dismissed EB-3 Case: Thai Cuisine

U.S. Citizenship 
and Immigration 
Services 
In Re: 9125007 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 31, 2020 
The Petitioner seeks to employ the Beneficiary as a cook specializing in Thai cuisine. It requests her 
classification under the third-preference, immigrant category for skilled workers. See Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i) , 8 U.S.C. § 1153(b)(3)(A)(i). 
The Director of the Texas Service Center denied the petition and the Petitioner's following motions to 
reopen and reconsider. Finding the Petitioner's willful concealment of a relationship between its 
president/co-owner and the Beneficiary, and the Beneficiary's willful misrepresentation of her 
employment experience, the Director invalidated the accompanying certification from the U.S. 
Department of Labor (DOL). The Director also found that the Petitioner did not demonstrate the 
Beneficiary's possession of the minimum experience required for the offered position or the requested 
immigrant visa classification. 
The Petitioner bears the burden of establishing eligibility for the requested benefit. Section 291 of the 
Act, 8 C.F.R. § 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT -BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker , a prospective employer must first obtain DOL 
certification . See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL approval signifies that 
insufficient U.S. workers are able, willing, qualified, and available for an offered position. Id. Labor 
certification also indicates that employment of a foreign national will not harm wages and working 
conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act , 8 U.S.C. § 1154. Among other things, USCIS determines whether a beneficiary meets the 
requirements of a DOL-certified position and a requested visa classification. If USCIS grants a 
petition , a foreign national may finally 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. 
II. THE VALIDITY OF THE LABOR CERTIFICATION 
Unless containing a request for Schedule A designation or documentation of a beneficiary's 
qualifications for a shortage occupation, a petition for a skilled worker must include a valid, individual 
labor certification. 8 C.F.R. § 204.5(I)(3)(i). USCIS may invalidate a labor certification after its 
issuance upon finding "fraud or willful misrepresentation of a material fact involving the labor 
certification application." 20 C.F.R. § 656.30(d). 
Misrepresentations are willful if they are "deliberately made with knowledge of their falsity." Matter 
of Valdez, 27 l&N Dec. 496, 498 (BIA 2018) (citations omitted). A misrepresentation is material 
when it has a "natural tendency to influence, or [be] capable of influencing, the decision of the 
decision-making body to which it was addressed." Id. (citation omitted). 
A. Family Relationship 
Here, asked in part C.9 of the accompanying labor certification application whether there is "a familial 
relationship between the owners, stockholders, partners, corporate officers, or incorporators [of the 
Petitioner], and the alien," the company answered, "No." The Beneficiary's 2015 application for a 
U.S. student visa, however, indicates that the Petitioner's president/co-owner paid for her trip to the 
United States and identifies him as her "relative." The Beneficiary's 2015 Form 1-20, Certificate of 
Eligibility for Nonimmigrant Student Status, also indicates that the Petitioner's principal financed her 
U.S. university studies and identifies him as her "Uncle." 
As the Director later conceded, however, the Petitioner successfully rebutted evidence of a family 
relationship between the Petitioner's president/co-owner and the Beneficiary. The Petitioner 
submitted laboratory tests of the pair's deoxyribonucleic acid (DNA), indicating only a 1% chance of 
an uncle-niece relationship between them. The pair identified the Beneficiary as the daughter of a 
friend of the president/co-owner's brother. The pair stated that, consistent with Thai culture, the 
Beneficiary referred to the president/co-owner as a "relative" and an "Uncle" out of respect and 
affection for an older family friend. 
As the Petitioner disproved a direct genetic family relationship between the company's president/co­
owner and the Beneficiary, the record does not demonstrate the Petitioner's misrepresentation in part 
C.9 of the labor certification and thus does not support the certification's invalidation on that ground. 
We will therefore withdraw that portion of the Director's decision. 
B. Bona Fides of the Job Opportunity 
As the Director noted, although the Petitioner's president/co-owner is not likely the Beneficiary's 
uncle, their relationship still casts doubt on the bona tides of the company's job offer to her. See 
20 C.F.R. § 656.10(c)(8) (requiring a labor certification employer to certify that "[t]he job opportunity 
has been and is clearly open to any U.S. worker"). 
Where the alien for whom labor certification is sought is in a position to control hiring 
decisions or where the alien has such a dominant role in, or close personal relationship 
with, the sponsoring employer's business that it would be unlikely that the alien would 
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be replaced by a qualified U.S. applicant, the question arises whether the employer has 
a bona fide job opportunity. 
Matter of Modular Container Sys., Inc., 89-INA-228, slip op. at 7 (BALCA Jul 16, 1991) (en bane) 
(emphasis added); see also Matter of Chamdal Food Mart, 2000-INA-92 (BALCA May 15, 2000); 
Matter of Sunmart 374, 2000-INA-92 (BALCA May 15, 2000) (both finding that a suspect relationship 
between an employer and a foreign national "is not only of the blood," but "may also be financial, 
through marriage, or through friendship").1 
Here, by signing the labor certification application, the Petitioner attested to the bona tides of its job 
offer to the Beneficiary. As previously discussed, however, the record indicates a "close personal 
relationship" between the Petitioner's president/co-owner and the Beneficiary. By the Beneficiary's 
own admission, her reference to the Petitioner's president/co-owner as her "Uncle" on the Form 1-20 
indicates a personal relationship between the pair based on respect and affection. The Beneficiary's 
student visa documentation also indicates that the president/co-owner paid for her initial trip to the 
United States and financed at least part of her U.S. university studies. 2 The close relationship between 
the Petitioner's principal and the Beneficiary warrants scrutiny to determine whether the company was 
truly willing to hire a qualified U.S. worker in the position offered to her. 
The Director did not notify the Petitioner of its potential misrepresentation on the labor certification 
regarding the position's availability to U.S. workers. Nor did the Director determine the bona tides of 
the job opportunity using the relevant factors. See Matter of Modular Container, supra, at 8-10. Thus, 
in any future filings in this matter, the Petitioner must submit additional evidence establishing the 
availability of the offered position to U.S. workers. Relevant factors include whether the Beneficiary: 
is in a position to influence hiring for the offered position; is related to the company's directors, 
officers, or employees; incorporated or founded the company; has an ownership interest in it; is 
involved in its management; sits on its board of directors; is one of a small group of employees; has 
qualifications matching specialized or unusual job requirements or duties; or whether the company 
would likely cease operations in her absence. Id. In addition, the Petitioner should submit evidence 
of its level of compliance and good faith in filing its labor certification application. Id. at 10. The 
Petitioner provided recruitment documentation from the labor certification proceedings, including 
copies of the job order it placed with a state workforce agency and newspaper advertisements of the 
offered position. The record, however, lacks copies of the company's recruitment report, its posted 
notice of filing, applications/resumes received from U.S. applicants, and any correspondence between 
it and DOL. 
1 BALCA stands for Board of Alien Labor Certification Appeals, a DOL administrative tribunal. BALCA decisions do 
not bind USCIS. See 8 C.F.R. § 103.lO(b) (stating that USCIS officers must follow the precedent decisions of the Board 
of Immigration Appeals and the Attorney General in all proceedings involving the same issues). As previously indicated, 
however, Congress charged DOL with administering labor certifications. USCIS therefore defers to DOL's reasonable 
interpretations of its regulations under the labor certification program. See Martin v. Occupational Safety & Health Review 
Comm'n, 499 U.S. 144, 157-58 (1991) (holding that an administrative agency must defer to another's reasonable 
interpretation under a statute that Congress authorized the other agency to administer). 
2 The Beneficiary stated that the Petitioner's president/co-owner agreed to serve as her financial sponsor for U.S. student 
visa purposes, but that her family provided the funds for her U.S. educational expenses. 
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On appeal, the Petitioner argues that it already submitted evidence establishing the bona tides of its 
job offer to the Beneficiary. Citing Chamdal and Sunmart, the Petitioner notes that, in addition to the 
company's recruitment materials, the record contains copies of the company's certificate of formation, 
assumed name certificate, franchise tax report, and federal quarterly payroll tax records. 
The denial grounds in Chamdal and Sunmart, however, differ from those in this matter. In those cases, 
DOL requested evidence of the employers' business structures and ownership because the agency 
suspected the foreign nationals who were offered positions owned parts of the businesses. Matter of 
Chamdal, supra, slip op. at 3; Matter of Sunmart, supra, slip op. at 3. DOL also requested evidence 
of the businesses' employment of other workers because the agency believed the employers fabricated 
the existence of the offered positions solely to help the foreign nationals obtain lawful permanent 
residency. Id. In contrast, the Director here accused neither the Beneficiary of owning part of the 
Petitioner, nor the Petitioner of fabricating the offered position's existence. Rather, the Director 
initially believed a family relationship existed between the Beneficiary and the Petitioner's 
president/co-owner. The Director later found the offered position unavailable to U.S. workers. 
Because the BALCA cases and this petition were denied on different grounds, the evidence requested 
in the BALCA cases does not relate to this matter, and Modular Container controls. The Petitioner's 
evidence therefore does not establish the bona tides of the job opportunity, i.e., the availability of the 
offered position to U.S. workers. 
Although not a basis for denial, in any future filings in this matter the Petitioner must submit additional 
evidence establishing the availability of the offered position to U.S. workers. 
Ill. THE REQUIRED EXPERIENCE 
A skilled worker must be capable of "performing skilled labor (requiring at least 2 years training or 
experience)." Section 203(b)(3)(A)(i) of the Act. A petitioner must also demonstrate a beneficiary's 
possession of all DOL-certified job requirements of an offered position by a petition's priority date. 
Matter of Wing's Tea House, 16 l&N Dec. 158, 160 (Acting Reg'I Comm'r 1977).3 In evaluating a 
beneficiary's qualifications, USCIS must examine the job-offer portion of an accompanying labor 
certification to determine a position's minimum requirements. USCIS may neither ignore a 
certification term, nor impose additional requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 
1015 (D.C. Cir. 1983) (holding that "DOL bears the authority for setting the content of the labor 
certification") (emphasis in original). 
Here, the labor certification states the minimum requirements of the offered position of Thai cook as 
two years of experience "in the job offered." On a labor certification, experience "in the job offered" 
means "experience performing the key duties of the job opportunity." See, e.g., Matter of Symbioun 
Techs., Inc., 2010-PER-01422, slip op. at 4 (BALCA Oct. 24, 2011) (citations omitted). The job duties 
listed on the labor certification include preparing, seasoning, and cooking Thai dishes, dinners, 
desserts, and other food - "including beef sate, mee klob, pud thai, lard narr, and pa-nang" - according 
to recipes. The labor certification also states that the position requires neither training nor education, 
and that the Petitioner will not accept experience in an alternate occupation. 
3 This petition's priority date is February 21, 2013, the date DOL accepted the labor certification application for processing. 
See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
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On the labor certification, the Beneficiary attested that, by the petition's priority date, she gained more 
than two years of full-time, qualifying experience in Thailand. She stated that a restaurant employed 
her as a Thai cook for about 26 months, from October 2010 to December 2012. 
In support of claimed qualifying experience, a petitioner must submit a letter from a beneficiary's 
former employer. 8 C.F.R. § 204.5(I)(3)(ii)(A). The letter must state the employer's name, title, and 
address, and "a description of ... the experience of the alien." Id. If such a letter is unavailable, 
USCIS will consider other evidence of a beneficiary's experience. 8 C.F.R. § 204.5(g)(1). 
The Petitioner submitted a letter from the owner of the restaurant in Thailand. Contrary to 8 C.F.R. 
§ 204.5(I)(3)(ii)(A), however, the letter does not describe the Beneficiary's experience as a cook. The 
letter therefore does not meet regulatory requirements. Also, by omitting a description of the 
Beneficiary's job duties, the letter does not establish her experience "in the job offered" as specified 
on the labor certification. 
In addition, as indicated in the Director's written notice of intent to deny (NOID) the petition, the 
Beneficiary applied for a U.S. student visa about three months after the end of her purported tenure as 
a cook. The Beneficiary attested that she was "not employed" at the time of the visa application, but 
that she had last worked in Thailand as an airline ticket/reservation officer from October 2012 through 
February 2013. The Beneficiary's purported employment for an airline overlaps her claimed 
experience as a cook from October 2010 to December 2012. Because memories tend to fade over 
time, the Beneficiary's attestation on the 2013 visa application appears more reliable than her 
statement on the 2017 labor certification. The overlapping employment therefore suggests that the 
Beneficiary did not work as a cook, or did not work as a cook for at least two years as required for the 
offered position and the requested immigrant visa classification. See Matter of Ho, 19 l&N Dec. 582, 
591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of record with independent, objective 
evidence pointing to where the truth lies). 
In its NOID response, the Petitioner submitted another letter from the restaurant owner in Thailand. 
The owner stated that the Beneficiary informed the restaurant in October 2012 of her desire to leave 
the business and work for an airline. But the owner said: "We persuaded her to continue working for 
us until we could find a replacement for her. We eventually trained a replacement and [the 
Beneficiary] left our restaurant on December 15, 2012." The Petitioner later submitted letters from 
the restaurant's manager and from a purported co-worker of the Beneficiary at the airline. The co­
worker stated that the Beneficiary worked at both the restaurant and the airline for two months. 
The additional evidence, however, is insufficient to establish the Beneficiary's claimed qualifying 
experience. First, none of the letters from the restaurant describe the Beneficiary's experience as a 
cook. Thus, the letters neither meet regulatory requirements nor establish the Beneficiary's experience 
"in the job offered" as the offered position requires. The record also lacks evidence that the 
Beneficiary's purported former colleague worked at the airline during the Beneficiary's claimed tenure 
there, casting doubt on the authenticity and veracity of his letter. In addition, the Petitioner has not 
established the unavailability of independent, objective evidence of the Beneficiary's claimed 
restaurant employment, such as tax or contemporaneous business records. The restaurant manager 
stated that the business has no payroll or employment documents because restaurants in Thailand 
"commonly make all salary/wage payments in cash." But the record does not explain whether the 
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restaurant is exempt from Thai taxes or simply does not pay them. The record also does not explain 
why the Beneficiary can't obtain records of taxes she paid on her purported full-time income from the 
restaurant. 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the minimum 
experience required for the offered position and the requested immigrant visa classification. We will 
therefore affirm the petition's denial. 
As previously indicated, the Director found that the Beneficiary willfully misrepresented her 
qualifying experience on the labor certification. Although not sufficiently corroborated, the Petitioner 
has provided a plausible explanation for why the Beneficiary listed overlapping employment 
experience on her student visa application. It is plausible to believe that she worked two jobs - even 
if both were full-time - for a short period of two months. Thus, the record lacks substantial evidence 
of the Beneficiary's willful misrepresentation of her qualifying experience on the labor certification. 
We will therefore reinstate the certification's validity. 
IV. CONCLUSION 
The record does not support the invalidity of the labor certification. The Petitioner, however, has not 
established the Beneficiary's possession of the minimum experience required for the offered position 
or the requested immigrant visa classification. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The ETA Form 9089, case number~I ----~I is reinstated. 
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