remanded EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 31, 2023 In Re: 28560171 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, the operator of a Japanese hibachi restaurant, seeks to employ the Beneficiary as a 
sushi chef under the third-preference, immigrant visa 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). 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that the Petitioner falsely concealed family relationships between 
the Beneficiary and the company's principal and that the Petitioner didn't demonstrate the required 
availability of the offered position to U.S. workers. The matter is now before us on appeal. 8 C.F.R. 
§ 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision to deny the petition and invalidate the labor certification. 
We will remand the case for adjudication within the statutory and regulatory framework for 1-140 
immigrant visa petitions. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and (2) the employment of a 
noncitizen in the position won't harm wages and working conditions of U.S. workers with similar jobs. 
See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit an approved labor certification 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 noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, if USCIS approves a petition, a noncitizen beneficiary 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. 
"[ A ]t any time" 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. § 1155. If 
supported by a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. 582 (BIA 1988). 
USCIS may issue a notice of intent to revoke (NOIR) a petition if the unexplained and unrebutted 
record at the time of the NOIR's issuance would have warranted the filing's denial. Matter ofEstime, 
19 I&N Dec. 450, 451 (BIA 1987). USCIS properly revokes a petition's approval if a petitioner's 
NOIR response doesn't overcome stated revocation grounds. Id. at 451-52. 
II. UNDISCLOSED FAMILIAL RELATIONSHIP 
On the petition and labor certification, the Petitioner attested to its intent to permanently employ the 
Beneficiary in the proffered sushi chef position. Asked in part C.9 of the labor certification "is there 
a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, 
and the [noncitizen]?" the Petitioner indicated "No." The Director approved the petition in April 2019. 
The Director's notice of intent to revoke the petition (NOIR), however, noted that at the Beneficiary's 
adjustment interview, he testified that he first met the Petitioner's principal, Mr. C-, in November 2016 
while dining at the Petitioner's restaurant, stating that Mr. C- came over and chatted with him and 
observed that he was having difficulty finding an experienced sushi chef to fill a vacant position at the 
restaurant. Asked when he was first offered the sushi chef position, the Beneficiary attested that he 
was offered the job by Mr. C- in November 2016, but he told Mr. C- that he could not take the position 
at that time because he was not authorized to be employed in the United States. He indicated that Mr. 
C- offered to have the Petitioner sponsor him for an immigrant visa, so he could work as a sushi chef 
at the restaurant. He continued to dine at the restaurant thereafter on an ongoing basis, making 
occasion to visit with Mr. C- when he was there. 
The Director issued the NOIR which outlined the statements made by the Beneficiary at his adjustment 
interview, notifying the Petitioner that the Beneficiary's testimony suggests that the proffered position 
was created for the Beneficiary and not available to U.S. workers despite the approval of the labor 
certification by DOL. He concluded that it appeared that Mr. C- and the Beneficiary enjoy a "familial" 
relationship through their ongoing friendship, and that the Petitioner made a false representation by 
willfully and knowingly failing to disclose this relationship in the labor certification by answering 
"No" in part C. 9. The Petitioner provided a brief and evidence in response to the NOIR, including 
letters from the Beneficiary and Mr. C-, who contended, among other things, that the Director erred 
in concluding that their friendship at the time the labor certification was filed constituted a familial 
relationship that required disclosure in part C.9 of the form. 
The Director ultimately revoked the petition for the reasons set forth in the NOIR, concluding that the 
Petitioner's failure to disclose its familial relationship with the Beneficiary shut off a line of inquiry 
about the bona fide nature of the proffered position and its eligibility for the immigration benefits 
sought in the petition. However, she also introduced new facts that she considered in revoking the 
2 
petition regarding aspects of the Petitioning entity, the proffered position, and the stated relationship 
between the Petitioner's staff and the Beneficiary in her revocation notice. 
For instance, the Director indicated that the Petitioner intends to employ the Beneficiary as a "kitchen 
helper," not a sushi chef as stated throughout the petition. She also observed that "since the 
Beneficiary is related to [the Petitioner's] former corporate officer (treasurer), this fact may cast doubt 
on whether the bona fides of the job was clearly open to [U.S.] workers and whether the U.S. workers 
who applied for the job were [ not offered the job] for [a] lawful job-related reason." The record does 
not include evidence that reflects the Beneficiary is related to a former COfQOrate officer of the 
Petitioner. The Director also referenced an analysis focused on an entity called ".__ ______ _. 
(T-), concluding that the Petitioner in the instant petition had used the same legal counsel as T-, and 
that willful misrepresentations had been made by both entities. But neither the revocation notice nor 
the NOIR offered such an analysis. 
USCIS properly revokes a petition's approval if a petitioner's NOIR response doesn't overcome stated 
revocation grounds. Matter of Estime, 19 I&N Dec. at 451-452. Here, we conclude the Director 
introduced new information and adverse facts unknown to the Petitioner in the revocation notice, 
(some of which seem unrelated to the case at hand), which were not previously included in the NOIR. 
The NOIR did not notify the Petitioner of this additional derogatory information and resulting 
evidentiary deficiencies. See 8 C.F.R. § 103.2(b)(l6)(i) (requiring USCIS to notify a petitioner of 
derogatory information of which it is unaware and to provide it with a rebuttal opportunity). 
Accordingly, we will withdraw the Director's decision, including the Director's misrepresentation 
finding against the Petitioner, and will remand the matter back to the Director to consider the record 
anew, including the brief and evidence provided by the Petitioner on appeal, and enter a new decision. 
III. THE REQUIRED EXPERIENCE 
To approve a petition, USCIS must determine that "the facts stated in the petition are true." Section 
204(b) of the Act. A skilled worker petition comprises its supporting evidence, including an 
accompanying labor certification. 8 C.F.R. § 103.2(b)(l). Thus, USCIS cannot approve a petition if 
the facts stated on the labor certification are untrue. 
A skilled worker must be able to perform "skilled labor (requiring at least 2 years training or 
experience)." Section 203(b)(3)(A)(i) of the Act. This petition's priority date is October 22, 2018, 
the date 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). A petitioner must demonstrate a 
beneficiary's possession of all DOL-certified job requirements of a proffered position by a petition's 
priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). 
In evaluating a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position. 
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). 
3 
Though unaddressed by the Director in her revocation notice and NOIR, we conclude the inconsistent 
evidence ofrecord casts doubt on the Petitioner's proof of the Beneficiary's claimed qualifying work 
expenence. While we may not discuss every document submitted, we have reviewed and considered 
each one. 
The accompanying labor certification states the minimum requirements of the offered position are two 
years of work experience "in the job offered," and requires neither education nor training. The 
Petitioner farther stated that it will not accept experience in an alternate occupation. On the labor 
certification, the Beneficiary attested that, by the petition's priority date, he gained more than two 
years of foll-time, qualifying experience as a sushi chef at a Japanese restaurant (C-H-) in South Korea. 
He stated that he was employed there in that capacity from November 2004 - March 2007. The 
Beneficiary did not list any other sushi chef work experience on the labor certification, but also noted 
that from January 2015 - April 2016 he was employed abroad byl lrn-) as a "project 
manager." The Beneficiary signed the labor certification under penalty of perjury, attesting that all of 
the information provided by him therein was true and correct. 
To support claimed qualifying experience, a petitioner must submit a letter from a beneficiary's former 
employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must state the employer's name, title, and address, 
and describe the beneficiary's experience. Id. "If such evidence is unavailable, other evidence relating 
to the alien's experience ... will be considered." 8 C.F.R. § 204.5(g)(l). 
The Petitioner submitted an April 2017 letter from the Beneficiary's former employer, C-H-, which 
post-dates both the Beneficiary's claimed employment with this restaurant (by ten years) and when 
the Petitioner first offered employment to the Beneficiary in November 2016 (by six months). The 
letter reiterated the dates of his qualifying employment and described the Petitioner's job duties for 
the proffered position in terms nearly verbatim to those specified in the labor certification. 
Importantly, the evidence submitted in support of the petition to demonstrate the Beneficiary's 
qualifying experience is inconsistent with information previously provided by him in the 2005 
nonimmigrant visa application he submitted to the U.S. Department of State (DOS). Specifically, 
when applying for a U.S. visa abroad, the BeneficiarJ attested in his visa application in October 2005 
that he was employed as an "assistant manager" with l(K-), not as a sushi 
chef with C-H-. The Beneficiary's answers on the visa application conflict with his claimed, 
qualifying experience with C-H- from November 2004 - March 2007. 
The U.S. Department of State (DOS) clearly advises visa applicants that, by submitting applications, 
they certify under penalty of perjury that they have read and understood the applications' questions 
and that their answers are true and correct to the best of their knowledge and beliefs. See, e.g., DOS, 
"DS-160: Frequently Asked Questions," https://travel.state.gov/content/travel/en/us-visas/visa­
information-resources/forms/ds-160-online-nonimmigrant-visa-application/ds- l 60-faqs.html. Here, 
the qualifying employment information that the Beneficiary attested to in 2019 under penalty of 
perjury in the labor certification is inconsistent with the information about his claimed employment 
with K- that he attested to in his nonimmigrant visa application with DOS in 2005 (at a point in time 
contemporaneous to the timeframe of his claimed qualifying employment with C-H-.) The Petitioner 
must resolve these inconsistencies of record with independent, objective evidence pointing to where 
the truth lies. See Matter ofHo, 19 I&N Dec. at 591. 
4 
Misrepresentation of a material fact may lead to multiple consequences in immigration proceedings. 
Under Board of Immigration Appeals precedent, a misrepresentation is material when it tends to shut 
off a line of inquiry that is relevant to a foreign national's admissibility and that would predictably 
have disclosed other facts relevant to his or her eligibility for a visa, other documentation, or admission 
to the United States. Matter ofD-R-, 27 I&N Dec. 105 (BIA 2017). It appears that the Beneficiary 
may have willfully misrepresented his qualifying work experience in the labor certification in order to 
obtain immigration benefits. 
A finding of willful misrepresentation in a visa petition may be considered in any future proceeding 
to determine that the Beneficiary is inadmissible to the United States. Section 212(a)(6)(C)(i) of the 
Act, 8 U.S.C. § 1182(a)(6)(C)(i). A material misrepresentation requires that a (Beneficiary) willfully 
make a material misstatement to a government official for the purpose of obtaining an immigration 
benefit to which one is not entitled. See generally 8 USCIS Policy Manual J.2, 
https://www.uscis.gov/policy-manual. See also Matter ofKai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 
1975). 
The Petitioner also initially submitted the Beneficiary's resume with the petition which noted that he 
attended university in South Korea, graduating in 1999 with a degree in physical education. No other 
collegiate-level education was noted. The resume reflects the Beneficiary's claimed qualifying 
education as a sushi chef with C-H- from November 2004 until March 2007. In addition, the 
Beneficiary's subsequent employment by other organizations is noted, as follows: 
• Sales Representative from October 2007 - June 2009 with I 
• Distribution Representative from July 2009-August 2013._w_1-·th_,l_____ ...,___ __,l(S-) 
• Sales and Distribution Manager from September 2013 - April 2016 with E-
N otably, the Beneficiary's dates of employment with E- listed in the labor certification (January 2015 
- April 2016) are inconsistent with his claimed employment with E- on his resume (September 2013 -
April 2016). The Beneficiary also without explanation only noted his employment with C-H- and 15 
months of his employment with E- in the labor certification, while his resume provides other aspects 
of his employment history. We acknowledge that the Beneficiary's employment with E- is not 
qualifying for the purposes of demonstrating that he possesses at least two years of work experience 
as a sushi chef but these discrepancies raise questions regarding the credibility of the Beneficiary's 
work experience evidence in the record. 
Additionally, the Beneficiary attested to academic and experiential information in a January 2016 
nonimmigrant visa application with DOS that is inconsistent with evidence submitted in support of 
this petition. For instance, in the visa application, he indicated that he attended a university in the 
United States with an accounting course of study from January 2001 - March 2004, a fact omitted in 
the labor certification and resume submitted with the petition. In his 2016 application he attested that 
he was employed at that time by E-, but also noted that he was employed by S- from July 2009 -
December 2014, not July 2009 - August 2013 as stated on his resume. 
We also note that on appeal, the Petitioner and Beneficiary have provided letters which suggest that 
the Beneficiary is currently employed by the Petitioner as a sushi chef However, the Beneficiary's 
online Linkedin profile indicates that he is currently employed as a business development director 
5 
with S- and his profile makes no mention of his claimed sushi chef employment with the Petitioner. 
See https://sg.linkedin .com/inJ I 
We acknowledge that Form 1-140 petitions represent offers of "prospective employment." See Final 
Rule for Retention of EB-1, EB-2, and EB-3 Immigrant Workers, 81 Fed. Reg. 82398, 82416 (Nov. 
18, 2016). The Petitioner therefore need not employ the Beneficiary in the offered position until he 
obtains lawful permanent residence. See also Matter of Rajah, 25 I&N Dec. 127, 132 (BIA 2009) 
(stating that "[a]n alien is not required to have been employed by the certified employer prior to 
adjustment of status"). However, where a petitioner claims to employ a beneficiary for the purpose of 
establishing eligibility for immigration benefits, but other evidence contradicts these claims, the 
credibility of the petitioner's claims in the petition may come into question. 
An immigration officer will deny a visa petition if the petitioner submits evidence that contains false 
information. See section 204(b) of the Act. In general, a few errors or minor discrepancies are not 
reason to question the credibility of an alien or an employer seeking immigration benefits. See Spencer 
Enterprises Inc. v. US., 345 F.3d 683,694 (9th Cir., 2003)(upholding the AAO's finding that evidence 
in that matter was not credible). However, if a petition includes serious errors and discrepancies, and 
the petitioner fails to resolve those errors and discrepancies after an officer provides an opportunity to 
rebut or explain, then the inconsistencies will lead USCIS to conclude that the facts stated in the 
petition are not true. See Matter ofHo, 19 l&N Dec. at 591. 
Based on our foregoing analysis we will withdraw the Director's decision and remand the matter back 
to the Director to consider the entire record, including the evidence provided in support of the appeal, 
and determine whether the Petitioner has demonstrated that the Beneficiary qualifies for the third­
preference "skilled worker" visa category, and whether he meets the specific requirements of the labor 
certification (two years of work experience in the offered position). 
On remand, the Director may wish to issue a new NOIR outlining aspects of the evidence in the record 
that she deems deficient and allowing the Petitioner an opportunity to respond. The Director should 
consider the entire record, including any new evidence submitted and, if deficient, must state how the 
record fails to demonstrate eligibility for the classification sought under the pertinent regulatory 
scheme. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
6