dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 2, 2024 In Re: 33930483 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
The Petitioner, a restaurant, seeks to employ the Beneficiary as a cook. It requests classification of 
the Beneficiary as an unskilled worker under the third preference employment-based immigrant visa 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. § l 153(b) 
(3)(A)(iii). This immigrant visa category allows a U.S. employer to sponsor a foreign national for 
lawful permanent resident status to work in a position that requires less than two years of training or 
expenence . 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary possessed the minimum experience required for the offered position. 
The Director also found that the Beneficiary misrepresented her qualifying experience on the labor 
certification, a fact material to her eligibility for the requested benefit. The matter is now before us on 
appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application 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 considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a foreign national may finally 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. 
II. ANALYSIS 
The accompanying labor certification in this case was filed on March 26, 2018. 1 The labor 
certification states that the offered position requires 12 months of experience in the offered job of 
cook, with no education or training required. The Petitioner stated that it will not accept experience 
in an alternate occupation. 
On the labor certification, the Petitioner asserts that the Beneficiary gained the following experience 
as a cook in Saudi Arabia: 
• With _____________ from February 2, 2010 to February 
13, 2012 . 
• With from December 1, 2012 to June 1, 
2015. 
The Petitioner initially submitted an experience certificate from 
dated May 30, 2012. The certificate states that the Beneficiary worked as a cook from February 
2, 20 IO to February 14, 2012. The certificate is accompanied by a certified English language 
translation which states that the certificate has a "signature" and "stamp," but does not list the name 
or title of the signatory. 
The Director issued a notice of intent to deny (NOID) the petition, stating that the evidence submitted 
in support of the petition to demonstrate the Beneficiary's qualifying experience is inconsistent with 
information previously provided by the Beneficiary in two nonimmigrant visa applications she 
submitted in 2015 and 2016 to the U.S. Department of State (DOS). In her prior nonimmigrant visa 
applications, submitted in February 2015 and July 2016, the Beneficiary did not list any employment 
and listed her primary occupation as "housewife" and "homemaker." In both applications, the 
Beneficiary answered "No" when asked whether she was previously employed. 
The Beneficiary's answers on the visa applications conflict with her claimed qualifying experience on 
the labor certification and with the experience certificate from ____________ 
TheThe Director raised these concerns in the NOID and asked the Petitioner to provide documentary 
evidence which would explain these conflicts in the record, as well as independent and objective 
evidence to establish the Beneficiary's qualifying experience for the offered position of cook. A 
petitioner must resolve inconsistencies of record with independent, objective evidence pointing to 
where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
The Petitioner's NOID response included sworn statements from the Beneficiary and her spouse, a 
sworn statement from the Petitioner's president, copies of the Beneficiary's residence permit for the 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.5( d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date, which in this case is March 26, 2018. 
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Kingdom of Saudi Arabia, and articles discussing unauthorized employment in Saudi Arabia. The 
Petitioner also submitted an undated experience certificate from _____________ 
listing the Beneficiary's occupation as "Chef open buffet," from December 1, 2012 to June 1, 2015. 
The certificate is accompanied by an English language translation which states that the letter is "Signed 
and sealed" but does not list the name or title of the signatory. 2 
In the Beneficiary's sworn statement, she states that her spouse provided information to a visa agency 
that completed the applications on their behalf. She asserts that her spouse was the contact for the visa 
agent and that she did not provide any information herself or have any contact with the agent. She 
further states that her employment was unauthorized in Saudi Arabia. 
In his sworn statement, the Beneficiary's spouse also states that the nonimmigrant visa applications 
were filed by a visa agency on their behalf. He states that he, and not the Beneficiary, was the contact 
for the agent and provided the requested information. He states that the agent did not ask any 
information about his wife's employment, but that her employment could not have been reported 
because it was unauthorized. 
The Petitioner's president states in his sworn statement that he did not have knowledge of the 
Beneficiary's prior nonimmigrant visa applications or any information therein. He further states that 
he verified the Beneficiary's employment history and did not misrepresent her qualifying experience 
on the labor certification. 
The Director denied the petition, concluding that the evidence did not establish the Beneficiary's 
qualifying employment. The Director also made a finding of willful misrepresentation of a material 
fact against the Beneficiary. 
On appeal, the Petitioner asserts that the omission of the Beneficiary's prior employment on the 
nonimmigrant visa applications was not a willful misrepresentation. The Petitioner does not provide 
any additional evidence to establish the Beneficiary's qualifying experience or corroborate her 
explanation for the inconsistencies. 
A. The Beneficiary's Experience 
As the Director concluded, the Beneficiary's claimed unemployment on her prior nonimmigrant visa 
applications casts doubt on her claimed qualifying employment on the labor certification. The 
Petitioner must resolve inconsistencies with independent, objective evidence pointing to where the 
truth lies. Matter ofHo, 19 I&N Dec. 582, at 591-92. Unresolved material inconsistencies may lead 
us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. Id. 
2 The English language translation of the employment certificate does not comply with the regulation at 8 C.F.R. § 
103.2(b )(3 ), as it does not identify the translator. Nor does it include a certification that the translator is competent to 
translate from the foreign language into English or that the translation is complete and accurate. 
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The regulation at 8 C.F.R. § 204.5(1)(3) provides: 
(ii) Other documentation-
(A) General. Any requirements of training or experience for skilled 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. 
A petitioner must establish a beneficiary's possession of all DOL-certified job requirements of an 
offered position by a petition's priority date. See Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). Therefore, the Petitioner must establish by a preponderance of the 
evidence that the Beneficiary possessed 12 months of experience as a cook as of the March 26, 2018 
priority date. 
The record includes experience certificates from the Beneficiary's claimed former employers. 
However, neither certificate meets the regulato re uirements of 8 C.F.R. • 204.5(1)(3). As noted 
above, the undated employment certificate on letterhead and the 
experience certificate from do not identify the issuing 
individual or signatory, as required by 8 C.F.R. § 204.5(1)(3)(ii)(A). Without this information, we are 
precluded from determining how the issuer has knowledge of the Beneficiary's employment and job 
duties. The omission of the title of the author or issuing individual of the Beneficiary's employment 
certificates casts doubt on the reliability of this evidence, absent further independent objective 
evidence. 
In adjudicating immigration benefit requests, USCIS regularly reviews affidavits, testimonials, and 
letters from both laypersons and recognized experts. To be probative, a document must generally 
provide: (1) the nature of the affiant's relationship, if any, to the affected party; (2) the basis of the 
affiant's knowledge; and (3) a specific - rather than merely conclusory - statement of the asserted facts 
based on the affiant's personal knowledge. Matter of Chin, 14 I&N Dec. 150, 152 (BIA 1972); see 
also 8 C.F.R. § 103.2(b)(2)(i) (requiring affidavits in lieu of unavailable required evidence from 
"persons who are not parties to the petition who have direct personal knowledge of the event and 
circumstances"); Matter of Kwan, 14 I&N Dec. 175, 176-77 (BIA 1972); Iyamba v. INS, 244 F.3d 
606, 608 (8th Cir. 2001 ); Dabaase v. INS, 627 F.2d 117, 119 (8th Cir. 1980). While a petitioner may 
submit a letter or affidavit that contains hearsay or biased information, as may be the case here, such 
factors will affect the weight to be accorded the evidence in an administrative proceeding. See Matter 
ofD-R-, 25 I&N Dec. 445,461 (BIA 2011) (citations omitted). Probative evidence beyond a letter or 
affidavit may be required to resolve inconsistencies or discrepancies in the record. See Matter ofHo, 
19 I&N Dec. 582, 591-92 (BIA 1988). Ultimately, to determine whether a petitioner has established 
eligibility for a requested benefit by a preponderance of the evidence, USCIS must examine each piece 
of evidence - both individually and within the context of the entire record - for relevance, probative 
value, and credibility. Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Here, the Petitioner relies only on testimonial evidence from the Beneficiary's purported former 
employers in attempt to establish her claimed employment experience, without providing independent, 
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objective evidence in support of this testimony. Based on inconsistencies from the Beneficiary's prior 
nonimmigrant visa applications and the omitted name and title of the signatories on the experience 
certificates, further independent evidence is required. The record does not include evidence of the 
Beneficiary's income tax or payroll records to corroborate her claimed employment. Although the 
Beneficiary states that her employment was unauthorized, she does not assert that these records are 
unavailable for any reason. It is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr. , 25 I&N Dec. 
799, 806 (AAO 2012). 
As the inconsistencies in the record have not been resolved, the Petitioner has not established with 
independent, objective evidence that the Beneficiary possesses the required 12 months of experience 
in the offered position, as required by the labor certification. The Petitioner has not overcome this 
basis of the Director's denial. 
Although not raised by the Director, and not a basis for our decision, additional information casts 
doubt on the Beneficiary's claimed employment experience with I I 
A review of the record reveals that the Beneficiary may have a familial relationship with her 
purported previous employer and the business issuing the employment certificate. On the July 2016 
nonimmigrant visa application, the Beneficiary lists her mother's surname as I I If the 
employment certificate's issuer was not properly identified as a relative, USCIS may be precluded 
from assessing the credibility and proper weight to be accorded to such evidence. The Petitioner must 
address this in any further filings. 
B. The Beneficiary's Willful Misrepresentation of a Material Fact 
To find a willful and material misrepresentation of fact an immigration officer must determine that (1) 
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 Matter ofM-, 6 I&N Dec. 149 (BIA 1954); Matter ofKai Hing Hui, 15 I&N Dec. 288, 
289 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter ofHealy and 
Goodchild , 17 I&N Dec. 22, 28 (BIA 1979). A "material" misrepresentation is one that "tends to shut 
off a line of inquiry relevant to the alien's eligibility." Matter of Ng, 17 I&N Dec. 536, 537 (BIA 
1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa petition 
proceedings, they must determine: 1) that the petitioner or beneficiary made a false representation to 
an authorized official of the United States government; 2) that the misrepresentation was willfully 
made; and 3) that the fact misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 
1954); Matter ofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter ofKai Hing Hui, 15 I&N Dec. at 288. 
Noncitizens render themselves inadmissible to the United States if they seek to obtain U.S. visas, other 
documents, U.S. admission, or other benefits under the Act by fraudulently or willfully 
misrepresenting material facts. Section 212(a)(6)(C)(i) of the Act. Misrepresentations are willful if 
they are "deliberately made with knowledge of their falsity." Matter of Valdez, 27 I&N Dec. 596,598 
(BIA 2018) (citations omitted). A misrepresentation is material if it has a "natural tendency to 
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influence, or [be] capable of influencing, the decision of the decision-making body to which it was 
addressed." Id. Petitioners and applicants who submit applications or documents with knowledge or 
reckless disregard of their containment of false information may face fines or criminal penalties. 
Section 274C of the Act. 3 
As discussed above, the NOID addressed discrepancies between the Beneficiary's claimed experience 
and information on her February 2015 and July 2016 applications for a U.S. visa. The statements 
provided by the Beneficiary and her spouse in the NOID response to explain the inconsistencies are 
not supported by corroborating evidence. The Beneficiary's nonimmigrant visa applications were 
submitted in February 2015 and July 2016. On both applications, when asked whether anyone assisted 
the Beneficiary in filling out this application, the Beneficiary answered "No." This response 
contradicts the statements made by the Beneficiary and her spouse that a visa agency was responsible 
for completing the nonimmigrant visa applications. The record does not include corroborating 
documentary evidence, such as agreements or correspondence with any visa agency. 
The U.S. Department of State (DOS) clearly advises visa applicants that, by submitting applications, 
they certify under penalty of perjury that they have read and understood the applications' questions 
and that their answers are true and correct to the best of their knowledge and beliefs. See, e.g., DOS, 
"DS-160: Frequently Asked Questions," https:/ /travel.state.gov/content/travel/en/us-visas/visa­
information-resources/forms/ds- l 60-online-nonimmigrant-visa-application/ds-160-faqs.html. 
In her nonimmigrant visa applications, the Beneficiary attested that she was not currently or previously 
employed. On the accompanying labor certification, the Beneficiary attested that she had been 
employed as a cook. The record supports the Director's conclusion that the Beneficiary willfully 
misrepresented material facts relating to her claimed qualifying work experience in the petition. The 
preponderance of evidence indicates that the Beneficiary misrepresented her employment history in 
evidence submitted in support of the petition and in her U.S. visa applications. 
Here, the record also supports the misrepresentation's materiality. The offered position requires the 
Beneficiary's possession of 12 months of experience and the requested visa classification requires the 
Beneficiary's possession of the minimum requirements set forth on the labor certification. Section 
203(b )(3)(A) of the Act. Her misrepresentation about her former employment therefore naturally 
influences a decision on her required qualifications for the offered position and the requested visa 
category. 
The Beneficiary's misrepresentations also appear to be willful. She signed the labor certification 
application declaring under penalty of perjury that she reviewed the document and that its information 
was true and correct. See Matter of Valdez, 27 I&N Dec. at 499 (holding that a noncitizen's signature 
on an immigration filing creates a "strong presumption" that they knew and assented to the filing's 
3 Visa petition proceedings are inappropriate fora for determining beneficiaries' admissibility. Matter of 0-, 8 I&N Dec. 
295, 296-97 (BIA 1959). Thus, our review of the Beneficiary's alleged misrepresentation is a "finding of fact," not an 
admissibility determination. All USCIS decisions should include specific findings on material issues of law or fact that 
arise, including determinations of fraud or material misrepresentation. See 8 C.F.R. § 103.3(a)(l)(i); see also 5 U.S.C. 
§ 557( c ). After we enter a finding here, USCIS or another agency may consider the Beneficiary's admissibility in separate 
proceedings. 
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contents). Thus, the Beneficiary knew that she misrepresented her employment history in pursuit of 
U.S. immigration benefits. 
IV. CONCLUSION 
The 
Petitioner has not demonstrated the Beneficiary's possession of the minimum experience required 
for the offered position or requested visa classification. Further, the record supports that the 
Beneficiary willfully misrepresented her employment history, a fact material to her eligibility for the 
requested immigration benefit. 
ORDER: The appeal is dismissed. 
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