dismissed EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
In Re: 11198725 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 12, 2021 
The Petitioner, a Chinese restaurant, seeks to employ the Beneficiary as a cook. It requests 
classification of the Beneficiary as an unskilled worker under the third preference employment-based 
immigrant visa category. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 
8 U.S.C. § 1153(b )(3)(A)(iii). This immigrant visa category allows a U.S. employer to sponsor a 
foreign national for lawful permanent resident status to work in a position that requires less than two 
years of education, training, or experience. 
The Director of the Texas Service Center denied the petition because : (a) the Petitioner did not 
disclose a familial relationship with the Beneficiary; and (b) the Beneficiary did not possess the 
required experience for the offered position. The Director also found that the Petitioner made a willful 
misrepresentation of a material fact by not disclosing the familial relationship on the labor 
certification; and that the Beneficiary willfully misrepresented his employment experience. The 
Director dismissed the Petitioner's subsequent combined motion to reopen and motion to reconsider. 
The matter is now before us on appeal. 
The Petitioner bears the burden of establishing eligibility for the requested immigration benefit. See 
section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an unskilled worker usually follows a three-step process. First, the prospective 
employer must obtain a labor certification approval from the U.S. Department of Labor (DOL) to 
demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available 
for the offered position. Section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, the employer must submit the approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. § 1154. The 
immigrant visa petition must establish that the foreign worker qualifies for the offered position, that 
the foreign worker and the offered position are eligible for the requested immigrant visa category, and 
that the employer has the ability to pay the proffered wage. See 8 C.F.R. § 204.5. These requirements 
must be satisfied by the priority date of the immigrant visa petition. See 8 C.F.R. § 204.5(g)(2); Matter 
o_f Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg'l Comm'r 1977). In this case, the priority date 
is November 28, 2017. 1 
Finally, ifUSCIS approves the immigrant visa petition, the foreign worker may apply for an immigrant 
visa abroad or, if eligible, for adjustment of status in the United States. Section 245 of the Act, 8 
U.S.C. § 1255. 
II. COMBINED MOTION TO REOPEN AND RECONSIDER 
This case is an appeal of the Director's dismissal of a combined motion to reopen and motion to 
reconsider. Motions request a review by the same authority that issued the latest decision in the 
proceeding. 8 C.F.R. § 103.5(a)(l)(ii). IftheDirectordeniesapetition,apetitionermayfileamotion 
to reopen the proceeding, a motion to reconsider the decision, or both. A motion that does not meet 
the applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
A motion to reopen must state new facts and be supported by relevant documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Resubmitting previously provided evidence or reasserting previously stated facts do 
not meet the requirements of a motion to reopen. 
A motion to reconsider must establish that USCIS based its decision on an incorrect application oflaw 
or policy, and that the decision was incorrect based on the evidence in the record of proceeding at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). USCIS will not consider new facts or evidence in a 
motion to reconsider. 
For a combined motion to reopen and reconsider, USCIS will consider each motion independently. 
USCIS may grant both motions, grant one motion but dismiss the other, or dismiss both motions. 
In this case, the Director's decision denying the petition was based on two grounds: the Beneficiary's 
familial relationship to an individual acting on behalf of the Petitioner; and the Beneficiary's claimed 
employment experience. The Petitioner's brief in support of its combined motion did not state new 
facts that were supported by documentary evidence. Therefore, the Director correctly dismissed the 
motion to reopen for failing to meet the requirements of 8 C.F.R. § 103.5(a)(2). 
Further, the Petitioner's brief in support of its combined motion to reopen and reconsider did not 
address the Director's conclusions that the Beneficiary willfully misrepresented his employment 
experience. Therefore, these grounds of the Director's decision remain undisturbed. 
However, the Director's finding that the Petitioner willfully misrepresented a material fact by not 
disclosing a familial relationship with the Beneficiary on the labor certification will be withdrawn for 
the reasons set forth below. 2 
1 For petitions that require a labor certification, the priority date is the date on which the DOL accepted the labor 
certification application for processing. See 8 C.F .R. § 204.5( d). 
2 Since the identified reasons for dismissal are dispositive of this appeal, we reserve the issue of whether or not there was 
a bona fide job opportunity available to U.S. workers because the Beneficiary's relative was involved in the labor 
ce1iification process under Matter of Modular Container S:vs., Inc., 89-TNA-228, 1991 WL 223955, *7 (BALCA July 16, 
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III. WILLFUL MISREPRESENTATION 
The Director's decision concluded that the Petitioner willfully misrepresented a material fact by not 
disclosing a familial relationship on the labor certification. Section C.9 of the labor certification asks: 
"Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has 
an ownership interest, or is there a familial relationship between the owners, stockholders, corporate 
officers, incorporators, or partners, and the alien?" The Petitioner responded "no." The Director 
concluded that this answer constituted the willful misrepresentation of a material fact. 
Turning to the facts of this case, the Beneficiary's sister-in-law,I I is listed 
as the Petitioner's contact at section D of the labor certification. I lis also listed as the 
inte[Rreter on the petition. 3 The Director's decision notes that the Beneficiary's prior visa application 
liste~ las his contact person in the United States. 
The Petitioner is owne;:.!d:::......::b:.L.!::::==-------' and his wife. It has been in business since 1987. 
According tol I is the daughter of his friend (and the Beneficiary's mother-in-law), 
attests that it was through his friendship withl I that he first ~--~ met the Beneficiary. 
The record contains an affidavit fro stating that she has never been an owner, officer, or 
employee of the Petitioner, but she assisted'----~ and the Beneficiary with translating and 
communications during the labor certification and petition process. I I attests that she did not 
receive any compensation for her assistance. The record also contains an affidavit o~ I attesting 
thatl lspeaks English, Spanish, and Cantonese and was therefore able to help both him and 
the Beneficiary with translating documents from English into their respective first languages. 
The Petitioner is located in Florida.I I lives in Texas. The record contain 's 2017 
Form W-2, Wage and Tax Statement, and driver's license which establish that she lives in ~--~ Texas and works for a dental office. Her email address on the labor certification is a personal 
yahoo.com email, and her phone number on the labor certification has an area code fo~ !Texas. 
Corporate records for the Petitioner show thatl lis not a founder, owner, or registered agent 
of the Petitioner. 
Although! lis the Beneficiary's sister-in-law, the evidence in the record does not establish 
thatl hs an owner, stockholder, corporate officer, incorporator, or partner of the Petitioner. 
Therefore, the evidence in the record is not sufficient to conclude that the Petitioner willfully 
misrepresented a material fact by answering "no" to section C.9 of the labor certification or otherwise 
failing to disclose the relationship between the Beneficiary an~ I The Director's finding on 
this issue is therefore withdrawn. 
1991) (en bane). See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (courts and agencies are not required to make findings 
on issues that are unnecessary to the results they reach); see also Matter of L-A-C-, 26 T&N Dec. 516, 526 n. 7 (BIA 2015) 
(declining to reach alternative issues on appeal where an applicant is otherwise ineJjgjhJej. 
3 On the labor certification, Petitioner's counsel is listed as the preparer, and I signed for the Petitioner. The 
~isements for the position placed during the labor certification instructed applicants to submit their resumes tcD 
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IV. CONCLUSION 
We withdraw the Director's finding that the Petitioner misrepresented a material fact by not disclosing 
a familial relationship on the labor certification. We reserve the issue of whether or not there existed 
a bona fide job opportunity that was open to U.S. workers. The Petitioner's combined motion to 
reopen and reconsider did not address the Director's conclusions relating to the Beneficiary's claimed 
employment experience. This ground of the Director's decision remains undisturbed. Accordingly, 
the Director correctly dismissed the combined motion to reopen and reconsider. The petition will 
remain denied. 
ORDER: The appeal is dismissed. 
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