dismissed EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
In Re : 16063400 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 10, 2022 
The Petitioner seeks to employ the Beneficiary as a Thai cook under the third-preference, immigrant 
visa category for skilled workers . 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 category allows a U.S. business 
to sponsor a foreign national with at least two years of training or experience for lawful permanent 
resident status. The Texas Service Center Director issued a notice of intent to deny (NOID) the Form 
1-140, Immigrant Petition for Alien Workers, then denied the petition and dismissed a subsequent 
motion. The matter is now before us on appeal. The Petitioner bears the burden of proof to 
demonstrate eligibility by a preponderance of the evidence . Section 291 of the Act; Matter of 
Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) . We review the questions in this matter de nova. 
Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will 
dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Immigration as a skilled worker generally follows a three-step process . First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient 
U.S. workers able, willing , qualified, and available for an offered position; and (2) employment of a 
noncitizen in the position would not harm wages and working conditions of U.S. workers with similar 
jobs. See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). Second , an employer must submit an 
approved DOL ETA Form 9089, Application for Permanent Employment Certification (labor 
certification) with an immigrant visa petition to U.S. Citizenship and Immigration Services 
(USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Among other things, USCIS determines 
whether a noncitizen beneficiary meets the requirements of a DOL-certified position and a requested 
immigrant visa category . 8 C.F.R . § 204 .5(1). Finally, if USCIS approves a petition, a noncitizen 
beneficiary 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. 
To be eligible for classification as a skilled worker a beneficiary must have at least two years of 
training or experience . See 8 C.F.R. § 204.5(1)(3)(ii)(B). A beneficiary must also meet the specific 
educational, training, experience, and other requirements of the labor certification underlying the 
pet1t10n. Id. All requirements must be met by the petition's priority date, 1 which in this case is 
December 4, 2017. See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 
1977). 
II. ANALYSIS 
A. Background 
The Beneficiary claims the following foreign employment: 
• ___________ _______ August 7, 2007 - September 9, 
2008; 
• 
• 
!(Restaurant): April 1, 2008 - April 30, 2012; 
(Restaurant): September 16, 2008 - September 30, 2010; 
• I: 2013 - 2014; and 
• Self-employed: 2014 - 201 7. 
It is the work at the Restaurant the Beneficiary claims as the qualifying work experience on the labor 
certification. The Beneficiary applied for nonimmigrant visitor visas in 2008 and 2009. She signed 
the first visa application on September 5, 2008, and listed her current employer asl I On 
this application, the Beneficiary made no mention of her work at the Restaurant where she now claims 
she had been working for almost a year and a half. The Beneficiary signed the second visa application 
on October 13, 2009, and again did not identify the Restaurant as her current employer. Instead, she 
listed her employer as 
Moving to the labor certification, the Petitioner was only required to include the employment that 
qualified the Beneficiary for the offered position as well as all jobs she held during the most recent 
three years. Section K. of the labor certification provides the following: "List all jobs the alien has 
held during the past 3 years. Also list any other experience that qualifies the alien for the job 
opportunity for which the employer is seeking certification." The Petitioner only included the 
Beneficiary's work at the Restaurant and did not include her work described as self-employed. Within 
the motion brief the Petitioner filed before the Director, they stated: 
Pursuant to the instructions, the beneficiary was required to list their jobs between 2014 
to 2017 and any other experience that qualifies the alien for the job opportunity. The 
beneficiary did not list any job between 2014 and 2017 as she was self-employed in the 
qualifying experience from the [Restaurant] was listed. 
As evidence of her experience at the Restaurant, the Beneficiary provided two letters from this 
organization that detailed the years she worked for them as a Thai cook, that the work was full time, 
1 The priority date of an employment-based immigrant petition is the date the underlying labor certification is filed with 
the DOL. See 8 C.F.R. § 204.5( d). 
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the duties she performed for the organization, as well as the author's name, title, and address. The 
Petitioner also provided evidence relating to two other positions that are not pertinent to this decision. 
The Director issued the NOID, which among other issues, noted the discrepancy between the 
Beneficiary's claimed work experience on the labor certification when compared with her 
nonimmigrant visa applications. That discrepancy called into doubt whether she possessed the 
claimed experience as a Thai cook. Within this notice, the Director also alleged the Petitioner and the 
Beneficiary misrepresented material facts as it relates to her claimed work experience. 
After considering the Petitioner's NOID response, the Director denied the petition for multiple bases 
including: (1) the Beneficiary did not possess the required experience, (2) the Petitioner and the 
Beneficiary misrepresented a material fact as described in section 212(a)(6)(C)(i) of the Act relating 
to her qualifying experience, (3) the Petitioner did not make a bona fide job offer, and ( 4) the Petitioner 
did not file and submit a valid labor certification resulting in the Director invalidating it. 
The Petitioner filed a motion to reopen and reconsider and the Director dismissed those motions. In 
part, the Director continued to find that: (1) the discrepant information about the Beneficiary's 
qualifying work experience undermined their eligibility claims, (2) the record did not demonstrate she 
met the minimum requirements for the offered position, and (3) statements of fact presented by the 
Petitioner's counsel were not tantamount to evidence. We note that in the motion dismissal, the 
Director did not convey their fraud or material misrepresentation finding and it is unclear whether the 
Director continued to attribute those adverse concepts to the Petitioner's and Beneficiary's claims and 
evidence. On appeal, the Petitioner continues to claim the Beneficiary possesses the required work 
experience, the Director misunderstood some of the facts and evidence relating to her work experience, 
and before the Director they established that no fraud or material misrepresentation was committed. 
B. Appellate Determination 
After reviewing the record and the appeal brief, we conclude the Petitioner has neither resolved the 
material inconsistencies in the record, nor have they demonstrated the Beneficiary possessed the 
required work experience when they filed 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)(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 24 months of experience in the job 
offered as a Thai cook. 
As we described above, the Beneficiary claimed she was working at the Restaurant when she filed 
both nonimmigrant visa applications, yet she failed to list that employment on either application. This 
creates doubt as it relates to the veracity and credibility of the claims presented in both letters from the 
Restaurant, especially when the first instance she claimed to work there was on the labor certification 
when she needed to rely on that experience to qualify for the offered position. When the Director 
raised this issue in the NOID, the Petitioner simply refuted the allegation of misrepresentation and 
provided a second letter from the Restaurant containing mostly the same information as the first letter 
the Director determined was inadequate to resolve the inconsistency. The Petitioner did not offer any 
additional evidence beyond the two employment letters to demonstrate she was actually employed in 
the claimed position during the relevant timeframe, nor do they indicate any such evidence exists. 
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Consistent with regulations, the letters from the Restaurant provide the names, addresses, and titles of 
the employers, and descriptions of the Beneficiary's experience. See 8 C.F.R. §§ 204.S(g)(l), 
(1)(3)(ii)(A). However, a petitioner does not satisfy its burden of proof by simply meeting the 
regulatory requirement for evidence. In addition to meeting the prima fade documentary 
requirements, when adverse elements are present in the case it may be necessary for an employer to 
explain and demonstrate how the totality of their evidence should result in a favorable decision. In 
other words, simply producing evidence is not always adequate. A petitioner's burden of proof 
comprises both the initial burden of production, as well as the ultimate burden of persuasion. Matter 
of Y-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998). 
Even if we accept the veracity of the Restaurant's letters, the Petitioner has been afforded multiple 
opportunities to offer an explanation of why-in two instances-the Beneficiary failed to include her 
employment at the Restaurant on her nonimmigrant visa applications. Even on appeal, the Petitioner 
discusses evidence from the Beneficiary's previous employers, returns the discussion to the two letters 
from the Restaurant, and states those letters establish the Beneficiary possessed the required 
experience, as claimed. But the Petitioner never addresses why the Beneficiary omitted her 
employment at the Restaurant on both visa applications. When a petitioner refuses to provide this 
reasoning, it can raise questions concerning the letters from the Restaurant, leaving us unable to 
consider their content as fully credible. This deficiency undermines the claims of qualifying 
experience due to the incongruences in the evidence and the absence of corroboration on the 
nonimmigrant visas. And because the evidentiary value of the Restaurant letters is diminished by the 
inconsistency, the Petitioner's claims regarding the Beneficiary's work experience are undermined to 
even a greater extent. 
When there is a material inconsistency in the record, the Petitioner must ameliorate this discordant 
information. Such a correction must be demonstrated through the submission of relevant, independent, 
and objective evidence that reveals which information is the truth. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). Such ameliorative evidence must be probative. Probative evidence is the type 
that "must tend to prove or disprove an issue that is material to the determination of the case." Matter 
of E-F-N-, 28 I&N Dec. 591, 593 (BIA 2022) ( quoting Matter of Ruzku, 26 I&N Dec. 731, 733 (BIA 
2016)); see also Evidence, Black's Law Dictionary (11th ed. 2019). Therefore, if some form of the 
Petitioner's evidence does not adequately demonstrate their contention, then it is not considered to be 
probative. When combined with other favorable material, evidence that is not probative on its own 
could exist on a palette in which the Petitioner "paints a mosaic" that sufficiently demonstrates their 
claims. The Petitioner has not pieced together that portrait here. 
False, contradictory, or unverifiable claims inherently prevent a finding that a petitioner's claims are 
true. See Anetekhai v. I.NS., 876 F.2d 1218, 1220 (5th Cir. 1989); Systronics Corp. v. I.NS., 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988). 
Due to the lack of corroborating and probative evidence, the Petitioner and the Beneficiary have 
presented contradictory claims (those on the labor certification versus those on the nonimmigrant visa 
applications) and we do not find that they have established the Beneficiary's work experience claims 
are true. Additionally, factual ambiguities are weighed against foreign nationals when the burden of 
proof rests with them. Cf Pereida v. Wilkinson, 141 S. Ct. 754, 763 (2021); Ramirez-Medina v. 
Garland, No. 16-73325, 2021 WL 6061562, at *4 (9th Cir. Dec. 22, 2021) (finding where the foreign 
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person applying for an immigration benefit bears the burden of proof, factual ambiguities are weighed 
against them). Those ambiguities, and the attendant effects on this case, will be weighed and 
considered with the rest of the record. As a result, any factual ambiguity between the Beneficiary's 
experiential claims and what the government requires is weighed in favor of the government's 
requirements and against the filing party because the burden of proof is on the filing party. 
Where a record contains inconsistencies, the fact that a filing party offers explanations for 
discrepancies is not necessarily sufficient to meet their burden of proof and we are not required to 
accept their explanations. See E-F-N-, 28 I&N Dec. at 593 ( citing Matter of Y-I-M-, 27 I&N Dec. 724, 
726 (BIA 2019)). Part of our function is to separate the explanations that are most plausible from 
those that are not to evaluate the persuasive force a petitioner offers for their apparent inconsistencies. 
The final determination of whether evidence satisfies the requirements of a regulation or meets the 
burden of proof lies with USCIS. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 
1988) (finding that the appropriate entity to determine eligibility is USCIS). Here, the Petitioner 
doesn't offer an explanation for the inconsistencies between the information on the visa applications 
and the rest of the record. 
As the inconsistencies in the record have not been resolved, the Petitioner has not established with 
relevant, independent, and objective evidence that-as of the priority date-the Beneficiary possessed 
the required 24 months of experience in the offered position, as required by the labor certification. 
The Director properly denied the petition on this basis. 
Because the above basis for the petition's denial is dispositive of this appeal, we decline to reach and 
hereby reserve the Applicant's remaining appellate arguments. See INS v. Bagamasbad, 429 U.S. 24, 
25 ( 197 6) ("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reach"); see also Matter of M-F-O-, 28 I&N Dec. 408, 417 n.14 (BIA 
2021) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
However, we will withdraw both the Director's invalidation of the labor certification and reinstate it 
as well as its bona fide job offer determination. 
C. Additional Determinations 
We reiterate that it is unclear whether the Director continued to conclude that the Beneficiary or the 
Petitioner misrepresented a material fact. Presuming they continued to apply this finding to this case 
after their decision on the motions, we withdraw that determination. Although the Petitioner and the 
Beneficiary have not demonstrated she gained at least 24 months of experience at the Restaurant, the 
inconsistencies and the information the Director noted do not appear to rise to the level necessary to 
apply this inadmissibility ground to this case. In particular, their failure to establish a claimed fact as 
true does not constitute that claim was false. "False representation, or usually called 
'misrepresentation,' is an assertion or manifestation that is not in accordance with the true facts." 
8 USCIS Policy Manual J.3(K)(C)(l), https://www.uscis.gov/policymanual. Here, the Director did 
not sufficiently establish the Beneficiary's claims of work experience at the Restaurant were "not in 
accordance with the true facts." 
We further withdraw the Director's determinations regarding a lack of bona fide job offer. And finally, 
we withdraw the Director's decision to invalidate the labor certification and we reinstate it. 
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III. 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 a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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