dismissed EB-3 Case: Hotel Management

identifying data deletd to 
prevent clearly unwarranted 
invasion of personal pivacy 
PUBLIC COPY 
U.S. Department of lIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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 1 53(b)(3) 
ON BEHALF OF PETITIONER: 
TNSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 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 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a motel, and seeks to employ the beneficiary permanently in the United States as a manager, 
hotel or motel ("Motel Manager") pursuant to section 203(b)(3) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1153(b)(3) as a slulled worker. As required by statute, the petition was filed with Form ETA 750, 
Application for Alien Employment Certification, approved by the Department of Labor (DOL). As set forth in 
the director's February 28, 2005 denial, the petition was denied for failure to document that the beneficiary met 
the position requirements of the certified labor certification. 
The AAO takes a de nova 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 appeal.' 
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. 
Section 203 (b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 15 3(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 slulled 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 regulation 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 priority date is the date that Form ETA 750 Application for Alien Employment Certification was 
accepted for processing by any office within the employment service system of the Department of Labor. See 
8 CFR $ 204.5(d). 
In the case at hand, the petitioner filed Form ETA 750 with the relevant state workforce agency on April 27, 
2001. The proffered wage as stated on Form ETA 750 for the position of a Motel Manager is $30,200 per 
year, 48 hours per week. The labor certification was approved on March 17, 2003, and the petitioner filed the 
1-140 on the beneficiary's behalf on October 27, 2003. On the 1-140 petition, the petitioner listed the 
following information related to the petitioning entity: established 1996; gross annual income: $482,45 1.00; 
net annual income: $90,786.00; and employees: seven. 
I 
 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. $ 103.2(a)(l). See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988). 
On January 20,2005, the Service Center issued a Notice of Intent to Deny ("NOID"). The NOD allowed the 
petitioner 30 days to submit evidence to verify the beneficiary's experience and demonstrate that the 
beneficiary met the position requirements set forth in the certified ETA 750. The petitioner had initially 
submitted a letter from an individual in Alpharetta, Georgia, who asserted that he formerly owned the motel 
where the beneficiary worked in Alabama. As the beneficiary was employed in Selma, Alabama, and the 
individual that provided the letter lived in Georgia, the Service Center requested further documentation to 
authenticate the beneficiary's work experience. The petitioner responded to the NOID, but the director 
determined that the evidence submitted in response to the NOID was insufficient to overcome the deficiencies 
in the petition. The petitioner appealed and the matter is now before the AAO. 
We shall address the evidence in the record, and then consider additional evidence on appeal. In evaluating 
the beneficiary's qualifications, Citizenship and Immigration Services ("CIS") must look to the job offer 
portion of the alien 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. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red 
Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1" Cir. 1981). A labor certification is an integral 
part of this petition, but the issuance of a Form ETA 750 does not mandate the approval of the relating petition. 
To be eligble for approval, a beneficiary must have all the education, training, and experience specified on the 
labor certification as of the petition's priority date. 8 C.F.R. 5 103.2(b)(l), (12). See Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. 
Comm. 1971). 
On the Form ETA 750A, the "job offer" states that the position requires two years of experience in the job 
offered, as Motel Manager, with job duties to include: "manage and maintain motel to ensure efficient and 
profitable operation; set room rates, allocate funds, approve expenditures, and establish standards for service 
to guests, decor and housekeeping; process reservations, address guest complaints, and resolve problems; 
interview, hire and evaluate personnel; ensure cleanliness and appearance of guest rooms, public access areas, 
and outside grounds; make minor electrical, plumbing and structural repairs; perform all other duties 
necessary to cover for any unavailable employees." The petitioner did not list any educational requirements 
in Section 14, and listed other special requirements for the position in Section 15 as "must be on call 24 hours 
per day to resolve problems or emergencies; will be required to work some weekends and holidays." 
On the Form ETA 750B si 
 ed by the beneficiary on April 25, 2001, the beneficiary listed prior relevant 
experience as: (1) 
 April 1998 to present (the date of signature, April 
25, 2001), 48 hours per week; (2 
 Chattanooga, Tennessee, September 1996 to April 1998, 
Manager, 48 hours per week; and (3 
 orest Park, Georgia, August 1995 to May 1996, Manager, 48 
hours per week. 
A beneficiary is required to document prior experience in accordance with 8 C.F.R. 5 204.5(1)(3), which 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. 
Page 4 
(B) Skilled workers. If the petition is for a slulled 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. 
To document the beneficiary's experience, the ~etitioner initially submitted one letter fio 
provided: "thls is to certify that I owned th 
March 1998 until I sold it on August 2001. From April 1998 until August 2001, M 
manager for 
and profitable operation:. 
 lhe letter was signed by 
Alpharetta, ~eor~ia.* I 
1 and listed an address ofl 
The Service Center raised the issue that the letter provided was not on Economy Inn letterhead and that the author 
of the letter listed an address in Georgia, and not Alabama. Further, we note that the letter does not provide 
whether the beneficiary was employed on a full-time or on a part-time basis to allow us to conclude that the 
beneficiary's experience would equate to two years of experience. Thus, the letter is insufficient evidence of the 
beneficiary's qualifying employment experience as provided by 8 C.F.R. § 204.5(1)(3)(ii)(A). 
On appeal, counsel contends that the letter that 
I 
and thus a sworn statement, On -nsel sul 
ovided. while not on letterhead, was notarized 
contradicto - evidence that the beneficiary's husband, and not the beneficiary, was likely employed-by the 
-~ 
2 
 The beneficiary's Form G-325 filed with her 1-485 Adiustment of Status application provides that the 
beneficiary resided also at 
 ~l~haretta,~~eor~ia from ~eceiber 2001' to March 2002. 
related to either the author of the letter, the 
purchasers or sellers of th or to the president of the petitioning company, all of whom have 
the same surname We note that under 20 C.F.R. $5 626.20(~)(8) and 656.3, the petitioner has the burden 
when asked to show that a valid employment relationship exists, that a bonafide job opportunity is available to 
U.S. workers. See Matter of Arnger Corp., 87-INA-545 (BALCA 1987). A relationship invalidating a bonajde 
job offer may arise where the beneficiary is related to the petitioner by "blood" or it may "be financial, by 
marriage, or through fiiendship." See also Paris Bakely Corporation, 1998-INA-337 (Jan. 4, 1990) (en banc), 
which addressed familial relationships: "We did not hold nor did we mean to imply in Young Seal that a close 
family relationship between the alien and the person having authority, standing alone, establishes, that the job 
opportunity is not bona fide or available to U.S. workers. Such a relationship does require that this aspect of the 
application be given greater attention. But, in the final analysis, it is only one factor to be considered. Assuming 
that there is still a genuine need for the employee with the alien's qualifications, the job has not been specifically 
tailored for the alien, the Employer has undertaken recruitment in good faith and the same has not produced 
applicants who are qualified, the relationship, per se, does not require denial of the certification." 
Page 5 
In response to the NOID, and resubmitted on appeal, counsel prov 
Bookkeeping and Income Tax Preparation, as a "secondary" source to c 
the the t years o 12;,%R! an 200 1. A man 
year. The amounts are $8,866 for 1998, $15,2 
petitioner additionally submitted Forms 1065 for the 
 2000 and 2001, which reflected 
the "guaranteed payments to partners" in the a 
 listed. Further, the petitioner 
submitted the beneficiary's tax returns to show that the beneficiary reported the income Ms. 
referenced as "business income" on the beneficiary's Forms 1040. 
 = 
If we examine the beneficiary's 1998 tax retum, the tax return reflects that mprepared the return 
for the beneficiary and her spouse, s well. In the Form 1040 "signature block," the tax return 
lists under "your occupation," "spouse's occupation," the form lists-' which we 
would understand to be an abbreviation foLuhousewife," and refers to the beneficiary. Further, while counsel is 
correct in that the 1998 Form 1040 lists $1 1,266 in business income, the a Schedule C-EZ Net 
Profit from Business, which provides that the income is attributable to s a Motel Manager. 
Similarly, income listed on the beneficiary's 1999 Form 1040 is engaged in Motel 
Management at the business occupation is 
listed as "homemaker." For the 
similarly attributes the couple's income to ngaged in motel management in Selma, Alabama. 
while her husband was employed. 
On appeal, counsel provides "the Director's claim that upon reviewing the beneficiary's tax returns, "it cannot be 
concluded where this income came from" is irrational. It is quite obvious and easy to follow the flow of monies 
reported on the-x return as guaranteed payments to artners to the beneficiary's tax return as 
business income." While the flow of money might be traced from thm Return to the beneficiary's 
return, and the amounts do appear to correlate, it the income reported on the beneficiary's tax 
return confirms that the beneficiary worked for the has the requisite work experience for the 
position. The beneficiary's tax returns suggest rather than the beneficiary that worked at 
Bank, which provides that 
9, 2000 until December 
While this evidence would confirm 
does not confirm that the 
4 
Counsel notes that the beneficiary lacked work authorization, and, therefore, was unable to submit formal 
payroll documentation. 
5 
The 2000 Form 1065 lists the company as 
 zed statement provided 
explains that changed the name from 
 fter purchase. 
Page 6 
As additional evidence, 
 thepplication for a business license dated 
2000, and 2001 initialed by ' 
 Further, counsel provides three statements: 
1. Statement Selma, Alabama, whi 
"In 1998, 
 a 36 room hotel, the 
Eighty East, in Selma, Alabama. I own the restaura 
have a motel on 
 West in Selma. I had occasions of interaction with 
heir management of the motel 
1. Statement from ~eneral Manager, Days Inn & Suites, Selma, Alabama: 
2. Statement from Lannies Bar B Q Spot, Selma, Alabama: 
"I am owner and manager of a family restaurant . . . . my restaurant was located at - 
East from January 1995 to November 1999. This restaurant building used to be part of the Plantation 
Inn motel property before 1998. ought the motel (excluding restaurant buildin ) in 
1998 and changed the name to Economy Inn. I personally know and have seen 
managng Economy Inn on regular basis." 
and 
The three statements provide slightly different versions. 
 tatement is more general and might allow 
for merely seeing the beneficiary on the property with 
 son, where they resided. The = 
letter provides that the beneficiary managed the motel on her own, and the third letter provides for joint 
management between the beneficiary and her husband. 
The information related to the beneficiary's occupation listed on the tax returns conflicts with the statements 
provided, which raises concerns regarding the veracity of the beneficiary. See Matter ofHo, 19 I&N Dec. 582, 
591 (BIA 1988), which states: "Doubt raised 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." Further, "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." Matter ofHo, 19 I&N Dec. at 
591-592. 
The record of proceeding does not contain sufficient regulatory prescribed evidence of the beneficiary's 
qualifications. Additionally, while we believe that the secondary documentation submitted demonstrates that the 
beneficiary and her husband resided at thethe tax returns imply that it was the husband who was 
employed by the Further, it is unclear why the petitioner did not submit any information to 
document experience that the beneficiary obtained in her other prior positions listed on the ETA 750B, either in 
response to the NOID or on appeal. The petitioner did not assert that it attempted to obtain other letters, or that it 
was not possible to obtain letters from the beneficiary's other prior employers. As a result, the petitioner has not 
documented that the beneficiary had the experience to meet the ETA 750 job offer requirements, and qualify for 
the position offered. 
Page 7 
Based on the foregoing, the case was properly denied failure to document the beneficiary's qualifications for 
the job offered. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.