remanded EB-2 Case: Software Engineering

'dentieing data deleted to 
Prevent clec -': -.ixananted 
of personal li "acy 
PUBLIC  COP^ 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 153(b)(2) 
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. 
'-d 
T~obert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, 
and is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director 
will be withdrawn and the petition will be remanded for hrther action and consideration. 
The petitioner is a software development consultancy. It seeks to employ the beneficiary permanently 
in the United States as a software engineer pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). In pertinent part, section 203(b)(2) of the Act 
provides immigrant classification to members of the professions holding advanced degrees or their 
equivalent and whose services are sought by an employer in the United States. As required by statute, 
the petition was accompanied by certification from the Department of Labor (DOL). The director 
made a finding of misrepresentation on the labor certification, invalidated the labor certification and 
denied the petition accordingly. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, while 
the petitioner's filing history is curious, the director's conclusions, drawn solely from the petitioner's 
filing history and without further investigation, are too speculative to form the basis of a finding of 
misrepresentation. Thus, we will remand the matter for an adjudication on the merits of the petition. 
The regulation at 20 C.F.R. 
 656.30(~)(2), as in effect when the petitioner filed the labor 
certification application, provides: 
A labor certification involving a specific job offer is valid only for the particular job 
opportunity, the alien for whom certification was granted, and for the area of intended 
employment stated on the Application for Alien Employment Certification form. 
The regulation at 20 C.F.R. 
 656.30(d), as in effect when the petitioner filed the labor certification 
application, provides: 
After issuance labor certifications are subject to invalidation by the INS [now 
Citizenship and Immigration Services (CIS)] or by a Consul of the Department of 
State upon a determination, made in accordance with those agencies, procedures or by 
a Court, of fraud or willful misrepresentation of a material fact involving the labor 
certification application. If evidence of such fraud or willful misrepresentation 
becomes known to a RA or to the Director, the RA or Director, as appropriate, shall 
notify in writing the INS or State Department, as appropriate. A copy of the 
notification shall be sent to the regional or national office, as appropriate, of the 
Department of Labor's Office of Inspector General. 
The petitioner filed a Form ETA 750, Application for Alien Employment Certification, with DOL on 
October 15, 2003. On the application, the petitioner listed a business address in Des Moines, Iowa 
and stated that the petitioner would work at that address. The petitioner honestly reported that the 
beneficiary was currently residing in Dallas Texas. 
 On the Form ETA 750B, Statement of 
Qualifications of Alien, the beneficiary indicated that he had been working for the petitioner since 
September 2003, listing a Des Moines, Iowa address for the petitioner. 
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DOL certified the Form ETA 750 on March 24, 2004. On July 29, 2004, the petitioner filed the 
instant Form 1-140, Immigrant Petition for Alien Worker. The petitioner listed its address as Des 
Moines, Iowa and indicated that the beneficiary would work at an address in Irving, Texas. In 
support of the petition, the petitioner submitted Forms W-2 issued to the beneficiary from the 
petitioner's Austin, Texas address and the approval notice for the beneficiary's nonimmigrant visa 
petition issued by the Director, Texas Service Center. 
On April 26, 2005, the director issued a Request for Evidence, advising that unless the beneficiary 
was already working in Des Moines, Iowa, the labor certification was not valid. In response, counsel 
advised that the petitioner has offices in Austin, Texas and Des Moines, Iowa and confirmed that the 
beneficiary was currently working in Texas. The petitioner submitted a letter from - 
its Chief Executive Officer (CEO), advising that while the beneficiary currently worked in Texas, 
the petitioner was offering the beneficiary a job in Iowa. The petitioner also submitted a non- 
precedent decision issued by this office regarding section 106(c) of the American Competitiveness in 
the Twenty-first Century Act of 2000 (AC21). In that decision, this office cited an August 4, 2003 
memorandum from William Yates, Acting Associate Director for Operations, CIS. The 
memorandum notes that "there is no requirement in statute or regulation that a beneficiary of a Form 
1-140 actually be in the underlying employment until permanent residence is authorized." 
In the final denial, the director noted for the first time that the petitioner had listed the place of 
employment as Irving, Texas on the petition. The director concluded that any change to this 
information would be a material change and could not be accepted. The director further stated that 
the petitioner had never filed a nonimmigrant visa petition to employ the beneficiary in Iowa and, in 
fact, had filed only nonimmigrant visa petitions for positions in Texas and only immigrant visa 
petitions for positions in Iowa. The director concluded that this filing history indicated "a willful 
misrepresentation in the labor certification process." 
On appeal, counsel correctly notes that the indication on the petition that the beneficiary would work 
in Irving, Texas was not mentioned as a concern in the request for evidence. Counsel asserts that the 
listing of the Irving, Texas address was a typographic error, reflecting the physical address of the 
petitioner's client where the beneficiary was working at the time of filing. Counsel correctly notes 
that the petitioner does not have an address in Irving, Texas. Thus, we are persuaded that the listing 
of Irving, Texas as the place of employment on the initial Form 1-140 does not render the labor 
certification invalid. Nor are we persuaded that the listing of the petitioner's Iowa address on the 
Form ETA 750B, line 15, is evidence of misrepresentation. The form requests the address of the 
employer, not the location of the employment. The petitioner does have an address in Iowa. 
Moreover, the beneficiary honestly reported his Texas address on the Form ETA 750B. 
Counsel references a May 9, 2000 memorandum from Michael A. Pearson, Executive Associate 
Commissioner, Office of Field Operations, stating that there is no requirement that the beneficiary of 
an approved visa petition work for the sponsoring employer before receiving permanent resident 
status. Finally, counsel asserts that the petitioner filed five immigrant visa petitions in Texas in 
Page 4 
2005. The petitioner submits two Forms ETA 750 filed in 2003 for positions in Austin, Texas and 
two approval notices for immigrant petitions filed in Texas in late 2005. 
We concur with counsel that the beneficiary need not be working in the proffered position or even 
for the sponsoring employer prior to adjusting status. Rather, the petitioner need only establish its 
intent to hire the beneficiary in the position offered. The director dismisses the petitioner's 
expression of its intent as "self-serving," but the director's basis for rejecting the written affirmation 
of the employer's intent, normally accepted in these proceedings, is mere speculation. We cannot 
conclude that an employer's offer of a position in a different location than the location where the 
alien is currently employed is prima facie evidence of misrepresentation. Such a conclusion would 
ignore the reality that employers legitimately transfer employees from office to office. While the 
petitioner may have a history of filing mostly nonimmigrant visa petitions for Texas positions and 
immigrant visa petitions for Iowa positions, such a history, in and of itself, is not prima facie 
evidence of misrepresentation. The record is absent evidence of a completed investigation revealing 
more concrete evidence confirming the director's suspicions. For example, the record is absent 
evidence that the petitioner has a pattern of not following up on its Iowa job offers after the aliens 
offered those jobs adjust status. 
In light of the above, the director's finding of misrepresentation resulting in the invalidation of the 
labor certification is withdrawn. Should the director acquire any additional derogatory information 
on this issue, the petitioner would need to be advised of this information prior to any new decision 
based on such information. 8 C.F.R. 5 103.2(b)(16)(i). 
Therefore, this matter will be remanded for an adjudication of the visa petition on its merits, including 
the petitioner's ability to pay the proffered wage pursuant to the regulation at 8 C.F.R. 5 204.5(g)(2), 
which states, in pertinent part: 
Ability of prospective employer to pay wage. 
 Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, the day 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. 5 204.5(d). Here, the Form ETA 750 
was accepted for processing on October 15, 2003. The proffered wage as stated on the Form ETA 
750 is $72,000 annually. In evaluating this issue, the director may consider that the petitioner has 
filed multiple immigrant visa petitions and must demonstrate its ability to pay all of the beneficiaries 
of those petitions. 
Page 5 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. $ 1361. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for fiu-ther 
action in accordance with the foregoing and entry of a new decision which, if adverse to 
the petitioner, is to be certified to the Administrative Appeals Office for review.