dismissed EB-3 Case: Jewelry

identifying data deleted to 
prevent .:LI:~~ unwmtd 
invasion of personal pfivacy 
U.S. Department of Homeland Security 
20 Mass, Rm. N.W. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. $ 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. ~iemann, ~irector 
Administrative Appeals Office 
WAC 00 252 54145 
Page 2 
DISCUSSION: The preference visa petition approval was revoked by the Director, California Service Center, 
and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a manufacturer, repairer, and retail sale's business of 22 karat Indian style jewelry. It seeks 
to employ the beneficiary permanently in the United States as a goldsmith, Indian style jewelry. 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 has the requisite experience as stated on the labor certification petition. The director revoked the 
petition approval accordingly. 
On appeal, the counsel submits additional evidence. 
Section 203@)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153@)(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. 
8 CFR 9 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slulled 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 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. 
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 House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). 
Here, the Form ETA 750 was accepted on September 23, 1998. The proffered wage as stated on the Form 
ETA 750 is $2,000.00 per month. The Form ETA 750 states that the position requires four years experience. 
With the petition, counsel submitted the following documents: the original Form ETA 750, Application for 
Alien Employment Certification, approved by the Department of Labor; income tax returns of petitioner; and, 
copies of documentation concerning the beneficiary's qualifications as well as other documentation. 
The 1-140 petition was filed August 7,2000. The petition was approved on December 23,2000 and it was sent to 
the U.S. Embassy - consular section in Mumbai, India. The consulate conducted two interviews of beneficiary, 
and after obtaining information raising doubt as to the beneficiary's experience as a Indian style jewelry 
goldsmith, suspended the issuance of the immigrant visa according to 22 C.F.R. 42.43(a)(l). The director issued 
a Notice of Intent to Revoke the petition approval as a result of the consulate's findings on August 31, 2004. 
Petitioner failed to respond with additional evidence to the director. The purpose of the Notice of the Intent to 
WAC 00 252 54145 
Page 3 
Revoke is to elicit further information that clarifies whether eligibility for the benefit sought has been 
established, as of the time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 
C.F.R. $ 103.2(b)(14). On August 31, 2004, the director issued its decision to revoke the approval of the 
petition for immigrant visa. On September 17, 2004, an appeal was filed of the director's decision by the 
petitioner. Counsel submitted a brief and additional evidence. 
The issue to be discussed in this case is whether or not the petitioner has 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. 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, 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. 1981). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 13 and 14, sets 
forth duties, the minimum education, training, and experience that an applicant must have for the position of a 
goldsmith, Indian style jewelry. 
In the instant case, item 13 describes the duties of the proffered position as follows: 
- 
 Conduct die work, filigree work, stone setting, engraving and cholkam for wedding sets. 
- 
 Conduct customized design for 22K chains and make such chains (handmade). 
- 
 Design and handmake earrings, filigree work, stone setting and engraving work. 
- 
 Handmake holo type balls with cholkam work; pendants, etc. 
- 
 Conduct professional polishing and repair for the above. 
In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education .................................... 
Grade School Blank 
High School Blank 
College Blank 
College Degree Required Blank 
Major Field of Study Blank 
Training Blank 
Experience ................................... 
Years - 4 
In the instant case, the Application for Alien Employment Certification, Form ETA-750B, item 15, sets forth 
work experience that an applicant listed for the position of goldsmith, Indian style jewelry. 
WAC 00 252 54145 
Page 4 
15. WORK EXPERIENCE 
Co-owner (self-employed) Goldsmith 
DATE STARTED 
Month - Jan Year - 1990 
Month - Jan Year - 1998 
DATE LEFT 
Month - Present 
Month - Dec. Year - 1997 
KIND OF BUSINESS 
Manufacture, export, wholesale, retail & repair, 22k gold Indian 
DESCRIBE IN DETAIL DUTIES.. . 
In charge of manufacturing and repairing 22 K Indian style gold jewelry . . . 
NO. OF HOURS PER WEEK 
40 
15. WORK EXPERIENCE 
b. NAME AND ADDRESS OF EMPLOYER 
NAME OF JOB 
Goldsmith 
DATE STARTED 
Month - June Year - 1980 
Month - July Year - 1 98 1 
DATE LEFT 
Month - June- 1 98 1 
Month - May - 1988 
KIND OF BUSINESS 
Manufacture, export, wholesale, retail & repair, 22k gold Indian 
DESCRIBE IN DETAIL DUTIES.. . 
Customize design and hand make 22 K gold Indian style jewelry 
NO. OF HOURS PER WEEK 
40 
15. WORK EXPERIENCE 
NAME ur JUH 
Goldsmith 
DATE STARTED 
Month -June Year - 1988 
Month - March Year - 1989 
DATE LEFT 
WAC 00 252 54145 
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Month - June- 198 1 
Month - May - 1988 
KIND OF BUSINESS 
Manufacture, export, wholesale, retail & repair, 22k gold Indian 
DESCRIBE IN DETAIL DUTIES.. . 
Made and repaired 22 Karat gold jewelry . . . 
NO. OF HOURS PER WEEK 
40 
A letter was submitted by the petitioner to verify employment experience. It was made by - 
a cousin of the beneficiary, as dated August 2, 1989 and certified as true and correct on September 
22, 1998. It states that the beneficiary worked as a goldsmith with 
 June 1988 to March 
1989. 
The petitioner submitted a second job verification letter from the beneficiary's father dated January 1, 1998 that 
the petitioner submitted with the petition to prove the beneficiary's work experience as a goldsmith, Indian style 
jewelry. According to the letter the beneficiary was trained for one year and thereafter worked until May 
1988, then from January 1990 through December 1997 as his employee. Thereafter, the beneficiary became a 
joint owner of the business from January 1998 to the present (i.e. September 22 1998). 
A third letter was submitted to verifL employment experience. It was made by the beneficiary's brother as 
dated August 2, 1998. It stated that the beneficiary " . . . is in charge of manufacturing and repairing 22 karat 
Indian style gold jewelry and working as a goldsmith at the above business." 
As stated in the record of proceedings, two interviews were conducted (August 28, 2001 and December 19, 
2001) by the United States consular officers that revealed that the beneficiary's knowledge of the 
manufacturing, repairing, and retail sale of 22 karat Indian style jewelry and of the goldsmith trade was 
inadequate and not credible. According to the consular interviewers, the beneficiary did not know the price of 
gold; the diamond rating system; what gold filigree was; the types of gold work; the names of any jewelry 
clasps; how to create part-matte and part high polish jewelry finish; the difference between white and yellow 
gold; or basic jewelry terminology. 
Upon appeal, the petitioner states that it did submit a response to the director's Intent to Revoke the approval 
of the petition'; and, that because of a language problem the translator in the consular interviews did not 
translate accurately. The record of proceeding does not establish the truth of these statements. 
As additional 
 submits a job verification letter dated September 17, 2003 from- 
Jewellers made by 
 In summary, she stated that since the beneficiary was trained in a remote 
of proceeding, 20 years ago, and diamond cutting or rating, and white 
gold are unknown there, the beneficiary today has no knowledge of these things. klso, she asserts the 
translator at the interview caused the beneficiary to perform poorly concerning knowledge of basic jewelry 
terms. We do not find these statements credible for a professional jeweler with twenty years of experience. 
Even if the beneficiary did not deal in diamonds or white gold, as they were not mentioned in the job duties, 
he should have knowledge of these commodities. 
1 
 There is a United Parcel Service mailing receipt in the record of proceeding. 
WAC 00 252 54145 
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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." 
Counsel asserts in a brief submitted to support the appeal that the director should not revoke an approved 
petition unless there is "specific, material and clear evidence to support the revocation," and, a finding of 
fraud. This is incorrect. On December 17, 2004, the President signed the Intelligence Reform and Terrorism 
Prevention Act of 2004 (S. 2845). See Pub. L. No. 108-458, 118 Stat. 3638 (2004). Specifically relating to 
this matter, section 5304(c) of Public Law 108-458 amends section 205 of the Act by striking "Attorney 
General" and inserting "Secretary of Homeland Security" and by striking the final two sentences. Section 205 
of the Act now reads: 
The Secretary of Homeland Security may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 1154 of 
this title. Such revocation shall be effective as of the date of approval of any such petition. 
We find that the two investigative interviews and their findings by the Mumbai consulate mentioned above 
constituted good and sufficient cause according to the regulation. The beneficiary was accorded ample 
opportunity to rebut the report's findings but it did not provide objective independent evidence to do so. The 
record of proceeding does not contain any competent objective evidence supporting the petitioner's claims 
relative to the nature of the jewelry industry in rural India. The beneficiary did not demonstrate the required 
knowledge of manufacturing and repairing 22-karat Indian style gold jewelry and worlung as a goldsmith as 
required by the Form ETA 750. 
Counsel also asserts that the examining physician in the visa process made prejudicial remarks that 
predisposed the beneficiary to perform poorly in his consular interviews. There is no evidence of remarks 
made in the record of proceedings. Such conduct is expressly prohibited of any immigration officer or agent. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). The unsupported statements 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). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
§ 1361. The petitioner had not established that the beneficiary has the requisite experience as stated on the labor 
certification petition. The petitioner has not met that burden. 
ORDER: The petition is dismissed.