Degree or an Alien of Ex'ceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case. or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to:reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8; C.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
/tM{;_
Ron Rosenberg
Chief, Adirunistrative Appeals OffiCe www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the matter is: now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a,Brazilian steakhouse. It seeks to permanently employ the beneficiary I in the United States as a business development and marketing director. The petitioner requests classification of the beneficiary as an advanced degree professional pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).1 The petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, Application for Alien Employment Certification (labor certification), certified by the U.S. Department of Labor (DOL). The priority date of the petition, which is the date the DOL accepted the labor certification for processing, is August 29, 2012. See 8 C.F.R. § 204.5(d). The director's decision denying the petition concludes that the beneficiary did not possess the minimu� experience of 24 months in the alternate occupation of marketing management as required to perfoq:n in the offered position by the priority date. The director ultimately found that the petitione� and the beneficiary had willfully misrepresented the beneficiary's work experience and denied the petition accordingly. The director also invalidated the approved labor certification filed by the petitioner.
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The recofd shows that the appeal is properly filed 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 the decision. i Furtl;ler elaboration of the procedural history will be made only as necessary. We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). We consider all pertinent evidence in the record, including new evidence properly submitted : 2 upon appeal.
The ben�ficiary must meet all of the requirements of the offered position set forth on the labor certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45,49 ,(Reg. Comm. 1971).
In evalu�ting the labor certification to determine the required qualifications for the position, U.S. Citizensh,ip and Immigration Services (USCIS) may not ignore a term of the labor certification, nor may it irttpose additional requirements. See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); 1 Section 2<h(b )(2) of the Act provides immigrant classification to members of the professions holding advanced degrees, whose services are sought by an employer in the United States.
K.R.K. Iryine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of MassachU;setts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regula'tion, USCIS must examine "the langliage of the labor certification job requirements" in order to ;determine what the petition�r must demonstrate about the beneficiary's qualifications. Madany, 696 F.2d at 1015. The only rational manner by which USCIS 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). USCIS's interpreta�ion of the job's requirements, as stated on the labor certification must involve "reading and applying the plain language of the [labor certification]." /d. at 834 (emphasis added). USCIS will not look beyond the plain language of the labor certification to determine the employer's claimed intent.
In the ins�ant case, the labor certification states that the offered position has the following minimum requirements:
H.4. Education: Master's degree in Business Administration or Marketing.
H.5. Training: None required.
H.6. Experience in the job offered: None required.
H.7. Alternate field of study: None accepted.
H.8. Alternate combination of education and experience: None accepted.
H.9. FQreign educational equivalent: Not Accepted.
H.10. Experience in an alternate occupation: 24 months in marketing management.
H.14. S�ecific skills or other requirements: None.
The labo� certification also states that the beneficiart qualifies for the offered position based on the following; experience listed in the labor certification:
- D�rector of sales and marketing with the petitioner in Florida from October 18, 2011 until October 17, 2014.
- Corporate/marketing manager with in Pennsylvania from April 18, 2011 until October 17, 2011.
- Corporate/marketing manager trainee with in Pennsylvania from June 28, 2010 until December 13, 2010 (part-time).
- G¢neral Manager with in Pennsylvania from January 21, 2008 until August 2�, 2008.
- General Manager with in Virginia from November 1, 2006 until December 21, 2007.
- Operations manager/ Gaucho with until October 31, 2006 in Florida from September 19, 2003
No other experience is listed.
The regul�tion at 8 C.F.R. § 204.5(g)(1) states:
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Gf?neral. Specific requirements for initial supporting documents for the various employment-based immigrant classifications are set forth in this section. In general, ordinary legible photocopies of such documents (except for labor certifications from the Department of Labor) will be acceptable for initial filing and approval. However, at the di�cretion of the director, original documents may be required in individual cases.
Eyidence relating to qualifying experience or training shall be in the form of letter( s) frbm 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 aljen's experience or training will be considered.Support letters generic or unsupported
The reco�d contains the following experience letters:
- Managing Member on letterhead dated December
20, 2012, stating that the company employed the beneficiary as a director of sales and marketing in Florida from October 18, 2011; as a corporate/marketing manager in Pennsylvania from April 18, 2011 until October 17, 2011, and; as corporate/marketing rnanagement trainee from June 28, 2010 until December 13, 2010 (part-time).
- Managing Member on letterhead dated December 20,
2012, stating that employed the beneficiary as General Manager from January 2008 until August 2008, in Virginia, and; as an operations manager/ gaucho from September 2003 until October 2006, in Florida.
In a Notice of Intent to Deny dated May 7, 2014, the director informed the petitioner of several inconsistencies concerning the beneficiary's claimed work experience. Specifically, the director noted that the beneficiary was previously sponsored for non-immigrant status by andInconsistencies in the record
Page 5.
NON-PRECEDENT DECISION facilities, equipment (fireplace), and utensils in a clean and sanitary condition and do related work as required.
- The 2007 immigrant petition of described the beneficiary's prior employment with I as being employed in a fulltime position of, "Cook, Biazillian-Style Cuisine" from October 21, 2003 to the present (from letter dated May 3, 2007).
- T�e 2009 H-1B non-immigrant petition of described the beneficiary's experience with beginning in August 2002 in Brazil as a manager; then came to work for in FL as a gaucho (Meat Waiter); then served as a manager at the Florida location; as Operations Manager of VA lo�ation in 2006 through December 2007, and; supervised the PA location until August 2009.
The director further referenced the beneficiary's resume and a Form G�325A Biographic Information submitted with the beneficiary's Form 1-485, Application to Adjust Status, noting the following inconsistencies in the beneficiary's claimed work history:
Resurpe
- , Restaurant Manager,
: 2006.
Form'G-325A
- ! Gaucho/Ops Manager,
October 2006
Matter ofiHo, 19 I&N Dec. 582, 591 (BIA 1988), states:
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FL from October 2003 to December
, FL from September 2003 to
D�mbt cast on any aspect of the petitioner's proof may, of course, lead to a re,evaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.
In response to the director's Notice, the petitioner submitted the beneficiary's Forms W-2, Wage and Tax State�ents, issued by in 2003 to 2005, and by
The petitioner asserts that the beneficiary's documented work experience after 2006 is sufficient to demonstrate that he possessed the required 24 months of experience in marketing management before th� August 29, 2012 priority date.
The work experience letters from and cannot be accepted, as these letters diq not provide a description of the beneficiary's specific job duties. Further, these experience letters establish 17.5 months of experience in the alternate occupation of marketing manager, which is less tha'n the total 24 months required by the terms of the labor certification.
The experience letter from documents the beneficiary's experience in marketing management from April 18, 2011 to August 29, 2012 (the instant priority date), demonstr�ting approximately 18 months of experience. The letter does not demonstrate that the beneficiary's experience as a "corporate/marketing management trainee" was in the accepted occupation of marketing manager. No job duties for the trainee position were included and it cannot be dete11l;lined that the beneficiary's training in marketing management can be considered work . ; 6 expenence.
Although, the experience letter from Mr. describes the beneficiary's experience in marketing management with , , . the inconsistencies described by the director have not been resolved with independent, objective evidence. It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). The record includes no additiona� evidence in support of the beneficiary's actual employment with after 2006. As noted above, the beneficiary's 2006 Form W-2 was not issued by Therefore, it cannot be determined that the beneficiary gained any of the required work experience with
In his denial, the director determined that the petitioner and the beneficiary willfully misrepresented the beneficiary's work experience in order to gain an immigration benefit and an approved labor certification. See section 212(a)(6)(C) of the Act, 8 U.S.C. § 1182(a)(6)(C), regarding misrepresentation, "(i) in general -any alien, who by fraud or willfully misrepresenting a material fact, seeks (or has sought to procure, or who has procured) a visa, other documentation, or admission to the United States or other benefit provided under the Act is inadmissible."
A willful misrepresentation of a material fact occurs is one which "tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be:excluded." Matter ofS- andB-C-, 9 I&N Dec. 436,447 (BIA 1961).
The direCtor noted that the approved and signed labor certification indicates at Part K.e. and f. that the beneficiary worked as an operations manager/ Gaucho with in Florida from September 19,2003 until October 31, 2006, which contradicts other evidence in the record. We further note that the labor certification lists additional employment with from November 1, 2006 to December 21, 2007, which is contradicted by the 2006 Form W-2 issued to the beneficiary by another entity.
By signlng and submitting evidence in support of a misrepresentation, we also find that the petitione� and the beneficiary acted in a willful manner to obtain an immigration benefit and an approved. labor certification.
On appeaiJ., the petitioner states that USCIS has not articulated any specific facts to establish a willful or material misrepresentation. We have reviewed the complete record at hand, taking into consideration all material submitted in connection with the filing of the instant petition and in response to the director's Notice of Intent to Deny. The petitioner has not overcome the director's decision.
We affirrp the director's decision that the petitioner failed to establish that the beneficiary met the minimum requirements of the offered position set forth on the labor certification as of the priority date. Therefor�, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b )(2) of the Act.
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 201;3). Here, that burden has not been met.
ORDER: The appeal is dismissed.