dismissed EB-3 Case: Financial Analysis

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG. 30, 2023 In Re: 28184207 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a retail and wholesale distribution business, seeks to permanently employ the 
Beneficiary as a fmancial analyst. It requests his classification as a skilled worker under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This category allows prospective U.S. employers to 
sponsor noncitizens for lawful permanent residence to work in positions requiring at two years of 
training or experience. Id. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner concealed the spousal relationship between its minority owner and the Beneficiary on the 
accompanying labor certification from the U.S . Department of Labor (DOL) and noted that non­
disclosure of this familial relationship calls into question the bona fide nature of the job offer. The 
Director also made a separate determination that the Petitioner had willfully misrepresented material 
facts based on this non-disclosure. The matter is now before us on appeal. 8 C.F.R. § 103.3 . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must obtain DOL certification that: (1) there are insufficient U.S. workers able, willing, qualified, and 
available for an offered position; and (2) permanent employment of a noncitizen in the position would 
not harm wages and working conditions of U.S. workers with similar jobs. Section 212(a)(5)(A)(i) of 
the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
~ IS. Section 204(a)(l)(F) of the Act, 8 U.S.C . § 1154(a)(l)(F). Among other things, USCIS 
clet~rmines whether a noncitizen beneficiary meets the requirements of a DOL-certified position and 
a requested immigrant visa category. 8 C.F.R. § 204.5(1)(3)(ii)(D)(4). Finally, if USCIS approves a 
petition, a beneficiary 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. 
II. NON-DISCLOSURE OF A FAMILIAL RELATIONSHP 
The first issue before us is whether the Director properly denied the petition based on the Petitioner's 
non-disclosure of a familial relationship between the Beneficiary and the company's minority owner. 
USCIS approves a petition if "the facts stated in [it] are true" and the beneficiary qualifies for the 
requested immigrant visa category. Section 204(b) of the Act. A petition includes its supporting 
evidence - including a labor certification. 8 C.F.R. § 103 .2(b)(l). Thus, USCIS cannot approve a 
petition if the facts stated on an accompanying labor certification are untrue. 
Part C.9 of the accompanying labor certification asked the Petitioner: "[I]s there a familial relationship 
between the owners, stockholders, partners, corporate officers, or incorporators, and the alien?" The 
attorney who prepared the labor certification checked the box marked "No." By signing the employer 
declaration at Part N, the company's authorized signatory took full responsibility for the accuracy of 
any representations made by the attorney. He also declared under penalty of pe1jury that he reviewed 
the application and the information contained therein was true and accurate to the best of his 
knowledge. 
The initial evidence provided with this petition included a copy of the petitioning liability company's 
federal tax return for 2020. The Schedule K-1 accompanying the IRS F01m 1065, U.S . Return of 
Pruinership Income, identifies the Beneficiruy's spouse as a general partner or LLC member-manager 
holding a 49 percent ownership interest in the company . 1 
In response to the Director's NOID, the Petitioner conceded the relationship's existence and provided 
a letter from its operations manager, who signed the labor certification and petition. He asserted that 
the attorney who prepared the labor certification "was fully aware" of the spousal relationship between 
the Beneficiary and the company's minority shru·eholder, noting that the attorney had assisted with 
other immigration matters and possessed copies of the company tax returns and operating agreements 
dating back to 2016. The operations manager stated that the attorney's office made a mistake by 
checking "No" to question C.9 on the labor certification and "it was an oversight" by the Petitioner to 
not notice the error. He maintained that "[t]here was no intention to hide the relationship." 
The Director correctly determined that the labor ce1iification misrepresents the family relationship 
between the Petitioner's owner and the Beneficiary . Thus, the facts stated on the petition are untrue . 
See section 204(b) of the Act. As indicated above, DOL must certify that "there are no sufficient 
workers who are able, willing, qualified . . . and available" for an offered position. Section 
212(a)(5)(A)(i)(I) of the Act. A family relationship between an employer's owner and a sponsored 
noncitizen creates a presumption that that an offered position is not clearly available to U.S. workers. 
1 The name of this shareholder matches the information the Petitioner provided at Part 7 of the Fonn T-140, Immigrant 
Petition for Alien Worker, which requests information about the Beneficiary's spouse and children, while the shareholder 's 
address on Schedule K-1 matches the U.S. mailing address provided for the Beneficiary at Part 1 of the Form 1-140. The 
Director noted the information derived from the Petitioner's tax return in the notice of intent to deny (NOID) and further 
advised that the spousal relationship had been discovered through a separate "investigation made by a supp01ting agency." 
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See 20 C.F.R. § 656.17(1) (requiring a labor certification employer to demonstrate the bona fides of a 
job opportunity if a family relationship exists between an employer's principal and the noncitizen). 
Therefore, under section 204(b) of the Act, the Director properly denied the petition based on the 
misrepresentation at part C.9 of the labor certification. 
The Director further determined that, because of the initially undisclosed family relationship, the 
Petitioner did not demonstrate the offered position's availability to U.S. workers. On appeal, the 
company contends that, despite the non-disclosure of the familial relationship, the job opportunity was 
bona fide. It maintains that its recruitment documentation, which it submitted in response to the NOID, 
satisfies the law's requirements and that "in the absence of any qualifying workers having applied for 
the job, there was no opportunity for any influence to have been exercised over the consideration of 
an applicant." 
USCIS, however, lacks authority to dete1mine the bona fides of a job opportunity. Congress authorized 
DOL - not users - to determine the availability of an offered position to U.S. workers. See section 
212(a)(5)(A)(i)(I) of the Act. "[D]eterminations vested by statute with one agency are not normally 
subject to horizontal review by a sister entity, absent congressional authorization to that effect. " 
Madany v. Smith, 696 F.2d 1008, 1012 (D.C. Cir. 1983). Thus, DOL - not USeIS - must determine 
the bona fides of the Petitioner's job opportunity . The Director's conclusions and the Petitioner ' s 
arguments regarding the bona fides of the job opp01tunity exceed the scope of these proceedings. If 
the Petitioner seeks a determination of the offered position's availability to U.S. workers on the true 
facts, the company must contact DOL. See Matter of Gen. Elec. Co., 2011-PER-01818, *3 (BALCA 
Apr . 15, 2014) (stating that DOL has discretion to retroactively amend the contents of an approved 
labor certification application to allow an en-or's conection) (citation omitted) . 
Because the petition misstates a fact bearing on a statutory labor certification requirement, it was 
properly denied . Accordingly , we will dismiss the appeal. 
III. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The remaining issue is whether the Director properly determined that the Petitioner willfully 
misrepresented a material fact by concealing the familial relationship between the Beneficiary and the 
company's owner. On appeal , the Petitioner maintains that the false "No" response at section e .9 of 
the labor certification was neither material nor willfully made . 
For an immigration officer to find a willful and mate1ial misrepresentation of fact, they must determine 
that (1) the petitioner or beneficiary made a false representation to an authorized official of the U.S . 
government in procuring or seeking to procure a benefit under U.S. immigration laws, (2) the false 
representation was willfully made, and (3) the fact misrepresented was material. See Matter ofM- , 6 
I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui , 15 I&N Dec. 288, 289 (BIA 1975). 
Misrepresentations are willful if they are "deliberately made with knowledge of their falsity." Matter 
of Valdez, 27 I&N Dec. 596,598 (BIA 2018) ( citations omitted). A misrepresentation is mate1ial if it 
has a "natural tendency to influence , or [be] capable of influencing, the decision of the decision­
making body to which it was addressed." Id. 
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On appeal, the Petitioner maintains that section C.9 was mistakenly marked "no'" by the attorney who 
prepared the labor certification, that its failure to notice the mistake was an "oversight," and that it had 
no intent to conceal the relationship. The record does not include a statement from the attorney 
corroborating the Petitioner's assertion that the "No" response was an unintentional error. Regardless, 
as noted, the Petitioner's authorized representative, by signing the employer declaration at section N 
of the labor certification, took full responsibility for the accuracy of any representations made by the 
attorney, and declared under penalty of perjury that he read and reviewed the application and that, to 
the best of his knowledge , the information contained therein was true and accurate. The Petitioner's 
signature "establishes a strong presumption" they knew and assented to the contents. See Valdez, 27 
I&N Dec. at 499. 
The Petitioner also signed the F 01m I-140, certifying under penalty of pe1jury that the petition and the 
evidence submitted with it was true and correct. See section 287(b) of the Act, 8 U.S.C. § 1357(b); see 
also 8 C.F.R. § 103.2(a)(2). The Petitioner took legal responsibility for the truth and accuracy of any 
evidence submitted in support of the petition. Based on the Petitioner 's declarations on the labor 
certification and Form I-140, we agree with the Director's determination that the misrepresentation 
was willfully made. 
The Petitioner further maintains that the misrepresentation was not material, explaining that "[t]he 
disclosure of the familial relationship would not have changed the result" as there were no applicants 
for the job during the recruitment process. The Petitioner argues that the Director incorrectly presun1ed 
that its failure to disclose the familial relationship "negatively impacted the recruitment" and argues 
that "there is no factual or legal basis for that allegation." Specifically, it asserts that, based on the 
lack of response to its recruitment efforts, DOL would have certified its application based on the true 
facts . 
However, a material misrepresentation is also one which "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 ). Disclosure 
of the familial relationship in this case would have required DOL to examine the bona fide nature of 
the job offer under 20 C.F.R. § 656.17(1), an inqui1y that goes beyond reviewing the results of a 
petitioning employer's recruitment efforts alone. 
Here, the DOL did not have an opportunity to dete1mine the position's availability to U.S . workers 
under the true, relevant facts . The record indicates that DOL did not know of 20 C.F.R. § 656 . l 7(l)'s 
applicability to the Petitioner's filing and the potential effect of the concealed family relationship on 
the bona fides of the job opportunity. The Petitioner has not substantiated its claim that DOL's 
approval of its labor certification application was the only possible result and that its misrepresentation 
at section C.9 of the application was therefore immaterial. The Petitioner 's misrepresentation 
effectively shut off DOL 's inquily into the bona fide nature of the job offer. 
The Petitioner's claims on appeal do not overcome the Director's conclusion that it willfully 
misrepresented material facts related to the familial relationship between the Beneficiary and the 
company's owner. 
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N. CONCLUSION 
For the reasons discussed, we affirm the Director's decision to deny the petition. The appeal will be 
dismissed for the above stated reasons, with each considered as an independent and alternate basis for 
the decision. 
ORDER: The appeal is dismissed. 
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