dismissed EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-1469, INC. 
APPEAL OF TEXAS SER VICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 29, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a Korean restaurant, seeks to employ the Beneficiary as a cook. It requests 
classification of the Beneficiary as an unskilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ l 153(b)(3)(A)(iii). 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 less 
than two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the Beneficiary 
misrepresented her qualifying experience on the labor certification. The Director entered a finding of 
willful misrepresentation of a material fact against the Petitioner and the Beneficiary and invalidated 
the labor certification. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary's omission of 
her work experience as a cook on a prior nonimmigrant visa application was not a material 
misrepresentation. It states that the Beneficiary submitted independent, objective evidence of her prior 
experience as a cook, and that she held two jobs at the same time. 
Upon de nova review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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). 1 See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § l 182(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 affect 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 of the Act, 8 U.S. C. § 1154. Third, ifUSCIS approves the petition, 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
August 22, 2016. See 8 C.F.R. § 204.S(d). 
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Matter of F-1469, Inc. 
the foreign national applies 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. 
11. THE BENEFICIARY'S EXPERIENCE 
The Director denied the petition because the Petitioner did not establish that the Beneficiary possessed 
the experience required by the labor certification as of the priority date. 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)(l), (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 12 months of experience in the job offered of cook. The 
labor certification states that the Beneficiary qualifies for the offered position based on experience as 
a part-time cook (24 hours per week) with in South Korea, from March 2, 2005, to 
March 10, 2007. 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. See 8 C.F.R. § 204.5(1)(3). 
With the petition, the Petitioner submitted a certificate of career issued February 22, 2016, attesting to 
the Beneficiary's experience as a cook in South Korea, from March 2, 2005, to March 10, 2007. 
The certificate states that she worked two years as a cook but does not indicate that that employment 
was part-time. The certificate is written in English by President of' '2 and is not 
signed. Instead, the certificate has an untranslated stamp with Korean letters next to s name. 
In a notice of intent to deny (NOID), the Director indicated that information provided on the 
Beneficiary's nonimmigrant visa application submitted in August 2008 conflicts with the information 
provided on the labor certification in this case. The Beneficiary indicated on the nonimmigrant visa 
application that she worked as a supervisor in finance and administration for 
in South Korea, from November 1, 1989, to the date the application was signed on August 21, 
2008. She also indicated that she had no other previous employers. She signed the application and 
certified that its contents were correct and that any false or misleading statement may result in the 
permanent refusal of a visa or denial of entry in the United States. The Director stated that USCIS 
contacted and was informed that the Beneficiary worked there as a supervisor of finance and 
administration from April 25, 1989, to September 30, 2008. The Director indicated that USCIS may 
deny the petition and invalidate the labor certification based on the Beneficiary's willful 
misrepresentation of a material fact. 
In response to the NOID, the Petitioner provided a letter from a law firm in South Korea, 
explaining the deduction threshold for filing a tax return in South Korea and an excerpt from the 
Korean income tax act. The letter states that the deduction for daily employed workers is 80,000 won 
per day and that it is a threshold for determining whether to file a tax return or not. Therefore, the 
letter states that "if income of a taxpayer is less than the amount of the deduction, the taxpayer has no 
obligation to file a tax return." It further states that a part-time worker is classified as a daily employed 
worker. In response to the NOID, the Petitioner also provided an affidavit from the Petitioner 's Vice 
2 The company name is spelled on the labor certification. 
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Matter of F-1469, Inc. 
President stating that he tested the Beneficiary's skills and that her skills "can only come from 
experience in a commercial kitchen." 
In his denial notice, the Director determined that the Petitioner had not established that the Beneficiary 
had the required one year of experience as a cook. He further determined that the Beneficiary willfully 
misrepresented her employment with and, therefore, he entered a finding of fraud or willful 
misrepresentation of a material fact against the Beneficiary. He further stated that the Petitioner "took 
legal responsibility for the trust and accuracy of any evidence submitted in support of the Form 1-140" 
and appears to have entered a finding of fraud or willful misrepresentation of a material fact against 
the Petitioner. The Director also the invalidated the labor certification based on fraud or willful 
misrepresentation of a material fact involving the labor certification. 
On appeal, the Petitioner asserts that the Beneficiary's omission of her work experience as a cook on a 
prior nonimmigrant visa application was not a material misrepresentation. It states that the Beneficiary 
submitted independent, objective evidence of her prior experience as a cook, and that she held two 
jobs at the same time. It provides an unsigned verification of work experience dated June 28, 2018, 
purportedly from . President of' ' Like the prior certificate, it is written in English and 
stamped in untranslated Korean next to the writer's name. A full English language translation must 
accompany any document containing foreign language. 8 C.F.R. § 103.2(b)(3). The translator must 
certify that the translation is complete and accurate, and that the translator is competent to translate 
from the foreign language into English. Id If the stamp represents the writer's name, it is not clear 
why the writer wrote the letter in English but stamped his/her name in Korean. Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the petition. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The verification of 
work experience states that the Beneficiary worked part-time (Monday through Saturday 7 :00 -
11 :00pm) as a cook in South Korea, from March 2, 2005, to March 10, 2007. It states that she 
was paid KRW 7,500/hour in cash. 
The Petitioner also provides a South Korean Certificate of Business Registration, together with 
English translation, stating that began operating as a restaurant in South Korea on 
1996. It also provides an affidavit from the Beneficiary stating that she worked the night shift at 
and earned about KRW 30,000 per day. She asserts that she worked two jobs in 2005, 2006, 
and 2007. She states that because she earned less than the minimum reporting amount at · in 
2005, she was not required to file a tax return. 3 However, it appears that she may have been required 
to file a tax return in 2005, 2006, and 2007 based on her income from and that any income from 
additional sources should have been reflected on the tax return. Generally, income from all sources 
would be added together to determine whether a tax payer meets a filing threshold. Here, she claims 
that she earned income from two separate jobs - -in 2005, 2006, and 2007. However, 
the Petitioner did not submit evidence of her earnings at 
The Beneficiary 's husband also earned money in at least two of the three relevant years, and it is not 
clear whether he filed a separate income tax return from his wife. The financial statements of her 
husband' s business submitted on appeal are not properly translated and, therefore, are not credible 
evidence of the company 's earnings. The financial statements cover the years 2005 through 2008, and 
3 She does not indicate why she could not produce a tax return for 2006 and 2007. 
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Matter of F-1469, Inc. 
each include a one-page Certificate of Standard Financial Statement; a two-page balance sheet; and a 
two-page income statement. The certificates are translated from Korean into English, but it is not 
clear who completed the translations. The balance sheets are written completely in English, except 
for some untranslated Korean at the bottom of each page. It is not clear why these documents were 
not completed in Korean, particularly since the certificates confirm that the documents were submitted 
to the district tax office in Korea. Doubt cast on any aspect of the 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. at 591-92. Similarly, the income statements are written completely in English, 
except for some untranslated Korean at the bottom of each page. A full English language translation 
must accompany any document containing foreign language. 8 C.F.R. § 103.2(b)(3). The translator 
must certify that the translation is complete and accurate, and that the translator is competent to 
translate from the foreign language into English. Id Because the Petitioner did not submit properly 
certified English language translations of the documents, we cannot meaningfully determine whether 
the translated material is accurate and thus supports the Petitioner's claims. 
On appeal, the Petitioner submits another letter from a South Korean law firm. It states that in 2008, 
the Beneficiary "had worked for more than 18 years at l as the chief of finance and administrative 
section. It states that the firm determined that the Beneficiary was eligible for an F-1 student visa 
based on her ties to South Korea. It states that even if the Beneficiary had disclosed her experience as 
a cook on the nonimmigrant visa application, "her FI visa would have been issued because her 
experience as a cook was not a material fact or misleading information in determining eligibility for 
Fl visa." It further states that because she did not declare her income as a cook with the Korean 
government, "the difference between no record as a cook on the Certificate of Income, a government­
issued document, and her statement about work experience on her DS-158 might have misled 
adjudication of a consular officer if all work experience had been disclosed." 4 However, the 
nonimmigrant visa application does not indicate that reporting of prior work experience is optional, 
and the applicant's work history must be certified as true and correct. 
As discussed above, the Petitioner has not demonstrated that the employment history claimed on the 
labor certification is correct. is misspelled, there are inconsistencies between the Beneficiary's 
nonimmigrant application and the documentation provided in this case regarding her prior work 
experience, the record paints and incomplete picture of the finances of the Beneficiary and her 
husband, and the record does not contain proper translations. Thus, we agree with the Director's 
determination that the evidence submitted to the record regarding the Beneficiary's prior work 
experience with is not credible. 5 The Petitioner has not resolved the inconsistencies and 
ambiguities in the record with independent, objective evidence, such as paystubs, payroll records, 
personnel records, and/or tax documents. Thus, the Petitioner has not established that the Beneficiary 
possessed the experience required by the labor certification as of the priority date. We therefore affirm 
the Director' s determination that the Beneficiary did not have the required two years of experience as 
a cook. 
4 It is not clear why the Beneficiary would not have been able to assert the income tax report ing exemption that is asserted 
here. Doubt cast on any aspect of the petitioner's proof may undermine the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Id. 
5 The Petitioner must support assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N 
Dec. 369, 376 (AAO 2010). 
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Matter of F-1469, Inc. 
III. FRAUD OR WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The Director found that the Beneficiary fraudulently or willfully misrepresented her employment with 
on the labor certification, and that the Petitioner fraudulently or willfully misrepresented the 
evidence submitted in support of the Form 1-140. He also invalidated the labor certification. Any 
foreign person who, by fraud or willfully misrepresenting a material fact, seeks to procure ( or has 
sought to procure or has procured) a visa, other documentation, or admission into the United States or 
other benefit provided under the Act is inadmissible. See section 212(a)(6)(C)(i) of the Act, 8 U.S.C. 
§ l 182(a)(6)(C)(i). 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
willfully make a material misstatement to a government official for the purpose of obtaining an 
immigration benefit to which one is not entitled. Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 
(BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of Tijam, 22 
I&N Dec. 408,425 (BIA 1998); Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). To 
be considered material, the misrepresentation must be one which "tends to shut off a line of inquiry 
which is relevant to the alien's eligibility, and which might well have resulted m a proper 
determination that he be excluded." Matter of Ng, 17 I&N Dec. 536, 537 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa petition 
proceedings, he or she must determine that: 1) the petitioner or beneficiary made a false representation 
to an authorized official of the United States government; 2) the misrepresentation was willfully made; 
and 3) the fact misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter 
of L-L-, 9 I&N Dec. 324 (BIA 1961 ); Matter of Kai Hing Hui, 15 I&N Dec. at 288. 
Here, the Beneficiary indicated on the labor certification that she had two years of part-time experience 
as a cook with In light of the contradictory information presented and lack of corroborating 
documentation regarding the Beneficiary's prior work experience, the entry at Part K on the ETA 
Form 9089 was not correct and constitutes a false representation. A misrepresentation can be made to 
a government official in an oral interview, on the face of a written application or petition, or by 
submitting evidence containing false information. INS Genco Op. No. 91-39, 1991 WL 1185150 
(April 3 0, 1991 ). For the reasons discussed above, because the Beneficiary did not have two years of 
part-time experience as a cook with _ _______ , the Beneficiary's false attestation on the labor certification 
constitutes a false representation on the face of a written petition. 
Second, we find that the Beneficiary willfully misrepresented material facts regarding her previous 
employment with The Beneficiary signed the labor certification attesting to the veracity of the 
claims on the labor certification , including two years of part-time employment experience with 
In this way, the Beneficiary directly participated in the preparation and submission of documents that 
convey the false impression that she has at least 12 months of qualifying experience as required on the 
labor certification. When given the opportunity to address the derogatory information described in the 
NOID , the Beneficiary reaffirmed her claims regarding her foreign employment. In light of the 
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Matter of F-1469, Inc. 
unresolved contradictory evidence in the record regarding the Beneficiary's experience with 
we conclude that the Beneficiary's misrepresentations were willful. 
Third, the evidence is material to the Beneficiary's eligibility. To be considered material, a false 
statement must be shown to have been predictably capable of affecting the decision of the decision­
making body. Kungys v. US, 485 U.S. 759 (1988). In the context of a visa petition, a misrepresented 
fact is material if the misrepresentation cut off a line of inquiry which is relevant to the eligibility 
criteria and that inquiry might well have resulted in the denial of the visa petition. See Ng, 17 I&N 
Dec. at 537. Here, the Beneficiary's experience is material to the whether she meets the minimum 
requirements of the offered position. The labor certification requires 12 months of experience in the 
job offered of cook. The misrepresentation regarding the Beneficiary's experience with on the 
labor certification cut off a potential line of inquiry regarding her claimed experience. See Matter of Ng, 
17 I&N Dec. at 537. 
Accordingly, we agree with the Director's finding that the Beneficiary made willful misrepresentations 
of material fact. This finding of willful material misrepresentation shall be considered in any future 
proceeding where the Beneficiary's admissibility is an issue. 
However, we do not agree that the Petitioner fraudulently or willfully misrepresented the evidence 
submitted in support of the Form 1-140, as the record does not reflect that the Petitioner knowingly or 
willfully submitted false documents related to the Beneficiary's prior work experience. We therefore 
withdraw the Director's finding of fraud or misrepresentation against the Petitioner. 
IV. INVALIDATION OF THE LABOR CERTIFICATION 
The regulation at 20 C.F.R. § 656.30(d) provides, in pertinent part: 
( d) Invalidation of labor certifications. After issuance, a labor certification may be 
revoked by ETA using the procedures described in Sec. 656.32. Additionally, after 
issuance, a labor certification is subject to invalidation by the DHS or by a Consul of 
the Department of State upon a determination, made in accordance with those agencies' 
procedures or by a court, of fraud or willful misrepresentation of a material fact 
involving the labor certification application. 
Based on the finding of willful misrepresentation of a material fact against the Beneficiary involving 
the labor certification application, the Director properly invalidated the labor certification. 
V. CONCLUSION 
The appeal will be dismissed 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. 
Matter of F-1469, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-1469, Inc., ID# 03841076 (AAO Apr. 29, 2019)