sustained EB-3 Case: Food Service

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,-preventcl~}y unwarranted
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PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
EAC-03-l85-5395l
Office: VERMONT SERVICE CENTER Date: OCT 19·2006
INRE: Petitioner:
Beneficiary:
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. § l153(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
www.uscis.gov
Page 2
DISCUSSION: The preference visa.petition' was denied by the Acting Center Director (Director), Vermont
Service Center. Upon completion of reviewing the record of proceeding after granting a motion to reopen, the
director affirmed the previous decision. Now the matter is before the Administrative Appeals Office (AAO)
on appeal. The appeal will be sustained.
The petitioner is a grocery store with food/salad 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 st~ted on
the labor certification petition. The director denied the petition accordingly.
On appeal, counsel submits a letter and additional evidence?
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 eligible 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), (l2).
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter ofKatigbak, 14
1. & 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. Irvine, Inc. v.
Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary ofMassachusetts, Inc. v. Coomey, 661
F.2d 1 (lst Cir. 1981).
1 The petitioner filed an 1-140 petition (EAC-98-182-51997) 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 1-290B, 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
ofSoriano, 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 certified FonnETA 750 in the instant case states that the position of food service manager requires two (2)
years of experience in the job offered or in related occupation of management. On the Form ETA 750B , signed
by the beneficiary on April 24 , 2001, he set forth his work experience. He li sted his experience as "Manager"
at the petitioner from February 2000 to the present, and as a "Manager" for Won F~shion , Inc. (Won
Fashion) , a clothing factory located at 301 Hunting Park Avenue , Suite B , Philadelphia , Pennsylvania from
August 1997 to December 1999. He provided no further information concern ing his working experience as a
manager on this 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 Julie Oh
Fashion, Inc., Yong 1'. Hwang , the owner of International True Textile, Inc. , and Woo Kyun Chang, CPA of
Woo Kyung Chang & Co. 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 not ing that three letters from
people who have interacted with th~ 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 RFE, counsel submitted Won Fashion 's
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 Geun J. Lee , CPA, Young Park, the
owner of Pro Made Wholesale and Ok Ja Jung, a former employee of Won Fashion . .
On August 11 , 2004, the director denied the petition finding that while the pet itioner claimed the beneficiary
was self-employed as the manager of Won Fashion from 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 pet itioner 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. § 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 unt il December 1999 when it was closed ..The petitioner established that a letter
. '
. Page 4
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 be~n self-employed. Per the regulation , other
documentation relating to the alien's experience or training will be considered . As other documentation to be
considered in determining whether the beneficiary possessed the requisite two ears of experience as a
manager prior to the pr iority date, the petitioner submitted letters from the owner of Julie Oh
Fashion, Inc., , the owner of International True Textile, Inc ., and of
Woo Kyung Chang & Co. to verify that the beneficiary worked for his own~residentand
manager for more than two years. The ~so submitted letters from _ Young Park ,
the owner of Pro Made Wholesale, and_ a former employee of Won Fashion to further verify that
the beneficiary owned and operated won Fashion. The letters from business owners show thatthe 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 Won Fashion , Inc. in the record shows that the beneficiary established a
domestic business corporation under the riame of Won Fashion , Inc. 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 pres ident 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 Won Fashion , Inc. prove
that the company filed Form 1120 tax return s for its income in 1997 , 1998 and 1999 and the benefic iary
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 thatthe beneficiary created and operated the compan y named Won Fashion , which
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 assertion s 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.
§1361. The petitioner has met that burden.
ORDER: The appeal is sustained. The petition is approved.