dismissed EB-3 Case: Culinary

U.S. Citizenship 
and Immigrat~on · 
Services 
MATTER OF C-M- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 15, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The· Petitioner, a convenience store, seeks to employ the Beneficiary as a cook. It requests 
cl_assification of the Beneficiary ·as · a skilled worker . under the third preference · immigrant 
classification. See Immigration an~ 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 foitially approved. However, the Director of the Texas Service Center 
subsequently revoked the approval,· finding that the Petitioner had not adequately explained 
inconsistent information provided about the Beneficiary's employment h,story, which cast doubt on 
the overall reliability of the employment-related evidence in the record. The Director concluded that 
the .Petitioner did not establish that the Benefici~ry 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. "\ 
On appeal 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 skilled worker clas,sification. 
Uppn de nova 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 (ETA Form 9089, Application for Permanent Employment 
Certification) from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) o_f the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, 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 U.S. workers similai:ly employed. See section 212(a)(5)(A)(i)(J)-(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. § 115_4 .. Third, if USCIS approves the 
.
) 
' ·· 
Matter ofC-M- Corp. 
petition, th~ 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 USCIS officer who is authorized to approve an immigrant visa petition 
"when the necessity for the revocation comes to the attention of [USClS] ." 8 C.F.R. § 205 .2(a). 
USCIS must give the petitioner notice of its intent to revoke the prior approv~l 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. AN_AL YSIS 
At issue on appeal is whether the evidence of record establishes that the Beneficiary had at least two 
years of experience as a cook by the petition ' s priorit y 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 
The petition, filed in January 2003, was accompanied by a labor certific ation that required two years 
of experience in the job offered to qualify for the proffered position of cook. A beneficiary must 
meet all of the education , training, experience, and other requirements of the labor certification as of 
the petition's priorit y date, which in this case was April 16, 2002 . See Matter of Wing's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg ' ! Comm ' r 1977). The labor cer-tification listed one priorjob for 
the Beneficiary , stating that she was employed as a cook by the India, 
from May 1995 to September 1997. As part of its initial evidence the Petitioner submitted an 
undated letter bearing the signature of on the letterhead of 
certifying that the Beneficiary was employed as claimed on the labor certification. 
The petition was approved in December 2003. In January 2017, however , following a notice of 
intent to revoke (NOIR) and a response from the Petitioner, the Direct or revoked the petition ' s 
approv;:tl on the ground that the evidence of record did not establish that th_e Beneficiary had two 
years of qualifying experience as a cook , as required by the labor -certification . The Petitioner filed a 
motion to reopen and a motion to reconsider , prompting the Director to issue a second NOIR to 
which the Petitioner responded with additional evidence. The Director then issued a second notice 
of revocation in September 2017, finding that although the Petitioner had submitted additional 
documentation that the Beneficiary worked as a cook for over two years at the in 
India , this evidence was not reliable due to the failure of the Petitioner and the Beneficiary to list the 
Beneficiary ' s ~ubsequent employment with the Petitioner on the· labor certification. That 
employment was first mentioned in a letter from the Petitioner 's president/manager in July 2017 
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.S(d). The priority date in this case is Arri I 16, 2002. 
2 
.
Matter of C-M- Corp. 
responding to the first NOIR, which stated that the Beneficiary had been employed by the Petitioner 
as a cook since February 2001. The Director found that the Petitioner had not provided a 
satisfactory e~planation for the omission of this alleged employment from the labor certification that 
was filed with the DOL on April 16, 2002, and concluded that the Petitioner did not establish that the 
Beneficiary had at least two years of experience as a cook by the petition's priority date. 
On appeal the Petitioner asserts that the evidence of record establishes the Beneficiary ' s work 
experience as a cook during the years 1995-1997 at the in India, and that the Director 
erred in discounting that evidence just because the Beneficiary's subsequent employment with the 
Petitioner was not listed on the labor certification. The Petitioner claims that this omission was due 
to the ineffective assistance of its original counsel, who prepared the labor certification and told the 
Petitioner and the Beneficiary to sign it without also instructing them to proofread it for accuracy. 
According to the Petitioner, neglecting to list the Beneficiary's employment with the Petiti,oner in 
the United States was harmless error and does riot diminish the credibility of the documentation 
showing that the Beneficiary was previously employed as a cook for· more than two years in India. 
Following the Petitioner's appeal we referred this case to USCIS officials in India for further 
investigation. We received a report from that office in November 2018 which raised doubt about the 
credibility of the key documents submitted by_ the Petitioner as evidence of the Beneficiary's 
employment experience in India. In January 2019, therefore, we issued a notice of intent to dismiss 
the appeal (NOID), advising the Peti,ti,oner that two documents, in particular, raised concern: 
l. The undated letter with the signature of "fo~ on the 
u letterhead of (submitted with the petition as initial evidence in 
January 2003) stating that the Beneficiary worked at the hotel as a cook from May 1995 to 
September 1997. 
2. The affidavit from dated July 31, 2017, stating that he currently lived 
at India, that he was the sole owner/proprietor of 
the in from 1991 until 2002, and that he employed the Beneficiary as a 
cook from May 1995 to September 1997. 
W~ advised the Petitioner that according to the Municipality of which is 
responsible for issuing registration certificates to businesses , -=== was never the 
owner of Office records confirmed that the was 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 . 
was not listed in the municipality's office records as a partner or owner ~f 
at any time from 1991 to 2002. · 
We also advised the Petitioner that a site visit to the address identified in July 
- revealed that the current resident 
was identified as the property owner , and that 
2017 as his residence -
is not 
all residents of the 
that 
, 
are family members and According to the 
.
Maller o/C-M- Corp. 
current resident of 
residential community. 
another resident of the 
house number was owned by 
had ever lived in the 
never lived in the 
This information, we indicated to the Petitioner, was confirmed by 
who stated that he had been a resident since 2002, that 
, that nobody by the name of 
i 
Based on the information described above , we advised the Petitioner that it appeared · 
did not reside at -~ m as claimed in his July 201 7 
affidavit, and never had an ownership · interest in the where he claimed to have 
employed the Beneficiary as a cook from 1995 to 1997. We indicated that this derogatory 
information cast severe doubt on the veracity of the undated letter and affidavit of 
in which he claimed to have employed the Beneficiary. We concluded by advising the 
Petitioner that if we determine the evidence of the Beneficiary's employment at the 
was not credible , the Beneficiary would not meet the minimum experience requirement of the labor 
certification by the priority date of Apri I 16, 2002. 
In response, the Petitioner expresses disagreement with the NOlD, asserting that it is unclear 
whether was ever personally asked whether he owned the house at 
that the longtime resident of the residential community who stated that 
nobody named ---===== ever lived at house number was not identified, and that no · 
records from the =====.: were provided to confirm that 
was not among the listed owners. The Petitioner states that it contacted 
some individuals in India , and obtained affidavits that rebut the information 
provided in the NOID relating to the ownership and residents of the house at 
as well as the ownership of the 
With regard to the residence at the Petitioner asserts that the property is 
. owned by , not As· evidence thereof the 
Petitioner submits a letter dated January 17, 2019, from an individual identifying himself as the 
president of the Jn the letterhead of that 
organization, certifying that the residential property at is owned by 
as :well as a series of tax and utility bills identifying that individual as the property owner. The 
Petitioner also submits an affidavit from who confirms that he is the owner of 
, that he does not live there, and that he rented the house to 
from January 5, 2017, to March 31, 2018. An additional affidavit from the latter 
individual confirms that he rented this house from during the aforesaid time frame, and 
asserts' that he sublet a room to . , a.k.a. 
for the three month period from June I, 2017, to August 31, 2017. According to ·the 
Petitioner , since and are the same person, 
the address identified as his residence in his affidavit of July 31, 2017, was correct, 
thereby lending credence to the affidavit. 
4 
.
Matter ofC-M- Corp. 
While the foregoing documentation may indicate that the owner of the residential property af 
1s it does not clearly show that ever lived there 
as a tenant. Both and assert that the former rented to the 
latter for the time period of January 5, 2017, to March 31, 2018. Since was no longer the 
tenant of the property after March 31, 2018, it is inexplicable how he could have sublet a room to 
from June I to August 31 , 2018 . 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Attempts to explain or reconcile such inconsistencies will not suffice without 
competent evidence pointing to where the truth lies. See Maller of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). Doubt cast ort any aspect of the petitioner's evi~ence also. reflects on the reliability of 
the petitioner's remaining evidence. See id. 
The only evidence submitted by the Petitioner to resolve the above described inconsistency between 
the dates of the primary te11ant' s residence at and the dates of 
alleged residence at that address as a sub-tenant is a pair of affidavits from 
a resident of who states that alias 
lived at that address "for three months until August 2017" without further elaboration. 
According to the Petitioner, himself is no longer available to clarify this · matter 
because he is now retired and living in a remote village in ln_dia. The Petitioner has 
provided no evidence, however, that it ever tried to contact or that is 
actually unreachable. No independent objective evidence has been subinitted , such as a sub-lease 
agreement or rental payments , to confirm residence at the subject address from June 
through August 2017 .. Based on the entire record , including the results of our onsite investigation, 
we conclude that the Petitioner has not established that resided at 
in July 2017 , as claimed on his second atlidavit asserting that the Beneficiary was employed 
by the in the years 1995-1997. This unresolved matter casts doubt on the affidavit's 
overall reliability; and limits its evidentiary weight. 
The more pressing matter on appeal, however, is === · assertion in his 2017 affidavit that · 
he . was the sole owner /proprietor of the from 1991 to 2002. This claim is 
contradicted by the Municipality of , whose office records co.nfam that the hotel 
was co-owned by 13 partners from 1991-2000 , and by one remaining partner for the next two years 
until the hotel closed in 2002. As_ previously stated , 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 I was one of the 13 partners from 1991 to 
2000 , and that he was the sole proprietor from 2000 to 2002 . As previously discussed , the Petitioner 
claims that ___ --~ and are the same person. 
According to the Petitioner, it is common for a person in India to have multiple names, such as an 
official name and a nickname, which explains why ===== is also known as 
The two affidavits from a resident 
of and one of the 13 partners · from 1991 to 2000 , also claim that 
and · --~--- are the same person , with the former 
5 
.Matter ofC-M- Corp. 
being his official name. Nowhere in the record, however, has himself 
acknowledged a second name of Both his undated letter 
submitted with the petition in 2003 and his affidavit submitted in response to the second NOIR in 
2017 were signed -~- · without any reference to a second "official" name. Nor 
have any government records or other official 4ocuments been submitted to show that 
has a second name of Furthermore, even if we 
accepted the Petitioner's contention that and 
are the same person, the records of the Municipality of _ __ indicate that 
was not the sole owner/proprietor of the from 1991 to 2000, as asserted 
by in his 2017 affidavit, but rather one of 13 partners during those years. This fact 
casts further doubt on the reliability of letter in 2003 and his affidavit in 2017 
claiming to have employed the Beneficiary as a cook from May 1995 to September 1997. Finally, 
there is no primary evidence in the record, such as an employment contract or pay statements, 
documenting any employment of the Beneficiary by the 
For all of the reasons discussed above, we conclude 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 certificatio_n. 
B. Eligibilitf for Classification as a Skilled Worker 
I 
A petition requesting skilled worker classification "must be accompanied by· evidence that the 
[beneficiary] meets the educational, training or experience, and any other requirements of the 
individual labor certification ... · .. The minimum requirements for this classification are at least two 
years of training or experience." 8 C.F.R. § 204.5(1)(3)(ii)(B). As discussed in this decision, the 
evidence of record does not establish that the Beneficiary had at least two years of qualifying 
experience as of the petition's priority date. Therefore, she does not qualify for classification as a 
skilled worker. 
' 
III. CONC(USION 
The Petitioner has not established that the Beneficiary had at least two years of qualifying 
employment by the priority date of April 16, 2002, as required to meet the experience requirement of 
the labor certification and to qualify for classification as a ~killed worker. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-M- Co,p ., ID# 1095157 (AAO Feb. 15, 2019) 
✓-
6