remanded EB-3 Case: Culinary Arts

identifying data deleted to 
prevent clearly unwarranted 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
invasion of personal privacy 
PBLIC copy 
Office: VERMONT SERVICE CENTER Date: 
EAC 03 005 5 1233 
PETITION: Imrmgrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 
 1153(b)(3) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, revoked approval of the instant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The matter will be remanded for 
further consideration and action. 
The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a foreign 
food specialty cook. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification, approved by the Department of Labor, accompanied the petition. 
The director decided that the beneficiary is not qualified for the proffered position and revoked approval of the 
visa petition accordingly. As set forth in the director's decision of denial the sole issue in this case is whether 
or not the petitioner has demonstrated that the beneficiary is qualified for the proffered position. 
The record shows that the appeal was properly and timely filed, makes a specific allegation of error in law or 
fact, and is accompanied by additional evidence. The procedural history of this case is documented in the 
record and incorporated into the decision. Further elaboration of the procedural history will be made only as 
necessary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153@)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary or seasonal nature, for which qualified workers are unavailable in 
the United States. 
The regulation at 8 C.F.R. 5 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for skilled workers, professionals, or 
other workers must be supported by letters fkom 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. 
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied by 
evidence that the alien meets the educational, training or experience, and any other requirements 
of the individual labor certification, meets the requirements for Schedule A designation, or meets 
the requirements for the Labor Market Wormation Pilot Program occupation designation. The 
minimum requirements for ths classification are at least two years of training or experience. 
The Form ETA 750 states that the proffered position requires two years in the job offered or two years as a 
cook's helper. The petitioner submitted evidence showing that the petitioner worked as a cook for five years 
in a restaurant in Rasht, Iran. The service center approved the petition on November 24,2003'. 
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1 
The June 16, 2004 memorandum from the embassy in Ankara states that the petition was approved on April 
1 1, 2001. The Notice of Intent to Revoke stated that the petition was approved on November 22, 2003. CIS 
computer records, however, show that the petition was approved and the notice of approval was sent on 
November 24,2003. 
On the Form 1-140 petition the petitioner did not state the date it was established, its gross annual income, its 
net annual income, or the number of workers it employs in the spaces provided for those figures. The 
petitioner indicated "See Attached" in each of those spaces.2 
The record contains a memorandum dated June 16, 2004 from the United States Embassy in Ankara, Turkey. 
That memorandum states the results of an interview, conducted in Ankara, of the beneficiary and the 
petitioner's owner. The memorandum states that the petitioner's owner, who is the beneficiary's brother-in- 
law, accompanied the beneficiary to that interview, and that both were questioned. 
The report states that the beneficiary does not speak English and was interviewed in ~arsi.' 
 The 
memorandum states that although speaking English is not a requirement to work in the United States, the 
beneficiary would therefore be unable communicate with her supervisor. The memorandum also states that 
the beneficiary claimed to prepare various Italian dishes but was unfamiliar with most sauces, including clam 
sauce. 
The memorandum states that the petitioner's owner stated that he employs approximately 35 cooks4, but notes 
that the petitioner paid only $374,923 in salaries and wages and $1 13,542~ in compensation of officers during 
200 1 .6 
That memorandum also notes that the petitioner's owner is related to the beneficiary and states that the job 
offer appears to be offered to the beneficiary to assist her in obtaining permanent resident status in the United 
States. 
The service center issued a Notice of Intent to Revoke on April 12, 2005 and included a copy of the 
memorandum from Ankara. The service center accorded the petitioner 30 days to respond. While the record 
reflects that the petitioner submitted a response to the Notice of Intent to Revoke the response was not 
considered by the director. Based on the content of the Ankara memorandum the director revoked approval 
of the visa petition on August 30, 2005. 
In the space reserved for the petitioner to report the number of workers it employs the petitioner entered the 
abbreviation, "See attach." 
The interviewers basis for that asserted knowledge is not made explicit. 
4 
 As this office is unable to find that figure in the record it presumes that the petitioner's owner must have 
stated, at the interview, that he employs 35 cooks. 
5 
 If the petitioner's salary and wage expense were divided among 35 workers they earned an average of 
$10,7 12.09 in that year. If the petitioner's compensation of officers were included with its salaries and wages 
the average would be $13,956.14 per worker during that year. 
6 
 The petitioner listed no Schedule A, Line 3, Cost of Labor during that year. 
With the response to the Notice of Revocation counsel submitted a sworn statement, dated May 2,2005, from 
the petitioner's owner. The petitioner's owner asserted (1) that he employs about 44 workers, of whom 
approximately 14 are cooks and other kitchen staff, 3 managers, and 28 hostesses, waiters, and busboys, (2) 
that his salary and wage expense is low because he is required to pay waiters and waitresses only $2.38 per 
hour, (3) that the beneficiary's experience exceeds the requirements of the labor certification, (4) that the 
proffered position requires experience as a cook, but not necessarily a cook of Italian foods, (5) that he hires 
cooks without specific experience with Italian foods, (6) that he hires cooks who do not speak English, (7) 
that the beneficiary speaks English but requested an interview in Farsi because she is more comfortable in that 
language, (8) that he and his current chef both speak Farsi, (9) that the beneficiary was unfamiliar with clam 
sauce because clams are not eaten in Iran, and (10) that he is hiring his sister-in-law, the beneficiary, because 
she is an experienced cook, and not because of their relationship by marriage. 
On appeal, counsel reiterated the assertions of the petitioner's owner. Counsel asserted (1) that the evidence 
pertinent to the beneficiary's cooking knowledge is insufficient to show that she is unqualified for the 
proffered position, and (2) that the beneficiary's limited English is also insufficient reason to revoke approval 
of the visa petition. 
In evaluating the beneficiary's qualifications CIS must look to the job offer portion of the labor certification to 
determine the required qualifications for the position. CIS may not ignore a term of the labor certification, nor 
may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401,406 
(Comm. 1986). See also Mandany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K R. K. Irvine, Inc. v. Landon, 699 
F.2d 1 006 (9th Cir. 1 983; Stewart In@a-Red Commissary of Massachusetts, Inc. v. Coomey, 66 1 F.2d 1 (1 st Cir. 
198 1). 
Notwithstanding the cases cited above, if the beneficiary were somehow manifestly unable to perform in the 
proffered position, then this might demonstrate that no bona fide job offer exists, even though the beneficiary 
was qualified in terms of education and/or experience. This office need not reach that issue, however, as the 
petitioner's owner has sworn, perfectly credibly, that the beneficiary speaks some English and that, in any 
event, speaking English is not required to hold the proffered position. 
This office does not find convincing the asserted lack of knowledge of Italian food cited in the memorandum 
from Ankara. The only example the memorandum cites of the beneficiary's lack of knowledge is clam sauce. 
As the petitioner's owner points out, clams are not typically eaten in Iran, which is an overwhelmingly 
Islamic country. Although this office accepts as true that the beneficiary does not know how to prepare "most 
other [Italian] sauces" that is not a qualification shown on the Form ETA 750 and not one that may be fairly 
construed from it. The petitioner has overcome the evidence adverse to the beneficiary's qualification for the 
proffered posit ion. 
The petition may not be approved at this time, however, because the record suggests additional issues that 
were not sufficiently addressed in the decision of denial. 
The 2001 tax return submitted shows that the petitioner had taxable income before net operating loss 
deductions and special deductions of $96,341 during that year. That amount is sufficient to pay the wage 
proffered in the instant case. The record appears to indicate, however, that the petitioner has multiple 
Page 5 
petitions either pending or recently approved. The petitioner is obliged to demonstrate the ability to pay the 
wage proffered to beneficiaries of all of its visa petitions that are either recently approved or currently 
pending. As the director did not consider these issues the petition will be remanded for the director to issue a 
new Notice of Intent to Revoke the petition on grounds that the record does not establish the petitioner's 
continuing ability to pay the proffered wage beginning on the priority date and that the job opportunity is 
bonajide. The director may request evidence of the petitioner's continuing ability to pay the proffered wage 
beginning on the priority date including years for which evidence was not previously available. The director 
may request evidence to demonstrate the bona jides of the job opportunity in light of the family relationshtp 
between the petitioner and the beneficiary. 
The record demonstrates that the beneficiary is the petitioner's owner's sister-in-law. Pursuant to 20 C.F.R. 
§656.20(c) (8) the petitioner has the burden when asked to show that a valid employment relationship exists 
and that a bonafide job opportunity is available to U.S. workers. See Matter of Amger Corp., 87-INA-545 
(BALCA 1987). A relationship invalidating a bonafide job offer may arise where the beneficiary is related to 
the petitioner by blood, by marriage, through friendship, or where the two have a financial relationship. See 
Matter of Summart, 374, 2000-INA-93 (May 15, 2000). The director could have denied the petition on this 
basis, but did not. 
The memorandum from Ankara states that the petitioner's owner then claimed to employ "around 35" cooks. 
In his sworn statement of May 2, 2005 the petitioner's owner stated that he employs approximately 44 
workers, of whom approximately 14 are cooks and other htchen staff, 3 managers, and 28 hostesses, waiters, 
and busboys. The petitioner's owner explains the low salaries and wages by stating that the wages restaurants 
must pay to waitresses is low because they receive most of their compensation from tips. As the petitioner's 
2006 tax return was unavailable when the appeal was submitted it is not in the record and, in any event, as the 
petitioner's owner notes, salaries and wages shown on the tax return would not include tips, as they are not an 
expense to the petitioner. 
Restaurants and other employers are, however, required to report tips paid to its employees on Form W-2 
Wage and Tax Statements and Form W-3 transmittals. If the director believes that the number of employees 
the petitioner employs and the compensation each received is relevant to any material issue in this case, the 
director is free to request those forms for any or all of the salient years. The number of W-2 forms the 
petitioner issued during a given year would demonstrate the number of employees it had during those years 
and those forms, together with the W-3 transmittals, would demonstrate the remuneration they received. 
The matter will be remanded for further consideration and action. On remand the director should issue a new 
Notice of Intent to Revoke approval of the petition considering the issues noted above or any other issues 
material to the approvability of the petition. The director may also request evidence salient to any relevant 
issues. Upon receipt of all the evidence, the director will review the entire record and enter a new decision. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1 36 1 . The petitioner has not met that burden. 
ORDER: 
 The director's decision is withdrawn. The matter is remanded for further consideration and 
action and entry of a new decision, which, if adverse to the petitioner, is to be certified to the 
AAO for review.