dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 6018282 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 6, 2020 
The Petitioner seeks to employ the Beneficiary as a cook specializing in Korean cuisine. The 
company requests his classification under the third-preference, immigrant category as a skilled 
worker. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b )(3)(A)(i). 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate the Beneficiary's possession of the minimum employment experience 
required for the offered position or the requested classification. 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 
of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker 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)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, 
qualified, and available for an offered position. Id. Labor certification also indicates that employment 
of a foreign national would 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 determines whether a beneficiary meets the 
requirements of a DOL-certified position and a requested visa classification . If USCIS grants a 
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. THE REQUIRED EXPERIENCE 
To qualify as a skilled worker, a foreign national must have at least two years of training or 
employment experience. Section 203(b)(3)(A)(i) of the Act. A petitioner must also establish a 
beneficiary's possession of all DOL-certified job requirements of an offered position by a petition's 
priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977).1 In 
evaluating a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification to determine a position's minimum requirements. 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. 1983) (holding that "DOL bears the authority for setting the content 
of the labor certification") ( emphasis in original). 
Here, the accompanying labor certification states the minimum requirements of the offered position 
of Korean specialty cook as two years of experience in the job offered. The certification states that 
the position requires neither education, nor training. Also, part H.14 of the certification, "Specific 
skills or other requirements," states that the job requires "Two years' experience as a cook at a 
Korean restaurant. Must have experience preparing Korean dishes including Soontofo, Kalbi, 
Bulgogi and Bibimbap." 
The Beneficiary attested on the labor certification that, by the petition's priority date, he gained 
about 26 months of foll-time experience in the offered position. He stated that he worked as a 
Korean specialty cook at a restaurant in South Korea from April 2002 to June 2004. To support his 
claimed qualifying experience, the Petitioner submitted a letter from the Beneficiary's purported 
former employer. Pursuant to 8 C.F.R. § 204.5(1)(3)(ii)(A), the letter includes the name, address, 
and title of the employer, and describes the Beneficiary's claimed experience. 
In a written notice of intent to deny (NOID) the petition, however, the Director questioned the 
Beneficiary's claimed experience. The NOID notes that, on an application for a U.S. visitor's visa in 
November 2004, the Beneficiary indicated that a wholesaler - not the restaurant - then employed 
him in South Korea. The Beneficiary also conceded that he did not list any prior experience on the 
application. The Director found that the Beneficiary's employment history on the nonimmigrant 
visa application cast doubt on his claimed experience. See Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988) (requiring a petitioner to resolve inconsistencies of record with independent, object 
evidence pointing to where the truth lies). 
In a sworn statement in response to the NOID, the Beneficiary reiterated that the South Korean 
restaurant employed him as a cook from April 2002 to June 2004. He stated that he earned the U.S. 
equivalent of about $400 a week. He said he received payments in cash, which he described as 
"customary practice for small businesses in Korea." The Beneficiary stated that he applied for the 
U.S. visitor's visa about five months after his employment at the restaurant ended. At that time, he 
said the wholesaler then employed him. 2 The Beneficiary said that he did not realize the visa 
1 This petition's priority date is October 7, 2016, the date DOL accepted the accompanying labor ce1iification application 
for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
2 The Beneficiary's application for adjustment of status included a Form G-325A, Biographic Information. omitting his 
claimed employment with the wholesaler. Rather, he listed his claimed position of cook with the South Korean 
2 
application form required him to list his prior work history and that he did not intentionally omit his 
prior employment from the form. The Petitioner's NOID response also included a copy of the 
Beneficiary's "certificate of qualification" as a Korean cook, another letter from his claimed former 
employer, and letters from two of his purported co-workers at the restaurant. 
As the Director found, the Petitioner's evidence does not demonstrate the Beneficiary's claimed 
qualifying experience. The record lacks evidence that the restaurant employed the Beneficiary's 
purported co-workers during his tenure there. Evidence of their employment does not accompany 
their letters. The restaurant's letters also do not state its employment of the purported co-workers. 
Their statements therefore have little evidentiary value. 
The Beneficiary stated that he did not consider his claimed prior employment to be relevant to his 
visa application. As the website of the U.S. consulate in Seoul indicates, however, visitor visa 
applicants must demonstrate strong economic and social ties to South Korea - such as the existence 
of family members, property, or employment - to show that they would likely return to the country 
after visiting the United States. See U.S. Embassy & Consulate in South Korea, "Nonimmigrant 
Visa FAQs [Frequently Asked Questions]," https://www.ustraveldocs.com/kr/kr-gen­
faq.asp#qlistblb2 (last visited Jan. 27, 2020). Thus, if the Beneficiary truly worked at the restaurant, 
he would have likely disclosed his prior employment on the application to demonstrate a lengthy 
employment history in South Korea and increase his chances of obtaining a visitor's visa. 
On appeal, the Petitioner asserts that additional documentation of the Beneficiary's prior 
employment does not exist because South Korea does not tax workers' incomes and the restaurant 
paid the Beneficiary in cash. The record, however, lacks independent evidence that the Beneficiary 
did not have to pay income taxes in South Korea. Also, the Petitioner has not demonstrated the 
restaurant's lack of contemporaneous business records, such as employee schedules or reports of 
hours employees worked, that would evidence the Beneficiary's claimed employment. See Matter of 
Ho, 19 I&N Dec. at 591 (requiring "independent objective evidence" to resolve inconsistencies of 
record). 
The Petitioner also asserts that the Director should have credited the Beneficiary's Korean cook 
certificate as evidence of his qualifications for the offered position. The Petitioner argues that the 
certificate, which is dated in 2015 but states its first issuance in 2003, required the Beneficiary's 
completion of hundreds of hours of training. The company asserts that he would not have spent time 
and energy to obtain the document if he did not work in the restaurant business. The offered 
position and the requested visa classification, however, require at least two years of employment 
experience. The labor certification also does not allow substitution of training for experience in the 
job offered. Thus, the certificate may indicate the Beneficiary's possession of cooking skills, but it 
does not establish his possession of the requisite employment experience. 
For the foregoing reasons, the record on appeal does not demonstrate the Beneficiary's possession of 
the minimum experience required for the job offered or the requested visa classification. We will 
therefore affirm the petition's denial. 
restaurant as his last occupation abroad. 
3 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record also does not establish the Petitioner's ability to 
pay the proffered wage of the offered position. A petitioner must demonstrate its continuing ability 
to pay a proffered wage, from a petition's priority date until a beneficiary obtains lawful permanent 
residence. 8 e.F.R. § 204.5(g)(2). If a petitioner employs less than 100 people, as in this case, 
evidence of ability to pay must include copies of annual reports, federal tax returns, or audited 
financial statements. Id. 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the foll 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay a 
beneficiary the foll proffered wage, users considers whether it generated annual amounts of net 
income or net current assets sufficient to pay any differences between the proffered wage and wages 
paid. If net income and net current assets are insufficient, users may consider other factors 
affecting a petitioner's ability to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 
614-15 (Reg'l eomm'r 1967).3 
Here, the labor certification states the proffered wage of the offered position of Korean specialty 
cook as $32,552 a year. As previously noted, the petition's priority date is October 7, 2016. 
The Petitioner did not submit any evidence of payments it made to the Beneficiary. Thus, based 
solely on wages paid, the record does not establish the Petitioner's ability to pay the proffered wage. 
In response to the Director's written request for additional evidence (RFE), the Petitioner submitted 
copies of its federal income tax returns for fiscal years 2016-17 and 2017-18. 4 The tax return for 
2016-17 reflects net income of $10,599 and a negative amount of net current assets. Neither amount 
equals or exceeds the annual proffered wage of $32,552. Thus, based on examinations of wages 
paid, net income, and net current assets, the record does not establish the Petitioner's ability to pay 
the proffered wage in 2016, the year of the petition's priority date. 
In its RFE response, the Petitioner argued that it need only demonstrate its ability to pay the portion 
of the 2016 proffered wage that accrued after the petition's priority date of October 7. The Petitioner 
contended that its net income amount of $10,599 exceeded the prorated proffered wage of $8,138. 
users policy, however, does not permit petitioners to prorate proffered wages in the years of 
priority dates. The Agency may consider a short period between a priority date and the end of a 
calendar year in its totality-of-the-circumstances analysis under Sonegawa. But a petitioner must 
generally demonstrate its ability to pay the foll proffered wage of an offered position in the year of a 
petition's priority date. The record does not establish the Petitioner's ability to pay the foll proffered 
wage in 2016. 
3 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See. e.g., 
River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Rahman v. Chertoff, 641 F. Supp. 2d 349, 351-
52 (D. Del. 2009). 
4 The Petitioner's tax returns indicate that the company's fiscal years run from June 1 through May 31. 
4 
The Petitioner's federal income tax return for 2017-18 reflects a negative amount of net current 
assets, but net income of $44,728. The net income amount exceeds the annual proffered wage of 
$32,552. Thus, the record appears to demonstrate the Petitioner's ability to pay the Beneficiary's 
individual proffered wage in 201 7. 
USCIS records, however, indicate the Petitioner's filing of a Form I-140 pet1t10n for another 
beneficiary. 5 A petitioner must demonstrate its ability to pay the proffered wage of each petition it 
files until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner 
here must therefore demonstrate its ability to pay the combined proffered wages of this and any other 
petition that was pending or approved as of this petition's priority date of October 7, 2016, or filed 
thereafter. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our revocation of 
a petition's approval where, as of the filing's grant, the petitioner did not demonstrate its ability to 
pay the combined proffered wages of multiple petitions). 6 
The record lacks the proffered wage or priority date of the Petitioner's other Form I-140 petition. 
We are therefore unable to determine the exact proffered wage amount that the Petitioner must 
demonstrate its ability to pay in 2017. The record therefore does not establish the Petitioner's ability 
to pay the proffered wage that year. 
In any future filings in this matter, the Petitioner must provide the proffered wage and priority date 
of its other petition. The Petitioner may also provide additional evidence of its ability to pay the 
proffered wages in 2016 and 201 7, including proof of wage payments it made to the beneficiaries in 
those years or documentation supporting the factors stated in Sonegawa. See Matter of Sonegawa, 
12 I&N Dec. at 614-15. In addition, the Petitioner must submit copies of annual reports, federal tax 
returns, or audited financial statements covering the remainder of 2018 and, if available, 2019. 
IV. CONCLUSION 
The record on appeal does not establish the Beneficiary's possession of the minimum experience 
required for the offered position or the requested classification. We will therefore affirm the 
petition's denial. 
ORDER: The appeal is dismissed. 
5 USCIS records identify the other petition by the receipt number ~-----~ 
6 The Petitioner need not demonstrate its ability to pay proffered wages of petitions that it withdrew, or that USCIS 
rejected, denied, or revoked. The Petitioner also need not demonstrate its ability to pay proffered wages before the 
priority dates of their corresponding petitions, or after the dates their corresponding beneficiaries obtained lawful 
permanent residence. 
5