dismissed EB-3 Case: Food Service

identifying data deleted to 
prevent dearly unwarranted 
invasion of personal privacy 
puBuc COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services I 
'2 ; 
C 
FILE: 
 Office: TEXAS SERVICE CENTER 
 Date: HAY 0 9 ZWfi 
IN RE: 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition that is now 
before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a cook. 
As required by statute, a Form ETA 750 Application for Alien Employment Certification approved by the 
Department of Labor accompanies the petition. The director determined that the petitioner had not established 
that the beneficiary has the requisite experience as stated on the labor certification petition and denied the 
petition accordingly. 
On appeal, counsel submits a brief. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 or seasonal nature, for which qualified workers are unavailable in 
the United States. 
The regulation at 8 C.F.R. 9 204.5(1)(3)(ii) states, in pertinent part: 
(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. 
Eligibility in this matter hinges on the petitioner demonstrating 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 House, 16 I&N Dec. 158 
(Act. Reg. Comm. 1977). The priority date of the petition is the date the request for labor certification was 
accepted for processing by any office within the employment system of the Department of Labor. Here, the 
request for labor certification was accepted for processing on June 3, 2002. The labor certification states that the 
position requires two years of experience as a cook.' 
' 
 The decision of denial incorrectly states that the position requires two years of experience in the preparation of 
Japanese-style food. Although the Form ETA 750 states the beneficiary would "prepare Japanese style food per 
customer's order" blocks 14 and 15 indicate that the position requires two years of experience as a cook, and do not 
specify a particular cuisine. The beneficiary's qualifications will be compared to the requirements of the Form ETA 750, 
rather than as stated on the decision of denial. 
On the Form ETA 750, Part B, the beneficiary stated that he had worked from January 1989 to May 1994 as a 
cook at the Kijo Yilsik restaurant in Seo-gu, Daejeon, Korea. 
With the petition counsel submitted various documents in Korean with an English translation. Any document 
containing foreign language submitted to the Service shall be accompanied by a full English language 
translation which the translator has certified as complete and accurate, and by the translator's certification that 
he or she is competent to translate from the foreign language into English. 8 C.F.R. 103.2(b)(3). The 
documents in this case were submitted with translations but without the requisite certifications. Because 
documents were submitted without the required certifications their contents ordinarily would not be 
considered. Because the decision of denial did not rely on this ground for denial, however, this office will 
consider the documents submitted. 
One of the Korean language documents submitted is relevant to the benefi 
employment. That document states that the beneficiary worked for 
30. 1994 as a cook.2 
On July 29, 2004 the service center issued a request for evidence in this matter. That request for evidence 
asserts, 
The American consular office in Seoul states that on June 18, 1999, the beneficiary applied 
for visa issuance by use of fraudulent tax documents purportedly relating to her spouse's 
business enterprise. 
 The consular office states: 
 'Ham Jung, Hyen Ju claimed on her 
application that her husband . . . is the owner of a restaurant entitled Shinmijun and submitted 
her husband's business VAT document and property tax payment certificate to support this 
claim. The investigation revealed that all submitted documents were fraudulent and the 
residence phone number on her application was false."' 
Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of 
the remaining evidence offered in support of the visa petition. Further, the petitioner must resolve any 
inconsistencies in the record by independent objective evidence. Attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence sufficient to demonstrate where the truth, in fact, lies, will 
not suffice. Matter of Ho, 19 I&N Dec. 582 (Comm. 1988). 
Given the issue of credibility raised by the beneficiary's previous submission of fraudulent documents, the 
service center requested that the petitioner provide additional evidence in support of the beneficiary's claim of 
qualifying employment. 
In response, counsel submitted (I) an affidavit from the beneficiary and an English translation3 dated 
September 30, 2004, (2) an affidavit and English translation4 dated September 11, 2004, from a 
* Although the tranlation of that document states that Kijo Yilsik is a Japanese-style food specialty store it may have 
been a poor translation of "Japanese Restaurant." 
3 
 This document was also accompanied by a certification from the translator that the translation is complete and accurate 
and that she is qualifed to translate Korean into English. 
Page 4 
"Representative" of Kijo Japanese Restaurant, (3) affidavits and  translation^,^ dated September 13 and 
September 15, 2004, from alleged coworkers of the beneficiary at Kijo Japanese Restaurant, and (4) an 
affidavit and translation, dated September 2 1, 2004, from the tax affairs and accounting office in Daejeon, 
Korea. 
In her affidavit the beneficiary stated that she had applied for a visa through an agency and had no idea that it 
had actually filed a visa petition or what might be on it and is unable to confirm whether its contents were 
true. 
The letter from the representative of Kijo Japanese Restaurant confirms the beneficiary's claim of 
employment there from January 1989 to May 1994. The translation of that letter hrther states, 
(During the beneficiary's employment) small-scale businesses don't [sic] need to report and 
pay income tax to the government so that we didn't deduct income tax out of [the 
beneficiary's] pay and didn't report and pay it to the government. 
The September 13, 2004 coworker affidavit states that the affiant worked at Kijo Japanese Restaurant from 
February 1990 to December 1993 and that the beneficiary worked there during that entire period. 
The September 15, 2004 coworker affidavit states that the beneficiary began working for Kijo Japanese 
Restaurant either during or shortly after January 1989 and continued to work there until sometime during 
1994. 
The September 21, 2004 affidavit from the tax affairs and accounting office states that during the period of 
the beneficiary's alleged employment for Kijo Japanese Restaurant employers with less than five employees 
were not obliged to withhold taxes from employees' wage payments. 
On October 29, 2004 the director denied the petition, finding that the evidence submitted did not demonstrate 
that the beneficiary has the requisite two years of salient work experience. The decision notes that the letter 
received from Kijo Japanese Restaurant is signed by a person identified only as "representative" on the translation 
and does not state the basis of that person's alleged knowledge of the beneficiary's employment history. 
On appeal, counsel submits additional copies of the evidence previously submitted and a brief. In the brief 
counsel lists the evidence in support of the beneficiary's claim of qualifying employment and notes that the 
affidavits were notarized. Counsel also asserts that the owner of Kijo Japanese Restaurant was the author of 
the letter in Korean from that company and that "representative" was a poor translation. Counsel does not 
address the beneficiary's previous submission of fraudulent documents in an effort to secure a visa. 
8 C.F.R. 5 204.5(1)(3)(ii)(A) states that, 
This document was not accompanied by the requisite translator's certification. Because it was considered by the 
service center, however, it will be considered by this office. 
5 
 The coworker affidavits were not accompanied by the requisite translator certifications. 
Page 5 
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. 
The translation of the letter from Kijo Japanese Restaurant indicates that the author is the petitioner's 
representative, not its owner.6 The assertions of counsel on appeal or in a motion are not evidence and thus 
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); Unsupported assertions of counsel are, therefore, 
insufficient to sustain the burden of proof. Counsel's assertion that the author of the letter from Kijo 
Japaniese Restaurant is the restaurant's owner is insufficient to demonstrate the veracity of that alleged fact. 
Further, even if the employment verification letter made clear the position of its author, it does not specify 
that the author worked at the restaurant at the same time as the beneficiary or that the exact dates of the 
beneficiary's alleged employment were taken from company records. There is no evidence of the basis of the 
writer's professed knowledge. Especially in view of the beneficiary's history of submitting fraudulent 
documents when seeking a visa that evidence is insufficient to demonstrate the veracity of the beneficiary's 
employment claim. 
The remaining evidence pertinent to the beneficiary's employment claim consists of an affidavit from the 
beneficiary, an affidavit from the Daejeon Tax Affairs and Accounting Office, and two coworker affidavits. 
All of those documents were prepared after the issuance of the July 29,2004 request for evidence. 
Evidence which the petitioner creates after CIS points out deficiencies and inconsistencies in the evidence will 
not be considered independent and objective evidence. Necessarily, independent and objective evidence would 
be evidence that is produced contemporaneously with the event to be proved and that exists at the time of the 
director's notice. 
Further, the letter from the Daejeon Tax Affairs and Accounting Office states that the beneficiary worked for 
Kijo Japanese Restaurant from January 1989 to May 1994. If the Kijo Japanese Restaurant was not required 
to and did not provide the government evidence of the beneficiary's employment, then this office questions 
the basis for the government official's confirmation of the beneficiary's employment claim. Especially in 
view of the beneficiary's history of submitting fraudulent documents with visa petitions this office finds that 
the letter from the Tax Affairs and Accounting Office is not credible evidence, and would be insufficient to 
support the beneficiary's employment claim even if it qualified as independent and objective evidence. 
The evidence submitted does not demonstrate credibly that the beneficiary has the requisite two years of 
experience. Therefore, the petitioner has not established that the beneficiary is eligible for the proffered position. 
6 
The record contains two affidavits from Mi Sook Han of Kijo Japanese Restaurant and translations. The translations 
both state that the writer is the "representative" of Kijo Japanese Restaurant rather than, for instance, its owner or 
manager. Further, the description of the writer's position September 11, 2004 affidavit appears to be the Korean 
character for "representative." The position of the writer is partially obscured by a stamp on the May 9,2002 affidavit. 
Page 6 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.