remanded EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-S-K-D- T -1-I-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY7,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a restaurant specializing in Korean cwsme, seeks to employ the 
Beneficiary as a cook. It requests her classification under the third-preference, immigrant category 
as an "other worker." Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This classification allows a U.S. business to sponsor a foreign national with 
less than two years of training or experience for lawful permanent resident status. 
After the filing's initial grant, the Acting Director of the Nebraska Service Center revoked the 
petition's approval. The Director concluded that U.S. Citizenship and Immigration Services 
(USCIS) mistakenly approved the petition, as the Petitioner did not establish the Beneficiary's 
possession of the minimum experience required for the offered position. Specifically, the Director 
found that discrepancies between the petition and the Beneficiary's prior application for a U.S. 
visitor's visa cast doubts on her claimed, former employment. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary has sufficiently 
explained the discrepancies. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for further 
proceedings consistent with the following opinion. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently till a 
position in the United States with a foreign worker, an employer must first obtain 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). DOL approval signifies that insut1icient U.S. workers are able, willing, qualified, 
and available for a position and that employment of a foreign national will not harm wages and working 
conditions of U.S. workers with similar jobs. !d. 
If the DOL certifies a position, an employer must next submit the certification with an immigrant 
visa petition to USCIS. See section 204 of the Act, 8 U.S.C. § 1154. IfUSCIS approves 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. 
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Before a beneficiary obtains lawful permanent residence, however, USCIS may revoke a petition's 
approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. §I I 55. If supported by 
the record, a petition's erroneous approval may justify its revocation. Maller of Ho, 19 I&N Dec. 
582, 590 (BIA 1988). 
USCIS may issue a notice of intent to revoke (NOIR) if, as of the notice's issuance, the unexplained 
and unrebuttcd record would have warranted the petition's denial. Maller of Estime, 19 I&N Dec. 
450, 451 (BIA 1987). Similarly, revocation lies if the record, after consideration of a petitioner's 
rebuttal evidence or explanations, would have warranted denial. !d. at 452. 
II. TI-lE REQUIRED EXPERIENCE 
A petitioner must establish a beneflciary's possession, by a petition's priority date, of all DOL­
certified job requirements. 1 Matter of Wing's Tea House. 16 I&N Dec. !58, I 60 (Acting Reg'! 
Comm 'r 1977). In evaluating a beneliciary'·s qualifications, USCIS must examine the job otTer 
portion of an accompanying labor certification to determine the minimum requirements of an alTered 
position. USCIS may neither ignore a certification tem1, nor impose additional requirements. See. 
e.g. lvfadany v. Smith. 696 F.2d I 008, I 015 (D.C. Cir. 1983) (holding that the "DOL bears authority 
for setting the content of the labor ccrti lication") (emphasis added). 
Here, the accompanying labor certification states the minimum requirements of the offered position 
of cook as a U.S. high school diploma or a foreign. equivalent credential, and one year of experience 
in the job offered. On the labor certification, the Beneficiary attested that, before the petition's 
priority date, she gained more than two years of full-time, qualifying experience in South Korea. 
She stated that she worked as a cook in the cafeteria of a hat company for about 22 months, from 
. September 2001 through June 2003. She also stated that she worked as a restaurant cook for about 
live months in 2000. 
The Petitioner submitted a letter and affidavit from the president of the hat company. Both 
documents state the company's employment of the Beneficiary as a cafeteria cook from September 
200I through June 2003. See 8 C.F.R. ~ 204.5(g)(l) (requiring a petitioner to support a bcneticiary's 
claimed, qualifying experience with a letter from a former employer). The Director's NOIR, 
however, alleged that contrary statements of the Beneficiary on her 2003 application lor a visitor's 
visa application undermine her claimed, qualifying experience. 
However, the NOIR did not specify the discrepancies on the Beneficiary's visa application. See 
Marter of Estime, 19 l&N Dec. at 451-52 (requiring an NOIR to contain a "specific statement" of the 
evidence supporting the proposed revocation). We will therefore withdraw the Director's decision 
and remand the matter for the issuance of a new NOIR. 
1 This petition's priority date is October 22. 2013. the date the DOL accepted the accompanying 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 remand, the Director should review the Petitioner's appellate evidence and issue a new NOIR 
specifically identifying any evidence casting doubt on the Beneficiary's claimed, qualifying 
experience. The NOIR should include a detailed statement about the inconsistencies between the 
non-immigrant visa application and the experience claimed on the labor certification? The NOIR 
should also notify the Petitioner of the following additional potential grounds of revocation. 
Ill. THE NATURE OF THE BENEFICIARY'S EXPERIENCE 
Even if the Petitioner establishes the Beneficiary's claimed former employment, the record as of the 
petition's approval did not demonstrate the qualifying nature of the experience. As previously 
indicated, the labor certification states that the offered position of cook requires at least one year of. 
experience in the job offered. Experience in a job offered means experience performing the primary 
duties of an offered position. Maller ofS:vmbioun Techs.. Inc., 20 I 0-PER-0 1422, 20 II WL 5126284 
*2 (BALCA Oct. 24, 2011) (citations omitted). The certification here states the primary duties of 
the ofTered position as: planning tof~t and Korean dishes; making and keeping tofu safe and sanitary; 
ordering, monitoring, and keeping fresh vegetables and ingredients; directing, supervising, and 
helping to prepare and season large quantities and kinds of tofu; and helping assistant cooks handle 
customer demands. 
The letter from the hat company's president states that the Beneficiary's former duties included: 
planning dishes for lunch and dinner; buying groceries and ingredients; preparing and seasoning 
dishes; directing assistants to wash and prepare ingredients; and tasting foods. 13ut, contrary to many 
of the job duties stated on the labor certification, the record did not establish that the Beneficiary 
ordered, kept prepared, and seasoned tofu dishes. The record therefore did not establish the 
qualifying nature of the Beneficiary's experience in the job offered. 
IV. THE REQUIRED EDUCATION 
The record as of the petition's approval also did not establish the Beneficiary's possession of the 
minimum education required for the offered position. As previously indicated, the labor certification 
states that the offered position of cook requires a U.S. high school diploma or an equivalent foreign 
credential. The 13encliciary states on the cetiilication and her resume that she attended high school 
1 We note that on appeaL the Beneficiary discloses that the hat company's president, the signatory of the letter and 
affidavit of record. is her brother-in-law. the spouse of her husband's sister. The Beneficiary also states that the 
company employed her husband.2 Because of these family relationships between the Beneficiary and her former 
employer. the documents from the Beneficiary's brother-in-law do not constitute independent. objective evidence of her 
claimed. qualifying experience at the company. Further, the Beneficiary's brother-in-law stated that the hat company 
closed in 2010. But the record does not establish the unavailability of business records or other independent, objective 
evidence of the company's employment of the Beneficiary, such as bank records showing regular deposits of her wages, 
or affidavits from f01111er supervisors or co·workers not otherwise related to the Beneficiary. See Mutter of B&B 
Residemial Facililv. 2001-lNA-00146, 2002 WL 1586297, *3 (BALCA July 16. 2002) (allowing an employer to 
establish a foreign nationars qualifying experience based on ;;under·the-table'· employment but warning that such 
employment "may be difficult to document''). · 
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in South Korea. But these uncorroborated statements do not establish her educational qualifications. 
The Petitioner must submit independent, objective evidence of the Beneficiary's education, such as 
copies of a diploma, certificate, or other school records. 
V. ABILITY TO PAY THE PROFFERED WAGE 
As of the petition's approval, the Petitioner also did not demonstrate its ability to pay the profkred 
wage. A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's 
priority date until a beneficiary ·obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. /d. Here, the labor certification states the pro!Tered wage of the 
offered position of cook as $33,000 a year. As previously noted, the petition's priority date is 
October 22, 2013. 
The petition contained a copy of the Petitioner's federal income tax return for 2014. The return 
indicates that the company had sufficient amounts of net income and net current assets to pay the 
proffered wage in 2014. But the record as of the petition's approval in June 2015 lacked required 
evidence of the Petitioner's ability to pay in 2013 or 2015. The Petitioner therefore did not 
demonstrate its continuing ability to pay the proffered wage from the petition's priority date. 
On remand, the new NOIR should notify the Petitioner of the deficiencies discussed above and any 
others that the Director may note. The NOIR should also afford the Petitioner a reasonable period to 
respond. Upon receipt of a timely response, the Director should review the entire record and enter a 
new decision. 
VI. CONCLUSION 
The NOIR lacked a specific statement of the evidence casting doubt on the Beneficiary's claimed, 
qualifying employment for the offered position. The record, however, does not establish the 
qualifying nature of the Beneficiary's experience, her possession of the minimum education required 
for the offered position, or the Petitioner's ability to pay the protTered wage. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as J'vfaller ofP-S-K-D-T-H-, ID# 1041389 (AAO May 7, 2018) 
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