dismissed EB-3 Case: Culinary Arts

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
P6 
FILE: Date: )1AY 2 4 2006 
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. $ 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based preference visa petition was denied by the Acting Center Director 
(Director), Vermont Service Center. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a foreign 
food specialty cook. The petition was filed for classification of the beneficiary under section 203(b)(3)(A)(i) of 
the Immigration and Nationality Act (the Act) as a slulled worker. As required by statute, the petition was 
accompanied by an individual labor certification, the Application for Alien Employment Certification (Form ETA 
750), approved by the Department of Labor (DOL). 
The petitioner's Form ETA 750 was filed with DOL on April 30,2001 and certified by DOL on January 10, 
2003. The petitioner subsequently filed Form 1-140 with Citizenship and Immigration Services (CIS) on May 
30,2003. On May 11, 2004, the director issued a notice of intent to deny (NOID) the Form 1-140 because the 
beneficiary previously filed a Form 1-130 Petition for Alien Relative as the spouse of a United States citizen 
and a Form 1-485 Application to Register Permanent Residence or Adjust Status on January 3, 1995. The 
Forms 1-130 and 1-485 were terminated on April 22, 1996 because the beneficiary failed to attend a scheduled 
interview. The director gave the petitioner 30 days to submit evidence that would overcome the reasons for 
denial. In response to the NOID, counsel submitted a letter asserting that there was no fraud committed nor 
did this alien ever enter into a marriage. The director denied the petition on July 28, 2004 determining that 
the record included evidence to establish that the beneficiary sought to obtain benefits through marriage to a 
United States citizen that was not bona fide and entered into to evade immigration law. 
On appeal, counsel asserts that the beneficiary was never married to a United States citizen, that he never 
signed a marriage license nor did he have specific intent to enter into a marriage, and that he was the victim of 
a sham. 
Section 204(c) of the immigration and Nationality Act (the Act), 8 U.S.C. fj 1154(c), states in pertinent part: 
No immigrant petition shall be approved if (1) the beneficiary has been accorded, or has 
sought to be accorded, an immediate relative or preference status as the spouse of a United 
States citizen or the spouse of an alien lawfully admitted for permanent residence, by reason 
of a marriage determined by the Attorney General to have been entered into for the purpose 
of evading immigration laws or (2) the Attorney General has determined that the alien has 
attempted or conspired to enter into a marriage for the purpose of evading immigration laws. 
The regulation at 8 C.F.R. 5 204.2(c)(ii) states: 
Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the approval of a visa 
petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for 
the purpose of evading the immigration laws. The director will deny a petition for an 
immigrant visa classification filed on behalf of an alien for whom there is substantial and 
probative evidence of such an attempt or conspiracy. Although it is not necessary that the 
alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence 
of the attempt or conspiracy must be contained in the alien's file. 
The denial of the instant 1-140 petition is in connection with the Form 1-130 and concurrent Form 1-485 filed 
on behalf of the beneficiary. The record shows that a United States citizen through her counsel filed a Form I- 
130 on behalf of the beneficiary as a citizen's spouse with INS (now CIS) New York office on January 3, 
1995. The 1-130 petition includes a Certificate of Marriage for the United States citizen and the beneficiary 
issued by Town Clerk, Town of North Hempstead, County of Nassau, State of New York on December 20", 
1994. On appeal counsel submits a "No Record Certification -Marriage-" from Michelle Schimel, Registrar 
of Vital Statistics, Town of North Hempstead, County of Nassau, State of New York. This no record 
certification certifies that: "a search has been made in this office for the maniage record of [the beneficiary] 
and [the citizen] December 20, 1994 at Garden City, NY, State of New York and that such recoid is not on 
file in this office". The petitioner did not provide any evidence that the Certificate of Marriage for the 
beneficiary and the citizen in the record is a fraudulent document. However, it is noted that the marriage 
certificate indicates at the bottom that: "[dlo not accept this copy unless the raised seal of the Town of North 
Hempstead is affixed thereon". The copy of the marriage certificate in the record does not contain such a 
raised seal of the Town of North Hempstead. The AAO finds the no record certification more reliable and 
persuasive. It is most likely that the marriage certificate submitted in connection with the beneficiary's 
marriage-based petition was fraudulent. 
Counsel argues on appeal that the beneficiary never signed any documentation allegng he was married, or 
had a woman's name as his wife, did not have intent to commit marriage fraud, did not attempt to give 
fraudulent documents or statements, and did not attempt to conspire against CIS for a benefit. However, 
counsel did not submit any documents or evidence to support her assertion. 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). Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The 
AAO agrees with counsel that the name of the beneficiary is written in different script on his medical 
examination form. It appears that the signature on the medical examination was not from the beneficiary 
himself. However, the AAO also finds counsel's argument inconsistent with the facts, for which a reasonable 
explanation would be difficult to set forth. 
The record shows that on the same day the US citizen filed the Form 1-130 with the CIS New York office the 
beneficiary also concurrently filed his Form 1-485 adjustment of status application with the same CIS office. 
The application filed by the beneficiary included Form 1-485 and Form G-325. Form 1-485 is titled 
"Application to Register Permanent Residence or Adjust Status." It is doubtful that a signatory to this form 
would believe it to be a work permit application instead of an application for lawful permanent residence (i.e., 
in lay person's terms, the "greencard"). In Part 2 on the first page of Form 1-485, box b says "My spouse or 
parent applied for adjustment of status or was granted lawful permanent residence in an immigrant visa 
category which allows derivative status for spouses and children". When the form was given to the 
beneficiary for signature as alleged by counsel, that box should have reminded the beneficiary the application 
somehow related to marriage or a spouse. Additionally, despite listing a US citizen as his wife on Page 2 of 
the Form 1-485, the beneficiary signed his name to the form. 
Additionally on the one-page Form G-325 the US citizen's name as wife, date of marriage and place of 
marriage etc. clearly show on the same page above where the beneficiary needed to sign his name. The 
beneficiary could not have missed that before he signed the form. If the beneficiary as counsel alleged signed 
these forms as if they were a work permit application, then at least later when he was actually given an 
Page 4 
application for employment authorization and instructed to go to a CIS office, the beneficiary should have 
tried to find what the other forms he signed before were for and what they were based on. However, the 
beneficiary did not. Instead he went to the CIS office, got his work permit and became a recipient of 
immigration benefits from a fraudulent marriage. 
The record shows that on January 3, 1995 the CIS New York office issued an interview notice to the 
beneficiary for his adjustment of status; on February 7, 1995 the beneficiary went to CIS in person and was 
granted his work permit based on his marriage petition and related applications. Five months later, the 
beneficiary did not appear at his adjustment of status interview on July 24, 1995. Neither counsel nor the 
beneficiary explained why he did not attend his adjustment interview. Subsequently, on April 22, 1996 the 
beneficiary's Form 1-130 and Form 1-485 were terminated by CIS based on the beneficiary's failure to attend 
the interview and the beneficiary was granted voluntary departure until May 22, 1996. 
Counsel contends that the beneficiary never planned, anticipated, attempted or conspired to enter into any 
agreement in any way, shape or form, and therefore he withdrew the marriage-based petition and related 
applications once he discovered there was wrong doing on one hand, but on the other hand, she asserts that 
the first time the beneficiary knew there was a problem when he went to CIS to inquire about his EAD 
renewal on February 7, 1997. Counsel does not explain the reason for the lapse of time between the 
beneficiary learning on February 7, 1997 that immigration petitions and applications providing him with 
immigration benefits were fraudulently submitted to CIS on his behalf and withdrawing the application on 
June 16, 2003, six years later, which is also more than two years after the instant petitioner filed the labor 
certification application, five months after the labor certification application was approved and even two 
weeks after his 1-140 petition and a new adjustment of status application were filed with CIS. That delay does 
not support the proposition that the beneficiary did not attempt or conspire to obtain immigration benefits 
through marriage fraud. 
Counsel also claims that the beneficiary was swindled, relied upon the advice of someone who said he was an 
attorney and prepared paperwork and had him sign the paperwork. Counsel appears to claim ineffective 
assistance of counsel on appeal. However, any appeal or motion based upon a claim of ineffective assistance 
of counsel requires: 
(1) 
 that the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth 
in detail the agreement that was entered into with counsel with respect to the actions to be 
taken and what representations counsel did or did not make to the respondent in this regard, 
(2) 
 that counsel whose integrity or competence is being impugned be informed of the allegations 
leveled against him and be given an opportunity to respond, and 
(3) 
 that the appeal or motion reflect whether a complaint has been filed with appropriate 
disciplinary authorities with respect to any violation of counsel's ethical or legal 
responsibilities, and if not why not. 
Matter oflozada, 19 I&N Dec. 637 (BIA 1988), ard, 857 F.2d 10 (1" Cir. 1988). 
In the instant case, counsel's claim does not meet the requirements stated above. 
An independent review of the documentation in the record of proceeding presents substantial and probative 
Page 5 
evidence to support a reasonable inference that the prior marriage was a marriage fraud. The Form 1-130 and 
concurrently filed Form 1-485 were supported with a fraudulent marriage certificate. The beneficiary had 
obtained and continued to receive immigration benefits from the fraudulent marriage-based petition and 
related applications until an employment-based sponsor filed a petition on his behalf before he withdrew the 
prior application. There is ample evidence that the beneficiary conspired to evade the immigration laws by 
marrying US citizen and that fraud is documented in the alien's file. Thus, the director's determination that 
the beneficiary sought to be accorded an immediate relative or preference status as the spouse of a citizen of 
the United States by reason of a marriage determined by CIS to have been entered into for the purpose of 
evading the immigration laws is affirmed. 
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.