sustained EB-3 Case: Landscaping

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U.S. Department of HomeJand Security
20 Mass. Ave., N.W., Rm.3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLICCOPY .
WAC 04 15851400
Office: CALIFORNIA SERVICE CENTER Date: NOV 29 L1JUfl
INRE:
PETITION:
Petitioner:
Beneficiary:
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. § 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.
www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director , California Service Center , and is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.
The petitioner is a real estate company. It seeks to employ the beneficiary permanently in the United States as
a first line supervisor of landscape workers. As requ ired by statute, a Form ETA 750, Application for Al ien
Employment Certification approved by the Department of Labor, accompanied the petition . The director
determined that the pet itioner had not established that the beneficiary met the experience requirements of the
labor certification as of the priority date of the visa petition . The director denied the petition accordingly .
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 this 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 April 28, 2005 denial, the only issue in this case is whether or not the beneficiary
met the experience requ irements of the proffered job as specified by the Form ETA 750.
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 or seasonal nature, for which qualified workers are not available in
the United States.
The regulation at 8 C .F.R. § 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 class ification are at least two
years of training or experience.
To be eligible 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. Matterof Wing's Tea House, 16I&N 158 (Act. Reg. Comm. 1977). In this
case, that date is April 6 , 2001.
The AAO takes a de novo look at issues raised in the denial ofthis petition. See Dar v. INS, 891 F.2d 997 , 1002
n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis) . The AAO considers all pertinent
evidence in the record, including new evidence properly submitted upon appeal' . Relevant evidence submitted on
1 The submiss ion 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)(1) . The record in the instant case
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter
appeal includes counsel's brief and three letters from dated November 15, 2000, January 26,
2004, and May 16 ,2005, attesting to her employment 0 e e Clary from January of 1992 until December
1998. The record does not contain any other evidence relevant to the beneficiary's experience .
The regulations for the skilled worker classification contain a minimum requirement that the position of two
years training or experience .' 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 (Cornrn. 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 of
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
The approved alien labor certification, "Offer of Employment," (Form ETA-750 Part A) describes the terms and
conditions of the job offered. Block 14 and Block 15, which should be read as a whole, set forth the educational,
training, and experience requirements for applicants. In this case, Block 14 requires that the beneficiary must
possess two years of experience in the job offered. Block 15 does not require any additional education or
eXperIence. "
Based on the information set forth above, it can be concluded that an applicant for the petitioner's position of first
line supervisor oflandscape workers must have two years of experience in the job offered.
In the instant case, in response to the d~evidence dated January 5
M1112005
counsel submitted
a letter, dated January 26, 2004 , from__••The letter explained that employed the
beneficiary in a full-time (40 hours per week) position as a landscaper from January to ecember 1998 .
The letter states that the beneficiary was responsible for the gardening work for three high-end private horne
investment properties, and commercial properties, cleaning the yards , preparing the ground, terrain, lawn
maintenance, and cultivation, including mowing as well as planting flowers, trees, bushes, and other plants as
instructed. He was also responsible for the painting of fences and the homes and did other work as required .
The director denied the petition noting that the employment letter submitted from contradicts
what is stated in Part B of the ETA 750. Part B states that the beneficiary worked 20 hours a week, not 40.
The director also stated that the job duties listed on the ETA 750 do not include painting, and it is unclear as
to how much time the beneficiary spent painting and performing other non-landscaping work. Finally, the
director stated that since there are no wage, tax, or pay records, and since the evidence in the record contains
contradictory and vague statements , it is not possible to know if the beneficiary is qualified for the position as
depicted by the ETA 750.
On appeal, counsel submits a new letter from dated May 16, 2005, and an affidavit' from
Susan M. Jeannette, agent of record, North County Legal ization Services, Inc. Counsel claims that a
ofSoriano, 19 I&N Dec. 764 (BIA 1988)
2 It is noted that the affidavit provided b~lthough states she was duly sworn and placed
under oath, does not contain a notary se:l~has been provided on appeal is not considered
to be an affidavit as it was not sworn to or affirmed by the declarant before an officer authorized to admin ister
oaths or affirmations who has, having confirmed the declarant's identity , admin istered the requisite oath or
affirmation. See Black'S Law Dictionary 58 (7th Ed. , West 1999). Nor, in lieu of having been signed before
an officer authorized to administer oaths or affirmat ions, does it contain the requisite statement, permitted by
Page 4
typographical error was made when filling out the ETA 750, stating tha
beneficiary for 20 hours per week instead of the correct 40 hours per week.
employed the
The statement b tates that she , as the listed agent , North County Legalization Services ,
Inc., had one of er sta prepare e TA 750 Parts A&B who in turn, made a scriveners error in the hours
box on the second page of the ETA 750 Part B. asserts that under the listed prior work
experience wit~ typographical error was made and that under the hours box, twenty hours
per week was listed instead the correct forty hours per week.
The new letter fro~ates that she employed the benefici
1998, 40 hours per week, in the capacity of landscape gardener. explains that since the
beneficiary was her only employee and since he did not have a Social ecunty Number, he was paid in cash
on a weekly basis for his work. ~lso states that since the beneficiary did not have a Social
•
umber, a payroll , tax, o~e payment system was not established for him. Finally, Ms.
arifies her previous statement c~beneficiary's duties of painting fences and other minor
outsi e non-landscape work as required~states, "I feel that it must be explained that these other
duties were very minimal in nature and were solely related to the fact that he was our only employee and was
the only one we trusted to work as a Landscape Gardener on our investment properties. This is the reason
that he would from time to time, do minor other work such as painting fences. However, this does not mean
that he did not work for us full -time as a Landscape Gardener. All that was meant was that he was our sole
and trusted employee , so when other minor work came up, he was the one to take care of it, in addition to his
landscaping duties."
Counsel asserts on appeal that the number of hours marked on the ETA 750 ge 2, was a
typographical error and that the correct number of hours the beneficiary worked for was available
from other information in the rec~ent letter fro an the statement
from the preparer of the ETA 750 .......... The AAO finds that the current record provides no
basis to dispute counsel's assertion on appeal. Without further investigation from the director or other
appropriate personnel, the director's speculation that such an error was intended to deceive is without basis
and premature. Since~ has insisted from the beginning that she employed the beneficiary in a full­
time position (40 hour~) and has consented to a meeting with CIS to provide verification of the
beneficiary's employment , there is no reason to doubt that a clerical error was made. In addition, even if the
AAO were to consider that _only employed the beneficiary for 20 hours per week, the amount of time
employed (approximately six years) is more than sufficient to meet the two-year experience requirement of the
ETA 750. This issue has been satisfactorily resolved.
Federal law , that the signer, in signing the statement , certifies the truth of the statement , under penalty of
perjury. 28 U.S.c. § 1746 . Such an unsworn statement made in support of an appeal is not evidence and
thus, as is the case with the arguments of counsel , is not entitled to any evidentiary weight. See INS v .
Phinpathya, 464 U.S. 183 , 188-89 n.6 (1984); Matter ofRamirez -Sanchez, 17 I&N Dec. 503 (BIA 1980) .
3 In his brief on appeal , counsel cites several decisions issued by the AAO concerning typographical errors,
but does not provide their published citations . While 8 C .F.R. § 103.3(c) provides that precedent decisions of
CIS are bind ing on all its employees in the administration of the Act, unpublished decisions are not similarly
binding. Precedent decisions must be designated and published in bound volumes or as interim decisions. 8
C.F.R. § 103.9(a).
After a review of the record, it is concluded that the petitioner has established that the beneficiary met the
requirements of the ETA 750 as ofthe priority date, April 6, 2001.
In visa petition proceedings , the burden of proving eligibility for the benefit sought rema ins entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has been met.
ORDER: The director's decision of April 28, 2005 is withdrawn. The petition is approved.