remanded EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
InRe: 17517761 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 1, 2021 
The Petitioner, a restaurant, seeks to employ the Beneficiary as cook. It requests classification of the 
Beneficiary as a skilled worker under the third preference immigrant category. 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" immigrant classification allows a U.S. employer to sponsor a foreign national for lawful 
permanent residence to work in a position that requires at least two years of training or experience. 
The petition was initially approved. However, the Director of the Nebraska Service Center 
~ntly revoked the approval based on the Beneficiary's interview at the U.S. Embassy in 
L___J Turkey, in which she reportedly did not provide any documentation of her employment 
history as a cook and the interviewer regarded her stated intention to cook as not credible. The Director 
concluded that the Beneficiary failed to demonstrate that she has the requisite experience to meet the 
requirements of the labor certification and to qualify for classification as a skilled worker. 
On appeal the Petitioner disputes the Director's description of the Beneficiary's embassy interview, 
asserts that the Beneficiary documented her employment history as a cook at the interview, and 
submits additional employment verification materials confirming that the Beneficiary meets the 
experience requirements of the labor certification and for skilled worker classification. The Petitioner 
requests that the revocation decision be withdrawn and the approval of the petition reinstated . 
Upon de nova review, we will withdraw the Director's decision and remand the case for further 
consideration, including the issue of whether the Beneficiary meets the educational requirement of the 
labor certification. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification (ETA Form 9089) 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)(l)-(11) of the 
Act. Second, the employer files an immigrant visa petition (Form I-140) with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
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.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 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 instant petition for skilled worker classification was filed on February 1, 2016, accompanied by a 
labor certification that was filed with the DOL on September 4, 2014, and certified in January 2016. 
The labor certification required two years of experience as a cook (as well as a high school education) 
to qualify for the job offered, and claimed that the Beneficiary exceeded the experience requirement 
by virtue of her employment as a cook at thel I Restaurant id I Iran, from June 13, 2010, 
to March 6, 2013. Documentary evidence relating to that alleged employment was submitted with the 
petition, which was approved on June 15, 2016. 
A. Beneficiary's Experience 
On December 26, 2018, the Director issued a notice of intent to revoke (NOIR) the petition's approval 
on the ground that the Beneficiary did not have the requisite two years of qualifying experience. The 
NOIR focused almost exclusively on the Beneficiary's interview at the U.S. Embassy inl I 
Turkey, in which the Beneficiary was questioned about her previous work history. As summarized by 
the Director from the Embassy report, the Beneficiary was unable to provide credible documentation 
of her alleged experience as a cook, claiming that she was paid "under the table" in cash, and the 
interviewer found the Beneficiary's stated desire to be a cook "not credible." The Director concluded 
that the Beneficiary apparently lacked the requisite experience to meet the terms of the labor 
certification and to qualify for skilled worker classification. The Petitioner was granted 30 days to 
submit evidence in support of the petition and in opposition to the revocation. 
On December 22, 2020, the Director issued a decision revoking the petition's approval. After stating 
that the Petitioner "failed to provide a response to the NOIR," the Director repeated the grounds for 
revocation in the NOIR verbatim and revoked the approval of the petition. 
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The Petitioner filed an appeal on January 12, 2021, accompanied by a brief entitled "Response to 
Notice of Intent to Revoke" and additional documentation relating to the Beneficiary's alleged 
employment as a cook at the I I Restaurant inl I Iran. The Petitioner does not specifically 
claim that the brief and supporting materials were actually submitted in response to the NOIR of 
December 2018, and there is no postmark or other evidence that these materials were originally 
submitted at that time. Nonetheless, they were timely filed on appeal, and supplement the materials 
previously submitted with the petition. 
It is noteworthy that none of the documentation in the record relating to the Beneficiary's alleged 
experience at thd I Restaurant inl I Iran, was mentioned in the NOIR, or in the subsequent 
revocation decision. The Director relied instead on the report of the Beneficiary's interview at the 
U.S. Embassy in Turkey. The Director did not review any of the materials submitted by the Petitioner 
as evidence of the Beneficiary's alleged experience as a cook, much less determine the probative value 
and credibility of those materials, or the lack thereof. Accordingly, we will remand this matter for 
further consideration, based on the entire record of proceedings. 
B. Beneficiary's Education 
Though not addressed by the Director in the NOIR or in the revocation decision, it does not appear 
that the Beneficiary meets the educational requirement of the labor certification. As stated in the 
regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B): 
If the petition is for a skilled worker, the petition must be accompanied by evidence 
that alien meets the educational, training or experience, and any other requirements of 
the individual labor certification .... 
In this case the labor certification requires, in addition to two years of experience as a cook, a high 
school level education. The labor certification also specifies as section H.9, however, that a foreign 
educational equivalent is not acceptable. The labor certification indicates in section J that the 
Beneficiary completed her high school education in 197 5 a~ I i~ I Iran. Thus, 
the Beneficiary's high school education was not in the United States. The Director may also address 
this issue on remand. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case for further consideration of the Beneficiary's 
experience and education. The Director may issue a new NOIR in accordance with the requirements 
of 8 C.F.R. § 205 .2(b) and ( c) and Matter of Es time. Following the Petitioner's response to the NOIR, 
or the expiration of the time period to respond, 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. 
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