dismissed EB-3 Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K- CORP. 
APPEAL OF TEXAS' SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 19, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a retail restaurant, seeks to employ the Beneficiary as a restaurant manager. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
This employment-based "EB-3" immigrant classification allows a U.S. employer to sponsor a 
foreign national for lawful permanent resident status to work in a positon that requires at least two 
years of training or experience. 
The petition was initially approved. The Director of the Texas Service Center subsequently revoked 
the approval, finding that the Petitioner had not adequately explained evidentiary inconsistencies 
concerning the Beneficiary's employment history and had not established that the Beneficiary met 
the minimum experience requirement of the labor certification. 
On appeal, the Petitioner asserts that the documentation it previously submitted establishes by a 
preponderance of the evidence that the Beneficiary met the two-year experience requirement of the 
labor certification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification (ETA Form 9089, Application for Permanent Employment 
Certification) from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for tlie offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the 
petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of 
status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
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Matter of K- Corp. 
Section 205 of the Act 8 U.S.C. § 1155, provide s that the Secret ary of Homeland Security may "for 
good and sufficient cause , revoke the approval of any petition ." By regu lation this revocation 
authority is delegated to any USCIS officer who is authorized to a pprove an immigrant visa petition 
"when the necessi ty for the revoca tion comes to the attention of [USCIS]." 8 C.F.R. § 205 .2(a) . 
USCIS mu st give the petition er notice of its intent to revoke the prior approva l of the petition and the 
opportunity to submit evid ence in opposition . thereto, before proceed ing with written notice of 
revocation. See 8 C.F.R. § 205.2(b) and (c). 
II. ANALYSIS 
A. Minimum Requirements of the Labor Certification 
The petition was accompanied by a labor certific ation that requir ed two years of ex per ience in the 
job offered to qualify for the proffered position of restaurant mana ger. A beneficiary must meet all 
of the education, training , experience, and other requirement s of the labor certi ficati on as of the 
petition's priority date .' See Mauer of Wing's Tea House, 16 I&N Dec. 158, 159 (Act ing Reg 'l 
Comm'r 1977) . The labor certification listed one prior job for the Beneficiary, stating that she was 
employ ed as a restaurant man age r by in Sou th Korea, 
from Janu ary 2, 2000, until January 15, 2002. A letter from the restaurant's president , certifying that 
the Beneficiary was employed as claimed on the labo r certification , was submitted with the petition. 
The petiti on was initially approved in March 2011, but the Director issued a notic e of intent to 
revoke (NOIR) in December 2016, citing a nonimmigran t visa application signed by the Beneficiary 
in April 2003 which stated that she worked as a clerk for in 
and did not list any other prior employm ent. The Direc tor noted that this contradicted the 
employment claimed on the labor certification. After receiving the Petitioner' s response to the 
NOIR, the Director issued a decision revoking the approval of the petition. In his deci sio'n the 
Director discussed three pieces of evidence submitted in response to the NOIR - including a 
statement from the Benefici ary desc ribing her alleged work at restaur ant and the 
circumstances of her immigrant visa petition , as well as statements fro m a famil y f riend in 
Korea and the owner of - atte sting that the Beneficiary worked at the restaurant. 
However , the Director found that these statements were not con siste nt with the informat ion prov ided 
in the Beneficiary's nonimmigr ant visa petition, and were not supported by objective evidence like 
tax or payroll records. The Director concluded that the Petiti one r did not establish that the 
Beneficiary had two years of qualifying employment as a restaurant manager, as required by the 
labor certification. 
On appeal the Petitioner assert s that the Direct~r did not prop erly consid er the evid ence of record, 
and that the initial employment verification letter from in conjunction with the three 
1 The "priorit y date" of a petition is the date the underlying labor certificati on i s filed with the DOL. See 8 C.F.R. 
§ 204.5(d). The priority date in this case is February 18, 2009 . 
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Matter of K- Corp. 
statements submitted in response to the NOIR establishes that the Beneficiary met the two-year 
experience requirement of the labor certification. · We do not agree. 
As previously discussed , the initial letter from presid ent, submitted with the petition , 
states that the Beneficiary was employed as the restaurant's manager from January 2000 to Januar y 
2002. In response to the NOIR the Petitioner submitted another letter from president 
stating that the Beneficiary's employment actually began in the spring of 1999 as counter staff and 
that she was promoted to restaurant manager in January 2000, as well as a letter from a family friend 
who likewis e states that the Beneficiary was employed during this tim e frame by The 
letter from president states that the Beneficiary asked for "permission to work for 
another job during daytime because of her financial problems " and the letter from the family friend 
states that the Beneficiary "also worked part-time whenever she can even while doing her job at the 
restaurant." Neither letter, however, identified any other employer of the Beneficiary. In her own 
statement responding to the NOIR the Beneficiary asserted that she worked evenings and weekends 
for the restaurant, which freed up weekdays for other jobs like the clerk position she took at 
2 The Beneficiary's explanation for the· failure to list employment with on her 
nonimmigrant visa application in April 2003 was that the form w as prepared by a visa application 
service provider who did not include a complete employment history for the Benefici ary. As noted 
by the Director in the NOIR, however, the Beneficiary's signature does appear on the non immigrant 
visa application submitted to the Department of State, and that application did not list any 
employment with despite a question specifically requesting the names of the 
Beneficiary ' s last two employers . Further , the Beneficiary answered "No" to the question on the 
nonimmigrant visa application asking: " Was this application prepared by another person on your 
behalf?" As s~:~ch, the nonimmigrant visa application contradicts the Benefic iary 's statement. 
Moreover, as the Director pointed out in the revocation decision, the Peti tioner submitted no 
documentary evidence in its response to the NOIR to corroborate the Beneficiary's alleged 
employment by such as tax records , payroll records , or other employm ent-related 
materials. That evidentiary deficiency has not ,been remedied on appeal. Nor has the Petitioner 
submitted any certificates of income for the years 2000, 2001 , or 2002 from the Nation al Tax 
Service of Korea (NTSK) , the government agency to which all emplo yment in Sou th Korea is 
required to be reported, or statements of national pension cove rage from the National Pension 
Service (NPS). Thus, the Petitioner has not submitted any objective , independen t 
evidenc e of the 
Beneficiary 's claimed employment by as required to resolve evidentiary inconsistencies 
in the record . See Matter of Ho, :19 I&N Dec. 582 , 591-92 (BIA 1988).3 Accordingly , the Petitioner 
has not overcome the Director' s ground of revocation. 
2 The Beneficiary does not slate when she started working for how many hours a week she worked there, or 
when her employment ended. The record indicates that the 13encficiary came to the United States on an f--1 student visa 
in February 2005. 
3 Matter of Ho provides that it is incumbent upon a petitioner to resolve any inconsistend cs in the record by independent 
objective evidence, that attempts to explain or reconcile such inconsistencies will not suffice without competent evidence 
pointing to where t he truth lies, and that doubt cast on any aspect of the petitioner's evidence also reflects o n the 
reliability of the petitioner's remaining evidence. See id. 
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Matter of K- Corp. 
B. Eligibility for Classification as a Skilled Worker 
A petition requesting skilled worker classification "must be accompanied by evidence that the 
[beneficiary] meets the educational, training or experience, and any other requirements of the 
individual labor certification ..... The minimum requirements for this classification are at least two 
years of training or experience." 8 C.F.R. § 204.5(1)(3)(ii)(B). As discussed in this decision, the 
evidence of record does not establish that the Beneficiary has at least two years of experience as a 
restaurant manager. Therefore, she does not qualify for classification as a skilled worker. For this 
reason as well the petition cannot be approved. ' 
Ill. CONCLUSION 
The Petitioner has not established that the Beneficiary had at least two years of qualifying 
employment, as required to meet the experience requirement of the labor certification and to qualify 
for classification as a skilled worker. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-Corp., 10# 1549485 (AAO June 19, 2018) 
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