dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Y-L-R, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 12, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I -140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a Chinese restaurant, seeks to employ the Beneficiary as a Chinese cuisine cook. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b )(3)(A)(i). This employment-based immigrant classification allows a U.S. employer to 
sponsor a foreign national for lawful permanent resident status to work in a position that requires at 
least 2 years of training or experience. 
The Director, Nebraska Service Center, denied the petition on October 1, 2015. The Director 
determined that the Beneficiary did not meet the minimum requirements of the labor certification. 
Specifically, while the labor certification required high school education and does not accept a 
foreign educational equivalent, the Beneficiary only holds a foreign educational equivalent to a high 
school education. On November 23, 2015, the Director denied the Petitioner's motion to reconsider, 
finding that it did not address the reason for the petition's denial. The matter is now before us on 
appeal. The Petitioner asserts that the Beneficiary's lack of a U.S. high school education is offset by 
his high school education in China and more than 11 years of experience in the proffered position. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) 
of the Act, 8 U.S. C. § 1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) 
must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the 
foreign national must apply for an immigrant visa abroad or, if eligible, adjustment of status in the 
United States. See section 245 ofthe Act, 8 U.S.C. § 1255. 
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), approved by the DOL, accompanies the instant petition. By approving the labor 
certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, 
and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified 
that the employment of a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of the Act. 
(b)(6)
Matter of Y-L-R-, Inc. 
In these visa pet1t1on proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that the immigration 
service has authority to make preference classification decisions). 
The priority date of this petition, which is the date the DOL accepted the labor certification for 
processing, is July 1, 2013.1 See 8 C.F.R. § 204.5(d). 
A. The Beneficiary's Experience 
The beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C .F .R. § 103 .2(b )(1), ( 12); see also Matter of 
Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter of Katigbak, 14 
I&N Dec. 45,49 (Reg'l Comm'r 1971). Evidence ofthe beneficiary's experience must be supported 
by letters giving the name, address, and title of the employer, and a description of the experience 
gained. See 8 C.F.R. § 204.5(1)(3). 
Part H of the labor certification states that the offered position has the following mm1mum 
requirements: 
H.4. 
H.5. 
H.6. 
H.7. 
H.8. 
H.9. 
H.IO. 
H.l4. 
Education: High School. 
Training: None required. 
Experience in the job offered: 24 months. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: None accepted. 
Foreign educational equivalent: Not Accepted. 
Experience in an alternate occupation: None accepted. 
Specific skills or other requirements: None. 
The record of proceedings contains an August 25, 2015, letter from owner, on 
letterhead, stating that it employed the Beneficiary as a cook from July 2004 until 
the date of the letter. The job duties provided in the letter confirm that they were those of a Chinese 
cuisine cook. The letter is consistent with the experience the Beneficiary listed at Part K of the labor 
certification. The Petitioner has, therefore, established that the Beneficiary meets the experience 
requirements of the labor certification. · 
1 
The priority date is used to calculate when the beneficiary of the visa petition is eligible to adjust his or her status to 
that of a lawful permanent resident. See 8 C.F.R. § 245.l(g). 
2 
(b)(6)
Matter ofY-L-R-, Inc. 
The record of proceedings contains the Beneficiary's graduation certificate from 
Guangdong Province, reflecting that he completed upper middle school in December 1999. We 
consider the Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic 
Database for Global Education (EDGE) to be a reliable, peer-reviewed source of information about 
foreign credentials equivalencies upon which we adjudicate whether a beneficiary's qualifications 
meet the requirements of a labor certification. According to its website, AACRAO is "a nonprofit, 
voluntary, professional association of more than 11,000 higher education professionals who 
represent approximately 2,600 institutions in more than 40 countries." About AACRAO, 
_ http://www.aacrao.org/home/about (last visited July 29, 2016). According to the registration page 
for EDGE, EDGE is "a web-based resource for the evaluation of foreign educational credentials." 
AACRAO EDGE, http://edge.aacrao.org/info.php (last visited July 29, 2016). EDGE advises that an 
upper middle school graduation 
certification in China is comparable to completion of senior high 
school in the United States. Accordingly, the Petitioner has established that the Beneficiary holds 
'the foreign educational equivalent of a U.S. high school diploma. However, as certified by the DOL, 
the minimum education requirement for the position is a U.S. high school education and there is no 
evidence in the record to establish that the Beneficiary holds any level of education in the United States. 
The labor certification does not permit a foreign educational equivalent. 
On appeal, the Petitioner asserts that the Beneficiary's lack of a U.S. high school diploma is offset by 
his high school education in China and more than 11 years of experience in the proffered position. 
In evaluating the job offer portion of the labor certification to determine the required qualifications 
for the position, US CIS may not ignore a term of the labor certification, nor may it impose additional 
requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d 1006 (9th Cir. 1983); 
Stewart Infra-Red Commissary ofMass., Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). The only 
rational manner by which US CIS can be expected to interpret the meaning of terms used to describe 
the requirements of a job in a labor certification is to "examine the certified job offer exactly as it is 
completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 
829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements, as 
stated on the labor certification must involve "reading and applying the plain language of the [labor 
certification]." Id. at 834 (emphasis added). The labor certification states that a foreign education 
equivalent is not acceptable. Accordingly, the plain language of the labor certification does not permit 
the Petitioner to accept the Beneficiary's foreign education equivalent or to substitute his additional 
years of experience for the educational requirement ofthe labor certification. 
We therefore find that the Petitioner has not established that the Beneficiary meets the minimum 
requirements of the labor certification as it was certified by DOL. 
B. Bona Fide Job Opportunity 
Although not addressed by the Director, we find that the labor certification does not represent a bona 
fide job offer. Under 20 C.F.R. § 656.10(c)(8) and §656.3, the petitioner has the burden to show that 
a bonafide job opportunity is available and open to U.S. workers. See Matter of Amger Corp., 87-
3 
Matter of Y-L-R-, Inc. 
INA-545 (BALCA 1987). See also Matter ofGreat Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l 
Comm'r 1977) (the petitioner must establish that the job offer is realistic). 
1. The Petitioner's Actual Minimum Requirements 
The Petitioner must set forth on the labor certification its actual mmtmum requirements for the 
proffered position. See 20 C.F.R. § 656.17(i).2 For the labor certification to represent the actual 
minimum requirements for the position, the employer must not have hired workers with less training 
or experience for jobs substantially comparable to that involved in the job opportunity. !d. 
On appeal, the Petitioner makes assertions regarding the actual minimum requirements of the position 
that conflict with the requirements listed on the labor certification and with each other. The Petitioner 
simultaneously states that: 
• The actual minimum job qualifications are to be able to cook Chinese food, a high school 
education may not be necessary and that the Beneficiary more than qualifies for the position. 
2 The regulation at 20 C.F.R. § 656.17(i) states: 
(i) Actual minimum requirements. DOL will evaluate the employer's actual minimum requirements in 
accordance with this paragraph (i). 
(1) The job requirements, as described, must represent the employer's actual minimum 
requirements for the job opportunity. 
(2) The employer must not have hired workers with less training or experience for jobs 
substantially comparable to that involved in the job opportunity. 
(3) If the alien beneficiary already is employed by the employer, in considering whether the job 
requirements represent the employer's actual minimums, DOL will review the training and experience 
possessed by the alien beneficiary at the time of hiring by the employer, including as a contract 
employee. The employer can not require domestic worker applicants to possess training and/or 
experience beyond what the alien possessed at the time of hire unless: 
(i) The alien gained the experience while working for the employer, including as a c.ontract 
employee, in a position not substantially comparable to the position for which certification is being 
sought, or 
(ii) The employer can demonstrate that it is no longer feasible to tra'in a worker to qualify for 
the position. 
(4) In evaluating whether the alien beneficiary satisfies the employer's actual minimum 
requirements, DOL will not consider any education or training obtained by the alien beneficiary at the 
employer's expense unless the employer offers similar training to domestic worker applicants. 
(5) For purposes of this paragraph (i): 
(i) The term "employer" means an entity with the same Ft<deral Employer Identification 
Number (FEIN), provided it meets the definition of an employer at §656.3. 
(ii) A "substantially comparable" job or position means a job or position requiring 
performance of the same job duties m9re than 50 percent of the time. This requirement can be 
documented by furnishing position descriptions, the percentage of time spent on the various duties, 
organization charts, and payroll records. 
4 
(b)(6)
Matter of Y-L-R-, Inc. 
• The main job qualifications for the position of Chinese cuisine cook are that a candidate be able 
to prepare and cook Cantonese, Mandarin and Szechuan dishes and ·possess 24 months of 
experience with no mandatory educational requirements, only a high school education. 
• A U.S. high school diploma may in fact be useless in preparing a C(illdidate for the position if 
the recipes and cooking instructions were all written in the Chinese language. 
Our May 12, 2016, request for evidence noted that counsel's assertions on appeal differed from the 
language of the labor certification and gave the Petitioner an opportunity to provide evidence of the 
actual minimum requirements for the position of Chinese cuisine cook. In response, the Petitioner 
indicated that it currently employs four full-time cooks, none of whom holds a U.S. or foreign 
educational equivalent to a U.S. high school diploma. The highest education any of the cooks achieved 
is completion of middle school. None ofthe cooks completed their education in the United States. We 
therefore find that the labor certification does not set forth the Petitioner's actual minimum requirements 
for the position. The terms of the labor certification would have discouraged U.S. applicants without 
high school diplomas from applying for the proffered position. 
2. The Petitioner's Recruitment 
The record contains the Petitioner's recruitment for the proffered job and it does not support its 
assertion that it would have accepted less than a U.S. high school diploma and 2 years of experience in 
the job offered. While the Petitioner's print advertisements and notice of filing for the position state 
that the position requires a minimum of 2 years of experience (with no mention of an education 
requirement), the Petitioner's announcement and prevailing wage determination list the 
minimum requirements as a high school diploma and 2 years of experience. The terms of the 
announcement would have discouraged U.S. workers without high school diplomas from 
applying for the proffered job. Further," the record contains the Petitioner's correspondence with the 
DOL during the labor certification process, and it does not indicate that the DOL was aware that tpe 
Petitioner would accept applicants without a U.S. high school diploma. 
Additionally, the job offered to the Beneficiary, as indicated on the prevailing wage determination, is a 
40-hour work week with no overtime, and a schedule of 11:00 am to 8:00pm. The labor certification 
indicates a yearly wage of $55,000 (approximately $26.44 per hour based on a 40-hour work week). 
However, print advertisements for the position state that an applicant would be required to work 6 days 
per week from 10:00 am to 9:00pm (a 66-hour work week), which differs from the schedule offered to 
the Beneficiary.3 The announcement further stated that an applican.t would be paid $26.13 per 
hour for a 40-hour work-week, which is a lesser wage rate than that offered to the Beneficiary. The 
posting notice for _,the job indicated that an applicant would be paid an annual salary of $54,500 to 
3 
The advertisements for the proffered position must not contain a wage rate lower than the prevailing wage rate; not 
contain any job requirement ~ or duties which exceed ·the job requirements or/ duties listed on the ETA Form 9089 ; 
and not contain wages or terms and conditions of employment that are less favorable than those offered to the 
Beneficiary. See 20 C.F.R. § 656.17(t)(5)-(7). 
5 
Matter ofY-L-R-, Inc. 
$56,500 for a 66-hour work week, which is a lesser wage rate (based on the additional 26 hours worked 
per week) and different work schedule than that offered to the Beneficiary. Accordingly, the 
Petitioner's advertising for the position appears to have violated 20 C.F.R. § 656.17(±) by stating a less 
favorable terms than those offen~d to the Beneficiary. Additionally, the advertised terms of the 
position's hours and wages may have discouraged U.S. workers from applying for the job. 
We therefore conclude that the labor certification does not represent a bonafide job opportunity that 
was open and available to U.S. workers. 
II. CONCLUSION 
In summary, the Petitioner has not established that the Beneficiary meets the minimum requirements of 
the labor certification. The Director's decision denying the petition is affirmed. The record also 
establishes that the Petitioner did not list the actual minimum requirements for the position on the labor 
certification and that the labor certification does not represent a bonafide job opportunity. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, 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 of 
Brantigan, 11 I&N Dec. 493 (BIA 1966); Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofY-L-R-, Inc., ID# 17438 (AAO Sept. 12, 2016) 
6