dismissed EB-3 Case: Computer Science

PUBLIC COPY 
il.f entifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: VERMONT SERVICE CENTER 
EAC-02-23 1-5 16 13 
 Date: AUG 0 9 2007 
PETITION: 
 Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to 
section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(3) 
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. 
iV 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The employment-based preference visa petition was initially approved by the Director, 
Vermont Service Center. The director subsequently revoked the approval of the petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed and the 
approval of the petition will remain revoked. 
The petitioner is a computer software and services company. 
 It seeks to employ the beneficiary 
permanently in the United States as a database administrator. As required by statute, a Forrn ETA 750, 
Application for Alien Employment Certification approved by the Department of Labor (DOL), 
accompanied the petition. The petitioner filed the instant petition on June 28, 2002 and the director 
ion on June 15, 2004. Based on the widespread scope of the malfeasance perpetrated 
Citizenship and Immigration Servi 
llYilY 
determined that it should scrutinize all 
visa petitions for immigrant workers represented by 
 On September 30, 2005, the director 
consequently served the petitioner with notice of intent to revoke the approval of the petition (NOIR) 
since was the recorded attorney for the instant petition. In a Notice of Revocation (NOR), the 
director ultimately revoked the approval of the Immigrant Petition for Alien Worker (Form 1-140) 
because the record did not includ; a response to the NOIR and thus the grounds of revocation had not 
been overcome. 
The record shows that the appeal is properly filed, timely 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. Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's April 17, 2006 NOR, the single issue in this case is whether or not the 
petitioner has overcome the grounds of revocation in the director's NOIR dated September 30,2005.~ 
The regulation at 8 C.F.R. $ 103.2(b)(16)(i) states in pertinent part: 
If the decision will be adverse to the applicant or petitioner and is based on derogatory 
information considered by [CIS] and of which the applicant or petitioner is unaware, helshe 
shall be advised of this fact and offered an opportunity to rebut the information and present 
information in his /her own behalf before the decision is rendered, . . . 
On appeal consul asserts that the petitioner did not have the opportunity to submit any evidence to 
overcome grounds of revocation because it did not receive a timely NOIR. Counsel did not submit any 
evidence to support his assertion. The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 15 8, 165 (Comrn. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Instead, the record 
shows that the director issued and served a NOIR on September 30,2005 and granted 30 days to rebut the 
I 
 On April 14, 2005 after a 'u 
 trial in the United States Distnct Court for the Distnct of Ma land, 
Northern Division, 
 was convicted in multiple counts of immigration fiaud. Ty was 
convicted of various counts regardin the falsifying of Labor Certification applications and conspiracy to 
submit false Labor Certification & was formerly counsel of record in these proceedings. 
The NOIR requested evidence to demonstrate the bona fides of the job offer and stated that invalidation 
of the labor certification would occur if the director determined that the labor certification was not based 
on a bonafide job offer. 
Page 3 
grounds of revocation. The record shows that the NOIR was mailed to the petitioner's then address in the 
record at It is noted that the petitioner submitted 
an affidavit on appeal claiming that the petitioner's address has been changed. However, the record 
shows that the petitioner received the NOR at the same address six months after the director sent the 
NOIR. The fact that counsel submits a response to the director's NOIR dated September 30, 2005 as part 
of supporting documentation to the appeal also indicates that the petitioner was informed of the grounds 
of the director's intent to revoke the approval of the petition. 
In addition, it is the petitioner's responsibility to timely update contact information. The petitioner did 
not provide its new address until submitting the affidavit on appeal. This office finds that the petitioner 
Therefore, counsel's assertion that the petitioner did not receive the NOIR is not acceptable, and the 
assertion that the petitioner was not advised of the grounds of the director's intent to revoke and offered 
an opportunity to rebut the information and present information in hislher own behalf before the decision 
was rendered is misplaced. However, the AAO will review and consider all evidence submitted on appeal 
with respect to the merits of the revocation. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 
997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO 
considers all pertinent evidence in the record, including new evidence properly submitted upon appeal4. 
On appeal, counsel submits a brief, a notice to the petitioner from the Virginia State Corporation 
Commission, and an affidavit and signature samples of. Other relevant evidence in the 
record includes the petitioner's corporate tax return for 2001. 
Section 205 of the Act, 8 U.S.C. tj 1155, provides that "[tlhe 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 of Ho, 19 I&N Dec. 582, 590 (BIA 1988). The AAO will first discuss the issue whether or not the 
director had good and sufficient cause to revoke the approval of this petition. 
In the instant case, 
 represented the petitioner in filing the Application for Alien Employment 
Certification, Form ETA-750, on April 16,200 1, and in filing Form 1-140 Immigrant Petition on behalf of the 
beneficiary and represented the beneficiary in concurrently filing the adjustment of status application on June 
28, 2002. On appeal counsel asserts that where there is an absence of negative evidence, ths case must be 
adjudicated on an individual basis, based on the merits of each case, and not be subject to a blanket intention 
to revoke. Counsel states that the director should not have issued the NOIR based on the unrelated conduct 
3 
 See https://www.scc .virginia.~ov/division/cldiracc. htm (accessed on July 25, 2007). 
4 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. tj 103.2(a)(l). The record in the 
instant case provides no reason to preclude consideration of any of the documents newly submitted on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
of the petitioner's prior counsel and without any direct evidence of falsification in this case. While the AAO 
concurs with counsel's assertion that a case should be adjudicated on an individual basis, not be subject to a 
blanket intention to revoke just because a convicted attorney represented the petitioner earlier in these 
proceedings, we find that the director had good and sufficient cause to revoke the approval of this petition. 
8 C.F.R. 5 204.5(1)(1) provides that a United States employer may file a petition on Form 1-140 for 
 , 
classification of an alien under section 203(b)(3) as a slulled worker. However, a Form 1-140 is not properly 
filed unless it is actually signed by the petitioner. See 8 C.F.R. $5 103.2(a)(2) and (7)(i). DOL regulations 
also require the intending employer to "sign by hand the labor certification application. See 20 C.F.R. 5 
se to the director's NOIR dated September 30, 2005, counsel submits an 
with his signature samples on appeal. In his affidavit, Mohammed Huda 
attests that "I personally signed the Form ETA-750 as Manager Human Resources of the company and was 
based on a bona jide job offer" and that "[tlhe Form 1-140 was based on a bo 
nally signed by me as Manager Human Resources of the company." The recor 
signed the Form ETA 750 as Manager Human Resources on April 3,2001 an 
instant Form 1-140 on June 26 2002 without indicating his title in the company. The AAO notes that 
and w~is the same person and that the signatures on the Form ETA 750 and 
Form 1-140 appear as same as the signatures provided as samples on appeal. 
authorized legal 
 This office accessed Virginia State Corporation Commission's record. The 
record does not lis 
 as an officer, director, registered agent or any position. Only a person named 
is the current registered agent and officer5. The petitioner's tax return for 2001 does not 
contain any 
 and ownership of the company. The record does not contain any 
ownership of the company. The record contains inconsistent 
information regardin 
 title and position in the company. 
 signed the Form ETA 750 as 
Manager Human Resources, but signed the petitioner's tax return for 2001 as a CEO [Chief Executive 
Officer). The benefici trnent of status application contains a letter dated August 18, 2006 fiom 
Invitrogen verifying that is a senior systems engineer of Invitrogen since November 16,2002. The 
petitioner claimed to have 2 employees on the petition. However, the record does not contain any evidence 
of the two employees, such as a list of employees, payroll record of all 
 chart, 
Form 940 or Form 941. It is also not clear whether or not and 
the two employees. The petitioner's 2001 tax return does not reflect any 
or salaries and wages on line 13 of Form 1120. Therefore, it is not established that the petitioner had two 
employees at the time of filing the instant petition. Even if the two employees are proven, it is doubtful that a 
company with two employees actually needs and has a CEO and HR manager positions. 
The record of proceeding raised suspicions concerning the issue of whether the job offer was realistic as of 
the priority date and remained realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. In the instant case, the record shows that 
 who signed the labor certification 
application and immigrant petition on behalf of the petitioning corporation has the same last name with 
5 
See htt-ps://www.scc.vir~inia.gov/division/cldiracc.htm (accessed on July 25, 2007). 
the beneficiary's father6. 
 also jointly sponsored the beneficiary's another adjustment of status 
application based on his wife's approved alien relative petition. However, the record does not contain any 
documents explaining the relationship between the representative of the petitioner and the 
beneficiary. Under 20 C.F.R. $5 626.20(~)(8) and 656.3, the petitioner has the burden when asked to 
show that a valid employment relationship exists, that a bona jide job opportunity is available to U.S. 
workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987). A relationship invalidating a bona 
jide job offer may arise where the beneficiary is related to the petitioner by "blood" or it may "be 
financial, by marriage, or through friendship." See Matter of Summart 374,OO-INA-93 (BALCA May 15, 
2000). Where the petitioner is owned by the person applying for position, it is not a bonajide offer. See 
Bulk Farms, Inc. v. Martin, 963 F.2d 1286 (9" Cir. 1992) (denied labor certification application for 
president, sole shareholder and chief cheese maker even where no person qualified for position applied). 
The petitioner failed to explain the relationship betwee- and the beneficiary, and thus, failed to 
comply with the above requirements of regulations. 
 DOL may not have had accurate information 
concerning the bona fides of the job offer or the alien's background during the labor certification process. 
The test of the U.S. labor market and other procedural and substantive aspects of the labor certification 
adjudication may not have been properly completed because of possible relationship between the 
petitioner and the beneficiary which may invalidate a bonajide job offer. 
The record also shows that the beneficiary has been living in New York and self-employed since 
September 2001, more than two hundred miles away from the petitioner's business location. The record 
does not contain any evidence showing that the beneficiary and his family tried to perform the duties in 
the proffered position even after they obtained employment authorization documents, or showed that they 
were willing and able to relocate and take the position with the petitioner. Instead, CIS record shows that 
the beneficiary's wife adjusted her status to permanent residence and the beneficiary's adjustment of 
status application based on his wife's approved alien relative petition is pending7. The beneficiary did not 
provide information on what field he has been self-employed since 2001. The experience that qualifies 
him for the proffered position in the instant case is the one he obtained from July 1984 to June 1989 in 
Bangladesh. If he had been doing business in a field other than database administrator since 2001, it is 
unlikely that the beneficiary is still able to perform the duties described on Item 13 of the Form ETA 
750A with his experience from 18 years ago in Bangladesh considering that computer technology 
developed so much in the past decade. Therefore, it is unlikely that the beneficiary is willing and able to 
work in the proffered position with the petitioner. It is doubtful that the job offer was a realistic and bona 
jide one from the priority date. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on 
the ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the 
offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. 
The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is 
realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. 5 
6 
 The beneficiary's Form G-325A 
 adjustment of status application shows 
that the name of the beneficiary's father is 
7 
 CIS receipt number: MSC-06-361-10552. 
Page 6 
204.5(g)(2). In evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate financial 
resources sufficient to pay the beneficiary's proffered wages, although the totality of the circumstances 
affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter 
of Sonegawa, 12 I&N Dec. 612 (Reg. Cornrn. 1967). 
The regulation 8 C.F.R. fj 204.5(g)(2) states in pertinent part: 
Ability ofprospective 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, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted 
for processing by any office within the employment system of the U.S. Department of Labor. See 8 
C.F.R. fj 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the 
qualifications stated on its Form ETA 750 Application for Alien Employment Certification as cerhfied by the 
U.S. Department of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 
158 (Act. Reg. Comrn. 1977). 
Here, the Form ETA 750 was accepted on April 16, 2001. The proffered wage as stated on the Form 
ETA 750 is $56,000 per year. On the Form ETA 750B, signed by the beneficiary on April 3, 2001, the 
beneficiary did not claim to have worked for the petitioner. The record does not contain any evidence 
that the beneficiary was employed and paid by the petitioner in the relevant years 2001 onwards. 
The record contains copies of the petitioner's Form 1120, U.S. Corporation Income Tax Return, for 2001. 
The petitioner's 2001 tax return states a net income8 of $68,122. Therefore, the petitioner had sufficient net 
income to pay the full proffered wage of $56,000, and thus established its ability to pay in the year 2001. 
The record before the director closed on May 14, 2004 with the receipt by the director of the petitioner's 
submissions in response to the request for evidence (RFE) dated March 17, 2004. As of that date the 
petitioner's federal tax returns for 2002 and 2003 should have been available. However, the petitioner did not 
submit its 2002 and 2003 tax returns. In visa petition proceedings, the burden is on the petitioner to 
establish eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BLA 1966). The 
petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit 
sought. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 
(BIA 1988); Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 1965). The tax returns would have demonstrated 
the amount of taxable income the petitioner reported to the IRS and further reveal its continuing ability to 
* Taxable income before net operating loss deduction and special deductions as reported on Line 28 of the 
Form 1120. 
pay the proffered wage. The petitioner failed to establish its ability to pay the proffered wage in 2002 and 
2003 because it did not submit its tax return or other regulatory-prescribed evidence. 
Therefore, the petitioner had not established that it had the continuing ability in 2002 and 2003 to pay the 
beneficiary the proffered wage as of the priority date through an examination of wages paid to the 
beneficiary, its net income or its net current assets, and thus also failed to establish that its job offer to the 
beneficiary is a realistic one. 
Counsel's assertions on appeal cannot overcome grounds of the director's revocation. The AAO concurs 
with the director's decision and determines that the director had good and sufficient cause to revoke the 
petition's approval based on insufficient evidence failing to support factual assertions. The AAO also 
concurs with the director's invalidation of the labor certification. The regulation at 20 C.F.R. 5 656.30(d) 
provides in pertinent part that: "After issuance labor certifications are subject to invalidation by [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." A material fact to the immigrant petition's eligibility is the bona fides of the 
job offer. The test of the U.S. labor market and other procedural and substantive aspects of the labor 
certification adjudication could not have been properly completed without the bona fides of the job offer. 
In his NOR the director requested evidence to demonstrate the bonafides of the job offer and stated that 
invalidation of the labor certification would occur if the director determined that the labor certification 
was not based on a bona fide job offer. The petitioner failed to demonstrate that its job offer to the 
beneficiary is a realistic and bonafide one. Therefore, the labor certification in the instant case should be 
invalidated. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with 
the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. The director's decision on April 17, 2006 is affirmed. The labor 
certification is invalidated. The approval of the petition is revoked.