remanded EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 15738244 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 15, 2021 
The Petitioner, a restaurant, seeks to employ the Beneficiary as a cook specializing in Thai food. It 
requests classification for the Beneficiary as an "other worker" under the third preference immigrant 
category . Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent resident status a foreign national who is capable of 
performing unskilled labor that requires less than two years of training or experience and is not of a 
temporary or seasonal nature. 
The Director of the Nebraska Service Center initially approved the petition, but subsequently revoked 
the approval. In the revocation decision the Director indicated that the record contained conflicting 
evidence about the Beneficiary's employment history and therefore did not establish that the 
Beneficiary had the requisite experience to meet the terms of the labor certification that accompanied 
the petition. On appeal the Petitioner asserts that the Director did not properly consider the 
documentation it submitted and that the evidence establishes the Beneficiary's qualifying experience 
as claimed in the labor certification . 
Upon de novo review, we will withdraw the Director's decision. We will remand the case for further 
consideration and the issuance of a new decision. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the 
Act, 8 U.S .C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic 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, ifUSCIS 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. 
Section 205 of the Act, 8 U.S.e. § 1155, provides that the Secretary of Homeland Security may "for 
good and sufficient cause, revoke the approval of any petition." By regulation this revocation authority 
is delegated to any users officer who is authorized to approve an immigrant visa petition "when the 
necessity for the revocation comes to the attention of [USeIS]." 8 e.F.R. § 205.2(a). users must 
give the petitioner notice of its intent to revoke the prior approval of the petition and the opportunity 
to submit evidence in opposition thereto, before proceeding with written notice of revocation. See 
8 e.F.R. § 205.2(b) and (c). A notice of intent to revoke (NOIR) "is not properly issued unless there 
is 'good and sufficient cause' and the notice includes a specific statement not only of the facts 
underlying the proposed action, but also of the supporting evidence." Matter of Estime, 19 I&N Dec. 
450, 451 (BIA 1987). Per Matter of Estime, "[i]n determining what is 'good and sufficient cause' for 
the issuance of a notice of intention to revoke, we ask whether the evidence of record at the time the 
notice was issued, if unexplained and unrebutted, would have warranted a denial based on the 
petitioner's failure to meet his or her burden of proof." Id. 
II. ANALYSIS 
The petition in this case was filed in April 2018, requesting "other worker" classification for the 
Beneficiary. The accompanying labor certification specified that 12 months of experience in the job 
offered was required to qualify for the proffered position, and asserted that the Beneficiary acquired 
that experience by working at thel I inl I Thailand, over a two and one 
half year period from January 1, 2010, to June 30, 2012. 1 The initial evidence included a letter dated 
June 30, 2012 on the letterhead o~ I inl I Thailand, ostensibly signed by 
I l owner of the restaurant, asserting that the Beneficiary had been employed as a 
full time cook from January 1, 2010, to June 30, 2012, and briefly describing her cooking-related 
duties. In response to a request for additional evidence the Petitioner submitted a second employment 
verification letter dated May 18, 2018, once again on the letterhead ofl land 
ostensibly signed by ownd I which reiterated the assertion that the Beneficiary 
was employed as a full time cook from January 1, 2010, to June 30, 2012, and provided more 
comprehensive descriptions of the restaurant's menu and the Beneficiary's alleged cooking and 
cooking-related duties. The petition was approved in August 2018. 
In December 2019, however, the Director sent the Petitioner a NOIR stating that "USeIS conducted 
a[n] investigation at I I and found that the [B]eneficiary never worked there." 
Based on this information the Director indicated that the Beneficiary did not appear to meet the 
minimum experience requirement of the labor certification, and thus did not qualify for the proffered 
position. 
In response to the NOIR the Petitioner submitted a third em:_lo:ment verification letter dated 
December 10, 2019, once again on the letterhead ofl I and ostensibly signed by 
ownd l which reiterated the assertion that the Beneficiary was employed as a full 
time cook from January 1, 2010, to June 30, 2012. In her letter the owner claimed that when users 
1 The regulation at 8 C.F.R. § 204.S(l)(ii)(D) provides that "[i]f the petition is for an unskilled ( other) worker, it must be 
accompanied by evidence that the [beneficiary] meets any educational, training and experience, and other requirements of 
the labor certification." 
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officers visited the restaurant she stated that the Beneficiary was not a former employee because she 
did not recognize her name, but that she now realized the Beneficiary was an employee who went by 
the nickname ~ and had a different surname then because it was prior to her marriage. The 
Petitioner also submitted two short letters, one froml LI ~ s husband 
who managed the restaurant, and the other from a longstanding customer of the restaurant, both of 
whom attested that the Beneficiary used to work there as a foll time cook. 
The Director sent the Petitioner a second NOIR in February 2020, reiterating the statement in its initial 
NOIR that "USCIS conducted a[n] investigation of1 I and found that the 
[B]eneficiary never worked there," while acknowledging receipt of the Petitioner's claim that the 
Beneficiary did work at the restaurant when she was known by the nickname ~ The Director 
requested the submission of tax documents to support the claim that the Beneficiary was employed at 
the restaurant during the years 2010-2012. 
In response to the second NOIR the Petitioner asserted that it was unreasonable to request additional 
documentation of the Beneficiary's employment so long ago. The Petitioner submitted two more 
letters from the co-owner and manager ofl I dated February 26 and 28, 2020, 
respectively, both of whom claimed that the Beneficiary was paid in cash. The Petitioner also 
submitted a letter from another longstanding customer of the restaurant who attested that the 
Beneficiary was employed as a foll time cook. 
The Director proceeded to revoke the approval of the petition. The Director recounted the letters 
submitted in response to the two NOIRs but indicated that the record did not contain "substantiating 
evidence" to establish the Beneficiary's employment by the restaurant. Referencing the USCIS site 
visit once again, the Director stated that "[ t ]he site visit conducted [in] January 2019 indicated that 
I l[and her husband] did not recognize the [B]eneficiary's name" and were unable 
"to verify the [B]eneficiary's employment." Citing Matter of Ho, 19 I&N Dec. 582 (BIA 1988), the 
Director concluded that the Petitioner had not resolved the evidentiary inconsistencies in the record 
and had not established that the Beneficiary had one year of experience as a cook specializing in Thai 
food, as required by the labor certification to qualify for the job offered. 
On appeal the Petitioner restates its claim that the Beneficiary gained the qualifying experience 
required by the labor certification by working at thel l as a cook from January 
2010 to June 2012 and reviews the employment verification letters submitted in response to the two 
NOIRs. The Petitioner contends that the Director's revocation decision was arbitrary because it did 
not explain why these letters were "not given credence" and were not considered "substantiating 
evidence" of the Beneficiary's employment by~-------~ 
Upon review of the entire record we note that the NOIRs issued by the Director were incorrect insofar 
as they stated that users, based on its site visit to thel I "found that the 
[B]eneficiary never worked there." That is not what USCIS determined in its site visit. USCIS 
investigators talked with the restaurant's owner,~---------' who stated that she did not 
author any employment verification letter on behalf of the Beneficiary, and provided her signature as 
evidence that the signature appearing on the emplolment verification letter(s) submitted in this 
proceeding is not hers. However) also acknowledged that the Beneficiary is her 
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cousin and that she did employ the Beneficiary on a part-time basis for one or two years before her 
travel to the United States. 2 According tol I the Beneficiary's duties were limited 
to delivering goods from the restaurant to vendors. Thus, the USCIS site visit indicates that the 
Beneficiary did work at the.__ _______ _, contrary to what the Director stated in the NOIRs, 
though perhaps not in a cooking capacity. 
In sum, the facts presented in the NOIRs were neither accurate nor complete and did not correctly 
describe the supporting evidence. These shortcomings were reflected in the revocation decision, 
which is incorrect insofar as it states that the restaurant's owner and her husband were unable "to 
verify the [B]eneficiary's employment" at the restaurant. As discussed above, the USCIS site visit 
confirmed that the Beneficiary did work at the.__ _______ _. though perhaps not in a cooking 
capacity. 
We conclude that the NOIRs issued by the Director did not comply with the requirements articulated 
in Matter of Es time because they did not include "a specific statement ... of the facts underlying the 
proposed [revocation]" with an accurate description of "the supporting evidence." Accordingly, we 
will remand this matter for the Director to issue a new NOIR setting forth in greater detail "the facts 
underlying the proposed action" and "the supporting evidence," consistent with Matter of Estime. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for the issuance of a new 
NOIR in accordance with the requirements of 8 C.F.R. § 205.2(b) and (c) and Matter of Estime. 
Following the Petitioner's response to the NOIR, or the expiration of the time period for response, the 
Director shall issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further consideration 
and the entry of a new decision consistent with the foregoing analysis. 
2 USCIS records show that the Beneficiaiy was issued a Bl/B2 visa with a 10-year validity on Febmaiy 18, 2015, and 
entered the United States with that visa the following month. In her visa application the Beneficiaiy asserted that she was 
emplord as an accountant by a constmction company in Thailand, though that was after the time she assertedly worked 
for the.__ ______ _,~s a cook. 
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