dismissed EB-3 Case: Adult Foster Care

U.S. Citizenship 
and Immigration 
Services 
In Re: 19418448 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MARCH 21 , 2022 
The Petitioner, an adult foster care business, seeks to permanently employ the Beneficiary as a direct 
care worker. It requests his classification as an "other worker" under the third-preference immigrant 
category . See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 U.S.C. 
§ 1153(b )(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a U.S. employer 
to sponsor a foreign national for lawful permanent residence who is capable of performing unskilled 
labor that requires less than two years of training or experience and is not of a temporary or seasonal 
nature. 
The petition was initially approved, but the Director of the Nebraska Service Center subsequently 
revoked the approval. The Director determined that the Beneficiary was barred from receiving the 
requested immigration benefit under section 204( c) of the Act because there was substantial and 
probative evidence that the Beneficiary's marriage was entered into for the purpose of evading U.S . 
immigration laws. 
On appeal, the Petitioner claims that the Director did not have good and sufficient cause to revoke the 
petition's approval based on section 204(c) of the Act. 
The AAO reviews the questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 
537, 537 n.2 (AAO 2015). It is the Beneficiary's burden in these proceedings to establish eligibility 
for the requested benefit by a preponderance of the evidence. See Section 291 of the Act , 8 U.S .C. 
§ 1361; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
Upon de nova review we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the 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 affect the wages and working 
conditions of domestic workers similarly employed. See 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 (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, 
the foreign national may apply 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 204(c) of the Act, 8 U.S.C. § 1154, provides that: 
Notwithstanding the provisions of subsection (b) 1 no petition shall be approved if ( 1) 
the alien has previously been accorded, or has sought to be accorded, an immediate 
relative or preference status as the spouse of a citizen of the United States or the spouse 
of an alien lawfully admitted for permanent residence, by reason of a marriage 
determined by the Attorney General 2 to have been entered into for the purpose of 
evading the immigration laws or (2) the Attorney General has determined that the alien 
has attempted or conspired to enter into a marriage for the purpose of evading the 
immigration laws. 
Thus, section 204( c) of the Act provides that no family- or employment-based immigrant petition shall 
be approved if the alien has entered into a marriage, or attempted or conspired to do so, for the purpose 
of evading U.S. immigration laws. 
Furthermore, before a beneficiary obtains lawful permanent residence USCIS may revoke a petition's 
approval "at any time" for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. At 
issue here is whether there was good and sufficient cause for the revocation decision. 
II. ANALYSIS 
The instant petition, Form I-140, Immigrant Petition for Alien Worker (I-140 petition), was filed in 
February 2018, and approved on November 26, 2018. 
On April 6, 2021, the Director issued a notice of intent to revoke (NOIR) the approval. In the NOIR 
the Director stated that it appeared the Petitioner did not provide complete, true, and correct 
information on the Form I-140 regarding the previous applications and petitions filed by, and on behalf 
of, the Beneficiary - in particular, a couple of Forms I-130, Petition for Alien Relative, filed by the 
Beneficiary's wife, and several adjustment of status applications (Forms I-485) filed by the 
Beneficiary - and that these proceedings led to determinations by U.S. Citizenship and Immigration 
Services (USCIS), affirmed by the Board of Immigration Appeals (BIA), that the Beneficiary failed 
to establish that he had entered into a bona fide marriage, rather than a sham marriage for the purpose 
of evading immigration laws. Under section 204(c) of the Act, therefore, the Beneficiary's I-140 
petition would not be approvable .. 
1 Subsection (b) of section 204 of the Act refers to preference visa petitions, both family based and employment-based, 
that are verified as true and forwarded to the State Department for issuance of a visa. 
2 In Matter of Samsen, 15 l&N Dec. 28 (BIA 1974), the Board oflmmigration Appeals held that a determination of whether 
marriage was entered into for the purpose of evading the immigration laws is to be made on behalf of the Attorney General 
by the district director in the course of adjudicating the subsequent visa petition. 
2 
Following the Petitioner's response to the NOIR, the Director issued a decision revoking the approval 
of the I-140 petition. In the revocation decision the Director recounted in detail the Beneficiary's 
history in the U.S. immigration system, beginning in 2002. For the purposes of this appeal we will 
focus on the proceedings which led to the findings that section 204( c) of the Act barred the approval 
of the instant petition. 
In May 2002 a special immigrant petition (Form I-360) was filed on the Beneficiary's behalf by the 
Diocese ofl l(in Wisconsin). The petition was approved in May 2003, but the Diocese 
withdrew its support for the Beneficiary in May 2004 and the I-360 petition's approval was revoked 
in March 2007. In a letter to the Beneficiary dated August 21, 2007, the Archdiocese ofl I 
revoked his priest faculties and advised him to return to his home diocese in Nigeria. Ten days later, 
on August 31, 2007, the Beneficiary married a U.S. citizen, who then filed a Petition for Alien Relative 
(Form I-360) on September 6, 2007, seeking to re-classify the Beneficiary as the spouse of a U.S. 
citizen. 
In May 2009 users conducted an unannounced site visit to the residence allegedly shared by the 
Beneficiary and his wife in I I Michigan, and talked with the wife. She stated that the 
Beneficiary occasionally worked as a priest, but she did not know his specific religious affiliation. 
The users officer( s) noted that the premises were devoid of male clothing, toiletries, or pictures of 
the Beneficiary. users then issued a notice of intent to deny (NOID) the I-130 petition for failure to 
prove that the petitioner and the Beneficiary were in a bona fide marital relationship. Following the 
petitioner's response users denied the I-130 petition in September 2009. The petitioner appealed, 
but the BIA dismissed the appeal in March 2011, stating that the absence of male items at the purported 
joint residence "would be a sufficient basis on which to conclude that [the petitioner] had not met her 
burden of proof' that she was in a bona fide marital relationship with the Beneficiary. 
The Beneficiary's wife filed a second I-130 petition in June 2011. In February 2012 users conducted 
an interview of the petitioner and the Beneficiary in the I Michigan field office, and sworn 
statements were taken. There were numerous discrepancies in their testimony regarding such subjects 
as where they first met, wedding day details, where they lived before and after their marriage, their 
personal and family histories, and household finances. users issued a NOID, and after receiving a 
response from the petitioner, users denied the I-130 petition in March 2012 on the ground that the 
evidence was insufficient to establish the bona fides of the marital relationship. The decision was 
appealed, but the BIA dismissed the appeal in February 2014, stating that "[i]n light of the 
discrepancies in the record, we affirm the determination that the petitioner did not meet her burden of 
proof by establishing the claimed relationship between herself and the beneficiary." 
The Director summed up the foregoing procedural history as "reflect[ing] that there is substantial and 
probative evidence to show that [the petitioner] and the Beneficiary entered into the marriage to evade 
immigration laws." Recapping the evidence, the Director noted that the Beneficiary married his wife 
10 days after receiving the letter from the Archdiocese of I revoking his priest faculties, and that 
the subsequent users site visit and field office interview revealed numerous discrepancies indicating 
that the Beneficiary and his wife did not reside in the same home or share a life together. 
3 
The Petitioner's response to the NOIR in the instant I-140 proceeding did not address any of these 
issues, and did nothing to strengthen the claim that the Beneficiary and his wife had a bona fide marital 
relationship during the time when the two I-130 petitions were adjudicated. The Petitioner claimed 
that users was somehow trying to change the BIA's decision(s), but the Director noted that users 
has the authority under section 204( c) of the Act to revoke the approval of a petition based on its own 
independent evaluation of whether there is substantial and probative evidence that a marriage was 
entered into for the purpose of evading the immigration laws. The Director determined that such 
evidence was present in this case, and revoked the petition's approval. 
On appeal the Petitioner asserts that there was no "good and sufficient cause" for the Director to revoke 
the approved I-140 petition, as required in section 205 of the Act. According to the Petitioner, the 
Director's revocation decision conflicted with the BIA decisions confirming the denials of the previous 
I-130 petitions because the basis of the BIA decisions was the petitioner's "failure to sustain her burden 
of proof" that she had a bona fide marriage with the Beneficiary, not a specific finding that the marriage 
was an "attempt to evade the immigration laws" or any finding of fraud or material misrepresentation 
with regard to the marriage. The Petitioner's argument is off point, however, because no specific 
finding of that nature is required under section 204(c) of the Act for visa denials or revocations. 
The standard for reviewing section 204( c) appeals is laid out in Matter of Tawfik, 20 l&N Dec. 166 (BIA 1990). 
In Tawfik the Board held that visa revocation pursuant to section 204( c) may only be sustained if there is 
substantial and probative evidence in the record of proceeding to support a reasonable inference that the prior 
marriage was entered into for the purpose of evading immigration laws. See also Matter of Kahy, 19 l&N Dec. 
803 (BIA 1988); Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 1978); Matter of La Grotta, 14 I&N Dec. 110 
(BIA 1972). Tawfik at 167 states the following, in pertinent part: 
Section 204( c) of the Act ... prohibits the approval of a visa petition filed on behalf of an alien 
who has attempted or conspired to enter into a marriage for the purpose of evading the 
immigration laws. Accordingly, the district director must deny any subsequent visa petition 
for immigrant classification filed on behalf of such alien, regardless of whether the alien 
received a benefit through the attempt or conspiracy. As a basis for the denial it is not necessary 
that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy. 
However, the evidence of such attempt or conspiracy must be documented in the alien's file 
and must be substantial and probative. 
( citing Matter of Kahy, 19 I&N Dec. 803 (BIA 1988); Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 1978); 
Matter of La Grotta, 14 I&N Dec. 110 (BIA 1972); and 8 C.F.R. § 204. l(a)(2)(iv) (1989)). Tawfik states that 
the revocation decision may be made at any time and is properly determined by the district director in the course 
of his adjudication of the subsequent visa petition. Id. at 168 ( citing Matter of Sams en, 15 I&N Dec. 28 (BIA 
1974)). 
In this case there is substantial and probative evidence that the Beneficiary entered into his marriage with a U.S. 
citizen in an attempt to evade U.S. immigration laws. This evidence is documented in the Beneficiary's file 
and discussed in this decision, as well as in prior decisions of USCIS and the BIA. Therefore, since section 
204(c) of the Act should have precluded the approval of the 1-140 petition, we determine that there is good and 
sufficient cause to revoke that approval in accord with section 205 of the Act. 
4 
III. CONCLUSION 
For the reasons discussed in the foregoing analysis, the Petitioner has not overcome the grounds for 
revocation. Accordingly, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
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