dismissed EB-3 Case: Culinary

daatitging data deleted to 
cnt w*y unw.4 
p-oIpedm, 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER 
EAC-04-035-50975 
Date. 
$P 28 
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. 
 1153(b)(3) 
ON BEHALF OF PETITIONER: 
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. 
~obei~. Wiemann, Chief 
Administrative Appeals Office 
www. uscis.gov 
DISCUSSION: 
 The preference visa petition was denied by the Acting Center Director ("Director"), 
Vermont Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a restaurant and seeks to employ the beneficiary permanently in the United States as a cook. 
As required by statute, the petition filed was submitted with Form ETA 750, Application for Alien 
Employment Certification, approved by the Department of Labor (DOL). As set forth in the director's 
September 27, 2004, denial, the case was denied based on the petitioner's failure to demonstrate that the 
beneficiary met the qualifications required in the labor certification. 
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 appeal1. 
The record shows that the appeal is properly filed, 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 elaboration of the procedural history will be made only as necessary. 
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. 
In evaluating the beneficiary's qualifications, the U.S. Citizenship & Immigration Service (CIS) must look to 
the job offer portion of the alien 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 (Cornm. 1986). See also, Mandany v. Smith, 
696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9" Cir. 1983); Stewart Infra- 
Red Commissay of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1" Cir. 1981). A labor certification is an 
integral part of this petition, but the issuance of a Fom ETA 750 does not mandate the approval of the relating 
petition. To be eligible 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. 3 103.2(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. 8 204.5(d). 
To document a beneficiary's qualifications, the petitioner must provide evidence in accordance with 
8 C.F.R. 8 204.5(1)(3): 
(ii) Other documentation- 
1 
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. 3 103.2(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). 
Page 3 
(A) General. Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
gving 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. 
Here, the Form ETA 750 was accepted for processing by the relevant office within the DOL employment 
system on June 3, 2003. On the Form ETA 750A, the "job offer" states that the position requires two years of 
experience in the job offered, as a cook, with job duties including: "plans menus, cooks dishes on menu, 
desserts, foods according to recipes. Prepares meats, soups, sauces, vegetables, foods prior to cooking. 
Seasons, cooks, portions, garnishes food according to prescribed method. Serves to waiters. Estimates, 
requisitions, purchases, selects, orders delivery of food supplies for restaurant from local vendors." The 
petitioner listed no education requirements in Section 14, and listed only that the individual "must work 
weekends" as a special requirements for the position in Section 15. 
On the Form ETA 750B, signed by the beneficiary on February 5,2003, the beneficiary listed experience with 
the following: (1) Grace Waters, Inc., 5 John Street, Bristol, RI 02809, as a cook from April 2002 to present 
(the date of signature, February 5, 2003); (2) J-D Grenery, Sayvllle, NY (no exact street address listed), as a 
cook, from 1995 to 2001 (no exact months for start or end dates were listed); and (3) Riverview, Oakdale, NY 
(no exact street address listed), as a cook, from 1993 to 1994 (no exact months for start or end dates were 
listed). 
The labor certification was approved on was approved on September 19, 2003, and the petitioner filed an I- 
140 petition on the beneficiary's behalf on November 19, 2003. The Service Center issued a Request for 
Evidence ("RFE") on July 12,2004, requesting that the petitioner submit evidence regarding the beneficiary's 
qualifications to include the name, address and title of the writer, and "if eligibility is based on experience or 
training, letter(s) from current or former employers, or trainer(s) should be duties performed by the alien or of 
the training received. If such evidence is shown to be unavailable, other documentation related to the 
beneficiary's experience will be considered." 
As evidence to document the beneficiary's qualifications, the petitioner submitted a letter from the Hotel 
Hilton, Colon, Ecuador, signed by hielit; Herrera sandoval, the Human Resources Manager, which 
provided that "worked in this company as a Chef during the period 
of May 1989 to November 199 1. Period in which he demonstrated honesty, punctuality and responsibility in 
the commended duties and a great virtue to handle with people, reasons for which he was worthy of the 
esteem and consideration of all of us who knew him." The petitioner did not submit any other letters to 
document the beneficiary's experience. 
On September 27,2004, the Service Center concluded that the petitioner had not sufficiently documented the 
beneficiary's work experience to show that the beneficiary met the requirements of the labor certification. 
The experience verified conflicted significantly with information contained in a prior filing on behalf of the 
beneficiary. Counsel appealed. 
Page 4 
On appeal, counsel contends "the observations of the Service on the qualifying letter of the beneficiary, leap 
to a conclusion belied by additional facts to be produced." Counsel further contends that "based upon a 
premature conclusion on the bona fides of the beneficiary's qualifying experience, the Service wrongfully 
denied the 1-140 filed by the petitioner." 
Counsel on appeal, however, has submitted no further evidence of the beneficiary's experience. We have 
only the letter from the Hotel Hilton, Colon, Ecuador for consideration. First, we note that the beneficiary did 
not list any prior experience with the Hotel Hilton on Form ETA 750B. See Matter of Leung, 16 I&N Dec. 
2530 (BIA 1976), where the Board's dicta notes that the beneficiary's experience, without such fact certified 
by DOL on the beneficiary's Form ETA 750B lessens the credibility of the evidence and facts asserted. 
Matter of Leung would, therefore, preclude consideration of the Hotel Hilton letter submitted with the 1-140 
Petition, but not listed on the certified Fonn ETA 750B. 
Second, we note, as the Service Center correctly noted in the denial, that on Form G-325 submitted in 
connection with the beneficiary's prior asylum application, the beneficiary listed his work experience as: (1) 
self-employed, landscaping, May 1993 to present (date of application signature: October 30, 1994); and (2) 
Farmer (Ecuador), from June 1976 to December 1992. The application had additional space to list other 
positions should that have been relevant. The first position where the beneficiary lists that he was employed 
as a self-employed landscaper conflicts with the dates listed on Form ETA 750 for his listed experience with 
Riverview as a cook in Oakdale, New York. The dates of the second position where the beneficiary lists that 
he was employed as a farmer in Ecuador conflict with the dates of the experience verified for the position 
with the Hotel Hilton. The beneficiary did not list any other prior positions on the Form G-325A, either 
related to employment with the Hotel Hilton, or as a chef or cook. 
Further, counsel submitted no evidence on appeal to demonstrate that the Service Center's conclusion 
regarding the inconsistencies in the beneficiary's claimed experience was in error. Counsel did not submit 
any documentation or evidence to verify any other experience that the beneficiary had listed on the ETA 750. 
The information listed on Form ETA 750B, and Form G-325A conflict significantly, and raises serious concerns 
regarding the veracity of the beneficiary. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988), which states: 
"Doubt raised 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." Further, "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. 
The petitioner has failed to resolve the inconsistencies in the evidence, and therefore, has not documented that 
the beneficiary had two prior years of experience as a cook. As a result, the record does not demonstrate that 
the beneficiary meets the position's experience requirements certified on the Form ETA 750. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.