sustained EB-3 Case: Food Service

U.S. Department of fIon~eIand Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: VERMONT SERVICE CENTER Date: : 1 9 2006 
EAC-03-185-53951 
PETITION: Immigrant 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. 5 1153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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 
Page 2 
J 
DISCUSSION: The preference visa pet~tion' was denied by the Acting Center Dlrector (Director), Vermont 
Service Center. Upon completion of revlewlng the record of proceeding after grantlng a motlon to reopen, the 
dlrector affirmed the previous decision. Now the matter is before the Adminlstratlve Appeals Office (AAO) 
on appeal. The appeal wlll be sustamed. 
.. . 
The petitioner is a grocery'store with foodlsalad bar. It seeks to employ the,beneficiary permanently in the 
United.States as a food service manager. As required by statute, the petition is accompanied by a Form ETA 
750, Application for Alien Employment Certification, approved by the Department of Labor. The director 
determined that the petitioner had not established that the beneficiary has the requisite experience as sta'ted on 
the labor certification petition. The director denied the petition accordingly. 
On appeal, counsel submits a letter and additional e~idence.~ 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(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 nature, for which qualified workers are not available in the United 
States. 
A labor certification is an integral part of this petition, but the issuance of a Form ETA 750 does not mandate the 
approval of the relating petition. To be eligble for approval, a beneficiary must have all the education, training, 
and experience specified on the labor certification as of the petition's priority date. 8 C.F.R. $ 103.2(b)(l), (12). 
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter of Katigbak, 14 
I. & N. Dec. 45, 49 (Reg. Comm. 1971). The priority date is the date the Form ETA 750 was accepted for 
processing by any office within the employment system of the Department of Labor. See 8 C.F.R. $ 204.5(d). 
The priority date in the instant petition is April 30,2001. 
Citizenship and Immigration Services (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. Iwine, Inc. v. 
Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 
F.2d 1 (1st Cir. 1981). 
1 
The petitioner filed an 1-140 petition (EAC-98-182-5 1997) on the behalf of the instant beneficiary with the 
Vermont Service Center on June 9, 1998 based on an approved labor certification in the position of cook. 
The previous petition was denied by the director of Vermont Service Center on December 1, 1998 because the 
petitioner did not establish that it had the ability to pay the proffered wage at the time of filing. A subsequent 
appeal was submitted on January 5, 1999. On March 9, 1999 the director rejected the appeal because of 
untimely filed and also rejected to treat the appeal as a motion because the' requirements at 8 C.F.R. 
$$103.5(a)(2) or (3) had not been met. 
2 
 The submission of-additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. $ 103.2(a)(l). The record in the instant case 
.provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence'submitted for the first time on appeal will then 
 . 
be considered. 
Page 3 
The cerhfied Form ETA 750 in the instant case states that the position of food service manager requires two (2) 
years of expenence in the job offered or in related occupabon of management. On the Form ETA 750B, signed 
by the beneficiary on Apnl24,2001, he set forth his work expenence. He listed his expenence as "Manager" 
at the petitioner from February 2000 to the present, and as a "Manager" for -= 
-, a clothing factory located at R, Philadelphia, Pennsylvania from 
August 1997 to December 1999. He provided no further infornabon concerning his worlung expenence as a 
manager on thls form, which was signed by the beneficiary under a declaration under penalty of perjury that the 
information was true and correct. 
The instant 1-140 petition was submitted on May 22, 2003 with letters from Chechol 0, the owner of - 
, the owner of I, anPA of 
. to corroborate the information represented on the Form ETA-750B pertinent to the 
beneficiary's qualifications as required by the regulation. 
The director issued a request for additional evidence (RFE) on April 13, 2004 noting that three letters from 
people who have interacted with the beneficiary while he worked for another company are not sufficient and 
cannot be used in lieu of a letter from the actual company for which the beneficiary worked, and therefore, 
requesting the petitioner to submit evidence to establish that the beneficiary possessed the required two years 
of work experience as of April 30,2001. In response to the director's WE, counsel submitted - 
articles of incorporation, application for Philadelphia business tax account number, and corporate income tax 
returns for 1997, 1998 and 1999. Counsel also submitted letters from 
owner of - and -, a former employee of 
On August 11, 2004, the director denied the petition finding that while the petitioner claimed the beneficiary 
was self-employed as the manager of Won Fashion fi-om August 1997 to December 1999, a previous Form 
ETA 750B indicated that the beneficiary worked for the petitioner from August 1995 to June 1998. The 
director was not convinced that the beneficiary held the work experience he claimed because of the 
discrepancy. 
On appeal counsel asserts that there was no discrepancy in the claimed work experience for the period of 
August 1997 to June 1998, and submits a copy of the previous Form ETA 750B to support her assertions. 
The issue in the instant case is whether the petitioner established the beneficiary's requisite two years of 
experience as required by the proffered position on the Form ETA 750. 
The regulation at 8 C.F.R. fj 204.5(g)(1) states in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) from 
current or former employer(s) or trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
' If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
The record shows that the beneficiary established Won Fashion in August 1997 and operated this company as 
the president and manager until December 1999 when it was closed. The petitioner established that a letter 
from a former employer as generally required by the above regulation is unavailable in the instant case since 
the company was closed and the beneficiary claimed to have been self-employed. Per the regulation, other 
documentation relating to the alien's experience or training will bk considered. As other documentation to be 
considered in determining whether the beneficiary possessed the requisite two years of experience as a 
manager prior to the priority date, the petitioner submitted letters from -the owner of Jm 
, the owner of 1, and -, CPA of 
- to verify that the beneficiary worked for his own company as the president and 
manager for more than two ears. The petitioner also submitted letters from - CPA,~ 
the owner of , and a former employee of - to further verify that 
the beneficiary owned and operated won Fashion. The letters from business owners show that the beneficiary 
interacted with other business owners in a managerial capacity. The letters from the accountants show that 
the beneficiary owned and operated a business and utilized accounting services in that capacity. In addition, a 
copy of Articles of Incorporation of -1 in the record shows that the beneficiary established a 
domestic business corporation under the name of. on May 30, 1997. A copy of Application 
for Philadelphia Business Tax Account Number submitted in response to the RFE indicates that the 
beneficiary as the president of the company applied for such a number for Won Fashion to do business in 
manufacturing men and women's clothing on August 22, 1997. The tax returns of 
 prove 
that the company filed Form 1120 tax returns for its income in 1997, 1998 and 1999 and the beneficiary 
signed the tax returns as the president of the company. The tax returns show that Won Fashion paid officer's 
compensation of $18,500 in 1997, $28,600 in 1998 and $0 in 1999. Similarly, the tax returns indicate that the 
company paid salaries and wages of $64,184 in 1997, $193,320 in 1998 and $127,146 in 1999 respectively. 
These documents establish that the beneficiary created and operated the company named Won Fashion, whlch 
had income and filed its corporate income tax returns for the years 1997 through 1999. 
On appeal counsel argues that there was no discrepancy in claimed work experience and submits copies of the 
previous Form ETA 750B. The AAO concurs with counsel's argument after reviewing the newly submitted 
evidence. On the previous Form ETA 750B the beneficiary claimed that he worked for the petitioner from 
August 1995 to the present, i.e. the time the beneficiary signed the Form on June 24, 1996 while the 
beneficiary claimed to have worked for Won Fashion from August 1997 in the instant petition. 
Therefore, after completely reviewing the evidence submitted, the AAO concurs with counsel's assertion that 
the submitted evidence is sufficient to establish the beneficiary's two years of self-employed experience as a 
manager at Won Fashion. The petitioner has demonstrated that the beneficiary had the requisite two years of 
experience in the job offered prior to the priority date, that is in this case April 30, 2001. 
Counsel's assertions on appeal have overcome the director's finding in his decision to deny the petition. The 
evidence submitted establishes that the beneficiary possessed the requisite two years of experience in the job 
offered prior to the priority date, and that the petitioner had the continuing ability to pay the proffered wage 
beginning on the priority date. 
The burden of proof in these proceedings rests solely, with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has met that burden. 
ORDER: The appeal is sustained. The petition is approved.