remanded EB-3 Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 20338383 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 17, 2022 
The Petitioner, a "restaurant and hookah lounge," seeks to employ the Beneficiary as a restaurant 
manager. It requests skilled worker classification for the Beneficiary 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 resident status to work in a position that requires at 
least two years of training or experience. 
The Director of the Texas Service Center denied the petition concluding that the Petitioner provided 
falsified evidence and therefore did not establish that the Beneficiary had at least two years of 
qualifying experience to meet the minimum requirement of the labor certification and demonstrate 
eligibility for classification as a skilled worker. The matter is now before us on appeal. 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we conclude that the 
Director did not provide an adequate analysis to explain the basis for the denial and therefore precluded 
a meaningful opportunity for the Petitioner to challenge the adverse decision. Notwithstanding our 
determination regarding the Director's decision, the Petitioner did not provide sufficient reliable 
evidence showing that the Beneficiary gained the requisite experience to qualify for the skilled worker 
classification and for the proffered position under the terms of the labor certification. Accordingly, 
the Director's decision will be withdrawn, and the matter will be remanded for further consideration 
and entry of a new decision that should provide greater analysis to allow the Petitioner an opportunity 
to fully respond. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification 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)(I)-(II) 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. 
Fmiher, to be eligible for classification as a skilled worker a beneficiary must have at least two years 
of training or experience. See 8 C.F.R. § 204.5(1)(3)(ii)(B). A beneficiary must also meet the specific 
educational, training, experience, and other requirements of the labor certification underlying the 
petition. Id. All requirements must be met by the petition's priority date. 1 See Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
II. BASIS FOR REMAND 
First, we will discuss the Director's findings that resulted in the adverse decision. The Director 
focused primarily on the validity of evidence that the Petitioner submitted in response to a previously 
issued notice of intent to deny (NOID), where it was determined that the submitted evidence was 
"falsified" based on "other evidence and documentation on the record." The Director did not 
specifically identify the "other evidence" that led to this determination. Rather, the Directorref erenced 
two pieces of evidence: 1) an employment letter written bvl I the Beneficiary's father, 
in his capacity as senior personnel officer atl I and 2) an 
employment letter written by !regarding the Beneficiary's claimed employment at the 
I I 
Regarding the fonner, the Director noted that "infonnation available on the record" showed the 
Beneficiary's father to have been retired when the letter "was issued. "2 However, the Director did not 
explain how hetired" status is relevant to his ability to attest to information that he likely 
had access to during his period of employment for where the Beneficiary is also claimed to have 
been employed. Moreover, the Director established no nexus between! I employment 
status with and the finding that his employment verification letterwas "fraudulent and fabricated." 
Regarding the employment letter froml I the Director noted thatl !reference 
to the Beneficiary as "shift manager" is inconsistent with a previously submitted undated letter, where 
I I stated that the Beneficiary was employed as "chef manager and hookah manager." 
Although this inconsistency may reasonably cast doubt on the validity ofl I claims within 
the letters and may also cast doubt on the reliability of other evidence in the record, we do not agree 
that the inconsistency alone is sufficient to conclude that either or both ofl I letters were 
"falsified." It is unclear whether the Director alleged that the letters are themselves fake, or whether 
the information contained within the letters is inaccurate and false, and, therefore, the information in 
the letters is falsified. 
1 The priority date of an employment-based immigrant petition is the date the underlying labor certification is filed with 
the DOL. See 8 C.F.R. § 204.S(d). 
2 See Matter of D-R-, 25 I&NDec. at 461 (stating that biased information in a document affects its evidentiary weight). 
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In sum, although the Director concluded that the Petitioner did not establish that the Beneficiary met 
the minimum requirements of the labor certification, this conclusion appears to have been based on 
the so le determination that the Petitioner offered falsified evidence to support its claims without fully 
and clearly elaborating on how the documentation was falsified. Because the Director denied the 
petition based upon a finding that he did not adequately substantiate, we will withdraw the Director's 
decision. 
III. EVIDENTIARY DEFICIENCIES 
Notwithstanding our withdrawal of the Director's decision, the record indicates that the Petitioner did 
not establish that the Beneficiary met the minimum requirements as of the petition's priority date, 
which in this case is June 20, 2019. 
A. Requirements of the Labor Certification 
The requirements for the proffered position of restaurant manager are indicated in section H of the 
labor certification (Job Opportunity Information). The pertinent requirements read as follows: 
4. 
5. 
6. 
6-A. 
7. 
8. 
9. 
10. 
Education: Minimum level required: 
Is training required for the job? 
Is experience in the job offered required? 
How long? 
Is an alternate field of study acceptable? 
Is an alternate combination of education 
and experience acceptable? 
Is a foreign educational equivalent acceptable? 
Is experience in an alternate occupation acceptable? 
High School 
No 
Yes 
24 months 
No 
No 
Yes 
No 
The Petitioner also provided the following list of job duties in section H. l l of the labor certification: 
Assign duties and responsibilities to employees in accordance with the work 
requirements, including the preparation of food, service, and distribution of hookah to 
customers. Train workers in the food preparation, drink preparation, and handling of 
hookah. Supervise and perform food preparation, hookah preparation, and drink 
preparation. Supervise and perform kitchen and dining room area cleaning activities 
with staff. Observe and evaluate kitchen staff, wait staff, and bartenders to ensure that 
proper procedures for handling of food, drink and hookah are satisfied. Inspect supplies, 
equipment, and work areas to ensure efficient service and compliance with health, 
safety, and work standards. Interact with customers, and review complaints to ensure 
that issues with food, drink, and hookah quality are dealt with efficiently. Perform 
additional managerial functions, such as hiring and firing staff, providing employee 
training, creating work schedules, and organizing employee time sheets. Perform 
financial functions, such as cash handling and deposits, payroll. In observing the 
function and efficiency of the restaurant, discuss and recommend ways to improve work 
procedures, work performance, and new menu items to the owner of the company. 
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In addition, section H.14 required the following specific skills: knowledge of Microsoft Word, 
Microsoft Excel, Microsoft Outlook, and knowledge of Quickbooks. 
Thus, to meet the requirements of the labor certification, the Beneficiary must have (1) a high school 
level education, and (2) two years of experience as a restaurant manager, and the special skills listed 
inH.14. 
B. Beneficiary's Qualifications 
Section K of the labor certification (Alien Work Experience) claims that the Beneficiary held two full­
time supervisory positions in Pakistan. Both claimed positions were associated with food 
services and would total, if accurate and adequately documented, approximately eight years of 
experience atthe time the labor certification was filed in June 2019. The specific employers, positions, 
and dates of employment were listed as follows: 
• ____________ working full-time in the position of "food service 
supervisor" starting on October 4, 2008, and continuing until September 1, 2013. 
• ________ working full-time in the position of "shift manager" starting 
on July 1, 2006, and ending on September 1, 2009. 
Regarding the Beneficiary's employment withO the Petitioner provided a letter of employment 
authored by the Beneficiary's father in his capacity asl I senior personnel officer. The letter states 
that the Beneficiary worked ate=] as catering supervisor since 2009 and that during his period of 
employment his duties were to "make arrangements and manage Pakistani Food .... After that this 
food delivers z [sic] in the .... " The letter also attested to the 
Beneficiary's "good moral character" and made claims about the Beneficiary having "best knowledge 
in his field." 
The record also contains two undated letters of employment regarding the Beneficiary's claimed 
position with the ________ Both letters were signed by I CEO of the 
establishment. In the first letter, submitted on !letterhead. I I 
referred to the Beneficiary as "one of the top ten hooker [sic] lounge managers in Pakistan," claiming 
that the Beneficiary supervised "all our lounges" and worked as "chef manager and hookah manager" 
from July 2006 to September 2009 and earned Rs 50,000 "in salary and commission" on average, per 
month. The Beneficiary was described as having"good managerial skills in making hookah and whole 
restaurant desi dishes." In a separate document titled "Affidavit of Achievement," lstated 
that the Beneficiary participated in a hookah preparation competition where he won "first position" 
and was awarded a cash prize resulting in a job offer to work forl I as hookah manager. 
I claimed that the Beneficiary was subsequently promoted as "In charge [sic] inl I I and received a raise to earning Rs 250,000 per month. 
After reviewing the evidence of the Beneficiary's work experience, the Director issued the above­
referencedNOID, where he first made the determination that the Petitioner offered falsified documents 
in support of its claim regarding the Beneficiary's prior work expe1ience. Although the Director did 
not adequately substantiate this determination in his final decision, the NOID correctly pointed to a 
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considerable inconsistency between information contained in the Beneficiary's 2009 nonimmigrant 
visa (NIV) application and information provided in the labor certification regarding the Beneficiary's 
claimed periods of employment at and the ________ Further review of the 
referenced NIV application shows that when asked to list his current employer and provide 
information about his last two employers, the Beneficiary merely stated that he was a student and did 
not indicate having ever been employed either at or at the ________ This 
information directly conflicts with the Beneficiary's employment history as provided in Section K of 
the labor certification and would conflict with any submitted letters froml I or 
The The Petitioner must resolve this discrepancy with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&NDec. 582, 591-92 (BIA 1988). 
As correctly noted by the Director, unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit 
Id. The Petitioner attempted to address the NIV inconsistency in the NOID response, claiming that 
the Beneficiary had a "lapse in judgement" when filling out the NIV application and that he "simply 
wanted to complete his application as soon as possible to get an appointment with the U.S. Embassy 
for the interview." We find that this explanation does not constitute "independent, objective evidence" 
and therefore it is not sufficient to resolve the noted inconsistency. 
The Petitioner also provided an additional affidavit froml I and from two other individuals 
claiming to have been the Beneficiary's coworkers during his employment at the I I However, as noted earlier, Imo re recent affidavit is inconsistent with his earlier 
employment letter, which was provided initially in support of the petition. Namely, the initial letter 
states that the Beneficiary supervised "all our lounges" and worked as "chef manager and hookah 
manager," but the affidavit offered in response to the NOID indicates that the Beneficiary had a more 
limited role as "shift manager" and does not include a description of the Beneficiary's job duties. The 
more recent letter also claims that the Beneficiary "performed bookkeeping functions with the use of 
QuickBooks," a claim that was not included in the original employment letter; and neither letter states 
that the Beneficiary used Microsoft Word, Microsoft Excel, or Microsoft Outlook in the course of his 
employment. This deficiency is relevant 
given 
that use of the listed software was listed as required in 
H.14 of the labor certification. Likewise, I employment letters lack several of the job 
requirements that the Petitioner listed in H.11 of the labor certification, such as training workers in 
and supervising food preparation, inspecting supplies, reviewing and addressing customer complaints, 
handling deposits and payroll, hiring and firing staff, and making recommendations on how to improve 
the business. As such, it is not clear that the Beneficiary acquired the work experience necessary to 
meet the requirements of the proposed position. Lastly, although! I original letter 
referenced the Beneficiary's "good managerial skills in making hookah and whole restaurant desi 
dishes," he did not clarify whether the "chef manager and hookah manager" was a single position or 
whether these were two separate positions and if so, whether they were full- or part-time and what 
duties each position entailed. 
The affidavits from the Beneficiary's claimed co-workers are also insufficient given that neither 
individual claims to have worked at the ________ during the full period of the 
Beneficiary's claimed employment. Namely, the individual claiming to have worked as the cashier 
stated that his employment at the lasted from2007 to 2012, and the individual 
5 
claiming to have been a waiter at the same establishment stated that his employment was from 2006 
to 2008, while the Beneficiary is claimed to have worked there from July 2006 to September 2009. 
Furthermore, given that Section K of the labor certification states that the Beneficiary was employed 
by as food service supervisor from October 2008 to September 2013, it directly conflicts with the 
employment verification letter from current senior human resources officer, who stated that the 
Beneficiary "joined" on July 6, 2010, as a 
cargo 
assistant; the letter makes no mention of the 
Beneficiary having held any other position with nor does it list the Beneficiary's job duties to 
establish that his claimed employment with would qualify him for the proffered position of 
restaurant manager. 
The Petitioner also provided photocopies of I I temporary entry permits containing the 
Beneficiary's image; the pem1its indicate that the Beneficiary was employed as a catering supervisor 
atD in November 2008 and January 2009. However, not only are the photocopies of poor quality 
and partially illegible, but they are also inconsistent with the employment verification letter fro 
current senior human resources officer and with information the Applicant provided on his 2009 NIV 
application. Although the Petitioner provided a photocopied email from October 2008 stating that the 
Beneficiary was interviewed for the position of catering supervisor on October 14, 2008, the labor 
certification states that the Beneficiary commenced his position as catering supervisor on October 4, 
2008. Moreover, if the Beneficiary was initially hired to fill the position of catering supervisor in 
2008, it is unclear why this information was not mentioned by current senior human resources 
officer. We further note that the labor certification indicates that from October 2008 to September 
2009 the Beneficiary simultaneously held two full-time positions with two different employers, thus 
creating yet another anomaly that gives rise to doubt the validity of the Petitioner's claims regarding 
the Beneficiary's employment history abroad. See Ho, 19 I&N Dec. at 591-92. 
Based on the anomalies and inconsistencies described above, as well as the conflicting information in 
the Beneficiary's NIV application, further independent evidence is required, such as the Beneficiary's 
foreign tax or payroll records to corroborate his claimed employment during the period in question. 
It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § I36l;MatterofSkirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 2012). 
III. CONCLUSION 
Due to the multiple unresolved inconsistencies in the record, the Petitioner has not established with 
independent, objective evidence that the Beneficiary possesses the required 24 months of experience 
in the offered position, as required by the labor ce1iification. However, given the previously descnbed 
deficiencies in the denial, we hereby withdraw the Director's decision and remand the matter for 
further consideration of the evidence and a new determination of the Petitioner's eligibility. If the 
Director determines that a finding of fraud or willful misrepresentation is warranted, the Director shall 
issue a new notice that gives the Petitioner an opportunity to address any derogatory information and 
a new decision that (1) clearly identifies the finding and the party or parties against whom that finding 
is made, and (2) includes a detailed analysis highlighting the factors that may support that finding. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
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