dismissed EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF MRCP-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 16. 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner is staffing agency that seeks to employ the Beneficiary in the United States as an 
accountant. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i). 
8 U.S.C. § 1153(b )(3)(A)(i). This employment-based immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires at least two years of training or experience. 
The petition was initially approved. Subsequently, the Director of the Nebraska Service Center 
revoked the approval of the petition, concluding that the Petitioner willfully misrepresented a 
material fact by not disclosing the familial relationship between the Petitioner's owners and the 
Beneficiary on the labor certification accompanying the petition, which raises the issue of whether 
the position offered was open to U.S. workers. The Director also noted several discrepancies in the 
record that the Petitioner had not resolved. 
On appeal, the Petitioner states that the fact that the Beneficiary is the Petitioner's owner nephew 
does not constitute a "familial relationship" that must be disclosed on the labor certification. The 
Petitioner states that the job was open to U.S. workers and submits additional evidence on appeal to 
resolve the discrepancies noted by the Director. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved ETA Form 9089, Application for Permanent Employment Certification (labor 
certification) from the U.S. Department of Labor (DOL). 1 See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that 
employing a foreign national in the position will not adversely aflect the wages and working conditions 
of domestic workers similarly employed. Section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the 
employer files an immigrant visa petition with U.S. Citizenship and Immigration Services 
1 The date the labor certification is filed, in cases such as this one, is called the '"priority date." 
Matter of MRCP-, Inc. 
(USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the 
foreign national applies for an immigrant visa abroad or, if eligible, adjustment of status in the 
United States. See section 245 of the Act, 8 U.S.C. § 1255. 
Section 205 of the Act, 8 U.S.C. § 1155, provides that "[t]he Attorney General [now Secretary, 
Department of Homeland Security], may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition approved by him under section 204.'' The realization by 
the director that the petition was approved in error may be good and sufficient cause for revoking the 
approval. Matter ofHo, 19 I&N Dec. 582, 590 (BIA 1988). 
II. ANALYSIS 
A. Willful Misrepresentation of a Material Fact 
The Director revoked the approval of the petition after concluding that the Petitioner had willfully 
misrepresented a material fact by not disclosing the familial relationship between its owner and the 
Beneficiary, thereby calling into question whether a bonafide job opportunity was available to U.S. 
workers as required by 20 C.F .R. § 656.1 0( c )(8). A willful misrepresentation of a material fact 
"made in connection with an application for visa or other documents'' is one that '"tends to shut otT a 
line of inquiry which is relevant to the alien's eligibility.'' Matter olS- and B-C-, 9 I&N Dec. 436, 
447 (BIA 1961). 
In order to assess whether a bonafide job offer may be at issue, Section C. 9 of the labor certification 
asks, "Is the employer a closely held corporation ... in which the alien has an ownership interest, or 
is there a familial relationship between the owners, stockholders, partners, corporate officers, 
incorporators, and the alien?" The Petitioner checked '"No" in response to this question, indicating 
that there is no relationship between the Beneficiary and the owners, stockholders, partners, 
corporate officers, or incorporators. However, the record reflects, and the Petitioner admits, that the 
Beneficiary's uncle is the Petitioner's owner and president and his aunt is a part-owner. 
In the matter at hand, the Petitioner should have marked "Yes" to the question at line C. 9 because 
the Beneficiary has a familial relationship with the Petitioner's president and two owners. The DOL 
regulation at 20 C.F.R. § 656.17(1), alien influence and control over job opportunity, made clear that 
the intention behind the inquiry at line C.9 of the labor certification was to ensure that a job 
opportunity was open to all workers by identifying any relationships, business or familial, that might 
affect job availability. 2 
2 The PERM regulation at 20 C.F.R. § 656.17(1) states in pertinent part: 
(I) Alien influence and control over job opportunity. If the employer is a closely held corporation or partnership 
in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, 
corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of 
employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job 
opportunity, i.e., the job is available to all U.S. workers, and must provide to the Certifying Officer. the 
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Matter of MRCP-, Inc. 
On appeal, the Petitioner asserts that it did not understand the question to include any relationship 
beyond immediate family members and points to DOL issued frequently asked questions on the 
topic that were not published until 2014. In the FAQ, DOL specified that ''A familial relationship 
includes any relationship established by blood, marriage, or adoption, even if distant. ... It also 
includes relationships established through marriage, such as in-laws and step-families." OFLC 
Frequently Asked Questions & Answers, Familial Relationships, at 
http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last visited Oct. 10, 2017). The Petitioner 
maintains that because it filed the labor certification before the F AQ was published, it could not be 
expected to know that "Yes" was the correct answer to the question at C.9. However, in several 
decisions which predate the filing of the labor certification, the Board of Alien Labor Certification 
Appeals (BALCA) has indicated that familial relationships, created by blood or by marriage, 
between foreign nationals and their prospective employers constitute familial relationships that 
trigger concerns about the bona fides of the job opportunities. See, e.g, Maller o( Sunmarl 3 7 ..f, 
2000-INA-93, 2000 WL 707942 *3 (BALCA May 15, 2000) (stating that a suspect relationship 
between an employer and a foreign national "is not only of the blood; it may also be financiaL by 
marriage, or through friendship"); Matter (~l Topco USA, Inc., 93-INA-00516, 1996 WL 86214 *4 
(BALCA Feb. 23, 1996) (upholding a certification denial based solely on a "family relationship .. 
between a foreign national and his sister-in-law, an officer and director of the employer): "Ualler ol 
Altobelli's Fine Italian Cuisine, 90-INA-130, 1991 WL 239636 **3-4 (BALCA Oct. 16, 1991) 
(finding that a foreign national's relationship to his sister-in-law, the employer's corporate secretary, 
constituted a "family relationship''). 3 As such, the Petitioner should have responded ''Yes .. to the 
question at C.9, as it was clearly applicable to the relationship between the Petitioner and 
Beneficiary. 
Here, the Petitioner's concealment of the Beneficiary's familial relationship to the Petitioner's 
president and owners constitutes a willful misrepresentation. We also find that this 
misrepresentation was material to the current petition and to the question of whether the position was 
following supporting documentation: 
(I) A copy of the articles of incorporation, partnership agreement, 
business license or similar documents that establish the business entity; 
(2) A list of all corporate/company officers and shareholders/partners of the corporation/firm/business, 
their titles and positions in the business' structure, and a description of the relationships to each other 
and to the alien beneficiary; 
(3) The financial history of the corporation/company/partnership, including the total investment in the 
business entity and the amount of investment of each officer, incorporator/partner and the alien 
beneficiary: and 
(4) The name of the business' official with primary responsibility for interviewing and hiring applicants 
for positions within the organization and the name(s) of the business' official(s) having control or 
influence over hiring decisions involving the position for which labor certification is sought. 
(5) If the alien is one of I 0 or fewer employees, the employer must document any family relationship 
between the employees and the alien. 
3 While we are not bound by BALCA decisions, we, nevertheless, may take note of the reasoning in such decisions when 
considering issues that arise in the employment-based immigrant visa process. 
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Matter of MRCP-, Inc. 
a bonafide job opportunity open to U.S. workers. A fact's materiality is determined according to its 
effect on the ultimate decision had the truth been known. Bazzi v. Holder. 746 F.3d 640, 645-646 
(6th Cir. 2013) (citations omitted). The Petitioner's misrepresentation of the Beneficiary's 
relationship to the president of the company and two of the Petitioner's owners shut otT a line of 
inquiry into the bona fide nature of the job and its eligibility for the benefit sought. Labor 
certification employers must attest that "[t]he job opportunity has been and is clearly open to any 
U.S. worker.'' 20 C.F.R. § 656.10(c)(8). "This provision infuses the recruitment process with the 
requirement of a bonafide job opportunity: not merely a test of the job market." Matter (~f Modular 
Container Sys., Inc., 89-INA-228, 1991 WL 223955, *7 (BALCA July 16, 1991) (en bane) 
(referring to the former, identical regulation at 20 C.F.R. § 656.20(c)(8)). USCIS may deny a 
petition accompanied by a labor certification that violates DOL regulations. See Sunoco Energy 
Development Company, 17 I&N Dec. 283, 284 (Reg'l Comm'r 1979) (affirming a petition's denial 
where the accompanying labor certification was invalid for the geographical area of intended 
employment). 
In determining the bona fides of a job opportunity, adjudicators must consider multiple factors, 
including but not limited to, whether a foreign national: is in a position to control or inf1uence hiring 
decisions regarding the offered position; is related to corporate directors. officers. or employees: 
incorporated or founded the company; has an ownership interest in it: is involved in the management 
of the company; sits on its board of directors; is one of a small group of employees; and has 
qualifications matching specialized or unusual job duties or requirements stated in the labor 
certification. See Modular Container, 1991 WL 223955 at *8; see also 20 C.F.R. § 656.17(1) 
(describing the documents required to establish the existence of a bonafide job opportunity). 
Adjudicators must also consider whether a foreign national's pervasive presence and personal 
attributes would likely cause a petitioner to cease operations in the foreign national's absence and 
whether the employer complied with regulations and otherwise acted in good faith. See Modular 
Container. 1991 WL 223955 at *8. A beneficiary's familial relationship or employment within a 
small group of employees is an important factor in determining the bonafides of a job opportunity. 
See 20 C.F.R. § 656.17(1)(5). 
In this case, the Beneficiary's familial relationship to the Petitioner's president and owners, in 
conjunction with the fact that the Beneficiary is one of only two employees. indicates that the 
Petitioner has not established a bonafide job opportunity in this matter. Had DOL been apprised of 
the familial relationship between the Beneficiary and the Petitioner's president and owners, DOL 
may have decided to investigate more deeply whether the proffered position was a bona fide job 
opportunity open to U.S. workers. By withholding information about the familial relationship. 
therefore, the Petitioner shut off a line of inquiry by the DOL that was relevant to the Beneficiary's 
eligibility. 
Based on the foregoing, we find that the Director correctly determined that the Petitioner willfully 
misrepresented a material fact by not disclosing the familial relationship between its president and 
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Matter of MRCP-, Inc. 
owners and the Beneficiary. On this basis, the Director properly concluded that there was good and 
sufficient cause to revoke the petition's approval. 
B. Other Grounds for Revocation 
The Director also identified several discrepancies in the record and concluded that the Petitioner had 
not provided sufficient evidence to establish the Petitioner's ability to pay or to demonstrate that the 
Beneficiary had the required education and experience. The Director further found that the 
Petitioner willfully misrepresented the Beneficiary's immigration tiling history on the Form I-140, 
Immigrant Petition for Alien Worker. On appeal, the Petitioner has submitted evidence to establish 
that it more likely than not had the ability to pay and to demonstrate that the Beneficiary has the 
required experience. We are also persuaded that the Petitioner's omission on the Form I-140, while 
incorrect, was not a willful misrepresentation of a material fact. However. the record does not 
establish the Beneficiary's possession of the required education. 
The labor certification states in Section H that an associate's degree is required. Section J states that 
the Beneficiary meets this requirement by possessing an associate's degree from the 
completed in 1993. The record contains a bachelor's degree diploma and marks certificate 
that appears to have been issued to the Beneficiary from the in Pakistan. 
The Director noted that the diploma appeared to have been altered in that several of the dates contain 
handwriting over the typed numbers. 
On appeal, the Petitioner states that the handwritten alterations were made by the university and that 
it is a common practice in Pakistan to handwrite parts of a student's educational credentials. The 
Petitioner has submitted a certified copy of the Beneficiary's degree and marks certificate from the 
Higher Education Commission of Pakistan under seal. However, the registered number stated on the 
certified copy of the degree differs from the number stated on the marks certificate and the degree is 
dated 1992 but states that the final examination was held in 1993. The inconsistencies in the 
educational documents raise doubt about the veracity of the evidence. The Petitioner has not 
resolved or overcome these discrepancies to establish that the Beneficiary has the required 
education. Therefore we also affirm the revocation of the petition 's approval on this ground. 
III. CONCLUSION 
The record shows that the Petitioner willfully misrepresented a material fact and does not establish 
that the Beneficiary has the required education . As such, the Director properly revoked the 
petition's approval. 
ORDER: The appeal is dismissed . 
Cite as Matter of MRCP-. Inc., ID# 703233 (AAO Oct. 16, 2017) 
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