dismissed EB-3 Case: Tree Surgery

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
ERMONT SERVICE CENTER Date: WT 0 6 2006 
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. 9 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 vour case. Any further inquiry must be made to that office. 
~bbert P. Wiemann, Chief 
Administrative Appeals 0ffick 
EAC-03-204-5 1244 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a tree maintenance company. It seeks to employ the beneficiary permanently in the United 
States as a tree surgeon. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification (labor certification or the Form ETA 750) approved by the Department of Labor, accompanied 
the petition. The director denied the petition because the petitioner did not submit the requested evidence to 
establish that the beneficiary possessed the required two years of work experience as a tree surgeon, and 
therefore, the petitioner had not established that the beneficiary was qualified for the proffered position. 
On appeal, the petitioner's counsel contends that in response to the director's request for evidence (WE) the 
petitioner did submit an experience letter from the beneficiary's former employer and submitted the copy of 
the response to the RFE and a copy of the experience letter. Counsel also argues that the experience letter 
established that the beneficiary possesses two years of experience, and therefore, the petitioner established the 
beneficiary's qualification. 
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 ths paragraph, of performing slulled labor (requiring at least two years training or 
\ 
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 
States. 
A labor certification is an integdl 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. fj 103.2(b)(l), (12). 
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1'977); Matter of Katigbak, 14 
I. & N. Dec. 45, 49 (Reg. Comm. '1971). The priority date is the date the Form ETA 750 was accepted for 
ptocessing by any office within the employment system of the Department of Labor. See 8 C.F.R. 5 204.5(d). 
The pi-iority date in the instant petition is April 6,2001. ' 
In evaluating the beneficiary's qualifications, Citizenship and Immigration Service (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. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red 
~ommissaly of Massachusetts, Jnc. v. Coomey, 661 F.2d 1 (1 st Cir. 198 1). In the instant case, the petitioner 
must show that the beneficiary has the requisite education, training, and experience as stated on the Form ETA- 
750 which, in this case, requires two (2) years of experience in the job offered. 
The regulation at 8 C.F.R. $.204.5(~)(1) states in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) from 
current or former employer(s) or trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
EAC-03-204-5 1244 
Page 3 
If such evldence is unavailable, other documentation relating to the alien's experience or tralnlng 
will be considered. 
The instant 1-140 petition was submitted on July 1, 2003 without any documentation concerning the 
beneficiary's qualification as required by'the above regulation. ~herefo&, on June 9, 2004 the director issued 
a WE relevant to the beneficiary's qualifications as well as the petitioner's ability to pay. After requesting 
additional evidence for the petitioner's ability to pay the proffered wage, the director specifically requested 
' 
evidence for the beneficiary's qualifications with detailed instructions pertinent to the evidence as follows: 
Submit evidence to establish that the beneficiary possessed the requested two years of work 
experience as a tree surgeon as of April 6,2001, the date of filing. 
I 
Evidence relating to qualifLing experience or training shall be ih the form of letter(s) from 
current or former employer(s) or trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or triining 
will be considered. 
The director denied the petition on November 24, 2004 because "[the petitioner's] response did not include 
evidence as outlined above to esiablish that the beneficiary had {he required two years of work experience as a 
Tqgucigalpa, Honduras from 1986 to 1988."   ow ever, after' completely reviewing ad examining all the 
documents submcted in response to the RFE and kept in the record of proceeding in the instant case, the MO 
did not find any copy of the experience letter counsel clalmed to have submltt 
WE. Counsel responded to the director's WE wlth a cover letter from hls as 
e letter from the 
being submitted. Counsel did not submit any 
o not constitute evldence. Matter of Obaigbena, 
19 I&N Dec. 533,534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
' 
. # 
On appeal counsel submlts a copy of an expenence lette; from the - 
ride; Exhibit 3 as evidence that the beneficiary possessed the 
required two years of work experience as a tree surgeon. The purpose of the request for evldence is to ellcit 
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. fj 103.2(b)(14). 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, the MO 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 hiid wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. Under the circumstances, the MO need 
EAC-03-204-5 1244 
Page 4 
not, and does not, consider the sufficiency of the evidence submitted on appeal. Consequently, the appeal 
will be dismissed. 
The AAO also notes that the petitioner never submitted the orignal copy of the experience letter; that the writer 
signed the experience letter on February 12,2001 in the City of Nacaome, 
 alle in Honduras; but 
that the orignal experience letter; in Spanish was translated into English by 
 an assistant to counsel 
in the instant case, on the same day in Port Chester, New York. There is no evidence showing that the experience 
letter was faxed to counsel's office. It causes doubt whether the experience letter is fraudulent. 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 supp& of the visa petition. 
Furthermore, the experience letter verified that the beneficiary worked from 1986 to 1988. Without the starting 
the requisite two years of experience set forth on the Form ETA 750. "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 of Ho, 19 I&N Dec. at 591-592. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 ofthe Act, 8 U.S.C. 5 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.