sustained EB-3 Case: Food Service

identifying data deletd to 
Prevent clearly unwarranted 
invasion of mnal privlf~ 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
pUBLLC COPY 
SRC 04 137 51707 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 9 1153(b) 
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 
DISCUSSION: The Director, Texas Service Center denied the employment-based immigrant visa petition. 
The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
sustained. 
The petitioner is a meat market and restaurant. It seeks to employ the beneficiary permanently in the 
United States as a meat cutter. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification, approved by the Department of Labor, accompanies the petition. The director 
determined that the petitioner had not established that the beneficiary met the requirements of the labor 
certification as of the priority date, June 5, 2001. The director noted that the beneficiary was not 
authorized to obtain employment during the years he claimed to be employed, and, therefore, he was not 
eligible for the benefit sought. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in ths case is documented by the record and incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's December 15, 2004 denial, the single issue in ths case is whether or not the 
beneficiary meets the requirements of the labor certification as of the priority date. 
Section 203(b)(3)(A)(i) of 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 or seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 8 204.5(1)(3) states, in pertinent part: 
(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. 
(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 Information 
Pilot Program occupational designation. The minimum requirements for this 
classification are at least two years of training or experience. 
On appeal, counsel asserts: 
[Citizenship and Immigration Services (CIS)] claims that the beneficiary entered the 
United States without inspection (EWI) in 1995 and that aliens who enter without 
inspection are not authorized for employment. Please note that the beneficiary has, in 
fact, been working within the United States without any legal status under the INA. 
Please further note that fj 245(i) of the INA was created by the U.S. Congress to provide 
relief for individuals such as the beneficiary. Further, [CIS] claims that the petitioner did 
not provide any evidence of the beneficiary's employment and has ignored the letter the 
petitioner submitted on behalf of the beneficiary attesting to the beneficiary's work 
experience in the United States. 
The key to determining the job qualifications specified in the labor certification is found on Form ETA- 
750 Part A. This section of the application for alien labor certification, "Offer of Employment," describes 
the terms and conditions of the job offered. It is important that the ETA-750 be read as a whole. The 
instructions for the Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job Duties. 
Do not duplicate the time requirements. For example, time required in training should 
not also be listed in education or experience. Indicate whether months or years are 
required. 
 Do not include restrictive requirements which are not actual business 
necessities for performance on the job and which would limit consideration of otherwise 
qualified U.S. workers. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification, as filled in by the petitioner, reflects the following requirements: 
Block 14: 
Experience: Two years in the job offered or two years in the related 
occupation of apprentice butcher. 
Block 15 ("Other Special Requirements") does not contain any information. To determine whether a 
beneficiary is eligible for a preference immigrant visa, CIS must ascertain whether the alien is, in fact, 
qualified for the certified job. 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 (Cornrn. 1986). See also, Madany, 696 F.2d at 
1008; K.R.K. Iwine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissaly of Massachusetts, Inc. v. 
Coomey, 661 F.2d 1 (1st Cir. 1981). 
Additionally, where the job requirements in a labor certification are not otherwise unambiguously 
prescribed, e.g., by professional regulation, CIS must examine "the language of the labor certification job 
requirements" in order to determine what the beneficiary must demonstrate to be found qualified for the 
position. Madany, 696 F.2d at 10 15. The only rational manner by which CIS can be expected to interpret 
the meaning of terms used to describe the requirements of a job in a labor certification is to "examine the 
certified job offer exactly as it is completed by the prospective employer." Rosedale Linden Park 
Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). CIS'S interpretation of the 
job's requirements, as stated on the labor certification must involve "reading and applying the plain 
language of the [labor certification application form]." Id. at 834 (emphasis added). CIS cannot and 
should not reasonably be expected to look beyond the plain language of the labor certification that DOL 
has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse- 
engineering of the labor certification. 
Page 4 
To be eligble for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date. The filing date of the petition is the initial receipt in the 
Department of Labor's employment service system. Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. 
Comrn. 1977). In thls case, that date is June 5,2001. 
Based on the information set forth above, it can be concluded that an applicant for the petitioner's position of 
meat cutter must have two years of experience as a meat cutter or two years as an apprentice butcher. 
On appeal, counsel provides a copy of the petitioner's previously submitted letter stating that the 
petitioner employed the beneficiary from June 1995 through February 1999 and affidavits from two of the 
beneficiary's co-workers. Counsel claims that the director ignored the experience letter from the 
petitioner and that the beneficiary did meet the requirements of the labor certification, even though he 
worked while not in legal status under the INA. 
The AAO is in agreement with counsel. The fact that the petitioner employed the beneficiary when he 
was not in legal status is not material to the case at hand. Throughout these proceedings, the petitioner 
has been clear that the beneficiary was not authorized to accept employment. Thus, there is no apparent 
inconsistency, as suggested by the director. To suggest that working without authorization is an 
inconsistency to an alien's employment claim ignores the fact that many aliens who intend to utilize 
section 245(i) of the Act do so due to the fact of their unauthorized employment. The petitioner has 
submitted a letter documenting the beneficiary's employment from June 1995 through February 1999 as 
an apprentice butcher. The AAO finds no reason to doubt the integnty of the letter submitted from the 
petitioner as evidence of the beneficiary's work experience. The letter is consistent with the beneficiary's 
employment history listed on the Form ETA 750B. If the director deems it necessary, he may request 
additional evidence or an investigation before the Form 1-485, Application to Register Permanent 
Resident or Adjust Status, is adjudicated. According to the record of proceeding, the petitioner has 
established that the beneficiary met the requirements of the labor certification before the priority date of 
June 5,2001. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
1361. The petitioner has sustained that burden. 
ORDER: The appeal is sustained.