dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1305F- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 16, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant operator, seeks to employ the Beneficiary as a cook specializing in Indian 
cuisine. It requests his classification under the third-preference, immigrant category as a skilled 
worker. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ l 153(b)(3)(A)(i). This employment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status to work in a job requiring at least two years of 
training or employment experience. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate the Beneficiary's possession of the minimum experience required for 
the offered position and the requested classification. 
On appeal, the Petitioner submits additional evidence. The Petitioner asserts that, although the 
Beneficiary's prior employer did not place him on its payroll, the record demonstrates his full-time, 
qualifying experience for the offered position and requested classification. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, to permanently fill a 
position in the United States with a foreign worker, a prospective employer must 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 the United States lacks sufficient able, willing, 
qualified, and available workers for the offered position and that employment of a foreign national in 
the job will not harm the wages or working conditions of U.S. workers similarly employed. Id 
If DOL approves a position, an employer must next submit the labor certification with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. 
§ 1154. Among other things, USC IS determines whether a foreign national meets the requirements of 
the DOL-certified position and the requested immigrant classification. If USCIS grants a petition, a 
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Matter of l 305F- Corp. 
foreign national may finally apply abroad for an immigrant visa or, if eligible, for adjustment of status 
in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
11. THE REQUIRED EXPERIENCE 
As previously indicated, a skilled worker must have at least two years of training or experience. 
Section 203(b)(3)(A)(i) of the Act; 8 C.F.R. § 204.5(1)(2) (defining the term "skilled worker"). 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 labor certification states the minimum requirements of the offered position of Indian 
specialty cook as two years of experience in the job offered. The position does not require any 
education or training. Experience "in the job offered" means experience performing the primary duties 
of the offered position. See, e.g., Matter of Symbioun Techs., Inc., 2010-PER-01422, 4 (BALCA Oct. 
24, 2012). The labor certification states the job duties of this position as "[p ]repar[ing] and cook[ing] 
Indian style lunches, dinners and desserts." 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained more 
than two years of full-time, qualifying experience. He stated that he worked as an Indian specialty 
cook at another U.S. restaurant from October 2009 through December 2011. 
A petitioner must support claimed, qualifying experience with a letter from a beneficiary's former 
employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must provide the name, address, and title of the 
employer, and describe the beneficiary's experience. Id The Petitioner here submitted a letter from 
a general manager of the other restaurant where the Beneficiary claims to have worked. Consistent 
with the information on the labor certification, the letter states the Beneficiary's dates of employment 
as October 2009 through December 2011. The letter also states: "During his employment with us 
[the Beneficiary] prepared and cooked Indian food for banquet parties." 
The Director found the letter insufficient to establish the Beneficiary's qualifying experience. In a 
request for additional evidence (RFE), the Director noted that New York state authorities dissolved 
the other restaurant in 2011 and did not restore its corporate status until 2012. The 
Director therefore questioned whether the Beneficiary gained at least two years of experience by 
working for the restaurant beyond its 2011 dissolution date. The Director also found that the 
letter suggested the Beneficiary 's preparation of Indian food only for banquets, not on a regular basis. 
The Director therefore requested additional evidence of the Beneficiary's employment at the other 
restaurant regarding his hours and how often he prepared Indian food. 
1 This petition 's priority date is October 17, 2014, the date the DOL accepted the accompanying labor certification 
application for processing. See 8 C.F.R. § 204. 5(d) (explaining how to determine a petition 's priority date). 
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Matter of l 305F- Corp. 
The Petitioner's RFE response included documentation that the other restaurant continued doing 
business while dissolved and an affidavit from the Beneficiary stating his full-time employment by 
the restaurant as an Indian specialty cook. The Petitioner's president/owner also attested to the 
Beneficiary's full-time employment in the offered position, disclosing that the Petitioner's 
president/owner also owned the other restaurant. 
We agree with the Director's findings that, although the Petitioner demonstrated the other restaurant's 
business operations from July 2011 to August 2012, the Petitioner did not establish the other 
restaurant's full-time employment of the Beneficiary in the job offered for at least two years. The 
letter from the other restaurant's general manager appears to comply with 8 C.F.R. § 204.5(1)(3)(ii)(A). 
But the record casts doubt on the letter's authenticity. In support of a prior, unsuccessful petition for 
the Beneficiary, the Petitioner submitted a virtually identical letter of the same date from the same 
general manager. See Matter of 1-0-F-Corp., ID# 11835 (AAO Aug. 5, 2016). The stationery of the 
previously submitted letter, however, displays the other restaurant's name and address in a different 
font than the stationery of the most recently submitted letter. The discrepancy suggests that the 
restaurant did not issue both documents. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) 
(requiring a petitioner to resolve inconsistencies ofrecord pointing to where the truth lies). 
Also, the other restaurant's ownership by the Petitioner's president/owner casts additional doubt on 
the Beneficiary's claimed, qualifying experience. The president/owner and the Beneficiary have 
interests in this petition's approval. Thus, their affidavits stating the Beneficiary's prior, full-time 
employment in the offered position are biased. The other restaurant's general manager apparently 
worked for the Petitioner's president/owner. The general manager's letters may therefore also be 
prejudiced. The record lacks sufficient, independent, objective evidence of the Beneficiary's claimed, 
qualifying experience. 
On appeal, the Petitioner submits letters from two suppliers of the other restaurant. The letters state 
the Beneficiary's full-time work there as a cook from October 2009 to December 2011. The letters, 
however, have limited evidentiary value. Neither letter states the Beneficiary's regular preparation of 
Indian food. The letters are also dated almost seven years after the Beneficiary purportedly stopped 
working at the restaurant. The suppliers' abilities to accurately recall the Beneficiary and the details 
of his work are therefore questionable. The letters' contents also include identical phrases, suggesting 
that they do not reflect the personal knowledge of their signatories. 
The Petitioner asserts that we are demanding more evidence of the Beneficiary's qualifying experience 
than required under 8 C.F.R. § 204.5(g)(l). Like 8 C.F.R. § 204.5(1)(3)(ii)(A), § 204.5(g)(l) generally 
requires a petitioner to submit a letter from a beneficiary's former employer. If required evidence is 
suspect, however, we may seek additional proof. See Matter of Ho, 19 I&N Dec. at 591 (requiring a 
petitioner to resolve inconsistencies ofrecord by independent, objective evidence). Here, as discussed 
above, the Petitioner provided a letter from the Beneficiary's claimed former employer in a font 
different than that of a previously submitted letter of the same date. Because the discrepancy casts 
doubt on the letters' authenticity, we may seek additional evidence. 
The Petitioner also argues that the Beneficiary gained qualifying experience even though he lacked 
authorization to work at the other restaurant and received payment "under-the-table." See Matter of 
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Matter of l 305F- Corp. 
B&B Residential Facility, 2001-INA-00146, 4 (BALCA July 16, 2002) (holding that labor 
certification employers may rely on experience foreign nationals gained while working in avoidance 
of labor and tax laws). We agree. We do not discredit the Beneficiary's claimed, qualifying 
experience because of its unauthorized, under-the-table nature. Rather, we discredit it for lack of 
sufficient evidence. As the Board of Alien Labor Certification Appeals (BALCA) cautioned in B&B, 
off-the-books experience "may be difficult to document." Id BALCA recognized that, "in order to 
carry the burden of proof, the applicant will undoubtedly need to present credible supporting 
documentation of the work and/or corroborating affidavits or declarations of witnesses with personal 
knowledge." Id Thus, we do not object to the unauthorized nature of the Beneficiary's claimed 
qualifying experience; we simply find insufficient evidence of his qualifying experience. 
Finally, the Petitioner cites a precedent case of the U.S. Court of Appeals for the Second Circuit, which 
has jurisdiction over the geographic area ofintended employment in this matter. See Paul v. Gonzales, 
444 F.3d 148 (2d Cir. 2006). In Paul, the Second Circuit allowed a foreign national to proceed with 
an asylum claim based on a fear of future persecution, even though an Immigration Judge found that 
the alien did not credibly testify about past persecution in a prior claim. Id at 150. The Petitioner 
argues by analogy that doubt cast on certain evidence of the Beneficiary's qualifying experience 
should not undermine all of the proof 
Paul, however, explicitly limits its holding to applications for asylum and withholding of removal. Id 
at 154; see sections 208 & 24l(b)(3) of the Act, 8 U.S.C. §§ 1158, 123l(b)(3). The Second Circuit 
stated that "we now expressly hold, that, with respect to petitions for both asylum and withholding of 
removal, an applicant may prevail on a theory of future persecution despite an IJ' s adverse credibility 
ruling as to past persecution." Id (emphasis added). Paul therefore does not apply to this matter. 
Rather, we remain guided by Ho's holding that "[d]oubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition." Matter of Ho, 19 I&N Dec. at 591. In a case involving 
immigrant petition proceedings, the Second Circuit cited approvingly to Ho. See Risoli v. Nielsen, 
734 Fed.Appx. 61, 63 (2d Cir. 2018). Our analysis therefore agrees with Second Circuit case law. 
III. 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 for the reasons stated above, with each considered an independent and alternate ground of 
denial. A petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 
of the Act, 8 U.S.C. § 1361. Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of 1305F- Corp., ID# 3626059 (AAO Apr. 16, 2019) 
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