properly and thoroughly considered the Petitioner's explanations and 
documentation on appeal and on motion. The Petitioner further asserts on motion that we did not 
"provide any proof or documents to show that [sic] actual field visit was done and it was done 
properly." The regulation at 8 C.F.R. § 103.2(b)(l6)(i) requires that the Petitioner be "advised of' the 
derogatory information relied on in the adverse decision. The regulation does not place upon USCIS 
a requirement that the actual documents be provided to a petitioner. Mangwiro v. Napolitano, 939 F. 
Supp. 2d 639, 646 (N.D.Tex. 2013). We properly advised the Petitioner about the results of the site 
5 For example, he states "I registered my business ... ;" "My business was located ... ;" "In the course of operation of my 
business, I hired [the Beneficiary] ... ;" "as the owner/proprietor of the company ... ;" and "I was the sole owner/proprietor 
of the business." 
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Matter of C-M- Corp. 
visit and the Petitioner was given an opportunity to supplement the record with a rebuttal before a final 
administrative decision was rendered. 
The Petitioner has not established by a preponderance of the evidence that the Beneficiary has two 
years of qualifying experience required by the labor certification. 
B. Eligibility for Classification as a Skilled Worker 
We additionally determined that the Beneficiary does not qualify for classification as a skilled worker. 
Because the Petitioner has not established on motion that the Beneficiary had two years of qualifying 
experience, she does qualify for classification as a skilled worker. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration 
and has not overcome the grounds for dismissal of its appeal. The motion to reopen and motion to 
reconsider will be denied for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of C-M- Corp., ID# 6531336 (AAO Sept. 11, 2019) 
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