dismissed EB-3 Case: Food Service

U.S. Department of tiomeland Security 
20 Mass. Ave.. N.W.. Rm. A3042 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: CALIFORNIA SERVICE CENTER me: MAY 1 6 2006 
WAC-03-2 1 1-53282 
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. 5 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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. 
~ob'ert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner processes produce. It seeks to employ the beneficiary permanently in the United States as a 
food service manager. As required by statute, the petition is accompanied by a Form ETA 750, Application 
for Alien Employment Certification, approved by the Department of Labor. The director determined that the 
petitioner had not established that the beneficiary is qualified to perform the duties of the proffered position 
with two years of qualifying employment experience. The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's November 29, 2004 denial, the single issue in this case is whether or not the 
petitioner has demonstrated that the beneficiary is qualified to perform the duties of the proffered position. 
The director noted inconsistencies in information pertaining the beneficiary's employment experience and 
found it doubtful that the beneficiary could engage in a supervisory capacity at the age of fourteen. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. 
The petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form 
ETA 750 Application for Alien Employment Certification as certified by the U.S. Department of Labor and 
submitted with the instant petition. Matter of Wing's Tea Home, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). 
Here, the Form ETA 750 was accepted on April 24,2001. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal1. On appeal, 
counsel submits notarized affidavits, reports on child labor in Mexico, and translated documents pertaining to 
the beneficiary's educational achievements. Including the evidence submitted on appeal, other relevant 
evidence in the record includes a letter from the beneficiary's prior employer. The record does not contain 
any other evidence relevant to the beneficiary's qualifications. 
On appeal, counsel asserts that it is common for children to work from the age of ten onwards, especially in 
rural communities in agricultural industries, and the beneficiary was exceptional since he worked since ten, 
was promoted to a supervisory capacity at the age of fourteen, and worked full-time while attending an 
agricultural technical school. 
' The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
To determine whether a beneficiary is eligible for an employment based immigrant visa, Citizenship and 
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. 40 1, 406 (Comm. 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 Infia-Red Commissary of 
Massachusetts, Inc. v. Coomey, 66 1 F.2d 1 (I st 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 food service 
manager. In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education 
Grade School NA 
High School NA 
College NA 
College Degree Required Not Applicable 
Major Field of Study Not Applicable 
The applicant must also have two years of experience in the job offered, the duties of which are delineated at Item 
13 of the Form ETA 750A and since this is a public record, will not be recited in this decision. Item 15 of Form 
ETA 750A does not reflect any special requirements. 
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 represented that he has been self-employed working various jobs since June 
1989. Prior to that, he represented that Empocadora Dunort, a produce processor in Hidalgo, Durango, Mexico, 
employed him as a supervisor of six employees from June 1986 through June 1988. He does not provide any 
additional information concerning his employment background on that form. 
The record of proceeding also contains a Form G-325, Biographic Information sheet submitted in connection with 
the beneficiary's application to adjust status to lawful permanent resident status. On that form under a section 
eliciting information about the beneficiary's last occupation abroad, he represented that he worked as a 
production supervisor for Empocadora Dunort from June 1986 through June 1988 above a warning for knowingly 
and willfully falsifying or concealing a material fact. 
With the petition, the petitioner submitted a letter fro 
Dunort letterhead stating that he supervised the ben 
supervisor from June 1986 to June 19 
 rd of proceeding also contains another letter from 
this time spelling his name as 
 stating that it is not unusual for children to work earl to 
help 
 their families and that there *bor laws to prevent children from working. 
further stated that the beneficiary commenced employment in their production department at the age of twelve 
"and because of his leadership, in spite of his age, when opportunity arose we did not hesitate to promote him to 
Supervisor." 
Page 4 
Municipality of Hidalgo, State of Durango, who states that because their principal economic activity is seasonal 
agriculture and ranching, they "find ourselves with the necessity to occupy ourselves from a young age (10 years 
old) in working in these and other legal activities to contribute to the family sustenance, receiving salaries which 
are very much lower than those established by law." Additionally, counsel submits declarations from three other 
residents of Hidalgo who state their general knowledge that children often work in Hidalgo and two declarations 
from supervisors of Empocadora Dunort who state their knowledge that the beneficiary worked as chief of 
production from 1986 to 1988 at that business. 
On appeal, counsel also submits an Internet article authored by David Bacon asserting that in the Mexican 
countryside, child labor is growing and school attendance is declining and parents often bring their children 
with them to work, and an excerpt from "Child Labor in Agriculture" from http://www.ericdigests.org/1997- 
4llabor.htm highlighting that despite the Fair Labor Standards Act in the United States, children often work 
alongside their parents on their parents' farms or generally in hazardous jobs within agriculture. Counsel 
submits translated certificates reflecting that the beneficiary completed secondary education on June 30, 1988 
and sixth grade in June 1985. In her appellate brief, counsel stated that he worked and attended school full- 
time, "working from 7 a.m[.] to 3 p.m. and attending classes in the late afternoons and early evenings." 
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. 
(B) Skilled workers. 
 If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
The AAO accessed the U.S. State Department's "Country Reports on Human Rights Practices - m' 
released by the Bureau of Democracy, Human Rights, and Labor on 
March 8, 2006. Its excerpt pertaining to child labor stated the following: 
Child labor was a problem, particularly among migrant farming families (see section 6.d.). 
Prohibition of Child Labor and Minimum Age for Employment 
The law protects children from exploitation in the workplace, including a prohibition on 
forced or compulsory labor; however, the government did not effectively enforce such 
prohibitions. The law prohibits children under age 14 from working, and those between age 
14 and 16 may work only limited hours with parental permission, with no night or hazardous 
Page 5 
work. UNICEF reported that 16 percent of children age 5 to 14 were involved in child labor 
activities. 
The Secretariat of Labor (STPS) is charged with protecting worker rights. Government 
enforcement was reasonably effective at large and medium-sized companies, especially in the 
maquila and other industries under federal jurisdiction. Enforcement was inadequate at many 
small companies and in the agriculture and construction sectors, and it was nearly absent in 
the informal sector in which most children work. 
During the year STPS, the Secretariat of Social Development, and DIF carried out programs 
to prevent child labor abuses and promote child labor rights, including specific efforts to 
combat the commercial sexual exploitation of children (see section 5). UNICEF stated that, 
despite the government's progress in reducing its incidence over the past 10 years, child labor 
remained a significant problem. 
See http://www.state.gov/g/drVrls/hrrpt/2OO5/62736.htm (accessed May 4,2006). 
While the AAO finds it plausible that the beneficiary was employed as a child based on the U.S. State 
Department report, it is not plausible that the beneficiary worked in a supervisory capacity as a child. 
Moreover, the record does not address the issue of children working in a supervisory context. Counsel's 
submission states that children work to contribute to their family's overall income and work alongside 
parents. The appellate submissions speak about child labor generally and not about the beneficiary 
specifically. Thus, despite the labor law violations and unlawful exploitation of children, it seems it would be 
unusual for a child to be so independent to rise to a supervisor by the age of fourteen instead of assuming a 
more ancillary role to acquire more resources for the family. 
Additionally, there are too many inconsistent representations to ignore in this case. 
 Despite counsel's 
appellate assertion that CIS may not concern itself with the beneficiary's failure to represent his employment 
with Empocadora Dunort as a regular worker prior to his promotion to supervisor, the AAO finds the 
omission disingenuous. The beneficiary represented on two different forms his employment at Empocadora 
Dunort was from 1986 onwards not 1984. Additionally, the experience letters submitted into the record of 
roceedin only mention the beneficiary's employment as a supervisor, and with the exception of 
-1 letter in response to a notice of intent to deny, fail to detail the beneficiary's commencement of 
employment in a lower-level capacity and rise to managerial status. 
Additionally, counsel states that the beneficiary worked from 7:00 a.m. until 3:00 p.m. and then attended 
school2.   ow ever, first letter stated that he worked from 9:00 a.m. to 5:00 p.m. Under Item 
11 on the Form ETA 750B, the beneficiary did not list any schools under the question eliciting information on 
all schools attended, including "trade or vocational training facilities." The beneficiary typed "none" under 
that section but on appeal counsel asserts that the beneficiary did attend and complete vocational training. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) states: "Doubt cast on any aspect of the petitioner's proof 
Although the assertions of counsel do not constitute evidence according to Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980), the AAO is responding to 
counsel's appellate arguments. 
Page 6 
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." 
The AAO thus affirms the director's decision that the petitioner has not shown by a preponderance of the 
evidence that the beneficiary acquired two years of supervisory experience from the evidence submitted into 
this record of proceeding and thus the petitioner has not demonstrated that he is qualified to perform the 
duties of the proffered position. 
ORDER: The appeal is dismissed.