remanded EB-3 Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re: 19828674 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 25, 2022 
The Petitioner, a restaurant , seeks to employ the Beneficiary as a gauchos meat server. It requests 
classification of the Beneficiary as an "other worker" under the third preference immigrant category. 
See 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 residence 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 . However, the Director 
subsequently revoked the approval based on a determination that the Petitioner did not demonstrate 
the Beneficiary 's requisite experience to meet the requirements of the labor certification and to qualify 
for classification as an "other worker." 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. See 
section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
Upon de nova review, we will withdraw the decision and remand the matter to the Director. 
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 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.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 Es time, 19 I&N Dec. 
450, 451 (BIA 1987) (providing that "[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"). 
II. ANALYSIS 
The issue on appeal is whether the Beneficiary had the required 12-month job experience at the time 
of the filing of the labor certification. A petition for unskilled "other worker" classification must be 
accompanied by evidence that the beneficiary meets any educational, training, experience, or other 
requirements of the labor certification. 8 C.F.R. § 204.5(1)(3)(ii)(D). Further, any requirements of 
training or experience "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." 8 C.F.R. § 204.5(1)(3)(ii)(A). All requirements must be met by the petition's priority 
date. Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
The labor certification in this case does not require any education or training to qualify for the job of 
gauchos meat server but does require at least 12 months of experience. In addition, the labor 
certification indicates that the individual "[m]ust have one year in Restaurant Food Handling and 
Customer Service Experience." 
The labor certification claims that the Beneficiary met the 12-month experience requirement for the 
proffered position based on his four previous jobs in Brazil: 
• __________________ co-owner/ guest relations, January 2015 
- September 2015; 
I __________________________________ 
co-owner/guest relations, November 2014 - September 2015; 
• I ___________________________ co-owner/server, 
November 2013 - November 2014; and 
• meat 
carver/meat server, July 2007 - March 2010. 
In support of the petition, the Petitioner submitted a letter froml I wait-staff manager at 
who indicated that the Beneficiary was employed at the restaurant from 
July 2007 to March 2010 and described the job responsibilities. Based on the evidence in the record, 
the Director approved the petition. 
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However, in reviewing the record, the Director concluded that discrepancies between answers on the 
Beneficiary's nonimmigrant visa (NIV) application and the labor certification did not establish his 
required 12-monthjob experience. As relevant here, in the NOIR, the Director informed the Petitioner 
that while the Beneficiary indicated on his NIV application that his employer wasl I 
, he also stated "no other previous employment." As such, the Director determined 
that the Beneficiary did not have the required 12-month job experience since, according to the NIV 
application, he was only employed at I from January 2015 -
September 2015. 
In revoking the approval of the petition, the Director acknowledged the Petitioner's argument that the 
NIV application only asked for the past five years but determined that since the employment ate=] 
I I and I . I occurred 
within the five years, the Beneficiary's employment experience was misrepresented. Further, the 
Director found that the Beneficiary did not have the required 12-month job experience. In addition, 
the Director indicated that since the Beneficia 's em lo ment at 
I I and overlapped each other by 
approximately nine months and located in different cities, "USCIS is not convinced that [the] 
[B]eneficiary's previous employment is bona fide due to the substantial distance." On appeal, the 
Petitioner claims that the Beneficiary's omission of his previous two jobs is immaterial since he 
qualifies for the job experience requirement based on his oldest jobl I 
The issue here is whether the Beneficiary had the required 12-monthjob experience at the time of the 
filing of the labor certification. As discussed above, the Director determined that the Petitioner did 
not show the Beneficiar 's em lo ment ex erience with 
I I and due to his omission on his NIV a lication, and the 
Beneficiary's most recent employment with reflected 
approximately nine months of experience. Although the Petitioner contends the materiality of the 
Beneficiary's omission, none of the Beneficiary's experience with these employers would have 
qualified because the Petitioner did not provide the required experience letters. See 8 C.F.R. 
§ 204.5(1)(3)(ii)(A) and (D). Similarly, while the Petitioner submits a screenshot from Google relating 
to the distance and time between ______________ and I I 
___________ we need not address the reasonableness of working two concurrent 
jobs since the record does not contain the required experience letters. 
Notwithstanding the above, we will remand this case to the Director to consider the employment 
claims withl land the job experience letter froml I Although 
the Director acknowledged the submission of I I letter and that the Beneficiary's 
employment with occurred outside of the five-year NIV application 
period, the Director did not explain why the evidence or employment did not qualify the Beneficiary 
for the required 12-month job experience. In addition, the Director should also consider the 
Beneficiary's "Work Card" relating to his employment with _________ submitted 
in response to the NOIR. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further proceedings 
consistent with the foregoing analysis and for the entry of a new decision. 
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