remanded EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 10348958 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 22, 2020 
The Petitioner seeks to employ the Beneficiary as a chef, Korean foods. It requests classification of 
the Beneficiary 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 San Antonio Field Office 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 of the Texas Service Center denied a subsequent motion to reopen and reconsider. 
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. § 13 61. Upon de novo 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.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 Es time, 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 Petitioner in this matter is a Korean restaurant and employs six individuals. The Petitioner 
checked "yes" to question e.9 on the labor certification, "Is the employer a closely held corporation, 
partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial 
relationship between the owners, stockholders, corporate officers, incorporators, or partners, and the 
alien?" The accompanying labor certification in this case indicates that the offered position requires 
completion of high school, or foreign educational equivalent, and 24 months of experience as a chef, 
Korean foods. The initial evidence included the Beneficiary's high school graduation certificate, and 
a certificate of career detailing the Beneficiary's employment as a Korean food chef from February 1, 
2000 to July 31, 2003, with ________ ~ -, a business in Seoul, Korea. In addition, the 
Petitioner submitted a certificate of close of business demonstrating that I I 
closed its business on June 30, 2005. 
In November 2018, following an interview at the San Antonio Field Office, the Director (San Antonio) 
sent the Petitioner a NOIR stating that new evidence provided to users cast doubt on the 
Beneficiary's claimed experience. The Director (San Antonio) noted the following: 
1. The Petitioner is a restaurant owned and operated by the Beneficiary's parents, 
2. The certificate of close of business demonstrates that the Beneficiary's mother 
was the owner of _________ where the Beneficiary claims to have 
gained experience as a chef, Korean foods, 
3. The certificate of close of business does not demonstrate that .... I ___ _. 
I I was a restaurant business, and 
4. The certificate of career is signed by the Beneficiary's mother and was issued in 
2016, more than ten years after the business closed. 
In this petition, the Beneficiary's parents are the owners of the business sponsoring the Beneficiary 
for lawful permanent resident status. Further, the Beneficiary's qualifying experience was gained at 
a business owned by her mother. Based on these close familial relationships between the Petitioner, 
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the Beneficiary, and her former employer, the Director (San Antonio) concluded that, "there is no 
credible evidence establishing [the Beneficiary] meets the minimum requirements for this benefit." 1 
In response to the NOIR the Petitioner submitted an updated translation of the certificate of close of 
business listiig I I as a restaurant; notarized statements from two former 
employees of I attesting to the Beneficiary's employment; a statement from 
the Beneficiaiy' s mother attesting to her ownership of I O I and of the 
Beneficiary's chef experience in that restaurant, and; correspondence with the DOL demonstrating 
that the accompanying labor certification was audited based on the disclosure that the Petitioner's 
owners were the parents of the Beneficiary. 
The Director (San Antonio) revoked the approval of the :etition. In her decision, the Director (San 
Antonio) found that the record demonstrated that I I was a restaurant owned by 
the Beneficiary's mother. However, the Director (San Antonio) found that the statements from the 
former employees of,__ ________ _. were not sufficient to establish the Beneficiary's 
qualifying experience because the statements were not written in the native language of the signors, 
the signors were not employers or trainers as required by 8 C.F.R. § 204.5(1)(3), and the statements did 
not include "corroborating evidence by way of any government document for the claim that either 
individual was employed by the Korean company." The Director (San Antonio) further found that the 
Beneficiaiy' s mother's statements were "self-serving, written by an involved party, and lack 
credibility." 2 
The Petitioner submitted a motion to reopen and reconsider to the Director of the Texas Service Center. 
With the motion, the Petitioner submitted another statement from the Beneficiary's mother attesting 
to the Beneficiary's chef experience in Korea, stating that the Beneficiary was first hired as a kitchen 
employee, and was then trained by the head chef to cook Korean food. The Director (Texas) dismissed 
the motions and, using language nearly identical to the decision to revoke the petition's approval, 
concluded that the record does not demonstrate that the Beneficiaiy possesses the requisite work 
experience. The decision does not address the additional statement from the Beneficiary's mother. 
1 The record demonstrates that the accompanying labor certification was denied after a DOL audit and was subsequently 
reopened and approved after the Petitioner's request for reconsideration. The accompanying labor certification, and the 
correspondence in the record between the DOL and the Petitioner, fully discloses the familial relationship between the 
Petitioner and the Beneficiary. 
2 The decision also states that the Beneficiary denied that she was employed by the Petitioner at the time of her USCIS 
interview in October 2018, but that an investigation determined that the Petitioner paid wages to an individual holding the 
Beneficiary's social security number for two quarters in 2019. While the Director states that the Beneficiary's claim of 
non-employment is an "apparent falsehood," we note that the finding that the Beneficiary may have been employed by the 
Petitioner in 2019 is not contradictory to her statement that she was not employed in 2018. The Director stated that this 
information "may establish that [the Beneficia1y] violated the terms of her current F-1 student status." However, the 
Director does not explain how this information is relevant to the Petitioner's or the Beneficiaiy's eligibility for the benefit 
sought. Department of Homeland Security regulations do not require Form I-140 beneficiaries to maintain valid 
nonimmigrant status or to prove their admissibility to the United States to obtain petition approval. Rather, status violations 
and admissibility would be considered at the adjustment or immigrant visa stage. See Matter of 0-, 8 I&N Dec. 295,297 
(BIA 1959) (holding that immigrant petition proceedings are inapprop1iate fora for addressing substantive issues of 
admissibility). 
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The regulation at 8 C.F.R. § 204.5(1)(3) provides: 
(ii) Other documentation-
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
Here, the record includes a certificate of career and two supporting statements from the Beneficiary's 
employer attesting to her experience as a chef, Korean foods. The record also includes statements 
from former coworkers corroborating her experience. While the evidence from the Beneficiary's 
employer would meet the requirements of 8 C.F.R. § 204.5(g)(l) as it includes the name, address, and 
title of the writer, and a specific description of the duties performed by the Beneficiary , the record 
contains conflicts in the claimed experience as set forth further below. 
The Director's decision, however, 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 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. 
In the course of adjudicating immigration benefit requests, USCIS regularly reviews affidavits, 
testimonials, and letters from both laypersons and recognized experts. To be probative, a document 
must generally provide: (1) the nature of the affiant's relationship, if any, to the affected party; (2) the 
basis of the affiant's knowledge; and (3) a specific - rather than merely conclusory - statement of the 
asserted facts based on the affiant's personal knowledge. Matter of Chin, 14 I&N Dec. 150, 152 (BIA 
1972); see also 8 C.F.R. § 103.2(b)(2)(i) (requiring affidavits in lieu of unavailable required evidence 
from "persons who are not parties to the petition who have direct personal knowledge of the event and 
circumstances"); Matter of Kwan , 14 I&N Dec . 175, 176-77 (BIA 1972); Iyamba v. INS, 244 F.3d 
606, 608 (8th Cir. 2001 ); Dabaase v. INS, 627 F.2d 117, 119 (8th Cir. 1980). A petitioner may submit 
a letter or affidavit that contains hearsay or biased information , but such factors will affect the weight 
to be accorded the evidence in an administrative proceeding. See Matter of D-R-, 25 l&N Dec. 445, 
461 (BIA 2011) ( citations omitted). Probative evidence beyond a letter or affidavit may be considered 
when submitted to resolve inconsistencies or discrepancies in the record. See Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). Ultimately, to determine whether a petitioner has established eligibility 
for a requested benefit by a preponderance of the evidence, USCIS must examine each piece of 
evidence - both individually and within the context of the entire record - for relevance, probative value, 
and credibility. Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). 
The Director (San Antonio) found fault with the certificate of career because it was signed by the 
Beneficiary's mother, and because it was issued more than ten years after the close of the business. 
However, the Beneficiary's mother claims to have been the Beneficiary's employer, and the regulation 
does not require that the employer be in valid operating status at the time the letter is issued . Nor does 
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the regulation prohibit a family member from providing an experience letter. Such factors, the closed 
business, and confirmation from a relative, however, might impact the assessment of the evidence's 
probative value and should be weighed. 
The Director (San Antonio) also finds fault with the evidence submitted to corroborate the certificate 
of career, namely the statements from the Beneficiary's former coworkers. Although the Director 
(San Antonio) states that these coworkers were not employers or trainers as required by 8 C.F.R. § 
204.5(g)(l), the record already includes regulatory prescribed evidence of the Beneficiary's 
experience and these statements, if provided as corroborating evidence, would not be subject to that 
regulation, but similarly weighed to determine their probative value. 3 
While the Director may have elected to give the certificate of career less weight due to the familial 
relationship between the Beneficiary and her employer, the Director does not clearly state the reasons 
why the certificate, taken together with the additional probative evidence, renders all of the evidence 
of the Beneficiary's prior experience not credible. Further, the Director (Texas) does not address the 
additional statement submitted with the motions, either to examine its relevance, probative value, or 
credibility. 
The Director (San Antonio) also states that the certificate of career "seeks to create the illusion that 
[the Beneficiary's mother] was a neutral party, unrelated to any of the interested parties to the 
application."4 However, the record demonstrates that the familial relationship between the Petitioner's 
owners and the Beneficiary was disclosed to the DOL throughout the labor certification process. 
Although the DOL may not have been aware that the Beneficiary gained her experience at a restaurant 
owned by her mother, the Petitioner's tax return submitted with the immigrant petition identifies the 
Beneficiary's mother as a shareholder of the Petitioner and the signatory of the certificate of 
experience. Therefore, we find that the initial filing of the immigrant petition identified the familial 
connection between all of the parties and there was no attempt to conceal those connections. 
However, although not mentioned in the NOIR, in the decision revoking the petition's approval, or in 
the dismissal of the motions, additional information casts doubt on the Beneficiary's claimed 24 
months of employment experience. As noted above, with the motion the Petitioner submitted a 
handwritten statement from the Beneficiary's mother, again attesting to the Beneficiary's experience 
and providing additional details about her employment. The letter states that the Beneficiary was hired 
in February 2000 as a "kitchen employee" and was then trained by the head chef to cook Korean food 
until she resigned in July 2003. The letter demonstrates that at least some portion of the Beneficiary's 
employment was not as a chef, but rather as a kitchen employee and a trainee. However, the letter 
does not clearly identify the number of months of experience the Beneficiary gained as a chef. This 
discrepancy casts doubt on the Beneficiary's claim of a full 24 months of prior employment 
experience. Further, this infonnation is inconsistent with the letters from the Beneficiary's former 
coworkers who both claim that the Beneficiary was employed as a chef for the entire period and casts 
potential doubt on the corroborating evidence. The Petitioner must resolve these inconsistencies with 
3 In her statement submitted with the motion to reopen and reconsider , the employer identifies one of these coworkers as 
the head chef who trained the Beneficiary . 
4 In the NOIR, the Director (San Antonio) states that "USCIS can only conclude that [the labor certification and the 
certificate of career] were meant to mislead any officer who encountered them into believing it was a business record and 
there was no familial connection between [the Beneficiary] and the entity making the labor certification application." 
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independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 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. 
III. 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 Es time. 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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