dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 04687776 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 27, 2020 
The Petitioner, a full service restaurant, seeks to employ the Beneficiary as a specialty chef. It requests 
skilled worker classification for the Beneficiary under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S .C. § 1153(b)(3)(A)(i). This 
employment-based "EB-3" 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 two years of 
training or experience. 
The Director of the Nebraska Service Center denied the petition . The Director found that the Petitioner 
did not establish that the Beneficiary had the requisite experience to qualify for skilled worker 
classification under the law and to meet the terms of the labor certification. 
On appeal the Petitioner asserts that the documentation of record establishes that the Beneficiary has 
the requisite experience for the requested visa classification, and that this experience meets the terms 
of the labor certification . 
In visa petition proceedings it is the Petitioner's burden to establish 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. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 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). By approving the labor certification, the DOL certifies that there 
are insufficient U.S . workers who are able, willing, qualified , and available for the offered position 
and that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C . § 1154. Third, ifUSCIS approves the petition, 
the foreign national 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. ANALYSIS 
To qualify for classification as a skilled worker a beneficiary must have at least two years of training 
or experience. 8 C.F.R. § 204.5(1)(3)(ii)(B). A beneficiary must also meet the specific educational, 
training, experience, or other requirements of the labor certification. Id. All requirements must be 
met by the petition's priority date, 1 which in this case is October 6, 2017. See Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
The labor certification that accompanied the Petitioner's Form 1-140, Immigrant Petition for Alien 
Worker (1-140 petition), requires 24 months of qualifying experience as a chef or cook specializing in 
Korean cuisine. The labor certification lists one prior job for the Beneficiary as a chef atl I I I in I I South Korea, from July 1, 2012, to June 30, 2015. As evidence of the 
alleged employment the Petitioner submitted a letter (dated July 23, 2018) on the letterhead ofc=] 
I I froml I identified as the owner, stating that the Beneficiary worked for 
the restaurant as a full-time chef from September 10, 2013, to October 31, 2015. In a letter from 
counsel accompanying the petition the Petitioner asserted that the discrepancy in the dates of 
employment between the labor certification and the letter from I O • I was due to the 
Beneficiary's faulty memory, and that the dates inl~---~ts letter were correct. 
The Director issued a request for evidence (RFE) to resolve the discrepancy regarding the 
Beneficiary's dates of employment with D In its response to the RFE the Petitioner submitted 
another letter froml I stating that he did not have any documentation of the Beneficiary's 
employment, but affirming that he worked in the restaurant as a chef from September 10, 2013, to 
October 31, 2015. Documentation was submitted showing that the Beneficiary took some culinary 
courses during the period of alleged employment at the restaurant, but no further documentation of the 
Beneficiary's employment was submitted. 
The Director denied the petition, finding that the Petitioner did not resolve the evidentiary discrepancy 
concerning the Beneficiary's alleged employment withe::] The Director concluded that the 
Petitioner did not establish that the Beneficiary had 24 months of full-time employment at the 
restaurant, as required to qualify for skilled worker classification under 8 C.F.R. § 204.5(1)(3)(ii)(B) 
and to meet the experience requirement of the labor certification. 
On appeal the Petitioner submitted another letter from and a statement from the 
'---------------r-----r-----.--------'-.;:;;in;:;_;,Seoul bearing the signatures of 
23 local merchants, including .__ __ __. The.__ _______ _. statement consistent with the 
letters from I I alleged that the Beneficiary was employed full-time by □ from September 
2013 to October 31, 2015, while studying at a local college, and that there were no official records of 
the Beneficiary's employment because he worked as a temporary rather than a permanent employee 
and without insurance. 
We subsequently issued a notice of intent to dismiss (NOID) the appeal, stating that we had received 
a report from the consular section of the U.S. Embassy in Seoul, South Korea, which cast doubt on 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). 
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veracity of the.__ _______ _.statement as a whole. The consular section contacted some of 
the 23 signatories by phone, not all of whom confirmed the Beneficiary's employment with ~ 
While the restaurant's ownerJ I (number 1 on the list) stated once again that he employed the 
Beneficiary, he said he was unable to recall the exact dates. The president of the federation (number 
9 on the list) denied that he signed the statement on behalf of the Beneficiary. Conflicting information 
was provided by individual number 11 on the list, who stated that he was asked by the federation's 
president to sign the statement, even though he does not know the Beneficiary. Individual number 4 
on the list stated that he did not know the Beneficiary or the owner of0 Individuals number 3 and 
19 on the list confirmed that they knew the Beneficiary and signed the statement, but were unable to 
provide his exact employment dates at the restaurant. Two other individuals (numbers 10 and 20 on 
the list) were unable to be contacted via the phone numbers provided on the ~-------~ statement. 
Due to these myriad inconsistencies, we advised the Petitioner that the~-------~statement 
appeared to have little evidentiaryweight. Citing Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988), 
we advised that it was incumbent upon a petitioner to resolve any inconsistencies in the record by 
independent objective evidence, that attempts to explain or reconcile such inconsistencies would not 
suffice without competent evidence pointing to where the truth lies, and that doubt cast on any aspect 
of the petitioner's evidence also reflects on the reliability of the petitioner's remaining evidence. 
In response to the NOID counsel to the Petitioner asserts that phone calls are not a reliable method of 
obtaining information due to the prevalence of voice "phishing" and spam calls in South Korea, which 
may mean that the individuals discussed above doubted that the calls they received were actually from 
the U.S. Embassy. According to counsel, the Petitioner's mother personally visited with each of the 
individuals discussed in our NOID and was told by each of them that the calls were received during 
morning hours when the merchants were opening for the day and extremely busy, and many thought 
they were receiving a spam call. According to counsel the Petitioner's mother received the following 
information from these individuals: D's owner,I l acknowledged once again that he could 
not remember the exact dates of the Beneficiary's employment, but asserts that his past statements on 
that issue were accurate. Thel I president, who previously denied signing the joint 
statement, now asserts that after seeing the document ore again he remember signing it. Individual 
number 11, who previously claimed that he signed the~------~ statement at the behest 
of its president despite not knowing the Beneficiary, now asserts that "he was asleep when he received 
a call." Individual number 4, who previously stated that he did not know the Beneficiary, asserts that 
he was busy when he received the call from the U.S. Embassy, hung up quickly, made a return call 
shortly thereafter to confirm that the prior call came from the U.S. Embassy, but did not receive a call 
back from the Embassy. Individuals number 3 and 19, as previously, confirmed that they know the 
Beneficiary and signed thel I statement, but could not remember the exact dates 
of the Beneficiary's employment at~ Finally, individuals 10 and 20, whom the U.S. Embassy had 
been unable to contact at the phone numbers provided in thel I statement, asserted 
that "[t]hey do not remember receiving any call from a consulate." The Petitioner claims that the 
foregoing information from the contacted individuals is sufficient to warrant a finding that the 
Beneficiary was employed by0from September 2013 to October 2015. We do not agree. 
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The information obtained by the Beneficiary's mother from the referenced individuals, as relayed by 
the Petitioner in counsel's response to the NOID, is not supported by any personal statements from 
those individuals. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N 
Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Nor does the 
new information allegedly obtained from the referenced individuals eliminate all of the inconsistencies 
identified in our NOID. Therefore, the evidentiary shortcomings ofthe~------~statement 
as originally submitted have not been overcome. Furthermore, there is still no primary evidence of the 
Beneficiary's alleged employment bye=] such as tax or payroll records, earnings statements, or any 
other employment-related documentation betweerr=J and the Beneficiary contemporaneous with the 
period of alleged employment in the years 2013-2015. 
Additionally, we note two other adverse factors. The Petitioner submitted with the 1-140 petition the 
Beneficiary's most recent 1-94 (admission/departure) record issued by U.S. Customs and Border 
Protection. The second page of the 1-94 document shows that the Beneficiary's was admitted to the 
United StatesJ ~- on September 10, 2013, the same date he claims to have begun 
working for the restaurant in Korea, and that he departed the United States on December 6, 2013. Even 
ifwe accepted the experience verification letter fromDas true and correct, which we do not, the three­
month gap in the Beneficiary's employment at the restaurant would result in less than two years of 
qualifying experience. Also, the Beneficiary completed a nonimmigrant visa application on October 8, 
2015, near the end of his purported employment wit~ in which he answered "No' to the question of 
whether he had previously been employed. Both of these factors cast significant doubt on the 
Beneficiary's alleged employment at the restaurant in South Korea. 
As previously indicated, the burden is on the petitioner in visa petition proceedings to establish 
eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). To meet this 
burden, the petitioner must prove by a preponderance of evidence that it and the beneficiary are 
qualified for that benefit. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The 
"preponderance of the evidence" standard requires that the evidence demonstrate that the petitioner's 
claim is "probably true," where the determination of "truth" is made based on the factual circumstances 
of each individual case. Id. (quoting Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In 
evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its 
quality. Id. Thus, in adjudicating the petition pursuant to the preponderance of the evidence standard, 
USCIS must examine each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to determine whether the fact to be 
proven is probably true. 
In accord with our foregoing analysis, we conclude that the Petitioner has not met its burden of proof 
in this case. Based on the documentation of record, we find that the Petitioner has not established by 
a preponderance of the evidence that the Beneficiary was employed by D as a chef for at least two 
years before the priority date of October 6, 201 7, as required to qualify for skilled worker classification 
and to meet the terms of the labor certification. 
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III. CONCLUSION 
The Petitioner has not established that the Beneficiary had at least two years of qualifying experience 
by the priority date. Therefore, the Beneficiary does not qualify for classification as a skilled worker 
and does not meet the requirements of the labor certification. The appeal will be dismissed for the 
above stated reasons, with each considered an independent and alternative basis for the decision. 
ORDER: The appeal is dismissed. 
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