dismissed EB-3 Case: Adoption Services

MATTER OF A-S-0-A, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 27,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of adoption services, seeks to employ the Beneficiary as a business 
development specialist. It requests his classification as a skilled worker under the third-preference 
immigrant category. See Immigration and Nationality Act section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national with at least two years of training or experience for lawful permanent resident 
status. 
After the filing's initial grant, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that the Petitioner's business terminated, automatically revoking 
the petition's approval. 
The Director also found that, as of its approval, the petition did not meet numerous requirements. 
Specifically, the Director found that the labor certification accompanying the petition did not support 
the offered position or the requested classification. The Director also found that the record did not 
establish: the bona fides of the job offer or the job opportunity; the Beneficiary's qualifying 
experience for the offered position; or the Petitioner's ability to pay the proffered wage. In addition, 
the Director invalidated the labor certification, finding that the Petitioner willfully misrepresented a 
material fact. 
On appeal, the Petitioner denies that the labor certification contains a material misrepresentation and 
asserts the petition's satisfaction of all requirements. The Petitioner also contends that the Director 
misidentified the petitioning company. 
Upon de novo review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer files a 
labor certification application with the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). The DOL must certify that the United States lacks able, 
willing, qualified, and available workers for an offered position, and that employment of a foreign 
national will not hurt the wages and working conditions of U.S. workers with similar jobs. !d. If the 
Matter of A-S-0-A-, Inc. 
DOL certifies an offered position, an employer must tile a petitiOn, accompanied by the labor 
certification, to U.S. Citizenship and Immigration Services (USCIS). See section 204(a)(l)(F) ofthe 
Act, 8 U.S.C. § 1154(a)(l)(F). Finally, ifUSCIS approves a petition, the foreign national may apply 
for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 
245 ofthe Act, 8 U.S.C. § 1255. 
Before a beneficiary obtains lawful permanent resident status, USCIS may revoke a petition's 
approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. Certain 
occurrences automatically revoke a petition's approval without prior notice to a petitioner. 8 C.F.R. 
§ 205.1 (a)(3)(iii). USCIS must inform a petitioner of all other alleged revocation grounds and 
provide it with an opportunity to respond. 8 C.F.R. § 205.2. 
II. JURISDICTION 
A termination of a petitioner's business may automatically revoke a petition's approval. 8 C.F.R. 
§ 205.1(a)(3)(iii)(D). There are no appeal rights for automatic revocations under 8 C.F.R. § 205.1. 
Thus, if the Director properly found that the Petitioner's business terminated, we would lack 
jurisdiction over this appeal. To determine whether we have jurisdiction in this matter, however, we 
must first identify the Petitioner. 
III. THE PETITIONING COMPANY 
On the Form I-140, Immigrant Petition for Alien Worker, and the accompanying labor certification, 
the Petitioner identified itself as a corporation with a California address. The Form I -140 stated a 
federal employer identification number (EIN) for the Petitioner matching the EIN on federal income 
tax returns submitted with the petition. In a letter accompanying the petition, the Petitioner's 
director stated that the company maintained offices in California and Texas. Copies of pages from 
the Petitioner's website also stated the company's offices in California and Texas, but identified the 
business by a slightly different name. 
As noted in the Director's notice of intent to revoke (NOIR), public records indicate that two 
corporations, both formed in Texas, operated under the name stated on the Form I -140 and labor 
certification. One corporation, a for-profit entity with a legal name matching the Petitioner's name 
on the Form I-140 and labor certification, formed in 1997. See Tex. Comptroller of Pub. Accounts, 
"Taxable Entity Search," at https://mycpa.cpa.state.tx.us/coa/search.do?userType=public (last visited 
Oct. 5, 2017). In 2002, Texas forfeited its corporate charter. !d. The other corporation, a nonprofit 
with a legal name matching the company name on the website pages, formed in 2000 and eventually 
lost its corporate charter in 2011. /d. 
A newly chartered corporation requires a new EIN. U.S. Internal Revenue Service (IRS), "Employer 
Identification Number: Understanding Your EIN," 5, at https://www.irs.gov/pub/irs-pdf/pl635.pdf 
(last visited Oct. 5, 2017). The record contains a 1997 IRS letter assigning the EIN listed on the 
Form I-140 and labor certification. The for-profit corporation formed about two weeks before the 
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Matter of A-S-0-A- , Inc. 
letter's date. The nonprofit was created almost three years later. Thus, the record indicates that the 
IRS assigned the EIN to the for-profit entity. Public records indicate that the nonprofit obtained a 
corporate charter in 2000. See Tex. Comptroller of Pub. Accounts , "Taxable Entity Search," at 
https://mycpa.cpa.state.tx.us/coal search.do?userType=public (last visited Oct. 5, 2017). The record 
therefore indicates that the nonprofit received an EIN in 2000 different than that of the for-profit 
corporation. 
The Texas identification numbers of the two corporations also indicate that the Petitioner is the for­
profit entity. An 11-digit Texas identification number usually includes a business's nine-digit EIN, 
with one digit preceding the EIN and another following it. Tex. Comptroller of Pub. Accounts , 
"Check- Digit Calculator," at https://fmx.cpa. texas.gov/fmx/tins/tingeneratoi/index. 
php (last vi sited 
Oct. 5, 2017). The Texas identification number of the for-profit corporation includes the EIN listed 
on the Form 1-140 and tax returns. See Tex. Comptroller of Pub. Accounts, "Taxable Entity 
Search," at https://mycpa.cpa.state.tx.us /coalsearch.do?userType=public (last visited Oct. 5, 2017) . 
The nonprofit's Texas identification number does not include that EJN, indicating that the compan y 
has a different one. ld 
On appeal, however , the Petitioner asserts that the nonprofit filed the petition after legally obtaining 
the EIN of the for-profit entity. The IRS identifies a few circumstances under which a corporation 
may use an existing ETN. A corporation that survives a merger - or a reorganization changing its 
identity, form, or location - may continue to use an existing EIN. IRS, "Employer Identification 
Number: Understanding Your EIN," 5, at https ://www.irs.gov/pub/irs-pd f/p1635.pdf (last visited 
Oct. 5, 2017). Also, a corporation that sells its assets, liabilities, and charter to another entity may 
use an existing EIN. ld 
Here, however , the record lacks evidence to support the Petitioner ' s claim of an EIN transfer from 
the for-profit corporation to the nonprofit. The Petitioner did not submit documentary evidence of a 
merger, conversion , reorganization, or sale involving the corporations. Public records also do not 
indicate any of those occurrences. See Tex. Comptroller of Pub. Account s, "Taxable Entity Search," 
at https://mycpa.cpa.state.tx.us/coalsearch.do?userType=public (last visited Oct. 5, 2017). Also, the 
nonprofit filed a nonimmigrant visa petition for another beneficiary in 2003, listing a different EIN 
than the one assigned to the for-profit entity.' In addition, in a filing in a current bankruptc y 
proceeding in federal court, the Beneficiary and his spouse indicated that the companies have 
separate EINs. 
Further, if the nonprofit acquired the EIN of the for-profit corporation , the federal tax returns of 
record for 2003 and 2004 would reflect the nonprofit's finances. The record, however, does not 
explain why the nonprofit would have reported profits, or why the company would not have filed the 
returns on IRS forms for nonprofits. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring 
a petitioner to resolve inconsistencies of record by independent , objective evidence pointing to 
where the truth lies). 
1 USCIS records identify the nonprofit's petition by the receipt number 
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Matter of A-S-0-A-, Inc. 
For the foregoing reasons, the record supports the Director's identification of the Petitioner as the 
for-profit corporation formed in 1997. 
IV. TERMINATION OF THE PETITIONER'S BUSINESS 
As of the Director's decision, "termination of the employer's business" automatically revoked a 
petition's approval. 8 C.F.R. § 205.1(a)(3)(iii)(D) (2016). While this appeal was pending in 2017, 
however, amended regulations took effect, barring automatic revocation of a petition's approval if 
termination of a petitioner's business occurred 180 or more days after the petition's approval, or 
after a filing of an associated adjustment application. Final Rule on Retention of EB-1, EB-2, and 
EB-3 Immigrant Workers, 81 Fed. Reg. 82398,82402 (Nov. 18, 2016). 
Here, the Director found that the business of the petitioning for-profit corporation terminated before 
the petition's filing in 2006. The Director found that the Petitioner could not legally conduct 
business after the forfeiture of its corporate charter in 2002. The Director therefore concluded that 
the Petitioner's business had terminated and the petition's approval had been automatically revoked. 
Public records indicate that Texas forfeited the Petitioner's corporate charter after the company did 
not timely pay franchise taxes. See Tex. Comptroller of Pub. Accounts, "Taxable Entity Search," at 
https://mycpa.cpa.state.tx.us/coa/search.do?userType=public (last visited Oct. 5, 2017). As the 
Petitioner argues, however, Texas law permits a forfeited corporation - upon payment of taxes, 
penalties, and interest owed - to retroactively revive its charter. Tex. Tax Code § 171.312. Because 
a Texas corporation has this right of revival, a charter's forfeiture does not "extinguish[] the 
corporation as an entity." Hinkle v. Adams, 74 S.W.3d 189, 193-94 (Tex. App. 2002) (citations 
omitted). 
Moreover, we have determined that, for automatic revocation purposes, "termination" of a business 
occurs when the enterprise "is no longer an active business." Patel v. Johnson, 2 F. Supp. 3d 108, 
119 (D. Mass. 2014). Thus, the date a business ceases activity may differ from the date of its 
"dissolution" under state law. !d. at 119 n.11. 
Here, the record indicates that, despite the forfeiture of the Petitioner's corporate charter in 2002, its 
business remained active. Copies of the Petitioner's federal income tax returns for 2003 and 2004 
and its state payroll tax records for the third quarter of 2005 indicate that it continued to conduct 
business after losing its charter. The record does not establish when or if the Petitioner's business 
ultimately terminated. Thus, the record does not support the Director's finding the Petitioner's 
business was terminated and that the petition's approval was therefore subject to automatic 
revocation. 
V. INVALIDATION OF THE LABOR CERTIFICATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a skilled worker petition must include a valid, 
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Matter of A-S-0-A-, Inc. 
individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). USCIS, however, may invalidate a labor 
certification after its issuance upon a finding of "fraud or willful misrepresentation of a material fact 
involving the labor certification." 20 C.F.R. § 656.30(d) (2004).2 
A willful misrepresentation must be voluntary and deliberate, made with knowledge of its falsity. 
Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995). A misrepresentation is material if it tends to shut 
off a line of inquiry that would predictably have disclosed facts relevant to eligibility for a requested 
benefit. Matter of D-R-, 27 I&N Dec. 105, 113 (BIA 2017). Fraud consists of the same elements as 
willful misrepresentation, but also requires an intention to deceive a government official and success 
in the deception. Matter of G-G-, 7 I&N Dec. 161, 164 (BIA 1956). 
A labor certification employer must attest that its job opportunity "has been and is clearly open to 
any qualified U.S. worker." 20 C.F.R. § 656.20(c)(8). This attestation "infuses the recruitment 
process with the requirement of a bona .fide job opportunity: not merely a test of the job market.'' 
Matter of Modular Container Sys., Inc., 89-INA-228, 1991 WL 223955, *7 (BALCA 1991) (en 
bane). Thus, if the Petitioner willfully misrepresented the availability of the offered position to U.S. 
workers, USCIS may invalidate the labor certification. 
To determine the bona.fides of a job opportunity, USCIS must consider numerous factors, including 
whether a foreign national: is in a position to control or influence hiring decisions regarding an 
offered position; is related to a business's directors, ot1icers, or employees; incorporated or founded 
the business; sits on its board of directors; has an ownership interest in it; is involved in its 
management; is one of a small group of employees; or has qualifications matching specialized or 
unusual job duties or requirements of an offered position. Matter of Modular Container, 1991 WL 
223955 at *8. USCIS must also consider whether a foreign national's absence would likely cause a 
petitioner to cease operations, and whether the employer complied with DOL regulations and 
recruited for an offered position in good faith. !d. 
Here, the Director found that the Beneficiary had an ownership interest in the Petitioner. The record 
indicates that the Beneficiary gave a sworn statement to U.S. immigration officers in 2000. attesting: 
"I have three business[es in the United States.] One is [an] adoption program which helps U.S. 
citizens adopt children domestic and international." Also, in a nonimmigrant visa petition for the 
Beneficiary filed by another petitioner in 1999, an organization chart identified the Petitioner's 
parent company as a foreign entity owned 99 percent by the Beneficiary.3 The record therefore 
indicates that the Beneficiary had an ownership interest in the Petitioner. 
The Director also found that the Beneficiary was the Petitioner's sole corporate officer. Public 
records identify him as the company's president and corporate director. Tex. Comptroller of Pub. 
2 The Petitioner filed its application for labor certification before the DOL's current certification system took effect in 
2005. See DOL Final Rule on Labor Certification, 69 Fed. Reg. 77326, 77326 (Dec. 27, 2004). The DOL's prior 
regulations therefore govern the certification in this matter. !d. We will therefore cite DOL regulations from 2004. 
3 The chart did not indicate whether the foreign entity was the Petitioner's sole owner. 
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Matter of A-S-0-A-, Inc. 
Accounts, "Taxable Entity Search," at https://mycpa.cpa.state.tx.us/coa/search.do?userType=public 
(last visited Oct. 5, 20 17). Thus, the record identifies the Beneficiary as both an officer of the 
Petitioner and a member of its board of directors. The titles of these positions also suggest the 
Beneficiary's involvement in the company's management. In addition, the record identifies the 
Beneficiary as one of a small group of employees. On the Form 1-140, the Petitioner stated its 
employment of nine people. Thus, multiple Modular Container factors indicate that the Petitioner 
falsely represented the availability of the offered position to U.S. workers on the labor certification. 
A beneficiary's relationship to a petitioner is a material fact that affects a labor certification 
application. Matter of Silver Dragon Chinese Rest., 19 I&N Dec. 40 I, 404-05 (Comm'r 1986). The 
Petitioner's misrepresentation was also willful, as "the officers and principals of a corporation are 
presumed to be aware and informed of the organization and staff of their enterprise." ld. at 404. 
Although afforded an opportunity to respond to the factual allegations of the NOIR, the Petitioner 
did not submit documentation from its labor certification proceedings to demonstrate good-faith 
recruitment for the offered position and compliance with DOL regulations. The Petitioner also did 
not provide evidence of who was responsible for hiring decisions regarding the offered position, nor 
did the Petitioner claim that the Beneficiary was not himself involved in these decisions. 
In response to the NOIR, the Petitioner asserted that the Beneficiary "never had an ownership 
interest" in it. The Petitioner, however, did not explain the Beneficiary's contrary statement to 
immigration officers or the organizational chart that accompanied his nonimmigrant visa petition. 
See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies of record by 
independent, objective evidence pointing to where the truth lies). Moreover, regardless of the 
Beneficiary's ownership, a careful analysis of the above factors (the Beneficiary's role as the 
founder, sole officer, and member of the board of directors, along with the small number of 
employees) indicates that the Petitioner willfully misrepresented the bona fide nature of the job 
opportunity and that that misrepresentation was material to its eligibility. 
On appeal, the Petitioner states that, before the DOL certified the offered position, the company 
provided the agency with evidence of the Beneficiary's role as the Petitioner's corporate director. 
The Petitioner asserts that it submitted its articles of incorporation in response to a DOL notice of 
findings, a notice that informs an employer of substantive deficiencies in an application. The record, 
however, indicates that the Petitioner submitted the documentation in response to a "section of 
continuation option letter," a procedural letter that requested the articles as evidence of the 
Petitioner's existence. Because the articles of incorporation identified the Beneficiary by a 
nickname, the DOL might not have noticed his role with the company. In any event, the Petitioner's 
submission of its articles of incorporation does not cure its misrepresentation of the bona fides of the 
job opportunity. 
Matter of A-S-0-A-, Inc. 
The Petitioner also notes that the labor certification form did not require the Petitioner to disclose the 
Beneficiary's ownership interest in it. Unlike the current application form, the form in this case did 
not ask whether the Beneficiary was related to the Petitioner's owners, directors, or officers.4 The 
record does not indicate the Petitioner's misrepresentation ofthe Beneficiary's ownership interest in 
it. As previously discussed, however, the record indicates that the Petitioner misrepresented the 
availability ofthejob opportunity to U.S. workers. 
In his decision, the Director focused on the Beneficiary's ownership interest in the Petitioner. The 
NOIR, however, also discussed evidence of the Beneficiary's role as an officer with the corporation 
and the effect of this relationship on the bona fide nature of the job opportunity. The NOIR 
therefore informed the Petitioner of the factual allegations supporting the labor certification· s 
invalidation and afforded it an opportunity to respond. See Matter (~f Arias, 19 I&N Dec. 568, 570 
(BIA 1988) (holding that revocation must be grounded on, and a petitioner need only respond to, the 
factual allegations stated in a notice of intent to revoke). 
For the foregoing reasons, the record supports the invalidation of the accompanying labor 
certification based on the Petitioner's willful misrepresentation of a material fact. As such, the 
Director properly revoked the petition's approval. 
VI. OTHER GROUNDS FOR REVOCATION 
In revoking the petition's approval, the Director also found that the labor certification accompanying 
the petition did not support the offered position or the requested classification. The Director further 
found that the record did not establish the Beneficiary's qualifying experience for the offered 
position or the Petitioner's ability to pay the proffered wage. Although we find the Petitioner to 
have established that the labor certification did support the offered position and requested 
classification, we agree with the Director that the Petitioner has not established that the Beneficiary 
has the required experience or that it has the ability to pay. Because the labor certification was 
properly invalidated and the I -140 is no longer supported by a valid labor certification, we need not 
discuss these grounds in depth. 
VII. PORTABILITY 
In response to the NOIR, the Petitioner asserted that the Beneficiary's eligibility for "portability" 
prevented revocation of the petition's approval. Under the portability provision, a petition "shall 
remain valid" for a foreign national whose adjustment application remained unadjudicated for at 
least 180 days and who changes jobs or employers to a new position in the same or similar 
occupational classification as the job for which the petition was filed. Section 204(j) of the Act. 
4 Under the current labor certification system, employers apply for certification on ETA Form 9089, Application for 
Permanent Employment Certification. 20 C.F.R. § 656.17(a)( I). The Petitioner filed its labor certification application 
on Form ETA 750, Application for Alien Employment Certification. 
Matter of A-S-0-A-, Inc. 
Here, however, the record does not demonstrate the Beneficiary's eligibility for portability. The 
record indicates that the Beneficiary's adjustment application remained unadjudicated for more than 
180 days. But the record does not establish his change of jobs or employers to a qualifying new 
position. A petitioner asserting portability must inform USCIS of a beneficiary's new position and 
its details. Also, to remain valid for portability purposes, a petition must have been valid from the 
start. A "valid" petition is one where a beneficiary was entitled to the requested classification and 
USCIS approved the filing. Matter of AI Wazzan, 25 I&N Dec. 359, 367 (AAO 2010). 
Here, the record indicates that the petition was approved in error. As the Director concluded, the 
record does not establish the bona .fides of the job opportunity, the Beneficiary's possession of the 
minimum experience required for the offered position, or the Petitioner's ability to pay the proffered 
wage. Thus, even if the Beneficiary established his qualifications for portability, USCIS properly 
revoked the petition's approval. See Herrera v. USCIS, 571 F.3d 881, 889 (9th Cir. 2009) (holding 
that the portability provision does not affect USCIS' revocation authority). 
VIII. CONCLUSION 
Based on the Petitioner's willful misrepresentation of the bona fides of the job opportunity, the 
record supports the Director's invalidation of the accompanying labor certification and the Director's 
revocation of the petition's approval on that basis. The record also does not establish that the 
Beneficiary has the required experience or that the Petitioner has the ability to pay the proffered 
wage. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-S-0-A-, Inc., ID# 266990 (AAO Oct. 27, 2017) 
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