dismissed EB-3 Case: Culinary

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC-03-052-50727 Office: CALIFORNIA SERVICE CENTER Date: w292~ 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. $ 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC-03-052-50727 
Page 2 
DISCUSSION: The preference visa petition' was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a restaurant. 
 It seeks to employ the beneficiary permanently in the United States as a 
restaurant cook. The instant petition is for a substituted beneficiary.' As required by statute, the petition is 
accompanied by a Form ETA 750, Application for Alien Employment Certification, approved by the 
Department of Labor. The director determined that the petitioner had not established that the beneficiary has 
the requisite experience as stated on the labor certification petition. The director denied the petition accordingly. 
On appeal, counsel submits additional e~idence.~ 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. 
A labor certification is an integral part of this petition, but the issuance of a Form ETA 750 does not mandate the 
approval of the relating petition. To be eligble for approval, a beneficiary must have all the education, training, 
and experience specified on the labor certification as of the petition's priority date. 8 C.F.R. 5 103.2(b)(l), (12). 
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter of Katigbak, 14 
I. & N. Dec. 45, 49 (Reg. Comm. 1971). The priority date is the date the Form ETA 750 was accepted for 
processing by any office within the employment system of the Department of Labor. See 8 C.F.R. 3 204.5(d). 
The priority date in the instant petition is September 4,200 1. 
Citizenship and Immigration Services (CIS) must look to the job offer portion of the labor certification to 
determine the required qualifications for the position. CIS may not ignore a term of the labor certification, 
nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 
40 1,406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. 
Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 
F.2d 1 (1st Cir. 1981). 
- 
1 
The petitioner previously filed three identical immigrant petitions for the beneficiary previously based on a 
certified labor certification as follows: WAC-01-257-53091 was filed and rejected on August 14, 2001; 
WAC-01-0282-52359 was filed on September 12, 2001 and denied on March 13, 2002; and WAC-02-192- 
53239 was filed on May 23,2002 and denied on October 24,2003. 
2 
 An 1-140 petition for a substituted beneficiary retains the same priority date as the original ETA 750. 
Memo. from Luis G. Crocetti, Associate Commissioner, Immigration and Naturalization Service, to Regional 
Directors, et al., Substitution of Labor Certification Beneficiaries, at 3, 
http: //owns. doleta .gov/dmstree/fm/fm96/fm 28-96a .pdf (March 7,1996). 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. tj 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
WAC-03-052-50727 
Page 3 
The certified Form ETA 750 in the instant case states that the position of restaurant cook requires two (2) years of 
experience in the job offered. On the Form ETA 750B, signed by the beneficiary on October 15, 2002, she set 
forth her work experience. She listed her experience as a "Cook" at the petitioning restaurant from February 
1998 to the present, and a "Cook" at a restaurant named - in Tecuala, Nayarit, 
Mexico from January 1991 to November 1994. She provides no &her information concerning her worlung 
experience as a cook on this form, which is signed by the beneficiary under a declaration under penalty of perjury 
that the information was true and correct. 
The regulation at 8 C.F.R. 9 204.5(g)(l) states in pertinent part: 
Evidence relating to quali@ing experience or training shall be in the form of letter(s) fi-om 
current or former employer(s) of trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
In corroboration of the Form ETA-750B. the oetitioner submitted with the oetition an exoerience letter dated 
--- ------ ~ - - 
September 4. 1997 from 
 an owner of verifying that the 
beneficiary worked as a full time cook from 1991 until 1994 at that restaurant pertinent to the beneficiary's 
qualifications as required by the above regulation. 
In the request for evidence (WE) dated May 6, 2003, the director requested the petitioner to resolve 
inconsistencies concerning the beneficiary's full time experience as a cook while attending junior high school 
at 12 years old. In response to the WE, the petitioner submitted an affidavit from the beneficiary and another 
letter from confirming the beneficiary's full time employment experience from 
January 1991 to June 1994 as well as attending school. 
On December 27, 2004, the director issued a second notice of intent to deny  NOI ID)^ based on an 
investigation that revealed that the telephone number provided on the ex erience letter does not belong to 
- and no person by the name of 
 is registered in that city with 
the teleohone comoanv. In resoonse to the director's NOID. the oetitioner submitted a third letter from 
. d 
explaining why the telephone number now belongs to another company and photos of 
the address with a pizza shop that bought the restaurant in 1999. 
On February 10, 2005, the director denied the petition finding that the record did not establish that the 
beneficiary met minimum requirements of experience listed on the Form ETA 750. 
On appeal counsel argues that the petitioner provided substantial evidence that the former employer did in 
fact exist, that the beneficiary was in fact employed there, and that the investigation report was in error. 
The issue in the ins 
 tioner established the beneficiary's requisite experience with 
the restaurant named 
 under the requirement set forth at 8 C.F.R. 8 204.5(g)(l). The 
4 
The first NOID dealt with unrelated issues to this appeal. 
WAC-03-052-50727 
Page 4 
regulation requires such evidence must be in the form of a letter from a current or former employer or trainer 
and must include the name, address, and title of the writer, and a specific description of the duties performed 
by the alien or of the training received. The record of proceeding contains a letter dated September 4, 1997 
from 
 with a certified ~ngliih translation submitted with the initial filing. This 
experience letter is on the company's letterhead, signed by - an owner of the restaurant 
- - 
and includes a job description. However, the statement that the beneficiary started working as a full time 
cook at the age of 12 without any previous experience in cooking brought a doubt as to the validity of the 
experience letter. "Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of 
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 response to the May 6, 2003 RFE, the petitioner submitted an affidavit of the beneficiary and another letter 
from - The affidavit clarified that the beneficiary worked as a full time cook at the 
restaurant in the nearby city of Tecuala during the time she was attending school. The second letter from 
is undated but stated that the beneficiary was a full time employee for the restaurant 
from January 1991 to November 1994 and that the beneficiary also attended school at the same time. 
However, neither the affidavit nor the employer's letter submitted any independent objective evidence to 
support their assertions despite the director's request. It is incumbent on the petitioner to resolve any 
inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. 
Matter of Ho, 19 I&N Dec. at 591-592. 
Therefore, in the NOID dated December 27, 2004 the director specifically requested the petitioner to provide 
evidence of the existence of the beneficiary's claimed former employer in the form of a business license and 
evidence the business was registered with an official government agency, and evidence of employment 
verification for the beneficiarv through the Institute Mexicano de Servicios Sociales (IMSS). The record 
" 
contains a third letter dated January 21, 2005 fro 
 nd photos. In his January 21, 
2005 letter the owner of the restaurant explains w 
 led that the telephone number 
belongs to someone else. The letter states in pertinent part that: 
location as was my restaurant before. In addition the telephone number of my restaurant up 
to the time that I sold it, was in fact Tel. fter I sold the restaurant to the Pizza 
Shop, they changed their telephone number and that is whv when the U.S. Consulate 
investigator called the number they got the business , because 
my old number as their new one. I no longer run the restaurant 
, however, I can absolutely confirm that I owned the restaurant, 
[the beneficiary] was employed with my restaurant in the position of Cook on a full time 40 
hour per week basis from January of 1991 until November of 1994, and worked the shift from 
2:OOpm to 10:OO pm seven days per week. 
Again the writer did not submit any competent objective evidence to support his assertions. He did not 
provide any business license, registration or payroll records for his restaurant, or documents concerning the 
sale and termination of the restaurant business. The owner attached four photos of the alleged 
WAC-03-052-50727 
Page 5 
business that currently occupies the physical address slnce 1999, and three photos of - 
the alleged company that has the telephone number used by 
However, the photos of the pizza shop do not show the address and 
include the telephone number. Further, neither the petitioner nor the former employer explained how these 
photos establish that existed and the beneficiary worked as a full time cook from 
January 1991 to June 1994. The record does not contain any business license for - 
and evidence of employment verification for the beneficiary through the IMSS, the Mexican social security 
system, that covers the period of claimed employment as requested in the director's December 27, 2004 
NOID. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The only independent objective evidence concerning the existence ofin the record 
is an Application for Registration for Business License filed with the State Government of 
Department of Finance. This document shows legal representative of 
megistered the business on Septemb 
 m 
~entro, Tecuala, Nayarit with 
the State Government of Nayarit, Mexico. Therefore, this document appears to establish the intent to create 
- in the city of Tecuala, Mexico, however, it does not establish that the beneficiary worked 
for the restaurant as a full time cook from January 1991 to June 1994 just because the business applied for 
registration in 1997. The record does not contain any evidence showing that the business existed during 199 1 
to 1994. 
Therefore, the petitioner did not establish with regulatory-prescribed evidence the beneficiary's two years of 
expcrience as 'a full time cook at and therefore, failed to demonstiate the 
beneficiary's qualifications for the proffered position. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted fail to 
overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.