dismissed EB-3 Case: Culinary

identifying data deleted to 
prevent clearly unwarranted 
inviaion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
0 t. 
FILE: WAC 05 049 51098 Office: CALIFORNIA SERVICE CENTER 
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. fj 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
* 
P. Wiemann, Chief 
Administrative Appeals Office 
WAC 05 049 5 1098 
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 cook, 
Chinese style. 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 is qualified to perform the duties of the proffered position with two 
years of qualifying employment experience. The director denied the petition accordingly. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboratidn of the procedural history will be made only as necessary. 
As set forth in the director's denial dated September 29, 2005, the single issue in this case is whether or not 
the petitioner has demonstrated that the beneficiary is qualified to perform the duties of the proffered position. 
The director noted the lack of information pertaining to the beneficiary's employment experience and found 
that the petitioner has not demonstrated that the beneficiary has met the minimum requirements of the labor 
certification at the priority date of the labor certification. 
Section 203@)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1153@)(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. 
The petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form 
ETA 750 Application for Alien Employment Certification as certified by the U.S. Department of Labor and 
submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 12,2001. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal.* 
Here, the Form ETA 750 was accepted on April 12, 2001.~ The proffered wage as stated on the Form ETA 
750 is $1 1.75 per hour ($24,440.00 per year). The Form ETA 750 states that the position requires two years 
of experience in the proffered position. 
1 
 The beneficiary is also known as 
2 
 The submission of additional evi 
 by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 4 103.2(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). 
3 
 It has been approximately six years since the Alien Employment Application has been accepted and the 
proffered wage established. According to the employer certification that is part of the application, ETA Form 
750 Part A, Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the 
employer] guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins 
work will equal or exceed the prevailing wage which is applicable at the time the alien begins work." 
I 
WAC 05 049 5 1098 
Page 3 
With the petition, the petitioner submitted copies of the following documents: a letter from the beneficiary 
dated August 20,2004; the beneficiary's W-2 Wage and Tax Statements for 1 988, 199 1, 1 992, 1993, 1 994, 
and 1995 with portions of the beneficiary's personal tax retums for those years not all legible; copies of two 
State of California DE-6 Forms for the calendar quarters ending June 30, 2004, and, September 30, 2004, 
stating that the beneficiary received wages in the amounts of $3,640.00 for each quarter; and, the petitioner's 
U.S. Internal Revenue Service Form 1 120s tax returns for 200 1,2002, and 2003. 
A Request for Evidence was issued by May 5,2005 by the director. Consistent with the requirements of 8 C.F.R. 
Q 204.5 (l)(3)(ii), the Director requested, inter alia, evidence of the beneficiary's prior employment experience on 
letterhead gving the dates of employmentfexperience, giving the name and title of the person providing the 
information with telephone numbers, and a description of the experience of the alien (the beneficiary's titles, 
duties, dates of employment/experience and numbers of hours worked per week). 
As supporting evidence to co~~oborate the above, the director requested California Employment Development 
Department (EDD) Form DE-6, Quarterly Wage Reports for all employees for the last three quarters that were 
accepted by the State of California. The director requested that the forms should include the names, social 
security numbers and number of weeks worked for all employees. 
The director requested the original Form ETA 750, Application for Alien Employment Certification, approved 
by the U.S. Department of Labor. 
In response to the request for evidence, the petitioner submitted, inter alia, copies of the following 
documents: an explanatory letter from the petitioner dated July 19, 2005; the beneficiary's W-2 Wa e and 
Tax Statements for 1988, 1990, 1991, 1992 1993, 1994, and 1995 from the employe- 
Associates Inc., , federal employer identification number, 
FEIN - (the number is obscured for privacy purposes); the original Form ETA 750, Application 
for Alien Employment Certification, approved by the ~.~.-~e~artment if Labor; California ~Glo~ment 
Development Department (EDD) Form DE-6, Quarterly Wage Reports statements for the quarters ended 
September and December 2004, and the first quarter of 2005; and, U.S. Internal Revenue Service Form 11205 
tax returns for 2001,2002, and 2003. 
The director determined that the petitioner had not established that the beneficiary is qualified to perform the 
duties of the proffered position with two years of qualifjring employment experience, and, therefore denied 
the petition on September 29,2005. 
On appeal, the petitioner asserts that the beneficiary has seven years of experience as a cook at Church's 
Chicken Restaurant, and because it has gone out of business, the beneficiary cannot "provide a piece of paper 
that has a letterhead from Church's Restaurant stating that he indeed worked there as a Cook, Chinese style 
. . . ." The record does not contain any other evidence relevant to the beneficiary's qualifications. 
To determine whether a beneficiary is eligible for an employment based immigrant visa, Citizenship and 
Immigration Services (CIS) must examine whether the alien's credentials meet the requirements set forth in the 
labor certification. In evaluating the beneficiary's qualifications, 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. 401, 406 (Comrn. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 
WAC 05 049 5 1098 
Page 4 
1983); K.R.K. Iwine, 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). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 14 and 15, set 
forth the minimum education, training, and experience that an applicant must have for the position of cook, 
Chinese style. In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education 
Grade School - 8 
High School - 0 
College 0 
College Degree Required Not Required 
Major Field of Study Not Required 
Training Not Required 
Experience .......................... 
Job offered (Years/Months) 2/0 
Related Occupation ............... .- 
The applicant must have two years of experience in the job offered, the duties of which are delineated at Item 13 
of the Form ETA 750A and since this is a public record, will not be recited in this decision. Item 15 of Form 
ETA 750A states special requirements, "Resume or Letter of Qualification Required." 
The beneficiary set forth his credentials on Form ETA-750B and signed his name under a declaration that the 
contents of the form are true and correct under the penalty of perjury. On Part 15, eliciting information of the 
beneficiary's work experience, he represented that he has been employed by the petitioner since May 1995 to 
background on that form. 
With the petition, the petitioner submitted an explanatory letter. 
The regulation at 8 C.F.R. § 204.5(1)(3) provides: 
(ii) Other documentation- 
(A) General. 
 Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a slulled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
WAC 05 049 5 1098 
Page 5 
The AAO concurs with the director's determination that no probative evidence establishes that the beneficiary 
has two years of experience as an cook, Chinese style. No trainers or employers affidavit, document or letter, 
contained in the record of proceeding establishes that the beneficiary was employed for two years in an 
employment capacity with duties similar to the duties of the proffered position. We note that ETA 750, Part 
A, Item 15 states the special requirements, "Resume or Letter of Qualification Required." No such 
documentation is found in the record of proceeding. The fact that that the beneficiary has W-2 statements from 
Burt Wagoner Associates Inc. does not also provide independent, objective evidence of the beneficiary's 
employment duties for that employer. 
The AAO thus affirms the director's decision that the preponderance of the evidence does not demonstrate 
that the beneficiary acquired two years of experience as a cook, Chinese style from the evidence submitted 
into this record of proceeding and thus the petitioner has not demonstrated that the beneficiary is qualified to 
perform the duties of the proffered position. 
ORDER: The appeal is dismissed.