dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re : 8419703 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 16, 2022 
The Petitioner, the operator of a restaurant, seeks to employ the Beneficiary as head chef under the 
third-preference, immigrant visa category for skilled workers. See Immigration and Nationality Act 
(the Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1 l 53(b )(3)(A)(i). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
demonstrate the Beneficiary's possession of the minimum employment experience required for the 
offered position or requested visa category. The Director also found that the Petitioner and Beneficiary 
willfully misrepresented the Beneficiary's experience on the accompanying certification from the U.S. 
Department of Labor (DOL). 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also 
Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard of proof). Upon de 
nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must apply to DOL for certification that: (1) there are insufficient U.S. workers able , willing, qualified, 
and available for an offered position; and (2) the employment of a noncitizen in the position would not 
harm wages and working conditions of U.S. workers with similar jobs. See section 212(a)(5) of the Act, 
8 U.S.C. § 1 l 82(a)(5). 
Second, an employer must submit an approved labor certification 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 determines whether a noncitizen beneficiary meets the requirements of a 
DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, if USCIS approves a petition, a designated noncitizen 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. 
II. THE REQUIRED EXPERIENCE 
A skilled worker must be able to perform "skilled labor (requiring at least 2 years trammg or 
experience)." Section 203(b )(3)(A)(i) of the Act. A petitioner must also demonstrate a beneficiary's 
possession of all DOL-certifiedjob requirements of an offered position by a petition's priority date. 
Matter of Wing's Tea House, 16I&N Dec.158, 160 (ActingReg'l Comm'r 1977). This petition's 
priority date is December 1, 201 7, the date DOL accepted the accompanying labor certification 
application for processing. See 8 C.F.R. § 204 .5( d) ( explaining how to dete1mine a petition's priority 
date). 
In evaluating a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification to dete1mine the minimum requirements of an offered position. 
USCIS may neither ignore a certification term, nor impose additional requirements. See, e.g., Madany 
v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. l 983)(holdingthat "DOL bears the authority for setting the 
content of the labor certification") ( emphasis in original). 
The accompanying labor certification states the minimum requirements of the offered position of head 
chef as two years of experience "in the job offered." The te1m "in the job offered" means "experience 
performing the key duties of the job opportunity" as listed on the certification. See. e.g .. Matter of 
Symbioun Techs .. Inc., 2010-PER-01422, slip op. *4 (BALCA Oct. 24, 2011) (citations omitted). The 
listed duties of the offered position of head chef include: supervising and coordinating the activities 
of cooks and workers engaged in Chinese food preparation; determining presentation of food; 
instructing employees in the preparation, cooking, garnishing, and presentation of Chinese food; and 
collaborating with others to plan and develop unique recipes and menus. 
The labor certification indicates that the offered position requires neither education nor training. The 
Petitioner further stated that it will not accept experience in an alternate occupation. Additionally, 
parts H.13 and H.14 of the certification indicate the position's need for "[tlluency in the Mandarin 
Chinese language." 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained more 
than five years of full-time, qualifying experience in Suriname. He stated that a restaurant employed 
him as a chef from October 2012 until the petition's priority date of December 1, 2017. The 
Beneficiary did not list any other experience on the certification. 
To support claimed qualifying experience, a petitioner must submit a letter from a beneficiary's former 
employer. 8 C.F.R. § 204.5(1)(3 )(ii)(A). The letter must state the employer's name, title, and address, 
and describe the beneficiary's experience. Id. "If ssuch evidence is unavailable, other evidence relating 
to the alien's experience ... will be considered." 8 C.F.R. § 204.5(g)(l). 
The Petitioner submitted a letter from the Beneficiary's claimed former employer. The letter indicates 
the restaurant's full-time employment of him as a chef from October 2012 through September 2017. 
But, as noted in the Director's notice of intent to deny (NOID) the petition, the letter does not 
demonstrate the Beneficiary's qualifying experience. Specifically, the letter does not state the 
Beneficiary's former job duties or the type of food he prepared at the restaurant. Thus, the document 
neither describes the Beneficiary's experience nor demonstrates his prior performance of duties "in 
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the job offered." Additionally, the restaurant's name and address on the letter's stationery do not 
match those of the Beneficiary's former employer listed on the labor certification. The unexplained 
discrepancies cast doubt on the letter's accuracy and reliability. See Matter of Ho, 19 I&N Dec. 582, 
591 (BIA 1988) (requiring a petitioner to resolve inconsistencies ofrecord by independent, objective 
evidence pointing to where the truth lies). 
The NOID also notes discrepancies between the Beneficiary's claimed experience and information on 
his 2015 application for a U.S. visitor's visa. On the visa application, the Beneficiary attested that he 
worked at a Surinamese supermarket that he had owned for about six years. Asked on the application 
if he had a prior employer, he answered "No." Thus, the application's information contradicts the 
Beneficiary's claimed continuous qualifying experience at the restaurant from 2012 to 2017. 
The Petitioner's NOID response included an affidavit from its sole shareholder. After receiving the 
NOID, the shareholder stated that he contacted the Beneficiary, who affirmed his employment at the 
restaurant "as explained in the experience letter." The shareholder stated: ''He told me that the 
restaurant is located across the street from his other business, a supermarket that he operates." The 
Applicant also reportedly told the shareholder that the Applicant lacks additional evidence of his 
restaurant experience "due to the nonnal practices of employment" in Suriname. 
The Petitioner's NOID response does not establish the Beneficiary's claimed qualifying experience at 
the restaurant from 2012 to 201 7. The Petitioner has not explained why the Beneficiary's 2015 visa 
application identifies the supermarket as his sole employer and states "No" prior employment. See 
Matter of Ho, 19 I&N at 591 (requiring a petitioner to resolve inconsistencies with independent, 
objective evidence). 
Also, by describing the restaurant where the Beneficiary purportedly worked as across the street from 
"his other business," the shareholder's affidavit indicates that the Beneficiary owned the eatery. If the 
Beneficiary owned his former employer, its letter would not reliably demonstrate his experience there. 
As owner of the restaurant, he may have influenced the letter's content. As a beneficiary in these 
proceedings, he is a biased, non-objective party. 
A petitioner may submit a letter or affidavit containing biased information, but its subjectivity will 
affect the weight accorded the evidence in an administrative proceeding. See MatterofD-R-, 25 I&N 
Dec. 445,461 (BIA 2011) ( citations omitted). Probative evidence beyond a letter or affidavit may be 
considered when submitted to resolve inconsistencies or discrepancies in the record. See Matter of 
Ho, 19 I&N Dec. at 591-92. 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-forrelevance, probative value, 
and credibility. Matter of Chawathe, 25 I&N Dec. at 3 7 6. Thus, in any future filings in this matter, 
the Petitioner must submit independent, objective evidence of the restaurant's ownership and the 
Beneficiary's purpmied employment there. 
Further, by describing the restaurant's location as across the street from the supermarket and indicating 
the Beneficiary's ownership of both businesses, the shareholder's affidavit suggests that the 
Beneficiary might have worked concurrently for both entities. But the record lacks independent, 
objective evidence - such as tax records or contemporaneous business documents - suppmiing the 
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Beneficiary's concurrent employment. The Petitioner also has not explained whether he worked full­
time for the businesses, or part-time at one or both. For labor certification purposes, part-time 
experience equals less than full-time experience. See, e.g., Matter of 1 Grand Express, 20 l 4-PER-
00783, slip op. at**3-4 (BALCAJan. 26, 2018) (equatinganoncitizen's25-hour-a-weekjob to 62.5% 
of full-time, 40-hour-a-week experience). Thus, even if the Beneficiary simultaneously worked for 
both businesses, the record would not indicate the number of hours the restaurant employed him or 
establish his acquisition of sufficient, qualifying experience by the petition's priority date. 
The shareholder's affidavit asserts that additional evidence of the Beneficiary's restaurant experience 
is unavailable. But the Petitioner has not explained the purported unavailability of additional evidence 
or documented attempts to obtain corroborating proof of the Beneficiary's claimed employment. 
Moreover, the Petitioner has not explained the discrepancies regarding the restaurant's name and 
address or established the Beneficiary's experience "in the job offered." 
On appeal, the Petitioner asserts that "USCIS failed to provide an opportunity to the petitioner to 
present information on [its] own behalf." The Petitioner notes that, before issuing an adverse decision, 
USCIS must generally notify a petitioner of derogatory information of which it is unaware and afford 
the business an opportunity to respond. See 8 C.F.R. § I 03 .2(b )(16)(i). 
The NOID, however, satisfied the regulation's requirements. The notice informed the Petitioner of 
the derogatory information regarding the Beneficiary's claimed experience and provided the company 
an opportunity to respond. Thus, the record demonstrates that the Petitioner had a sufficient chance 
to present evidence on its own behalf. 
For the foregoing reasons, the record does not demonstrate the Beneficiary's possession of the 
minimum experience required for the offered position or the requested visa category. We will 
therefore affirm the petition's denial. 1 
III. THE ALLEGED, WILLFUL MISREPRESENTATIONS 
Non citizens 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 
influence, or [be] capable of influencing, the decision of the decision-making body to which it was 
addressed." Id. Petitioners who submit applications or documents with knowledge or reckless 
1 The Petitioner also has not established the Beneficiary's required "[t]luency in the Mandarin Chinese language." The 
Form I-140 and laborcertificationapplicationstatethe Beneficiary's birth in China. But the record lacks evidence of his 
possession of the required language capability. The Director did not notifythePetitionerofthis deficiency. Thus, in any 
future filings in this matter, the Petitioner must submit evidence establishing the Beneficiary's fluency in the requisite 
language. 
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disregard of their containment of false information may face fines or criminal penalties. Section 274C 
of the Act. 2 
The record supports the Director's conclusion that the Beneficiary willfully misrepresented a material 
fact on the accompanying labor certification. On the certification, the Beneficiary attested that a 
Surinamese restaurant employed him full-time as a chef from October 2012 to December 2017. But 
a letter from the purpmied restaurant inexplicably states a different name and address of the business 
than listed on the certification. Also, in 2015, during the Beneficiary's purported tenure at the 
restaurant, he inexplicably attested on a U.S. visa application that he worked for a supermarket he 
owned and that he had "No" prior employer. In addition, an affidavit from the Petitioner's shareholder 
indicates the Beneficiary's ownership of the restaurant where he purportedly worked, casting further 
doubt on the reliability of the restaurant's letter absent further independent objective evidence. The 
affidavit suggests the Beneficiary's concunent employment by both the supermarket and the 
restaurant. But the Petitioner has not provided sufficient evidence of simultaneous work by the 
Beneficiary, his number of hours at each business, or the unavailability of additional proof of his work. 
Thus, a preponderance of evidence indicates that the Beneficiary misrepresented his qualifying 
experience on the labor certification. 
The record also supports the misrepresentation's materiality. Both the offered position and the 
requested visa category require the Beneficiary's possession of at least two years of experience. See 
section 203 (b )(3 )(i) of the Act ( describing the immigrant visa category for skilled workers). The 
Beneficiary listed only one former employer on the labor certification. His misrepresentation of that 
employment therefore naturally influences a decision on his required qualifications for the offered 
position and the requested visa category. 
The Beneficiary's misrepresentation also appears to be willful. He signed the labor certification 
application declaring under penalty of perjury that he 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 
contents). Thus, the Beneficiary likely knew that he misrepresented his experience on the labor 
certification. 
As the Petitioner argues, however, the record does not support the Director's finding that the company 
willfully misrepresented the Beneficiary's experience. The Petitioner's shareholder attested that the 
Beneficiary repeatedly told him that the Beneficiary worked at the restaurant. The record lacks 
sufficient evidence that the Petitioner knew of the Beneficiary's misrepresentation of his experience. 
Thus, we will withdraw the Director's misrepresentation finding against the Petitioner and his 
invalidation of the labor certification. But we will uphold the Director's misrepresentation finding 
against the Beneficiary. 
2 Visa petition proceedings are inappropriate fora for determining beneficiaries' admissibility. Matter ofO-, 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. § I 03.3(a)(l )(i); see also 5 U.S.C. 
§ 5 5 7 ( c ). After we enter a finding here, USC IS or anothera gency may consider the Beneficia1y's admissibility in sepamte 
proceedings. 
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Although unaddressed by the Director, evidence indicates the Petitioner's misrepresentation of a 
different fact on the labor certification application. Asked on the application "is there a familial 
relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the 
alien?" the Petitioner indicated "No." USCIS records, however, indicate that the Beneficiary and the 
spouse of the Petitioner's shareholder are siblings. The Beneficiary' s2015 visa application and a 2007 
application for adjustment of status by the shareholder's spouse list their respective parents with the 
same names and dates of birth. Thus, the Beneficiary appears to be the brother-in-law of the 
Petitioner's shareholder. "A familial relationship includes any relationship establish by blood, 
marriage, or adoption, even if distant." DOL, Office of Foreign Labor Certification Frequently Asked 
Questions and Answers, "Family Relationships," Q.1, https://www.foreignlaborcert.doleta.gov/ 
faqsanswers.cfm. Also, the adjustment application of the shareholder's spouse indicates that the 
couple married before the filing of the labor ce1iification application. Thus, the Petitioner appears to 
have concealed the relationship between its shareholder and the Beneficiary on the labor ce1iification. 
The Petitioner's misrepresentation appears to be willful. "[T]he officers and principals of a 
corporation are presumed to be aware and informed of the organization and staff of their enterprise." 
MatterofSilver Dragon Chinese Rest., 19 I&NDec. 401,404 (Comm'r 1986). The Petitioner's owner 
therefore likely knew that the Beneficiary was his spouse's brother. 
The misrepresentation also appears to be material. Had DOL known of the family relationship 
between the Petitioner's shareholder and the Beneficiary, the Agency would have likely required the 
company to demonstrate the availability of the offered position to U.S. workers. See 20 C.F.R. 
§ 656.17(1). Labor certification employers must meet all regulatory requirements. 20 C.F.R. 
§ 656.24(6)(1). The misrepresentation therefore could have influenced the outcome of the labor 
certification application. 
The Director did not notify the Petitioner of this derogatory information. Thus, in any future filings 
in this matter, the Petitioner must submit any evidence rebutting its alleged concealment of the family 
relationship between its shareholder and the Beneficiary. 
IV. CONCLUSION 
The Petitioner has not demonstrated the Beneficiary's possession of the minimum experience required 
for the offered position or requested visa classification. We will therefore affirm the petition's denial 
ORDER: The appeal is dismissed. 
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