dismissed EB-3 Case: Marble Setting

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U.S. Department of Homeland Security 
20 Mass, Rrn. N.W. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBlJc COPY 
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: 
SELF-REPRESENTED 
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. 
'~obert P. Wiemann, Chief 
Administrative Appeals Office 
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 The preference visa petition approval was revoked by the Director, California Service 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 dishbutor and installer of marble, granite and ceramic. It seeks to employ the beneficiary' 
permanently in the United States as a marble setter. 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 submitted evidence in rebuttal to the director's notices of intent to 
revoke, and, therefore has not overcome the grounds for revocation of the approval of the petition. T.he director 
found 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 petitioner submits additional evidence. 
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 nature, for which qualified workers are not available in the United 
States. 
The regulation at 8 C.F.R. 5 204.5(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 5 204.5(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. Cornrn. 1977). 
I 
 The beneficiary is a substituted beneficiary. 
Here, the Form ETA 750 was accepted on September 29, 2000.~ The proffered wage as stated on the Form 
ETA 750 is $26.89 per hour ($55,93 1.20 per year). The Form ETA 750 states that the position requires three 
years experience. 
Consistent with the regulations at 8 C.F.R. 9 204.5(g)(2), and, 8 CFR 8 204.5(1)(3)(ii), the director issued a 
request for evidence on December 26, 2001. The petitioner responded to the request for evidence on March 
11, 2002, and submitted a Form ETA 750 Part B indicating that that the petitioner desired to substitute an 
alien for the original beneficiary. The director issued a second request for evidence consistent with the 
regulation at 8 CFR ?j 204.5(1)(3)(ii) on May 3, 2002. In the request the director requested a withdrawal of the 
original petition, the filing of another Form 1-140 petition with filing fee. The petitioner responded to the 
request for evidence on July 3, 2002. The director issued a third request for evidence on November 8, 2002. 
The petitioner responded to the request on December 9, 2002. The director issued a decision on April 7,2003 
denying the petition according to the regulation at 8 C.F.R. tj 204.5(g)(2) (inability of the petitioner employer 
to pay the proffered wage). The petitioner appealed the director's decision. Upon review, the director 
approved the petition on May 16,2003. The director issued a notice of intent to revoke on October 7,2004. The 
petitioner responded to the notice on November 4, 2004. The purpose of the Notice of the Intent to 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. $9 103.2(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. tj 103.2(b)(14). 
The director issued a notice of revocation on January 25,2005. 
The petitioner appealed the revocation on February 9,2005. The petitioner contends that an inconsistenc in the 
initially submitted (an employer stated the beneficiary was employed by 
Israel as a full time marble setter from November 1998 to December 2001, i anuary 
1994 to March 1997) was harmless error and not indicative of fraud. This assertion is not the petitioner's 
prerogative to make in this matter. The facts and evidence are in the record to review. 
further asserts that there is no inconsistency in the beneficiary's statement that an Israeli employer, 
employed him when he was residing in the United States. The petitioner ventures to ex lain this 
. . . [the beneficiary] . . . continued to physically engage in employment witdung the 
times he would be in Israel." would be in ~srael."~ According to the beneficiary's CIS Form 1-94 in the record of 
proceeding, the beneficiary entered the United States on December 11, 1999 with duration of stay to June 10, 
2000. There is no evidence submitted that the beneficiary ever left the United States after December 11, 1999. It 
is unclear why the petitioner believes there is inconsistency with the employment when there does 
It has been approximately six 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." 
According to the CIS Form G-325A prepared by the beneficiary signed on May 26, 2003, found in the 
record of proceeding, the beneficiary stated the following employment ex erience: the beneficiary was self- 
employed and the owner of an enterprise indicating a business name ' 
n 
fi-om June 2000 to 
present (i.e. May 26, 2003); from 2000, e ene lciary stated he was self- 
employed as a business partner in 1998 through 1999 employed in the 
occupation designated as "Cassette D 
 Israel. 
Page 4 
not appear to be any, at least physically, other then the below mentioned employment dates and occupations 
inconsistencies. Again, (taking the petitioner's statement on its face) the petitioner is stating that this was 
harmless error and not indicative of fraud. 
The petitioner states that although the beneficiary is a trained executive/computer consultant both in the United 
States after his arrival, and before in Israel during the dates he stated he was a marble setter, that this was not 
indicative of fraud and the adjudicator should disregard these established facts in his review. The facts and 
evidence are in the record to review, and, the beneficiary's work history is part and parcel of the evidence to be 
reviewed in the determination of the beneficiary's qualifications under 8 CFR $ 204.5(1)(3)(ii). 
The petitioner questions the CIS interviewer's determination that the beneficiary was not a marble setter by his 
responses at the 1-485 adjustment interview. The AAO will review the evidence in the record of proceeding 
without respect to the 1-485 interview. 
The petitioner submitted additional evidence as noted below including a rebuttal to an adverse CIS 
investigation report discussed more fully below. 
As already noted above, the director issued a notice of revocation of the petition approval on January 25, 2005. 
The petitioner appealed the revocation on February 9, 2005. The petitioner submitted copies of the following 
additional evidence on appeal: an explanatory statement; the notice of revocation dated January 25, 2005; a 
copy of the original labor certification before the substitution of the present beneficiary; a cover letter dated 
January 3 1, 2002 indicating that the beneficiary is the beneficiary of a family based immigrant petition by his 
mother, a legal permanent resident with a translated copy of the beneficiary's birth certificate; 
a request for evidence dated December 26, 2001; a copy letter dated March 1 I, 2002; a request for evidence 
sent by fax on May 3,2002; a cover letter dated July 3,2002; a request for evidence dated November 8,2003; 
a cover letter dated December 9, 2002; a notice of decision dated April 7, 2003; a notice of appeal receipt 
document dated May 8, 2003; an approval notice dated May 16, 2003 for immigrant petition; an intent to 
revoke processing dated October 7, 2004; a response to the CIS notice of action dated October 7, 2004; a 
notice of intent to revoke dated November 18, 2004; a response to notice of action dated November 18, 2004 
and a request for a time extension; a letter from the petitioner dated September 17,2004; 
8 pay statements 
 to the beneficiary; three tr 
 ted letters from 
Jerusalem, Israel, 
 , of Jerusalem, Israel, and 
 of Ramat-Gan, Israel dated with 
photocopied photos that the beneficiary did marble or title 
 May, 1995, "at the end of 1995," 
and, during November and December 1996 in Israel; and, 39 cancelled checks and invoices on Galilee 
In the present case, there have been three requests for evidence and two notices of intent to revoke the processing 
of the petition, all of the above concerned in whole or in part with the beneficiary's qualifications. As in the 
present matter, where a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency by the Service Center, the AAO will not accept evidence offered for 
the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N 
Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have 
4 
 The director points out 
 on the computer generated letterhead for the letter 
of experience dated from 
 Rosh Pinna, Israel is 1 (416) 79 1-9798, a Canadian 
number. The telephone is 972-4-6931333. This discre anc was not 
explained in the record. We note the company name on the invoices mentioned above is 
no- 
- 
submitted it in response to the director's requests for evidence. Id. Under the circumstances, the AAO need 
not, consider the sufficiency of the evidence submitted on appeal. Further as stated in the pertinent 
regulation, 8 CFR 5 204.5(1)(3)(ii), "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." 
The issue to be discussed in this case 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. See Matter of Wing's Tea House, 16 I&N 
Dec. 158 (Act. Reg. Cornrn. 1977). 
To determine whether a beneficiary is eligble 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, item 14, set forth the 
minimum education, training, and experience that an applicant must have for the position of a marble setter. 
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 ................................ 
YearsMonths - 3 
Training ................................... 
Years Blank 
In the instant case, the Application for Alien Employment Certification, Form ETA-750B, item 15, set forth 
work experience that an applicant listed for the position of marble setter. 
1 5. WORK  EXPERIENCE^ 
5 
 There is another work experience letter found in the record of proceeding that is not found in the labor 
certification but recounts the beneficiary's work experience as a marble setter. of Ofakim 
w 
Petach-Tikva, Israel stated in a letter dated that the beneficiary worked as a marble setter 
ovem er 1992 to December 1993. 
 There was no substantiation such as pay statements or wage 
statements to support this letter and it is not mentioned in the labor certification. 
a. 
 NAME AND ADDRESS OF EMPLOYER 
SELF-EMPLOYED 
NAME OF JOB 
INDEPENDENT CONTRACTOR 
DATE STARTED 
Month - 12 [December] Year - 200 1 
DATE LEFT 
Month -Present (i.e. 311 112002) 
KIND OF BUSINESS 
Internet Advertising Agency 
DESCRIBE IN DETAIL DUTIES.. . 
Sends traffic (surfers) to different companies' web sites that sells products or services. 
NO. OF HOURS PER WEEK 
40 
1 5. WORK EXPERIENCE 
Marble Setter 
DATE STARTED 
Month - 1 1 [November] Year - 1998 
DATE LEFT 
Month - 12 [December] Year - 2001 
KIND OF BUSINESS 
Importation of natural stone 
DESCRIBE IN DETAIL DUTIES . . . 
Has cut, tool and set marble slabs in floors and walls of buildings . . . 
NO. OF HOURS PER WEEK 
Blank 
In this case the employment information in a document that the beneficiary submitted to CIS conflicted with the 
Form ETA 750, Part B. According to the CIS Form G-325A prepared by the beneficiary signed on May 26, 
2003, found in the record of proceeding, the beneficiary stated the following the 
beneficiary was self-employed and the owner of an enterprise indicating a busine om 
June 2000 to ~resent (i.e. May 26, 2003): from November 1999 through June 2000, the he 
-. , , 
was self-employed as a business partner in 
 om M& 1998 through 1999 employed in the 
occupation designated as "Cassette Israel. 
According to these two sources of employment submitted by the beneficiary for the period he was employed 
by Rosh Pinna, Israel as a full time marble setter from November 1998 to December 2001 
(according to a letter, later rehted by the company, from 
- 
und in the record of proceeding dated June 
d he worlung in Israel from May 
 in cassette duplication, self-employed as a business 
, and self employed as the owner o- 
6 
According to the record of proceeding, a second letter from 
again on computer generated paper with a Canadian telephone 
 dates by stating 
According to the beneficiary's 1-94 Departure Record attached to a Form 1-485 in the record of proceeding, 
the beneficiary arrived in the United States on December 11, 1999. Since that date according to the 
beneficiary CIS Form G-325A prepared by the beneficiary signed on May 26, 2003, he has maintained 
ood (Orange Grove), California from December 1999 to February 2000,~ at 
West Hollywood, California from February 2000 to the date of signing, 
United States, the beneficiary resided at 
 Givataaim, Israel from May 
1998 to December 1999. There are inconsistencies apparent from the Form G-325A and labor certification as 
- - 
to the beneficiary's prior employment, employers and residences during the periods above stated. 
According to a letter from the petitioner dated September 17, 2004, the beneficiary has been employed as a 
marble setter since May 2004. Ten pay statements were submitted from the petitioner to the beneficiary 
evidencing year to date wage payments of $23,663.20 to September 8, 2004 with bi-weekly wage payments 
of $2,15 1.00. This indicates an annual wage of $55,926.00. 
However, the petitioner has submitted three personal U.S. personal tax returns for the beneficiary for the years 
2001, 2002, and 2003, that state adjusted taxable income earned in the amounts of $37,593.00, $55,097.00 
and $69,734.00 respectively in the United States by the beneficiary derived from a business named in the 
return as- beneficiary lists his occupation as executive, not marble setter. 
The problem that arises in this case is the multiple inconsistencies in information as recited above provided by 
the beneficiary concerning his occupations, and, the lack of independent objective evidence of the occupation 
of marble setter from prior employers. 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." 
Even if the record of proceeding did not contain multiple inconsistencies, the AAO concurs with the director's 
determination that no probative evidence establishes that the beneficiary has three years of experience as a 
marble setter. No pay stub or wage record contained in the record of proceeding establishes that the 
beneficiary was employed for three years in an employment capacity with duties similar to the duties of the 
the priority date, but there is evidence that the beneficiary has worked as an executive 
with 
 in from June 2000 earning compensation as stated in tax years 2001, 2002 and 2003 
base tax returns submitted. 
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 had not established that by the preponderance of the evidence 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. 
that he was in fact "employed full-time fiom January 1994 to March 1997." There was no explanation given for 
the discrepancy. 
7 
This information was written in red ink on the form. 
Page 8