dismissed EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S-G-S-CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 26, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a Japanese and Korean restaurant, seeks to employ the Benet1ciary as a Japanese 
chef. It requests classit1cation of the Benet1ciary as a skilled worker under the third preference 
immigrant category. See Immigration and Nationality Act (the J\ct) section 203(b)(3)(A)(i), 
8 U.S.C. §I 153(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. The Director of the Nebraska Service Center subsequently 
revoked the approval, !1nding that the Petitioner and the Beneficiary did not adequately explain 
evidentiary inconsistencies conceming the Beneficiary's past employment and had willfully 
misrepresented the Beneficiary's work history. The Director concluded that the evidence of record 
did not establish that the Beneficiary had two years of experience as a Japanese chef, as required by 
the underlying labor certification to qualify for the proffered position. 
On appeal the Petitioner submits additional evidence, asserts that the evidentiary issues cited by the 
Director have been resolved and claims that the evidence establishes the Beneficiary's qualifying 
experience for the proffered position. 
Upon de novo review, we will dismiss the appeal. 
l. 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 insutlicient 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)(l)-(ll) of the Act. Second, the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USC IS). See section 204 of the Act, 8 U.S.C. § 1154. Third, 
if USC IS 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. 
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Matter ~~ S-,)'-G-S-Cmp. 
Section 205 of the Act. 8 U.S.C. § 1155, provi des that the Secretary of Home land Security may "for 
good and sufficient cause, revoke the approval of any petition." By regulation this revocation 
authority is delegated to any users officer who is authorized to approve an immigrant ·visa petition 
"when the necessity for the revocat ion 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 
A. Required Experience 
A beneficiary must meet all of the education, training , experience, and other requirements of the 
labor certification as of the petit ion's priorit y date .1 See Maller of Wing's Tea House, 16 I&N Dec. 
158, 159 (Acting Reg 'I Comm' r 1977). The labor certification in this case states that the minimum 
requirement for the job of Japan ese chef is 24 months of experience in the job offered. The labor 
certification states that the Beneficiary met this requirement by virtue of his employment as a 
Japanese chef by a restaurant in South Korea, from September 1, 
2001, to December 31,2003. As evidence ofthe Beneficiary's employment at the Petitioner 
submitted a letter from the restaurant's owner, dated March 23, 2010. 
The petition was initially approved , but the Director issued a notice of intent to revoke (NOIR) the 
approval in March 2017. The Director indicated that the labor certification ' s claim that the 
Beneficiary was employed by as a Japa nese · chef from September 2001 to December 2003 
conflicted with information recentl y 
obtained by USCIS officials from which confirmed that 
the Beneficiary was a prior employee, but only for the nine-month period of May I, 2002, to 
f ebruary 9, 2003. The Direct or stated that it .appeared the previous approval of the petition should 
be revoked because the Beneficiary did not meet the minimum experience requirement of the labor 
certification. 
In respon se to the NOIR the Petitioner submitted a letter from the Beneticiary reiterating his claim to 
have \Vorked for as a Japanese chef from Septemb~r 2001 to December 2003, as \'l'ell as a 
'"certificate of work experience" from in South Korea, 
stating that the Beneficiary was employed there as a sushi chef from January 2000 to July 2001. 
After receiving the Petitioner's response to the NOIR
, the Director issued a decision revoking the 
approval of the petition. The Director stated that officers of the USCIS field office in had 
contacted in January 2016 and obtained information from its human resource office that the 
restaurant had employed the Beneficiary during a nine-month period from May 2002 to February 
1 The "priorit y date" of a Form 1-140 petition is the date the underlying labor cert ification was filed with the DOL . See 
8 C .F.R. § 204.5(d) . In this case the priority date is April 8, 20 13. 
2 
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Maller of S-S-G-S-Corp. 
2003, not the far longer period of September 2001 to December 2003, as asserted in the labor 
certification and in the Benefi ciary's letter responding to the NOIR. The Director also found that the 
certificate from lacked credibility because the experience alleged therein was not listed by 
the Beneficiar y in the labor certification . The Director noted that no objective documentary 
evidence had been submitted to demo nstrate the Beneficiary's qualifying exper ience with either 
or , such as certificates of incom e hom the Nation al Tax Service of Korea (NTS K), 
the gov ernment agency to which all employment in South Korea is required to be repo rted , or 
statements of national pension coverage from the National Pension Service (NPS). The Director 
concluded that the Petitio ner had not resolved the inconsistenc ies in the record conc erning the 
Beneficiar y's employment history, and had not established that the Beneficiary met the minimum 
experience requirement of the labor certificat ion. The Director also found that the Petitioner and the 
Beneficiary had willfully misrepresented a materi al fact concerning the Beneficiary's employment 
history. 
On appeal the Petitioner submits an affidavit from who states that he was employed 
by a subsidiary of as team manager from 1999 to 2009 and that during this time the 
Beneficiar y was employed as the Japanese food chef on a part-time basis (40+ hours per week) from 
September 1, 2001 , to April30 , 2002, on a full-time basis (50+ hours per week) from May I, 2002 , 
to Febru ary 9, 2003, and on a part-time basis again (40 hours per week) from Februa ry 10, 2003, to 
December 31 , 2003. asserts that no records were kept of part-time employee s, implicitly 
explaining why USCIS officials ·were only able to obtain confirmation from of the 
Beneficiary ' s full-time employment from May 2002 to February 2003 , even though his part-ti me 
employment before and after that time period consisted of 40 or more hours per week. The 
Petitioner also submits certificates of employment and income from the NTSK tor 
confirming his dates of employment by and his income in the years 2001-2004, which the 
Petitioner touts as qualifying to confirm the duration and nature of the Beneficiary's 
employment by from September 2001 to December 2003. 
The documentation pertaining to however, is not supplemented by any documentary 
records of the Beneficiary's own employment with No certificates of income from the 
NTSK or pension statements from the NPS haye been submitted to confirm the Beneficiary's 
employment and dates of service with Nor have any earnings statemen ts from the 
Beneficiary, or payroll record s from or tax records from or the Beneficiary been 
submitted to document the Beneticiary's dates of employment with The Petitioner asserts 
that NPS requirements were not mandatory for a s mall employer like until July 1, 2003. 
Assuming that was the case , however , the Petitioner has not explained why no NPS pension 
stateme nt at all has been submitted fo r the Beneficiary ' s employment with since he claims to 
have worked there during second half of 2003. For the reason s discussed above, we conclude that 
the Petitioner has not resolved the evidentiary discrepancy regarding the duration of the 
2 The Petitioner submits the types of documentation request~d by the Director, not for the Beneficiary, but for 
If the Beneficiary did indeed work for during the time period claimed, it is unclear why these same documents are 
not available for the Beneficiary. 
3 
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Matt er (?fS-S-G-S-C(wp. 
Beneftciary's emp loyment with and has not established that the Beneficiary gained at least 
two years of qualifying experi ence with 
It is incumb ent upon a petition er to resolve any inconsistencies in the record by independent 
object ive evidence. Attempt s to expl ain or r econc ile such inconsistenci es will not suftice without 
comp etent evidence pointing to where the truth lies. See Maller of Ho, 19 l&N Dec. 582, 591-92 
(BIA 1988). Doubt cast on any aspect of the petitioner's evidence also ref1ects on the reliability of 
the petitioner's remaining evidence. See id. Here the Petiti oner has not overcome the 
inconsistencies present in the record. 
On appeal , the Petitioner also submit s a statem ent from the owner of sup plem enting the 
previous ly subm iued work exper ience certificate, asse rting that the Beneficiary was employed as a 
Japanese food chef from Janu ary 200 0 to July 2001. This job was not listed on the labor 
certific ation, however, despite the instruction i n section K of the ETA Form 9089 to list not only 
jobs of the past three years , but also "any other experience that qual ifies the [beneliciary] tor the job 
opportunity. " The fact that no experi ence with was certified by DOL on the labor 
certificat ion l esse ns the credibility of the Beneficiary's claim to have gained such exper ience. See 
Matter (~{L eung. 16 I&N Dec. 2530 (BIA I 976) . The statement from owner, like the 
work experience certificate submitted in response to the t<OIR, was prep ared in 2017 a n~ is not 
supporte d by any corrobor at ing documentation dating from the time of the Beneficiary' s alleged 
employment , such as the Beneficiar y's earnings state ments, or pay roll rec ords from or tax 
reco rds from or the Bene1ic.iary. Nor have any certificates of income from the NTSK or 
pension statements from the NPS been submit ted to doc ument the Beneti ciary's em ployme nt with 
in 2000 and 2001. For the reasons discussed above, we conclude that the Petiti one r has not 
estab lished that the Benefi ciary gained any qualifying experience with 
Based on the foregoing analysis, we conclude that the record doe s not establish that the Beneficiary 
gained at least two years of qualifying ex perience with and Accor dingly, the 
Beneficiary does not meet the minimum ex perienc e requirement of the labor certification. 
B. Eligibility for Classification as a Ski lled Worker 
Although not specifically mentioned by the Director, the record also does not establish the 
Bencliciary's eligibility lor class ificatio n as a skilled worker. A petition requesting sk illed worker 
classification "must be accompanied by evid ence that the [beneficiar y] meet s the .. . requirements of 
the labor certification . . .. The minimum requirements for this classific ation are at le'ast two years of 
training or experience." 8 C.F.R. * 204.5(1)(3)(ii)(B). As discussed above, the ev idence of reco rd 
does not establish that th~ Beneficiary has two years of experienc e o r training . The refore , the 
3 On appeal the Petitioner also submits letters from its owner president and from a clergyman who allest to the 
Beneficiary 's professional competence and good character. Neither of these letters, however , sheds any light on the 
evidentiary discrepancie s regardin g the Beneficiary's qua titying work experience. 
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Matter rJ(S-S-G-S-Corp. 
Beneficiary does not meet the minimum experience requirement to be eligible for classification as a 
skilled worker. 
C. Willful Misrepresentation of a Material Fact 
Although the record does not demonstrate the Beneficiary's eligibility for the benefit sought, we do 
not find that the evidence in the record supports the Director's finding that the Petitioner and the 
Beneficiary willfully misrepresented a material fact pertinent to the Form 1-140 petition. A 
misrepresentation is an assertion or manifestation that is not in accord with the true facts. For an 
immigration officer to find a willful and material misrepresentation of fact, he or she must determine 
that (I) the petitioner or beneficiary made a false representation to an authorized official of the U.S. 
government, (2) the misrepresentation was willfully made, and (3) the fact misrepresented was 
material. See Malter of M-. 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N Dec. 288, 
289 (BlA 1975). The term "willfully" means knowing and intentionally, as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Malter of Healy 
and Goodchild, 17 I&N Dec. 22, 28 (BlA (1979). A "material" misrepresentation is one that "tends 
to shut off a line of inquiry relevant to the alien's eligibility." Malter of Ng, 17 I&N Dec. 536, 537 
(BIA 1980). 
In his revocation decision, the Director found that the Petitioner and the Beneficiary will±ully 
misrepresented a material fact by alleging an employment history in the labor certification which is 
inconsistent with the information gleaned by the USCIS field office in Seoul. After reviewing and 
discussing all pertinent evidence, including the new documentation submitted on appeal, we find that 
the record does not support a finding that the Petitioner or the Beneficiary willfully misrepresented a 
material fact in this petition. Accordingly, we will withdraw the Director's finding. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary has at least two years of qualifying experience 
as a Japanese chef. Accordingly, the Beneficiary does not meet the minimum experience 
requirement of the labor certification, and does not qualify for classification as a skilled worker. 
However, we withdraw the Director's finding that the Petitioner and Beneficiary willfully 
misrepresented a material tact. 
ORDER: The appeal is dismissed. 
Cite as Matter o(S-S-G-S-Corp., JD# 996864 (AAO Mar. 26, 2018) 
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