dismissed EB-3 Case: Finance

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-S-D-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 12,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a food distributor, seeks to employ the Beneficiary as a financial operations analyst. It 
requests classification of the Beneficiary as a professional under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act), section 203(b)(3)(A)(ii), 8 U.S.C. 
§ 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director ofthe Nebraska Service Center determined that the Petitioner had not established that a 
bona .fide job offer existed that was open to qualified. U.S. workers. The Director found that the 
Petitioner's owner had misrepresented a material fact in that it had not disclosed the familial 
relationship between its owner and the Beneficiary. Accordingly, the Director denied the petition and 
invalidated the labor certification. 
On appeal, the Petitioner asserts that its misrepresentation was not willful, but merely an oversight that 
resulted in it not disclosing the familial relationship. The Petitioner states that the totality of the 
circumstances establishes that it made a good faith effort to recruit qualified workers. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
A. Employment-Based Immigration 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain an approved 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, 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. Section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer may file an immigrant visa petition with 
1 
The date the labor certification is filed is called the "priority date." See 8 C.F.R. § 204.5(d). A beneficiary must be 
eligible as of that date. 
Matter ofG-S-D-, Inc. 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. 
§ 1154. Third, if US CIS 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. 
B. Invalidation of Labor Certification 
The regulation at 8 C.F.R. § 204.5(1)(3)(i) provides that every petitiOn for classification as a 
professional must be accompanied by an individual labor certification from the DOL. A petition that 
lacks a required individual labor certification is not considered properly filed. See 8 C.F.R. § 
204.5(a)(2). The regulation at 20 C.F.R. § 656.30(d) provides, in pertinent part, that "after issuance, 
a labor certification is subject to invalidation by the DHS [Department of Homeland Security] ... 
upon a determination, made in accordance with [its] procedures or by a court, of fraud or willful 
misrepresentation of a material fact involving the labor certification application." A willful 
misrepresentation of a material fact "made in connection with an application for visa or other 
documents" is one that "tends to shut off a line of inquiry which is relevant to the alien's eligibility." 
Matter ofS- and B-C-, 9 I&N Dec. 436,447 (BIA 1961). 
II. ANALYSIS 
A. Misrepresentation on the Labor Certification 
As required by statute, the I-140, Immigrant Petition for Alien Worker, filed in this matter is 
accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor 
certification), certified by the DOL.2 The priority date in this matter is June 12,2015. At line C.9 of 
the labor certification the employer is asked, "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, partners, corporate officers, or incorporators, and the 
alien?" The Petitioner answered "No" to this question. 
The Director issued a request for evidence (RFE) advising the Petitioner that USCIS had discovered 
a familial relationship between the Beneficiary and the Petitioner's owner. The Director advised the 
Petitioner that the circumstances suggested fraud or misrepresentation in the filing of the petition and 
labor certification which could warrant the invalidation of the labor certification and the denial of the 
petition. 
In response to the RFE the Petitioner acknowledged that the sole owner and CEO of the Petitioner is 
that Beneficiary's brother-in-law and submitted a statement from the attorney who prepared the 
Form ETA 9089 for the Petitioner. The attorney stated "we made a mistake on the form -
specifically regarding whether petitioner has any relationship with the employee/beneficiary. It was 
an oversight for which we regret the error. . . . It was never the intention of the parties to 
2 See Section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
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Matter ofG-S-D-, Inc. 
misrepresent or defraud the Department of Homeland Security or Department of Labor." The 
Director concluded that the Petitioner willfully misrepresented a material fact and he therefore 
invalidated the labor certification and denied the petition. 
On appeal, the Petitioner contends that its answer at line C.9 of the labor certification was the result 
of a mistake by the preparer, not a willful attempt to misrepresent the bona fide nature of the job 
offer or the relationship between the Petitioner's CEO and the Beneficiary. The Petitioner cites 
Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979), as standing for the proposition that 
knowledge of the falsity of a representation is required to find fraud and willful misrepresentation. 
However, that case involved a false statement regarding a disputed issue of law and the Board 
concluded that "[g]iven the uncertain state of the law at the time [the applicant] applied for his visa, 
it is not unlikely that he considered [his statement] to be an accurate statement." In contrast, the 
current false statement (the Petitioner's "No" answer at line C.9 of the labor certification) concerns 
an undisputed issue of law; the Petitioner has not suggested that the Petitioner was unaware of the 
familial relationship betwee~'itself and the Beneficiary when it signed the petition and the Petitioner 
has not suggested that it was operating under a different definition of "familial relationship" when it 
answered "No" at line C.9.3 Moreover, contrary to the Petitioner's assertions, Matter of Healy and 
Goodchild does not allow a petitioner to disavow responsibility for the contents of a federal 
immigration form they knowingly signed. 
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 owner and CEO ofthe petitioning company. 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.4 As described in Matter of Sunmart, 374, 00-INA-93 (BALCA May 
3 In its RFE response, the Petitioner acknowledged that the in-law relationship is considered a "familial relationship" 
according to the DOL. The DOL's FAQ on familial relationships states: "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." https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm. 
4 
The PERM regulation specifically addresses this issue at 20 C.F.R. § 656.17(1) and 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 
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 
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Matter ofG-S-D-, Inc. 
15, 2000), relationships that may affect the Beneficiary's influence over the job opportunity include 
those where the beneficiary is related to the petitioner by "blood" and relationships that may "be 
financial, by marriage, or through friendship." 5 The Beneficiary's familial relationship with the 
Petitioner's CEO and sole owner constitutes a "familial relationship between the owner ... and the 
alien" as contemplated in part (2) of the question at line C.9. Therefore, the Petitioner's answer of 
"No" to the question at line C.9 ofthe labor certification was a willful misrepresentation of fact. 
We must also examine whether the misrepresentation was material to the current petition and to the 
question of whether the position was a bona .fide job opportunity open to U.S. worker. 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 asserts 
that its misrepresentation at line C.9 of the labor certification was not material in this case because it 
made a good faith recruitment effort and because the Beneficiary qualifies for classification as a 
professional based on an examination of the totality of the circumstances. We disagree. The 
Petitioner's misrepresentation of the Beneficiary's relationship to the sole owner and CEO of the 
company shut off a line of inquiry into the bona .fide nature of the job and its eligibility for the 
benefit sought. Had the DOL been apprised of the familial relationship between the Beneficiary and 
the Petitioner's CEO and owner, the DOL may have decided to investigate more deeply whether the 
proffered position of financial operations analyst 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. As such, the 
Director correctly found that the Petitioner willfully misrepresented a material fact on· the labor 
certification and properly invalidated the labor certification. 
B. Bona Fide Job Opportunity 
The Director also found that the Petitioner qad not established that there was a bona .fide job 
opportunity available to U.S. workers. The petitioner has the burden of establishing that a bona.fide 
job opportunity exists when it is asked to show that the job is clearly open to U.S. workers. See 
Matter of Amger Corp., 87-INA-545 (BALCA 1987); see also 8 U.S.C. § 1361. The Petitioner 
described the recruitment process it undertook to fill the offered job and the Petitioner's CEO 
declares on appeal that "the recruitment exercise was above board." In response to the RFE, the 
Petitioner submitted a copy of the recruitment report, which analyzes the qualifications of the 
candidates who applied for the job, and the applicant evaluation form for each applicant for the 
offered job. The Petitioner asserted that it had established by a preponderance of the evidence that 
the Beneficiary was qualified for the offered job and eligible for classification as a professional. 
(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. 
5 While we are not bound by BALCA decisions, we, nevertheless, may take note of the reasoning in such decisions 
when, as here, they offer insight into issues that arise in the employment-based immigrant visa process. 
4 
Matter ofG-S-D-, Inc. 
The factors to be examined in determining whether a bona fide job offer exists are set forth in a 
decision by the Board of Alien Labor Certification Appeals (BALCA) in Matter of Modular 
Container Systems, Inc., 89-INA-288 (BALCA 1991). As cited by the Petitioner on appeal, those 
factors include such items as whether the beneficiary (a) is in the position to control or influence 
hiring decisions regarding the job for which labor certification is sought; (b)· is related to the 
corporate directors, officers, or employees; (c) was an incorporator or founder of the company; (d) 
has an ownership interest in the company; (e) is involved in the management of the company; (f) is 
on the board of directors; (g) is one of a small number of employees; (h) has qualifications for the 
job that are identical to specialized or unusual job duties and requirements stated in the application; 
and (i) is so inseparable from the sponsoring employer because of his or her persuasive presence and 
personal attributes that the employer would be unlikely to continue in operation without the 
beneficiary. 
Among the foregoing factors, several certainly apply in this case. The Beneficiary is related to the 
CEO and owner of the petitioning company and is one of only six claimed employees. While the 
Petitioner stresses on appeal that the "Beneficiary does not have any control or influence in hiring 
decisions," the Petitioner makes no such statements regarding the involvement of the Beneficiary's 
brother-in-law with the hiring process; in fact, the applicant evaluation forms that were submitted by 
the Petitioner specifically state that the interviews for the offered job were conducted by the 
Beneficiary;s brother-in-law. We note, again, that the Beneficiary's brother-in-law is the CEO and 
sole owner of the petitioning company. As such, we agree with the Director that the Petitioner has 
not established the existence of a bona fide job opportunity. 
III. CONCLUSION 
' 
The Petitioner has not overcome the Director's finding that the Petitioner willfully misrepresented a 
material fact involving the labor certification process. Therefore, we will not reinstate the validity of 
the labor certification. In addition, the Petitioner did not establish that a bona .fide job opportunity 
existed. 
ORDER: The appeal is dismissed. 
Cite as Matter ofG-S-D-, Inc., ID# 406188 (AAO June 12, 2017) 
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