remanded EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 10892744 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 2, 2020 
The Petitioner seeks to employ the Beneficiary as a cook, Thai specialty. It requests her classification 
under the third-preference, immigrant category as a skilled worker. Immigration and Nationality Act 
(the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based, "EB-3" 
category allows a U.S. business to sponsor a foreign national for lawful permanent resident status 
based on a job offer requiring at least two years of training or experience. 
After the tiling's initial grant, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that the Petitioner did not provide sufficient documentary evidence 
that the Beneficiary possessed the minimum employment experience required for the offered position. 
The Director also concluded "that the information about [the Beneficiary's qualifying experience] was 
obtained and submitted through fraud or willful misrepresentation." 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the decision of the 
Director. The matter is remanded for the entry of a new decision consistent with the foregoing 
analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration 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 certification from 
the U.S. Department of Labor (DOL). 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 a position. 
Id. Labor certification also indicates that the 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 considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the 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. 
Section 205 of the Act, 8 U.S.C. § 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 USCIS officer who is authorized to approve an immigrant visa petition "when the 
necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). USCIS 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 
C.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 l&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 June 16, 2017. The accompanying labor certification indicates that 
the offered position requires 24 months of experience as a cook, Thai specialty. The initial evidence 
included a letter from..___ _____ __, supervisor atl !restaurant in 
I I Thailand, where the Beneficiary asserts that she was employed as a Thai cook from 
January 2008 until June 2010. The petition was approved on June 23, 2017. 
In August 2019, the Director sent the Petitioner a NOIR stating that new evidence provided to USCIS 
presented conflicting information with the petition. The Director noted the following inconsistencies: 
1. In attempting to locate and verify the Beneficiary's past employer,._I __ __, 
I I it was revealed that the business address provided is a 
residential building with no apparent restaurant at that location, and 
2. During questioning by officers [during a site visit to the Beneficiary's home], 
the Beneficiary revealed that past tax returns listed her as a server with an 
income above the DOL's prevailing wage for a cook. 
The Director stated further that, "based on the conflicting information, it appears that the Beneficiary's 
letter of experience may have been fabricated and the Beneficiary misrepresented a material fact 
involving the labor certification." The NOIR directed the Petitioner to respond as follows: 
Please provide a written explanation from the previous employer ... explaining the 
discrepancy in the given employment period. The letter should reaffirm the actual 
employment period along with details about the position(s) held and the associated 
job duties and periods. Submit independent objective evidence that corroborates the 
identified period of employment, the existence of the business and the position held. 
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In response to the NOIR the Petitioner submitted a statement fromJ I the owner 
ofl I explaining that the restaurant changed its address in 2013, and 
reaffirming the Beneficiary's work experiencf from 2008 to 2010, To corroborate the existence of the 
restaurant the Petitioner also submitted _ ~·s business registration 
demonstrating its existence since 1992; its lease from 2016 to 2018; a 2019 utility invoice, and; 
numerous photographs of the restaurant, its dishes and online reviews. To further corroborate that 
Beneficiary's experience, the Petitioner submitted a letter from the Beneficiary's acquaintance of more 
than 15 years attesting to her employment as a cook, Thai specialty with ....._ _______ __, 
In addition, the Petitioner submitted a statement asserting that tips are shared among all employees, 
and a statement from the Beneficiary's tax preparer, asserting that, although he is not an accountant, 
he assisted the Beneficiary in preparing her taxes and he erred in claiming the Beneficiary was a 
"server" on her tax return. 
The Director revoked the approval of the petition. In the decision, the Director referenced the same 
conflicting information and addressed the Petitioner's response to the NOIR, stating: 
The evidence provided by the [P]etitioner is insufficient as it does not clarify and 
substantiate the [B]eneficiary's previously claimed work experience ... Additionally, 
the [P]etitioner has not provided tax statements and pay statements from this time 
period to support the [B]eneficiary's work experience ... Also, the evidence provided 
regarding! !restaurant does not support the time period of 
the [B]eneficiary's claimed work experience. 
The Director's decision to revoke the petition's approval is deficient, as it does not sufficiently explain 
the reasons for revocation. When revoking approval of a petition, a director has an affirmative duty 
to explain the specific reasons for the revocation; this duty includes informing a petitioner why the 
evidence did not to satisfy its burden of proof pursuant to section 291 of the Act. See 8 C.F.R. § 
103.3(a)(l)(i). The Director's decision in this case does not explain why the information provided in 
response to the NOIR was insufficient or how it failed to satisfy its burden of proof regarding eligibility 
for the benefit sought. 
Further, it is not clear from the Director's decision whether a finding of willful material 
misrepresentation was made and if it was made, whether the finding pertains to the Petitioner, the 
Beneficiary, or both. To find a willful and material misrepresentation of fact an immigration officer 
must determine that (1) the petitioner or beneficiary made a false representation to an authorized 
official of the U.S. government, (2) the misrepresentation was willfully made, and (3) the fact 
misrepresented was material. See Matter of M-, 6 l&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 
15 l&N Dec. 288, 289 (BIA 1975). The term "willfully" means knowing and intentionally, as 
distinguished from accidentally, inadvertently, or in an honest belief that the facts are 
otherwise. See Matter of Healy and Goodchild , 17 l&N Dec. 22, 28 (BIA 1979). A "material" 
misrepresentation is one that "tends to shut off a line of inquiry relevant to the alien's 
eligibility." Matter of Ng, 17 l&N Dec. 536, 537 (BIA 1980). 
Although not mentioned in the NOIR or the Director's revocation, additional adverse information casts 
doubt on the Beneficiary's claimed employment experience. A review of a nonimmigrant visa 
application that the Beneficiary completed shows that the Beneficiary applied for and was granted a 
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F-1 (Academic Student) visa in 2010. On that nonimmigrant visa application, the Beneficiary listed 
her present employment as "legal officer of registration and identification card section" with the 
Department of Provincial Administration inl I Thailand. The only previous employment 
that the Beneficiary listed on the application was as "inspective officer" for thel ICity Hall 
from July 2005 to July 2007. 
A further review of the record also reveals that the Beneficiary may have concealed a familial 
relationship between herself and the author of the original employment experience letter, supervisor 
-------- During an interview with USCIS officers, the Beneficiary provided a sworn 
statement attesting that she did not knowl I prior to her employment with I I I I and that her spouse does not knowl I However, a review of USCIS 
records and other nonimmigrant visa applications indicates that the Beneficiary's spouse is a relative 
of_______ This discrepancy casts further doubt on the Beneficiary's claim of prior 
employment experience. The Petitioner must resolve these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. Id. 
Considering the above discussed deficiencies, we are withdrawing the Director's revocation and 
remanding the petition to allow the Petitioner an opportunity to address the additional deficiencies 
identified above. On remand, the Director may wish to issue a new NOIR outlining the deficiencies 
above, and allowing the Petitioner an opportunity to respond. The Director must state how the record 
fails to demonstrate eligibility for the classification sought under the pertinent regulatory scheme. If 
the Director makes a finding of willful material misrepresentation against either the Petitioner, the 
Beneficiary, or both, the Director must articulate the basis for the finding(s) in accordance with the 
above-referenced case law. 
111. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration. 
If the Director issues a new NOIR, the content of that notice and the consideration of any evidence 
submitted by the Petitioner should comply with the requirements of 8 C.F.R. § 
205.2(b) and (c) and Matter of Estime. The Director shall then issue a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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