dismissed EB-3 Case: Gas Station Operations

identifying data deleted to 
prevent dearly unwarranted 
invmloo d pnonal prlvafy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
bh 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 3 203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. 5 1153(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 preference visa petition was denied by the Director, Vermont Service Center. The 
petitioner appealed. The appeal will be dismissed. 
The petitioner operates a gas station. It seeks to employ the beneficiary permanently in the United States as 
an assistant manager. As required by statute, the petition is accompanied by a Form ETA 750, Application 
for Alien Employment Certification, approved by the U. S. Department of Labor. The director determined 
that the petitioner had not established that the petitioner had not established that the beneficiary has the requisite 
experience as stated on the labor certification petition. The director denied the petition accordingly. 
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 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 unavailable. 
The regulation at 8 C.F.R. $ 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The regulation at 8 CFR $ 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. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. The petitioner must 
also 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 House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). 
Here, the Form ETA 750 was accepted on April 25, 2001. The proffered wage as stated on the Form ETA 
750 is $9.65 per hour ($1 8,064.80 per year).' The Form ETA 750 states that the position requires one year of 
experience as an assistant manager or two years of experience as a gas station attendant. 
' It has been five years since the Alien Employment Application has been accepted and the proffered wage 
established. According to the employer certification that is part of the application, ETA Form 750 Part A, 
Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the employer] guarantee 
that, if a labor certification is granted, the wage paid to the alien when the alien begins work will equal or 
exceed the prevailing wage which is applicable at the time the alien begins work." 
Page 3 
On appeal, counsel submitted additional evidence. 
With the petition, the petitioner submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor ("USDOL"); a 
support letter from the petitioner; U.S. Internal Revenue Service Form tax returns; and two affidavits both 
dated January 6,2004. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate that 
the beneficiary has the requisite experience as stated on the labor certification petition beginning on the priority 
date, consistent with the regulation at 8 CFR 5 204.5(1)(3)(ii), the director requested on February 24, 2004, 
additional pertinent evidence of the beneficiary's prior job experience. 
In response to the above requests, Counsel 
 tter; a letter dated March 23, 2004, of 
the beneficiary's prior job experience from 
 and, an affidavit made May 17, 2004 
The director denied the petition on July 21, 2004, finding that the petitioner had not established that the 
beneficiary has the requisite experience as stated on the labor certification petition. 
On appeal, the counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact as 
. . 
a basis for the appeal, but recounts the docimintary evidence provided. C 
 e full record of 
the beneficiary's em lo ment as a gas station attendant was not provided b 
 when in fact a 
second letter fro &mentioned below stated that the beneficiary wmhat gas station 
location from December 5, 1983 though October 1, 1985, and that the beneficiary could have worked there prior 
to December 1983 employed by a third party outsourcing personnel provider. Counsel has not provided any 
information concerning this third party outsourcing personnel provider 
The petitioner 
 letter dated August 16 2004. of the beneficiarv's ~rior job 
experience from , and a photocopy of a for the 
beneficiary from 
 to show that the beneficiary did work in 1983. 
The issue to be discussed below is whether or not the petitioner had established that the beneficiary has the 
requisite experience as stated on the labor certification petition. 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 
March 3,2000. 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 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 
1983); K.R.K. Irvine, Znc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart InJi.a-Red Commissary of 
Massachusetts, Znc. v. Coomey, 66 1 F.2d 1 (1 st Cir. 198 1). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, item 14, sets forth the 
minimum education, training, and experience that an applicant must have for the position of assistant manager. 
Page 4 
In the instant case, item 14 describes the requirements of the proffered position as follows: 
.................................... 
14. Education 
Grade School 
High School 
College 
College Degree Required 
Major Field of Study 
Training 
Experience .................................. 
Job Offered - Years/Mos. 
Related Occupation 
Yearshlos. 
- 
- 
Blank 
Blank 
- 
11 Blank ["Or" written in number space1 
gas station attendant 
21- 
- 
In the instant case, the Application for Alien Employment Certification, Form ETA-750B, item 15, sets forth 
work experience for the position of assistant manager: 
1 5. WORK EXPERIENCE 
(4 
NAME AND ADDRESS OF EMPLOYER 
A .x .L.LU .,A u..- 
Security Officer 
DATE STARTED 
Month - 12 [December] Year 1998 
DATE LEFT 
Month - 0211 1 [February 111 Year 2002 
KIND OF BUSINESS 
Security services 
DESCRIBE IN DETAIL DUTIES.. . 
Maintains access control (Evening shift: app. 4pm-1 lpm) 
NO. OF HOURS PER WEEK 
35 
(b) 
NAME AND ADDRESS OF EMPLOYER 
1YAlVlL: VL' JVD 
Education assistant 
DATE STARTED 
Month - 1 1 povember] Year 1983 
DATE LEFT 
Page 5 
Present [i.e. April 18,200 11 
KIND OF BUSINESS 
Embassy 
DESCRIBE IN DETAIL DUTIES.. . 
Processes educational enquiries from public/employers . . . (7am-3pm) 
NO. OF HOURS PER WEEK 
40 
NAME AND ADDRESS OF EMPLOYER 
Gas station attendant 
DATE STARTED 
Month - 5 [May] Year 1984 
DATE LEFT 
Month - 5 [May] Year 1987 
KIND OF BUSINESS 
Gas station 
DESCRIBE IN DETAIL DUTIES.. . 
Operated gas pumps. Received payment. Maintained inventory 
NO. OF HOURS PER WEEK 
40 
The beneficiary submitted a CIS Form G-325A dated December 30,2003 to support his adjustment application. 
According to the section stating the beneficiary's employment in the last five years, the beneficiary was employed 
by the ~kbass~ of Pakistan-as an "Edu. Ass." (education assistant) from November 1993 to resent (i.e. 
December 30, 2003), and in addition to that experience, he was also employed by 
P " in Annadale Virgina from December 1998 to February 2002 where the beneficiary worke in e evening. 
Two affidavits 
 s 0-both dated January 6, 2004. 
dicated that they had worked with the beneficia 
m March 1983 to April 1985. and, 
stated that he was employed from August 1983 to December 1985. Mr 
 indicated in his h statement t at 
the beneficiary 
 rking at that gas station after I left." 
 affiants stated their contact 
address, job title at 
 the job or duties of the beneficiary or supervisor, manager or job trainer 
term of employment. 
In resvonse to the reauest for evidence. counsel submitted an exvlanatorv letter: a letter dated March 23. 
., and, an affidavit made ~ai 
., Richmond Virginia stated in the letter submitted March 23, 
2004, that the beneficiary was a salesperson at the 'location at 
23041." 
 No description of the job or duties of the beneficiary or supervisor, manager or job trainer 
information was provided, or term of employment was given. 
An affidavit made May 17, 2004 was provided by 
 who also stated that he was a co- 
Page 6 
employee at that gas station mention 
rn 
hat the beneficiary worked with M from September 1983 
until "October fo [sic] 1985." Mr. 
 details the beneficiary's title and job duties as a gas station 
attendant. Mr. also provided his contact information. 
1 submitted another letter from Richmond Virginia signed by 
that stated that the beneficiary was a salesperson of that gas station location from December 
5, 1983 though October 1, 1985, and then she speculates that the beneficiary could have worked there prior to 
December 1983 employed by a third party outsourcing personnel provider. 
No pay stub or other evidence of wages paid contained in the record of proceeding establishes that the 
beneficiary was employed for two years in an employment capacity with duties similar to the duties of the 
proffered position. Counsel provides evidence that the beneficiary received income during the pertinent years 
(a PEBES ONLINE RESPONSE for the beneficiary from 1983~ through 2004 without explanation) but no 
personal income tax returns, W-2 or 1099-MISC statements were provided. 
Further, the AAO does not find mentioned the beneficiary's work experience to be credible without any 
evidence offered of prior experience or training. There is no independent objective evidence from 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. All the affidavits do not agree or provide specific starvstop dates 
for the beneficiary's employment at Crown. 
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." 
The evidence submitted does not demonstrate credibly that the beneficiary had the requisite two years of 
experience. Therefore, the petitioner has not established that the beneficiary is eligible for the proffered position. 
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. 
The amount stated for year 1983 does not suggest the beneficiary worked for more than a month.