dismissed EB-3 Case: Culinary Arts

U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. 8 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
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, Director 
Administrative Appeals Office 
DISCUSSION: The immigrant visa petition was denied by the Director, Vermont Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The petition will be summarily dismissed. 
The petitioner is a hotellrestaurant. It seeks to employ the beneficiary permanently in the United States as a 
cook. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien 
Employment Certification, approved by the U. S. Department of Labor. On January 5, 2004, the director 
denied the petition based upon the determination of the United States Citizenship and Immigration Services 
(CIS) that the beneficiary is ineligible for the classification sought based on the beneficiary's fraudulent 
marriage to a United States citizen and denied the petition pursuant to section 204(c) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1 154(c). 
On appeal, counsel submits no brief and no additional evidence. 
Counsel submitted a Form I-290B appeal in this matter. In the section reserved for the basis of the appeal, 
counsel states that. 
The Center Director arbitrarily denied the 1-140 petition filed by the Bernards Inn 
without frrst issuing an intent to deny and affording both the petitioner and the 
beneficiary an opportunity to respond and to submit rebuttal evidence.' Therefore, the 
denial should be vacated and remanded for further consideration. 
As is evident from the above statement upon appeal, the petitioner and the beneficiary have not 
explicitly denied the finding of the director that the beneficiary entered into a fraudulent marriage to a 
United States citizen. 
The Section 204(c) of the Act states: 
Notwithstanding the provisions of subsection (b) no petition shall be approved if 
(1) the alien has previously been accorded, or has sought to be accorded, an 
immediate relative or preference status as the spouse of a citizen of the United 
States 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 the 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 the immigration laws. 
1 
 There is no regulatory requirement for CIS to issue such a request. When petitions on their face, 
do or do not demonstrate eligibility for the preference visa classification sought, the director may 
review and act upon the petition as submitted. See CIS Interoffice Memorandum (HQOPRD 
90116.45) dated May 4, 2004. In this instance, the validity of the beneficiary's marriage to a United 
States citizen was the subject of a prior employment based preference visa process in which the 
beneficiary was apprised of the prior investigative findings leading to the denial of the petition. The 
prior marriage based petition was denied according to the regulation 8 C.F.R. 204.2(a)(l)(ii). 
Further, as this present appeal demonstrates, the petitioner may introduce additional evidence and 
introduce case precedent in support of its position in a de novo review. 
Page 3 
The regulation 8 C.F.R. fj 204.2(a)(l)(ii) states in pertinent part: 
Fraudulent marriage prohibition. Section 1040 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 immigrant visa classification filed on behalf of any alien whom 
there is substantial and probative evidence of such an attempt or conspiracy, 
regardless of whether that alien received a benefit through the 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. 
Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990) involved a case in which the a determination was made by 
CIS that the beneficiary's prior marriage came within the purview of Section 204(c) of the Act. According to 
Tawfik the director must reach an independent conclusion of marriage fraud and that relevant evidence may 
be relied upon which can be prior CIS proceedings that involve the beneficiary and the prior marriage. The 
beneficiary in a separate proceeding involving a marriage based petition was found to have entered into a 
sham marriage within the ambit of section 204(c) of the Act. That information is contained within the record 
of proceeding in this matter and it was available to the director in making his present determination. 
Further, the present employment based immigrant petition proceeding is the second such petition by the same 
petitioner for the subject beneficiary. The first employment based immigrant petition (reference file receipt 
number EAC 00 002 52798) was approved on May 16,2000. It was found that the beneficiary had failed to 
disclose a marriage based petition filed by the beneficiary's putative United States citizen spouse on 
1995. In that proceeding it was found by CIS that the beneficiary (reference Alien number A 
diiihk ad divorced his United States citizen wife, and then remarried his first wife. The marriage 
based petition was denied. 
Therefore, a decision to revoke the approved employment based immigrant petition was issued October 2, 
2001, based upon the finding that the beneficiary entered into a marriage for the purposes of evading the 
immigration laws. The petitioner appealed the revocation, which appeal was dismissed on September 19, 
2002. 
All the above mentioned petition proceedings information is contained within the record of proceeding in this 
matter and it was available to the director in making his present determination. 
The beneficiary is ineligible for the classification sought based on the beneficiary's fraudulent marriage to a 
United States citizen and denied the petition pursuant to section 204(c) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. fj 1154(c). 
Counsel's statement on appeal contains no specific assignment of error. Allegng that the director erred in some 
unspecified way is an insufficient basis for an appeal. 
8 C.F.R. 3 103,3(a)(l)(v) states, in pertinent part: "An officer to whom an appeal is taken shall summarily 
dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal." 
Page 4 
Counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact as a basis for the 
appeal and the appeal must be summarily dismissed. 
ORDER: The petition is summarily dismissed.