dismissed EB-3 Case: Culinary Arts

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PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: W AC-03-225-53365 Office: CALIFORNIA SERVICE CENTER Date:Sf.P 29 ZOO6
In re: Petitioner:
Beneficiary:
Petition: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section
203(b)(3) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(3)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
/@lU
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC-03-225-53365
Page 2
DISCUSSION: The Director, California Service Center, denied the immigrant visa petition. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a restaurant and seeks to employ the beneficiary permanently in the United States as a cook
("Cook/Indo Meditteranean"), As required by statute, the petition filed was submitted with Form ETA 750,
Application for Alien Employment Certification, approved by the Department of Labor (DOL). As set forth
in the director's May 3, 2005, denial, the case was denied based on the petitioner's failure to demonstrate that
the beneficiary met the requirements of the labor certification.
The AAO takes a de novo look at issues raised in the denial of this petition. See Dar v. INS, 891 F.2d 997,
1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). The AAO considers all
pertinent evidence in the record, including new evidence properly submitted upon appeal.'
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or
fact. The procedural history in this case is documented by the record and incorporated into the decision.
Further elaboration of the procedural history will be made only as necessary.
The petitioner has filed to obtain permanent residence and classify the beneficiary as a skilled worker. Section
203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(i), provides for
the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for
classification under this paragraph, of performing skilled labor (requiring at least two years training or
experience), not of a temporary nature, for which qualified workers are not available in the United States.
The petitioner must establish that its ETA 750 job offer to the beneficiary is a realistic one. A petitioner's filing
of an ETA 750 labor certification application establishes a priority date for any immigrant petition later filed
based on the approved ETA 750. The priority date is the date that Form ETA 750 Application for Alien
Employment Certification was accepted for processing by any office within the employment service system
of the Department of Labor. See 8 CFR § 204.5( d). Therefore, the petitioner must establish that the job offer
was realistic as of the priority date, and that the offer remained realistic for each year thereafter, until the
beneficiary obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential
element in evaluating whether ajob offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg.
Comm. 1977). See also 8 C.F.R. § 204.5(g)(2).
The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability of prospective employer to pay wage. Any petition filed by or for an employment­
based immigrant which requires an offer of employment must be accompanied by evidence
that the prospective United States employer has the ability to pay the proffered wage. The
petitioner must demonstrate this ability at the time the priority date is established and
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability
shall be in the form of copies of annual reports, federal tax returns, or audited financial
statements.
] The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which
are incorporated into the regulations by the regulation at 8 C.F .R. § l03.2(a)(1). The record in the instant case
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter
ofSoriano, 19 I&N Dec. 764 (BIA 1988).
WAC-03-225-53365
Page 3
In the case at hand, the petitioner filed Form ETA 750 with the relevant state workforce agency on April 19,
2001. The proffered wage as stated on Form ETA 750 for the position of an antenna repairer is $11.55 per
hour, 40 hours per week, which is equivalent to $24,024 per year. The labor certification was approved on
March 3, 2003, and the petitioner filed the 1-140 on the beneficiary's behalf on August 1, 2003. Counsel
listed the following information on the 1-140 related the petitioning entity: date established: 1995; gross
annual income: $10,000,000; net annual income: $600,000; and current number of employees: 240.
On May 14,2004, the Service Center issued a Request for Additional Evidence ("RFE") requesting additional
documentation regarding the petitioner's ability to pay the beneficiary the proffered wage from 2001 to the
present, along with documentation to corroborate the experience letter provided on behalf of the beneficiary,
specifically for the petitioner to send copies of the beneficiary's signed, dated, and certified federal tax returns
from 1997 to the present, along with the beneficiary's W-2 statements. The petitioner submitted its federal
tax returns along with a statement from the beneficiary that he was unable to supply tax documents or W-2
statements since he was paid in cash.
On May 3, 2005, the Director denied the case finding that the petitioner's response was insufficient to
document that the beneficiary had the required skills listed on the certified ETA 750. The petitioner appealed
to the AAO.
We shall examine the documentation related to the beneficiary's qualifications within the prior record, and
then address the petitioner's additional arguments on appeal. In evaluating the beneficiary's qualifications,
CIS must look to the job offer portion of the alien labor certification to determine the required qualifications
for the position. CIS may not ignore a term of the labor certification, nor may it impose additional
requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See
also, Mandany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9
th
Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (I" Cir. 1981). A
labor certification is an integral part of this petition, but the issuance of a Form ETA 750 does not mandate the
approval of the relating petition. To be eligible for approval, a beneficiary must have all the education, training,
and experience specified on the labor certification as of the petition's priority date. 8 C.F.R. § 103.2(b)(l), (l2).
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter ofKatigbak, 14
I. & N. Dec. 45, 49 (Reg. Comm. 1971).
On the Form ETA 750A, the "job offer" states that the position requires two years of experience in the job
offered, as a cook/Indo Mediterranean, with duties including: "Responsible for the complete planning and
preparation of dishes, dinners, deserts and other foods, according to recipes for restaurant specializing in a
Indo-Meditteranean cuisine. Prepares meats, soups, sauces, vegetables, pastas, and other foods prior to
cooking. Seasons and cooks food according to prescribed method, personal judgment and experience with
cuisine. Portions and garnishes food and serves to waiters on order." The petitioner listed no educational
requirements in Section 14, and listed no other special requirements for the position in Section 15.
On the Form ETA 750B, signed on April 18,2001, the beneficiary listed his prior work experience as:.
Pacific Pizza Corporation, 2200 West Valley Road, Alhambra, CA 91803, as a cook fr.
1
1997 to April
2001, 40 hours per week. Further, the job description block for the position with Pacific Pizza
Corporation described his experience as follows: "Did all preparation, cooking, seasoning, portioning, garnishing
and serving orders to waiters. Observed, tasted, and seasoned foods based on personal judgment and experience
with cuisine. Did ordering and inventory."
WAC-03-225-53365
Page 4
For the individual beneficiary to qualify for the certified labor certification position, the petitioner must
demonstrate the beneficiary's prior experience to qualify the individual for that position, and that the beneficiary
obtained the experience by the time of the priority date. Evidence must be in accordance with 8 C.F.R. §
204.5(1)(3), which provides:
(ii) Other documentation-
(A) General. Any requirements of trammg 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 ofthe alien.
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied by
evidence that the alien meets the educational, training or experience, and any other requirements
of the individual labor certification, meets the requirements for Schedule A designation, or meets
the requirements for the Labor Market Information Pilot Program occupation designation. The
minimum requirements for this classification are at least two years of training or experience.
To document the beneficiary's experience, the petitioner submitted a letter from _ Pacific Pizza
Corporation, which provided that the beneficiary "has worked as a full time Cook for us receiving a salary of
$420.00 per week." The Service Center noted that the letter was deficient, as it did not specify the beneficiary's
job duties while he was employed as a Cook fo_Pizza.
As noted above, the RFE requested additional documentation to confirm the beneficiary's experience. In
response, the petitioner had submitted the beneficiary's statement that he was paid in cash and could not provide
any further confirmation of his employment.
The petition was denied and on appeal, the petitioner submitted a second letter. The second letter was submitted
on letterhead of "Tacos Los Sahuayos, Av. Tepecyac 4069 C' ." The translated
letter provided: "by means of this letter I hereby state that worked in this
restaurant during 2 years (1995-1997). As such, I highly recommend him for the uses he desires."
The letter that the petitioner has presented on appeal is lacking critically in listing the beneficiary's job title for the
prior position. The letter does not specify whether the beneficiary was a cook, kitchen help, a waiter, worked as a
dishwasher, or any other related restaurant position. The letter similarly fails to list the beneficiary's job duties
during the time period that he worked for Tacos Los Sahuayos, and whether the beneficiary worked on a full time
or a part time basis. Additionally, the beneficiary did not list any experience with Tacos Los Sahuayos on his
ETA 750B Form. See Matter ofLeung, 16 I&N Dec. 2530 (BIA 1976), where the Board's dicta notes that the
beneficiary's experience, without such fact certified by DOL on the beneficiary's Form ETA 750B lessens the
credibility of the evidence and facts asserted.
The second letter provided would not confirm, either considered separately or in addition to the initial letter, that
the beneficiary had the required two years of experience in the job offered as a Cook/Indo Mediterranean.
Further, we note that the ETA 750A job offer specifically lists the position as a "Cook/Indo Mediterranean"
and the job duties entail the "complete planning and preparation of dishes, dinners, deserts and other foods,
according to recipes for restaurant specializing in a Indo-Meditteranean cuisine." Nothing in the beneficiary's
Form ETA 750B description of his duties with Jacmar Pizza evidences prior experience with the preparation of
food of an Indo Mediterranean variety. Further, the job offer contemplates duties of a more complex skill, such
WAC-03-225-53365
Page 5
as the "complete planning and preparation," than the beneficiary lists in his prior work experience. The
beneficiary's work experience letters do not provide any job details or description of his work to allow us to
conclude whether the tasks of his prior experience would meet the criteria of the job offered.
Specifically, to fulfill the requirements of the position, the labor certification as drafted, and certified would
require that the beneficiary evidence two years of prior experience in the job offered, as a "Cook/Indo
Mediterranean." The petitioner did not list that a candidate would qualify for the position based on two years of
related experience, solely as a cook, chef, or any similar related occupation.
Accordingly, the petition was properly denied for failure to document that the beneficiary's experience met the
requirements of the certified ETA 750B. The burden of proof in these proceedings rests solely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.
ORDER: The appeal is dismissed.