sustained EB-3 Case: Leather Apparel

PUBLIC COpy
V.S. Department of Homeland Security
20 Mass, Rm. N.W. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services t b
FILE:
I
WAC 95 02551561
Office: CALIFORNIA SERVICE CENTER Date: SEP 2 7 7.006
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. § 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.
l
obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The preference visa petition approval was revoked by the Director, California Service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 leather apparel importer/wholesaler. It seeks to employ the beneficiary permanently in the
United States as a buyer of ladies leather apparel. 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
stated on the labor certification petition, and, that the petitioner has submitted fraudulent documents to CIS in
order to obtain benefits for the beneficiary. According to the notice of revocation, CIS received no response or
other communication concerning the notice. The director revoked the petition approval accordingly.
According to the petition, the business was established in 1991. It employs no full time employees. According to
the petition prepared in 1994, the gross receipts of the business were approximately $1.11 million in 1993, with
net annual income of $76,822.00.
On appeal, the counsel submits a brief 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.
8 CFR § 204.5(1)(3)(ii) states, in pertinent part.
(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 occupation designation. The minimum requirements for this
classification are at least two years of training or experience.
The petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form
ETA 750 Application for Alien Employment Certification as certified by the U.S. Department of Labor and
submitted with the instant petition. Matter ofWing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
Here, the Form ETA 750 was accepted on June 13, 1993. 1 The proffered wage as stated on the Form ETA
750 is $13.37 per hour ($27,809.60 per year). The Form ETA 750 states that the position requires two years
expenence.
I It has been approximately 13 years since the Alien Employment Application has been accepted and the
proffered wage established. According to the employer certification that is part of the application, ETA Form
750 Part A, Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I ... [the
employer] guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins
work will equal or exceed the prevailing wage which is applicable at the time the alien begins work."
Page 3
With the petition, counsel submitted the following documents: the original Form ETA 750, Application for
Alien Employment Certification, approved by the Department of Labor with amendments made prior to
certification.
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Also found in the record of proceeding are the following documents: a copy of the biographic pages from the
beneficiary's passport and personal information concerning the beneficiary; a translated work experience
document from Ali Baba Leder Fabrique.' ' Company stating that the beneficiary was employed in
letter manufacturing from May 21, 1984 to December 10, 1989; a translated statement concerning work place
insurance premium records for the beneficiary for her employment as a "leather expert sales person" at
Alibaba Leather Fabric; a translated national health insurance certificate; a translated work verification letter
from the beneficiary's father concerning her employment at Ali Baba Leather Fabric as a "Leather Expert and
Buyer of Ladies Leather Apparel" from May 21, 1984 to December 10, 1988, (instead of 1989 as stated on
the beneficiary's employment card); a letter dated July 28, 2004 from the Istanbul Finance Directorate,
Turkey stating that that department "dealt with a Leather Ready-Wear-production-sa1e business" at the
address of Alibaba Leather Fabric; a letter from the Province Finance Directorate, Mercan Tax Department
Directorate dated July 29, 2004 to Niyazi Citak "that you have executed business activities" at the address of
Alibaba Leather Fabric; six photocopied photos of Alibaba Leather Fabric's former business location; a
translated letter from Ahmet Turan Dogan dated October 5, 2004, that to his personal knowledge and as
owner of the building in which Alibaba Leather Fabric oper~lnefiCiary "worked at Alibaba Leather
Company between 1984 and 1988; a translated letter from_I a leather vendor, who dealt with the
a leather buyer at the Alibaba Leather Company from 1984 to 1988; a translated letter from
dated September 17, 2004, who stated that he was an outside electrician who worked at the
Alibaba Leather Company building and that he knew that the beneficiary worked there from 1984 to 1988; a
letter from _,the beneficiary's brother, dated October 20,2004, who stated that he was an employee
with the beneficiary at Ali Baba Leather Company between 1984 and 1988, and, that the beneficiary" ... was
in charge of buying leather and accessories;" a letter from Ismet Morali dated October 20, 2004, a barber
whose shop was and is at the date of the letter "right next to the [former location] of Ali Baba Leather
Company and he stated he observed the beneficiary as "she passed his shop"; a letter from
dated October 2, 2004, that stated that he was the accountant for the Ali Baba Leather Company from 1983 to
1994 and that the beneficiary worked in the company as a leather expert in charge of buying leather from
1984 to December 1988 (and that he inadvertently recorded her termination date as 1989); a support letter
from the petitioner;' and, a Schedule C that is a part of the 1993 income tax return of petitioner.4
The 1-140 petition was approved February 10, 1995. The director issued a notice of intent to revoke on July 16,
2004. A notice of revocation was issued on September 14, 2004, the director finding that no rebuttal or other
communication had been made to the notice of revocation. Counsel contends that a timely rebuttal had been
submitted on August 7,2004. The petitioner appealed the revocation on October 1, 2004.
• 0& 0& • 0& :It....
2 The company's name is given variously in the record of proceeding as Ali Baba Leder
Fabrique, Ali Baba Leather Company, Alibaba Leather Company, and, Alibaba Leather Fabric.
3 According to the petitioner's letter dated February 26, 1996, the beneficiary has been employed by the
petitioner since January 1996 at $13.37 per hour.
4 er un-translated letters in the record of proceeding from and •
Page 4
On appeal counsel asserts that the beneficiary has the requisite two years of experience; that CIS failed to
consider the petitioner's rebuttal to the notice to revoke; and, that no fraudulent documents were submitted in the
proceeding.
The issues to be discussed in this case is whether or not the petitioner had established that the beneficiary has
the requisite experience as stated on the labor certification petition, and, whether or not fraudulent documents
were submitted in the proceeding.
To be eligible for approval, a beneficiary must have the education and experience specified on the labor
certification. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
To determine whether a beneficiary is eligible for an employment based immigrant visa, Citizenship &
Immigration Services (CIS) must examine whether the alien's credentials meet the requirements set forth in the
labor certification. 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 (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 of
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 14 and 15, set
forth the minimum education, training, and experience that an applicant must have for the position of a buyer of
ladies leather apparel.
In the instant case, item 14 describes the requirements of the proffered position as follows:
14. Education ..
Grade School Blank
High School Blank
College Blank
College Degree Required Blank
Major Field of Study Blank
Training Blank
Experience .
Ye~s -l-
Related Experience .
In the instant case, the Application for Alien Employment Certification, Form ETA-750B, item 15, sets forth
work experience that an applicant listed for the position of a buyer of ladies leather apparel.
15. WORK EXPERIENCE
a. NAME AND ADDRESS OF EMPLOYER
Ali Baba Leather Fabrik, Malta Fahri Mahallesi, Alibaba Turbe Sokak, No.4, Cembelitas,
Istanbul. Turkey
NAME OF JOB
Buyer of Leather Goods
DATE STARTED
Page 5
Month - 05 [May] Year - 1984
DATE LEFT
Month-12 [December] Year-1989
KIND OF BUSINESS
ImporterlWholesaler of Leather Goods
DESCRIBE IN DETAIL DUTIES ...
Bought various leather goods from various sources
NO. OF HOURS PER WEEK
40
In this case, the Form G-325A submitted by the beneficiary dated March 6, 1995, stated that she was employed at
Ali Baba Leather Fabrik, Istanbul, Turkey from May 1984 through December 1989. As stated above, the
petitioner provided a translated work experience document from Ali Baba Leder Fabrique, "Ali Citak"
Company stating that the beneficiary was employed in letter manufacturing from May 21, 1984 to December
10, 1989.
The director requested and the U.S. Embassy in Istanbul, Turkey conducted an investigation of the beneficiary's
employment experience. In pertinent part, the investigative report focused on the date of December 10, 1989, and
the fact that the beneficiary entered the United States on January 20, 1989, to conclude that there was a
discrepancy in information presented, and to therefore reasonably conclude that " ... the beneficiary could ... [not]
be physically be in two places at once." From this and anecdotal evidence found in the investigative report, and
other inconsistent statements given in this matter as stated above, the director found that the beneficiary does not
have the requisite experience as stated on the labor certification petition, and, that fraudulent documents were
submitted in the proceeding.
On appeal, counsel asserts that CIS failed to consider the petitioner's rebuttal to the notice to revoke; that the
beneficiary has the requisite two years of experience; and, that no fraudulent documents were submitted in the
proceeding.
On the assertion raised by counsel that the director failed to consider the petitioner's rebuttal to the notice to
revoke, since this is a de novo appeal, and, the evidence indicated by counsel that was previously submitted, was
found in the record of proceeding and is now being reviewed, the petitioner has its remedy for this omission
assuming that the evidence was in the record but not considered by the director in his decision.
Counsel asserts that the beneficiary has the requisite two years of experience as a buyer ofladies leather apparel.
Since the issue raised by the inconsistent evidences submitted in this matter (without regard to the
misrepresentation finding) is whether the beneficiary has four or five years of work experience, we find that the
totality of the independent and objective evidence submitted proves that beneficiary has two years experience.
Counsel asserts that no fraudulent documents were submitted in the proceeding. Based upon the seven affidavits
from individuals attesting to the beneficiary's employment at Alibaba Leather Company, and the two statements
from the Istanbul, Turkey, taxing authorities that the company existed during the relevant period (a question
raised collaterally by the investigation report), the admission of error by the company accountant concerning
the working dates, and the beneficiary's father acknowledgement of the correct employment term as stated
above, there is evidence of serious mistakes by the beneficiary in the preparation of the labor certification and
CIS Form G-325A but no evidence of an intent to misrepresent. We find that there is no evidence of
fraudulent document submission in this matter.
Page 6
The petitioner had established that the beneficiary has the requisite experience as stated on the labor certification
petition, and, has proven by evidence submitted that documents submitted in this matter were not fraudulent.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 V.S.c.
§ 1361. The petitioner has met that burden.
ORDER: The petition is sustained.