dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 19445649 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 10, 2022 
The Petitioner, a restaurant, seeks to employ the Beneficiary as a cook. It requests classification of 
the Beneficiary 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. § 1153(b)(3)(A)(i). This employment­
based category allows a U.S. business to sponsor a foreign national for lawful permanent resident 
status based on a job offer requiring at least two years of training or experience . 
The Director of the Texas Service Center denied the petition , concluding that the Petitioner did not 
demonstrate the Beneficiary's possession of the minimum experience required for the offered position. 
The Director also found that the Petitioner willfully misrepresented the Beneficiary's experience , a 
material fact. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S .C. § 1361; Matter ofChawathe , 25 I&N 
Dec. 369, 375 (AAO 2010). The AAO reviews the questions in this matter de nova. See Matter of 
Christa 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will dismiss the 
appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S . Department of Labor (DOL) . See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position , an employer must next submit the certified labor application with an 
immigrant visa petition to U.S . Citizenship and Immigration Services (USCIS) . See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things , USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification . If USCIS approves 
the petition, a foreign national may finally 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. THE BENEFICIARY'S QUALFIYING EXPERIENCE 
A skilled worker must be capable of "performing skilled labor (requiring at least 2 years training or 
experience)." Section 203(b)(3)(A)(i) of the Act. A petitioner must 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 the "DOL bears the authority for setting the content of the labor 
certification") ( emphasis in original). 
The accompanying labor certification states that the offered position requires a high school, or foreign 
equivalent, diploma and 24 months of experience "in the job offered." The labor certification states 
that the Petitioner will not accept experience in an alternate occupation. The duties and required skills 
for the offered position of cook are stated as, "Prepare, season, cook Kosher and Asian dishes, 
including appetizers, soups, salads, seafood, and meats. Assist Restaurant Manager with requisitions 
of fresh ingredients and supplies. Assist management and executive chef in the planning of menus." 
(Emphasis added). 
On the labor certification, the Petitioner asserts that the Beneficiary's highest level of education 
required for the job opportunity is high school and states that he completed his culinary education at 
I in Israel in 2001. The Petitioner also asserts that the Beneficiary gained the 
following experience in Israel: 
• As an executive chef from August 5, 2016 to February 3, 2018 withl As an _ 
• As an executive chef from July 24, 2015 to July 24, 2016 with and, 
• As an executive chef from July 10, 2011 to July 22, 2015 with I 
The initial evidence submitted with the petition included the following: 
• A confirmation of raduation certificate verifying the Beneficiary's graduation 
fro School in Israel 1996; 
• Letters from the Hospitality Training School verifying the 
Beneficiary's attendance from January 25, 2004 to September 14, 2004 and his 
completion of "a pastry, baking and conditory course"; 2 
• A letter dated February 11, 2018 onl !letterhead verifying the 
Beneficiary's employment as an executive chef from January 1, 2017 to February 
3, 2018, "including cooking manager of Asian style dishes and Kosher dishes"; 
1 This petition's priority date is October 3, 2018, the date the DOL accepted the accompanying labor ce1iification 
application for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
2 We note that neither the Beneficiary's 1996 graduation froml I School nor the 2004 completion 
of a culinary course supports the Petitioner's claim on the labor ce1iification that the Beneficiary completed "culinary 
education" in 2001. The Petitioner must resolve this inconsistency with any further filings. 
2 
• An undated letter on I I letterhead verifying the Beneficiary's 
employment from July 2011 to July 2015, "cooking for 1300 people in avein average 
every day in different sorts of functions and Koshers, such as I I I _andl I Israel"; and, 
• An undated certificate stating the Beneficiary's membership in the Israeli Chef and 
Cook Association. 
Neither experience letter identifies the Beneficiary's employment as full-time, and only the letter from 
I !describes the Beneficiary's experience with cooking Asian dishes. Further, the 
employment listed on the labor certification and in the letter from I describes the 
Beneficiary's job title as executive chef rather than in the offered position of cook. 3 
The Director sent the Petitioner a Request for Evidence (RFE) informing the Petitioner that the 
Beneficiary's claimed employment was inconsistent with a nonimmigrant visa application he 
submitted in November 2013. In his prior nonimmigrant visa application, the Beneficiary listed his 
present occupation as chef with I in Israel and answered "No" when asked whether he 
was previously employed. The Director identified additional inconsistencies regarding the 
Beneficiary's claimed employment with ______ noting that the labor certification listed 
his employment start date as August 5, 2016, while the letter listed the start date as January 1, 2017. 
See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies by independent, 
objective evidence pointing to where the truth lies). Unresolved material inconsistencies may lead us 
to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. Id. 
In response to the RFE, the Petitioner stated that the employment verification letters incorrectly listed 
the Beneficiary's dates of employment and the Beneficiary's nonimmigrant visa application instead 
reflected the correct information. The Petitioner explained that it relied on the incorrect dates in the 
employment letters in preparing the labor certification and it provided revised letters with revised dates 
of employment. The revised letter from I I dated January 27, 2020, stated the 
Beneficiary's employment as executive chef from March 2, 2014 to January 15, 2015 (approximately 
10 months). The dates of the revised letter show the Beneficiary's start date as almost three years later 
than initially submitted. The letter also states additional employment withl from May 1, 2015 
to May 7, 2015 (six days). A revised letter froml I (doing business asl I 
I I, undated, stated the Beneficiary's employment as executive chef from May 8, 2016 to July 24, 
2016 (approximately 2.5 months), and from August 17, 2016 to February 3, 2018 (approximately 17.5 
months). The Petitioner also submitted pay records and a record of the Beneficiary's employment 
history from thel I- Social Security Agency in support of 
3 On the labor certification the DOL assigned Standard Occupational Classification (SOC) code of the offered position is 
35-2014.00 with the occupation title of cook. The DOL's occupational codes are assigned based on normalized 
occupational standards. The occupational classification of the offered position is determined by the DOL during the labor 
certification process, and the applicable occupational classification code is noted on the labor certification form. O*NET is 
the current occupational classification system used by the DOL. Located online athttp://online.onetcenter.org, O*NET is 
described as "the nation's primary source of occupational information, providing comprehensive information on key 
attributes and characteristics of workers and occupations." We note that O*NET includes a separate entry and code for a 
chef under 35-1011.00 with job duties different than those listed for a cook under SOC 35-2014.00. 
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these revised employment dates. The revised letters and additional evidence do not identify the 
Beneficiary's employment as foll-time. 
After reviewing the Petitioner's response to the RFE, the Director noted additional inconsistencies in 
the Beneficiary's employment details. The Director issued a Notice of Intent to Deny (NOID) the 
petition, informing the Petitioner that it intended to enter a finding of willful misrepresentation of a 
material fact against it based on its claim that the Beneficiary gained qualifying experience with I I I and I I The Director found that neither of the revised letters included an 
explanation of why the incorrect dates were used in the original letters and why the revised dates 
varied so significantly. Further, he noted that the dates in the revised letters were not supported by the 
pay records, which listed yet another set of employment dates for bothl I and I 
I I 
The Director also noted additional discrepancies in the business names of the claimed former 
employers as listed on the labor certification, in the letters and in the pay and social security records. 
Specifically the Director noted the following: 
• The employment letter and labor certification list the Beneficiary's employer as 
while the pay and social security records list the business name as 
I . ,, 
• The labor certification lists the Beneficiary's employment with I C=1 while the employment letter references I I doing business 
asl I and the pay and social security records reference only 
I 
• The labor certification lists the Beneficiary's employment withl but 
no supporting employment letter from this employer was submitted, and the dates 
of employment with_ I as listed on the social security records (four 
months, from February 1, 2016 to May 31, 2016) conflict with the dates on the 
labor certification (one year, from July 24, 2015 to July 24, 2016). 
Thus, the Director concluded that the record lacked sufficient reliable evidence of the Beneficiary's 
qualifying experience for the offered position or the requested visa classification. 
The Petitioner provided a response to the NOID. To clarify the business names, the Petitioner provided 
evidence that some of the Beneficiary's former employers operated under fictitious names and were 
part of a family of companies. The Petitioner also submitted copies of the social media pages for 
dated June 2016 which included pictures of the Beneficiary preparing food, as well as 
additional pay records for the Beneficiary's employment withl andl I 
The Director concluded that the Petitioner did not submit sufficient independent objective evidence to 
resolve all the inconsistencies and verify the Beneficiary's qualifying employment, and to establish 
that he met all of the requirements stated on the labor certification as of the October 3, 2018 priority 
date. The Director also found that the Petitioner willfully misrepresented the Beneficiary's qualifying 
employment on the labor certification, a material fact. 
4 
On appeal, the Petitioner submits a brief from counsel, a statement from the Beneficiary's spouse 
detailing his employment history, and evidence previously in the record. The Petitioner asserts that 
the Beneficiary was qualified for the offered position as of the priority date, with "over 10 years of 
experience with Kosher and Asian-style cooking." The Petitioner also asserts that any 
misrepresentation of the Beneficiary's qualifying experience was not knowing or intentional, and was 
not material, as there was no benefit gained in presenting "any false facts." 
As noted above, the labor certification specifies that the Petitioner will not accept experience in a 
related occupation. Experience "in the job offered" means experience "performing the key duties of 
the job opportunity." Matter of Symbioun Techs., Inc., 2010-PER-01422, slip op. at 4 (BALCA Oct. 
24, 2011) (citations omitted). A key job duty, as stated on the labor certification, is to "[p]repare, 
season, cook Kosher and Asian dishes." (Emphasis added). Therefore, experience in the job offered 
of cook must include the key job duties of preparing both Kosher and Asian food. 
In support of claimed qualifying experience, a petitioner must submit a letter from a beneficiary's 
former employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must state the employer's name, title, and 
address, and "a description of ... the experience of the alien." Id. If such a letter is unavailable, 
USCIS will consider other evidence of a beneficiary's experience. 8 C.F .R. § 204.5(g)(l ). 
In adjudicating immigration benefit requests, USCIS regularly reviews affidavits, testimonials, and 
letters from both laypersons and recognized experts. To be probative, a document must generally 
provide: (1) the nature of the affiant's relationship, if any, to the affected party; (2) the basis of the 
affiant's knowledge; and (3) a specific - rather than merely conclusory - statement of the asserted facts 
based on the affiant's personal knowledge. Matter of Chin, 14 I&N Dec. 150, 152 (BIA 1972); see 
also 8 C.F .R. § 103 .2(b )(2)(i) (requiring affidavits in lieu of unavailable required evidence from 
"persons who are not parties to the petition who have direct personal knowledge of the event and 
circumstances"); Matter of Kwan, 14 I&N Dec. 175, 176-77 (BIA 1972); Iyamba v. INS, 244 F.3d 
606,608 (8th Cir. 2001); Dabaase v. INS, 627 F.2d 117, 119 (8th Cir. 1980). A petitioner may submit 
a letter or affidavit that contains hearsay or biased information, but such factors will affect the weight 
to be accorded the evidence in an administrative proceeding. See Matter of D-R-, 25 I&N Dec. 445, 
461 (BIA 2011) ( citations omitted). Probative evidence beyond a letter or affidavit may be considered 
when submitted to resolve inconsistencies or discrepancies in the record. See Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). Ultimately, to determine whether a petitioner has established eligibility 
for a requested benefit by a preponderance of the evidence, USCIS must examine each piece of 
evidence - both individually and within the context of the entire record - for relevance, probative value, 
and credibility. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Here, the record includes four letters from two previous employers, multiple pay records, and a record 
of employment history from a government agency in attempt to support the Beneficiary's claim of 24 
months of qualifying experience. Although pay and employment history records constitute 
independent, objective evidence of the Beneficiary's dates of employment, these records do not 
demonstrate the Beneficiary's job duties in these positions. Further, we note that the dates in the social 
security records are not consistent with the claimed dates in the revised employment letters, and the 
social security records show overlapping employment during some periods, casting doubt as to 
whether the Beneficiary's employment with each employer was full-time. None of the letters address 
whether the employment was full-time or part-time either. Therefore, we must look at the totality of 
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the evidence to determine whether the Petitioner has established that the Beneficiary met the minimum 
requirements for the offered position. 
The revised employment letter and the pay and employment history records corroborate the 
Beneficiary's claim of employment withl I although the dates of employment are listed 
inconsistently in these documents and this remains unresolved. Additionally, none of the evidence in 
the record demonstrates that the Beneficiary's employment withl I was full-time. 
Accordingly, we are unable to determine his total amount of employment with this employer. Also, 
the letters froml I do not support the Beneficiary's claim of experience in the offered job, 
as neither letter describes his experience cooking Asian dishes. 
Although the employment letters froml I describe the Beneficiary's experience 
cooking Asian dishes, the pay and employment history records do not resolve the inconsistencies in 
the Beneficiary's dates of employment or demonstrate that his employment was full-time. The pay 
and employment history records state the Beneficiary's employment as May 8, 2016 to February 3, 
2018 (approximately 21 months if full-time experience). However, the revised employment letter 
from lstates two periods of employment as May 8, 2016 to July 24, 2016, and 
August 17, 2016 to February 3, 2018 (approximately 20 months, 17 days if full-time experience). 4 A 
petitioner must resolve inconsistencies by independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. at 591. Despite the inconsistency, none of the documentation in the 
record demonstrates that the Beneficiary was employed for at least 24 months full-time with 
I I the only employment in which the Beneficiary claims experience in cooking Asian 
dishes. 5 
It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Sldrball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). As 
the inconsistencies in the record have not been resolved, the Petitioner has not established with 
independent, objective evidence that the Beneficiary possesses the required 24 months of experience 
"in the job offered," specifically "prepar[ing], season[ing], cook[ing] Kosher and Asian dishes" as 
required by the labor certification. Therefore , the appeal is dismissed on this basis. 
III. WILFULL MISREPRESENTATION OF A MATERIAL FACT 
To find a willful and material misrepresentation of fact an immigration officer must determine that (1) 
the petitioner or beneficiary made a false representation to an authorized official of the U.S. 
government, (2) the misrepresentation was willfully made, and (3) the fact misrepresented was 
material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N Dec. 288, 
289 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy and 
Goodchild, 17 I&N Dec . 22, 28 (BIA 1979). A "materia l" misrepresentation is one that "tends to shut 
4 The statement from the Beneficiary 's spouse submitted on appeal lists the same dates of employment with __ 
as the revised employment letter, which remain inconsistent with the pay and employment history records. 
5 We further note that the employment history record reflects that the Beneficiary had employment with another restaurant 
in May 2016 and still another restaurant in August 2016. This overlapping employment casts doubt on the Petitioner's 
claim of full-time employment withl (70hours per week, as listed on the labor certification) during 
these months. 
6 
off a line of inquiry relevant to the alien's eligibility." Matter of Ng, 17 I&N Dec. 536, 537 (BIA 
1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa petition 
proceedings, they must determine: 1) that the petitioner or beneficiary made a false representation to 
an authorized official of the United States government; 2) that the misrepresentation was willfully 
made; and, 3) that the fact misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 
1954); Matter ofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter of Kai Hing Hui, 15 I&N Dec. at 288. 
Here, the Director found that the Petitioner willfully misrepresented the Beneficiary's 
qualifying experience on the labor certification, and that the Petitioner, in signing the labor 
certification , took responsibility for the truth and accuracy of any evidence submitted in support of the 
petition. 
As noted above, the Petitioner listed incorrect dates of employment for the Beneficiary's claimed 
experience on the labor certification . The incorrect dates were material to whether he qualified for 
the offered position. Although we agree with the Director that a petitioner's signature on the labor 
certification is an attestation, under penalty of perjury, that its contents are true and correct, we do not 
find that the Petitioner willfully misrepresented a material fact in the instant case. Therefore, we will 
withdraw the Director's finding of willful misrepresentation against the Petitioner. 
IV. CONCLUSION 
The record does not support the Director's finding of willful misrepresentation against the Petitioner 
and this finding is withdrawn. However, for the reasons discussed above, we conclude that the record 
includes inconsistencies with respect to the Beneficiary's claimed employment history and the 
Petitioner has not met its burden in resolving those inconsistencies. The Petitioner did not establish 
that the Beneficiary met the minimum requirements for the offered position or the requested visa 
classification. 
ORDER: The appeal is dismissed. 
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