dismissed EB-3 Case: Dry Cleaning

Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 5 203(b)(3) of 
the Immigration and Nationality Act, 8 U.S.C. 5 1153(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 
Page 2 
DISCUSSION: The Director of the California Service Center denied the preference visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The director's decision will be affirmed. The 
petition will be denied. 
The petitioner is a drapery service. It seeks to employ the beneficiary permanently in the United States as a dry 
cleaner. As required by statute, a Form ETA 750, Application for Alien Employment Certification approved by 
the Department of Labor, accompanied the petition. The director determined that the petitioner had not established 
that the beneficiary was qualified for the proffered position and denied the petition accordingly. 
On appeal, counsel submits a brief and additional evidence. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(iii), provides for 
the granting of preference classification to other qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which 
qualified workers are not available in the United States. 
The issue to be discussed in this case is whether or not the petitioner established the beneficiary's qualifications for 
the proffered position. To be eligible for approval, a beneficiary must have the education and experience specified on 
the labor certification as of the petition's filing date, which is January 16, 1998. See Matter of Wing's Tea House, 
16 I&N Dec. 158 (Act. Reg. Comm. 1977). 
To determine whether a beneficiary is eligible for an employment based immigrant visa, Citizenship & Immigration 
Services (CIS) must examine whether the alien's credentials meet the requirements set forth in the labor certification. 
In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the labor certification to 
determine the required qualifications for the position. CIS may not ignore a term of the labor certification, nor 
may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. '401, 406 
(Cornm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 
F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 
198 1). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 14 and 15, set forth 
the minimum education, training, and experience that an applicant must have for the position of dry cleaner. In the 
instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education 
Grade School 6 
High School Blank 
College NIA 
College Degree Required NIA 
Major Field of Study NIA 
The applicant must also have one year of experience in the job offered, the duties of which are listed on Item 13 of the 
Form ETA 750A. Item 15 reflects that there are no special requirements. 
Page 3 
The beneficiary set forth his credentials on Form ETA-750B and signed his name under a declaration that the contents 
of the form are true and correct under the penalty of perjury. On Part 15, eliciting information of the beneficiary's 
work experience, he represent 
 ner from March 1993 to the date he signed the Form 
ETA 750B, and prior to that fo 
 in Federal District Mexico, Mexico from June 1984 to 
May 1989 listing some duties similar to the duties of the proffered position. 
With the initial petition, the petitioner submitted no evidence of the beneficiary's qualifications for the proffered 
position. Therefore, on June 2, 2003, the director requested evidence that the beneficiary had one year of qualifying 
employment experience either in letterform on the prior employer's letterhead showing the name and title of the 
person verifying the information that also states the beneficiary's title, duties, and dates of employment experience 
and number of hours worked per week, or through proof of a salary received through tax documentation or W-2 
forms. In response, the petitioner submitted a letter from the petitioner's owner and the beneficiary. The beneficiary 
stated that he could not contact his former employer but he worked for them "for approximately for year." The 
petitioner's representative stated that when the beneficiary was hired, he appeared to have experience. 
On February 4, 2004, the director issued a notice of intent to deny the instant petition. The director stated that the 
petitioner submitted falsified information and documentation from the beneficiary and failed to submit credible 
evidence of the beneficiary's qualifications. The director stated that the beneficiary represented that he worked 
for - for five years but in a letter submitted in response to the director's request for 
evidence stated that he worked there for approximately one year. Thus, the director determined that the 
representations and documentations concerning the beneficiary's alleged employment experience were falsified. 
In response, the petitioner's representative said that the beneficiary made a typographical error in his letter which 
was misread by the director since "for approximately for year" could be interpreted as "for a 
representative stated that since the beneficiary represented to work for 
1984 through May 1989, this "amounts to four years and months not the five years you 
are claiming it to be." 
On March 16,2004, the director contacted the American Consulate's Anti-Fraud Unit in Ciudad Juarez and requested 
an investigation of the beneficiary's claimed employment experience. On March 24, 2004, the fraud investigator 
stated that the beneficiary's prior employment was researched through Mexico's federal social security medical 
service (Institute Mexicano del Seeuro Social). which noted that the onlv em~lovment ex~erience on record for him 
L, , . 2 Ad 
was with 
 whose industry is warehouse tapestry. That agency's record had him working there from 
June 22, 1990 to July 23, 1990. The investigative report stated that "[nlo other employment record was found for [the 
beneficiary] and the only record for him indicates he never worked for a Dry Cleaner. FPU could not locate the 
telephone business in Mexico City." 
The director denied the petition on July 3, 2004, stating that the evidence in the record of proceeding was 
insufficient to establish that the beneficiary was qualified to perform the duties of the proffered position because 
there were inconsistencies in the information contained in the various evidentiary submissions and factual 
Page 4 
On appeal, counsel states that the director misinterpreted the beneficiary's statement, that he worked for - 
Dry Cleaning starting at the age of 15 and was paid cash so there would be no record of his employment there, and that 
common sense dictates that the petitioner would only hire an employee with exwrience. The petitioner submits a 
statement from the beneficiary in which he declares that he worked for for 
approximately four years, starting in June 1984 and ending in May 1989," that he knew he would not be hired by the 
petitioner without experience that he rnistyped the word "for" in his prior statement which should have been "four," 
and that he worked for Cleaning from the age of 15 and "[tlhere are no documents regarding my 
employment there, because they paid me only cash." 
The regulation at 8 C.F.R. 5 204.5(1)(3) provides: 
(ii) Other documentation- 
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(D) Other workers. 
 If the petition is for an unskilled (other worker), it must be 
accompanied by evidence that the alien meets any educational, training and experience, 
and other requirements of the labor certification. 
The AAO concurs with the director's findings and finds the evidence contained in the record of proceeding to lack 
credibility. All that the record of proceeding contains are unnotarized statements from the petitioner's representative, 
the beneficiary, and counsel's assertions on appeal. No corroborating evidence has been submitted to corroborate 
statements from any of those individuals. The declarations that have been provided on appeal and in response to 
the director's request for evidence and notice of intent to deny are not affidavits as they were not sworn to or 
affirmed by the declarant before an officer authorized to administer oaths or affirmations who has, having 
confirmed the declarant's identity, administered the requisite oath or affirmation. See Black's Law Dictionary 58 
(7th Ed., West 1999). Nor, in lieu of having been signed before an officer authorized to administer oaths or 
affirmations, do they contain the requisite statement, permitted by Federal law, that the signers, in signing the 
statements, certify the truth of the statements, under penalty of perjury. 28 U.S.C. 5 1746. Such unsworn 
statements made in support of a motion are not evidence and thus, as is the case with the arguments of counsel, 
are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Additionally, 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). 
An investigation was undertaken concerning the beneficiary's alleged employment in Mexico. -ry 
Cleaning was not found. The beneficiary's employment with a different business in a different industry was found 
Page 5 
with the nation's social security system. No evidence was submitted to show tha 
 ~ry Cleaning ever 
existed at all or to combat the overseas investigator's results. Counsel's, the petitioner's representative, and the 
beneficiary's explanation about the use of the 
 "for approximately for year" is not persuasive. 
The beneficiary represented that he worked for 
 ry Cleaning from June 1984 to May 1989, wluch is 
at a minimum interpreted as four years and 
 if he began at the beginning of June or ended 
at the end of May, but less likely to be construed as just four years. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) states: "Doubt 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 591-592 also states: "It is incumbent on the petitioner to resolve 
any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice." 
Because of the inconsistent factual representations contained in the record of proceeding and evidentiary submissions, 
and the lack of competent objective evidence that would reconcile those inconsistencies, the AAO affirms the 
director's determination that there is insufficient evidence to demonstrate that the beneficiary is qualified for the 
proffered position with one year of qualifying employment experience as delineated as a requirement on the ETA 
750A. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.