dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 30, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant. seeks to employ the Beneficiary as a chef It requests classification of the 
Beneficiary as a skilled worker under the third preference immigrant classification. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment­
based immigrant classification allows a U.S. employer to sponsor a foreign national for lawful 
permanent resident status to work in a position that requires at least two years of training or 
expenence. 
The petition was initially approved. Subsequently, the Acting Director of the Nebraska Service 
Center revoked the approval of the petition, concluding that the record of proceedings did not 
demonstrate that the Beneficiary possessed the experience required by the labor certification as of 
the priority date. The Director noted inconsistencies in the claimed work experience in the record 
and information provided on the Beneficiary's prior nonimmigrant visa application. In addition, the 
Director invalidated the labor certification, concluding that the Beneficiary willfully misrepresented 
his employment experience on the labor certification. 
On appeal, the Petitioner asserts that the Director's disclosure of derogatory information and the 
Petitioner's opportunity to respond, as well as the procedures followed by U.S. Citizenship and 
Immigration Services (USCIS), "did not comport with due process of law;" that the Beneficiary's 
failure to include employment experience on his prior nonimmigrant visa application was not a 
statement or misrepresentation; and that the preponderance of the evidence standard supports 
approval ofthe Petition.
1 
Upon de novo review, we will dismiss the appeal. 
1 
We decline the Petitioner's request for oral argument. 8 C.F.R. § 103.3(b). 
Matter of K- Corp. 
I. LAW 
A. The Employment-Based Immigration Process 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the U.S. Department of Labor (DOL). 2 See section 
212(a)(5)(A)(i) ofthe Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
offered position and that employing a foreign national in the position will not adversely affect the wages 
and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of 
the Act. Second, the employer tiles an immigrant visa petition with USCIS. See section 204 of the 
Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the foreign national applies 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. 
B. Revocation of a Petition's Approval 
After granting a petition, USCIS may revoke the petition's approval "at any time" for "good and 
sut1icient cause:· Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record, a director's 
realization that a petition was erroneously approved may justify revocation. Matter of Ho, 19 I&N 
Dec. 582. 590 (BlA 1988). 
Good and sut1icient cause exists to issue a notice of intent to revoke (NOIR) where the record at the 
time of the notice's issuance, if unexplained or unrebutted, would have warranted the petition's 
denial. Maller ofEstime, 19 I&N Dec. 450,451 (BIA 1987). Similarly, revocation is proper ifthe 
record at the time of the decision, including any explanation or rebuttal evidence provided by a 
petitioner, warranted a petition's denial. Id. at 452. 
II. THE BENEFICIARY'S EXPERIENCE 
The Director revoked the approval of the petition, concluding that the Petitioner did not establish 
that the Beneficiary possessed the experience required by the labor certification as of the priority 
date. 3 
) 
- The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
January 27.2014. See 8 C.F.R. § 204.5(d). 
3 The regulation at 8 C.F.R. § 205.2 states: 
(a) General. Any [USClS] officer authorized to approve a petition under section 204 of the Act may 
revoke the approval of that petition upon notice to the petitioner on any ground other than those 
specified in § 205.1 when the necessity for the revocation comes to the attention of [the USClS]. 
2 
.
Maller of K- Corp. 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date ofthe petition. 8 C.F.R. § 103.2(b)(l), (12); Matter of Wing's Tea 
House , 16 I&N Dec. 158, 159 (Acting Reg'! Comm'r 1977). In this case, the labor certification 
requires two years of experience in the job offered of chef or in a related occupation. The labor 
certification states that any suitable combination of education, training and/or experience is 
acceptable. 
The labor certification also states that the Beneficiary qualifies for the offered position based on 
experience as a full-time ( 40 hours per week) chef with Restaurant in Japan from May I, 
2005 , to June 30, 2009. Evidence relating to qualifying experience must be in the form of a letter 
from a current or former employer and must include the name, address, and title of the writer, and a 
specific description of the duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). The 
record contains a July 5, 2013, verification of employment from CEO of 
together with English translation, indicating that the Beneficiary worked 40 hours per 
week as a Japanese cuisine chef from May I, 2005 , to June 30, 2009. 
In a notice of intent to deny (NOID) and the NOIR, the Director notified the Petitioner of derogatory 
information regarding the Beneficiary ' s employment history. Specifically , the Director advised the 
Petitioner that the Beneficiary submitted an online nonimmigrant visa application indicating his prior 
employment history as a mechanic from December 2008 to December 2010 and prior to that as a 
rafting guide from June 2008 to November 2008. There was no indication that the Beneficiary had 
prior employment experience as a chef on his nonimmigrant visa application. The Director noted 
that the experience letter from Restaurant is in direct conflict with the nonimmigrant visa 
application. 
The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to 
where the truth lies. Malter ofHo , 19 I&N Dec . at 591-592. Unresolved material inconsistencies 
may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. /d. 
In response to the NOID, the Petitioner submitted an undated letter from 
together with English translation. It states that the Beneficiary was working for him from "2006 to 
2009. "4 This letter conflicts with the dates provided in his prior employment verification. and with 
the dates provided on the labor certification, which both assert that the Beneficiary worked at 
from 2005 to 2009. Therefore, the letter does not resolve the inconsistencies between the 
labor ce11ification and the Beneficiary ' s nonimmigrant visa application , and it does not verify the 
Beneficiary ' s listed employment on the labor certification. See id. Instead, it adds to the 
inconsistencies in the record. 
4 The letter from also states that the Beneficiary had other jobs while he worked for but 
does not indicate specifics regarding those other jobs. 
3 
.
Matter ofK- Corp. 
In response to the NOlO, the Petitioner also submitted photocopies of pictures of individuals 
standing outside of a building; a verification of the Beneficiary's part-time employment as a rafting 
guide with from May 16, 2007, to June 30, 2010 , together with English 
translation; 5 and photocopies of pictures of rafting groups. However, the letter concerning the 
Beneficiary 's experience as a rafting guide and pictures are not independent , objective evidence of 
the Beneficiary 's full-time employment at as a Japanese cuisine chef from May 1, 2005, 
to June 30, 2009. See id. 
In response to the NOIR, the Petitioner submitted a brief from counsel; and materials previously 
submitted in response to the NOID. The Director revoked the approval of the petition , concluding 
that the record did not demonstrate that the Beneficiary possessed the experience required by the 
labor certification as of the priority date . 
On appeal , the Petitioner asserts that the Director's disclosure of derogatory information and the 
Petitioner 's opportunity to respond, as well as the procedures followed by users, "did not comport 
with due process of law ." We disagree. We may review third party records to determine if they 
impact a petitioner 's or beneficiary's eligibility for the benefit being sought. If the information , as in 
this case, may result in an adverse decision , users is required to advise the petitioner of the 
derogatory information of which the petitioner is unaware and must provide the petitioner with an 
oppottunity to rebut the information before the decision is issued. 8 e.F.R. § 103.2(b)(l6)(i). USers 
is not required to provide a petitioner with an exhaustive list or documentation of the derogator y 
information as long as it advises the petitioner of that information and provides the petitioner with an 
opportunity to respond. See Hassan v. Chertldj ; 593 F.3d 785, 787 (9th eir. 2010) (concluding 8 
e.F.R. § 103.2(b)(16)(i) only requires the government to make a petitioner "aware" of the 
derogatory information used against him or her) ; Ogbolumani v. Napolitano, 557 F.3d 729, 735 (7th 
eir. 2009) (explaining that 8 C.F.R. § 1 03.2(b)(l6)(i) does not require USe IS to exhaustively list all 
information found regarding marriage fraud and NOID gave plaintiffs sufficient notice and 
opportunity to respond to derogatory information); Mangwiro v. Johnson , 554 Fed.Appx. 255, 261 
(5th eir. 2014) (concluding 8 C.F.R. § 103.2(b)(l6)(i) "does not require users to provide 
documentar y evidence of the [derogatory] information, but only sufficient information to allow the 
petitioners to rebut the allegations"); Diaz v. USCIS, 499 Fed.Appx. 853, 855-56 (11th Cir. 20 12) 
(concluding 8 C.F .R. § 103.2(b)(l6)(i) "only require[s] that a petitioner be advised of the derogatory 
information that will be used to deny the petition and be given the opportunity to respond"). 
In this case, the NOlO and NOlR provided the Petitioner with sufficient notice of the derogatory 
information , including the type of information (the Beneficiar y's representations regarding his prior 
5 The dates reported in the verification conflict with those provided on the Beneficiary·s online nonimmigrant visa 
application. This additional inconsistency raises concerns about the credibility of the evidence submitted. See id. 
Further, the veritication asserts that the work as a rafting g uide took place "[m]ainly on the weekend, and when in 
season." The record does not indicate what days and time periods that the Beneficiary worked at If he 
worked weekend days at during the rafting season, then he could not have been working as a rafting guide at 
the same time. 
4 
.
Maller of K- Corp. 
employment experience) and where the information originated (the Department of State). The 
Petitioner was afTorded the opportunity to rebut the derogatory information and provide additional 
evidence , as required by 8 C.F .R. § 103.2(b)(16)(i). 
While the Petitioner claims a violation of due process, there are no due process rights implicated in 
the adjudication of an immigrant petition. See Azizi v. Thornburgh , 908 F.2d 1130, 1134 (2d Cir. 
1990) (explaining that the Fifth Amendment protects against the deprivation of property rights 
granted to immigrants without due process; however, petitioners do not have an inherent property 
right in an immigrant visa). In addition , even where due process rights are implicated , an individual 
must show prejudice to establish a violation. See generally, Garcia- Villeda v. Mukasey , 531 F.3d 
141 , 149 (2d Cir. 2008). Here, prior to the revocation, the Petitioner was afforded two opportunities 
to rebut the derogatory information regarding the Beneficiary's prior employment experience, both 
in response to the NOID and in response to the NOIR. It also had the opportunity to rebut the 
derogatory information on appeal. 6 We have complied with 8 C.F.R. § 103.2(b)(l6)(i). See Hassan 
v. Chertojf, 593 F.3d at 789 (USCIS did not violate 8 C.F .R. § 103.2(b)(16)(i) or due process where 
applicant had notice of derogatory information and opportunity to respond); Diaz v. USCIS, 499 Fed. 
Appx. at 855-56 (USCIS did not violate U.S. citizen's due process rights in declining her request for 
a second interview as regulation only required agency to provide petitioner with notice of derogatory 
evidence and a rebuttal opportunity.). 
The Petitioner further asserts on appeal that the preponderance of the evidence standard supports 
approval of the petition. Except where a different standard is specified by law, a petitioner must 
prove eligibility for the requested immigration benefit by a preponderance of the evidence. Matter 
of Chawathe , 25 I&N Dec. 369 , 375-76 (AAO 201 0). Under the preponderance of the evidence 
standard, the evidence must demonstrate that the petitioner's claim is "probably true. " I d. at 3 76. 
We will examine each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to determine whether the fact to be 
proven is probably true. 
If a petitioner submits relevant , probative, and credible evidence that leads us to believe that the 
claim is "more likely than not" or "probably" true, it has satisfied the standard of proof. Here, the 
Petitioner has not established eligibility for the requested immigration benefit by a preponderance of 
the evidence . Specifically, the credibility of the letters verifying the Beneficiary 's employment with 
was diminished by the fact that the Beneficiary failed to list that employment on his 
online nonimmigrant visa application , by the Beneficiary's claimed experience as a rafting guide and 
mechanic during the same time period that he later claimed to have been employed as a chef, and by 
the inconsistent dates of employment listed on the undated letter provided in response to the NOID .7 
6 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 Skirba!l Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 20 12). 
7 The Petitioner asserts on appeal that the online nonimmigrant visa application did not require the Beneficiary to list his 
employment with However, the employment that he did list on the application conflicts with the 
employment listed on the labor certification, and the Petitioner has not resolved that conflict with independent, objective 
5 
.
Mauer of K- Corp. 
The Petitioner did not submit independent , objective evidence of the Beneficiary's full-time 
employment with to resolve the inconsistencies in the record, such a tax records, payroll 
records , paychecks , or other evidence verifying that employment. Therefore, the Petitioner has 
failed to establish by a preponderance of the evidence that the Beneficiary had two years of 
experience in the job offered of chef or in a related occupation as required by the labor certification. 
The petition's approval was properly revoked on this basis. 
III. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
AND INVALIDATION OF THE LABOR CERTIFICATION 
The Director also found that the Beneficiary willfully misrepresented his employment with 
Restaurant on the labor certification , and as such, he invalidated the labor certification. 
USCIS may invalidate a labor certification after its issuance upon a determination of "fraud or 
willful misrepresentation of a material fact involving the labor certification application." 20 C.F.R. 
§ 656.30(d).R 
A material issue in this case is whether the Beneficiary is qualified to perform the duties of the 
offered position. A misrepresentation made in connection with an application for a visa or other 
document or with entry into the United States, is material if either: (1) the beneficiary is excludable 
on the true facts, or (2) the misrepresentation tends to shut off a line of inquiry which is relevant to 
the beneficiary's eligibility and which might well have resulted in a proper determination that he be 
excluded. Matter o[S & B-C-, 9 I&N Dec. 436,447 (A.G. 1961). Accordingly, the materiality test 
has three parts. First, if the record shows that the beneficiary is inadmissible on the true facts, then 
the misrepresentation is material. !d. at 448. If the beneficiary would not be inadmissible on the 
true facts, then the second and third questions must be addressed. The second question is whether 
the misrepresentation shut off a line of inquiry relevant to the beneficiary's admissibility. Jd. Third, 
if the relevant line of inquiry has been cut off, then it must be determined whether the inquiry might 
have resulted in a proper determination that the beneficiary should have been excluded. ld. at 449. 
As discussed above , in light of the contradictory information presented and lack of corroborating 
documentation, we agree that the Beneficiary willfully misrepresented his full-time experience with 
on the labor certification. The listing of such experience misrepresented the 
Beneficiary ' s actual qualifications in a willful effort to procure a benefit ultimately leading to 
permanent residence under the Act. See Kungys v. US ... 485 U.S. 759 (1988). Here, the listing of 
false experience is a willful misrepresentation of the Beneficiary's qualifications that adversely 
evidence. 
8 The regulation at 20 C.F.R. ~ 656.30(d) provides, in part: 
(d) Invalidation of labor certifications. After issuance, a labor certification may be revoked by ETA 
using the procedures described in Sec. 656.32 . Additionally, after issuance, a labor certification is 
subject to invalidation by the DHS or by a Consul of the Department of State upon a determination, 
made in accordance with those agencies' procedures or by a court, of rraud or willful misrepresentation 
of a material fact involving the labor certification application. 
Matter ofK- Corp. 
impacted DOL's adjudication of the labor certification and USCIS's immigrant petition analysis. 
We therefore affirm the Director's finding that the Beneficiary willfully misrepresented a material 
fact on the labor certification. 
On appeal, the Petitioner asserts that the Beneficiary's failure to include employment experience on 
the nonimmigrant visa application was not a statement or misrepresentation. The Petitioner cites 
Rule 613 of the Federal Rules of Evidence in support of this assertion. Rule 1101 of the Federal 
Rules of Evidence indicates that those rules apply to proceedings before the U.S. federal courts. The 
Petitioner has not provided any legal support showing that they also apply to administrative 
proceedings such as this one. 9 
Due to the Beneficiary's 10 willful misrepresentation of a material fact involving the labor 
certification application, we also affirm the Director's invalidation of the labor certification. See 20 
C.F.R. § 656.3l(d). 
IV. CONCLUSION 
We find that the Director properly revoked the approval of the petition because the Petitioner did not 
establish that the Beneficiary possessed the experience required by the labor certification as of the 
priority date. We further conclude that the Director properly determined that the Beneficiary 
willfully misrepresented his prior work experience, and that the Director properly invalidated the 
labor certification. 
ORDER: The appeal is dismissed. 
Cite as Matter olK- Corp., 10# 1181246 (AAO Apr. 30, 2018) 
9 The Petitioner also cites Rule 80 I of the Federal Rules of Evidence on appeal, but has not shown how it applies to these 
administrative proceedings. 
10 Section 212(a)(6)(C) of the Act. 8 U.S.C. ~ 1182(a)(6)(C)(i), states that "[a]ny alien, who by fraud or willfully 
misrepresenting a material fact, seeks (or has sought to procure, or who has procured) a visa, other documentation, or 
admission to the United States or other benefit provided under the Act is inadmissible." On appeal, the Petitioner asserts 
that the allegations of misrepresentation are directed at the Petitioner. We disagree.