dismissed EB-3 Case: Financial Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : MAY 26, 2023 In Re : 23040417 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
The Petitioner, a provider of financial services , seeks to permanently employ the Beneficiary as an 
office clerk. The company requests his classification under the third-preference, immigrant visa 
category for "other workers ." See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 
8 U.S.C. § 1153(b )(3)(A)(iii). This category allows prospective U.S. employers to sponsor noncitizens 
for lawful permanent residence to perform work requiring less than two years of training or experience . 
Id. 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that, on the accompanying certification from the U.S . Department 
of Labor (DOL), the Petitioner concealed the fraternal relationship between its principal and the 
Beneficiary. On appeal , the Petitioner asserts that, despite the relationship, the job was open to U.S . 
workers and the company treated the Beneficiary like another noncitizen it simultaneously sponsored 
for a job in the same occupation. 
In these revocation proceedings, the Petitioner bears the burden of demonstrating eligibility for the 
requested benefit by a preponderance of evidence. See Matter of Ho, 19 l&N Dec. 582, 589 (BIA 
1988) . Exercising de novo appellate review, see Matter of Christo 's, Inc. , 26 I&N Dec . 537, 537 n.2 
(AAO 2015), we conclude that, because the petition misstates a fact bearing on a statutory labor 
certification requirement , the Director properly revoked the tiling's approval. We will therefore 
dismiss the appeal. 
I. LAW 
Immigration as an "other 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. § l 182(a)(5)(A)(i). 
Second , an employer must submit an approved labor certification with an immigrant visa petition to 
USCIS. Section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). Among other things, USCIS 
determines whether a noncitizen beneficiary meets the requirements of a DOL-certified position and 
a requested immigrant visa category. 8 e.F.R. § 204.5(1)(3)(ii)(D), (4). 
Finally, if users 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.e. § 1255. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, users may revoke 
a petition's approval for "good cause." Section 205 of the Act, 8 U.S.e. § 1155. If supported by 
sufficient evidence, the erroneous nature of a petition's approval justifies its revocation. Matter ofHo, 
19 I&N Dec. 582, 590 (BIA 1988). 
users properly issues a notice of intent to revoke (NOIR) a petition ifthe unrebutted and unexplained 
record would have warranted the filing's denial. Matter ofEstime, 19 I&N Dec. 450,451 (BIA 1987). 
The Agency properly revokes a petition's approval if a petitioner does not respond to a properly issued 
NOIR, or their NOIR response does not overcome all alleged revocation grounds. Id. at 451-52. 
II. ANALYSIS 
users 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 e.F.R. § 103.2(b)(l). Thus, users cannot approve a 
petition if the facts stated on an accompanying labor certification are untrue. 
Part e.9 of the accompanying labor certification application asked the Petitioner: "[I]s there a familial 
relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the 
alien?" The limited liability company checked the box marked "No." 
In a later interview with a users officer regarding his application for adjustment of status, the 
Beneficiary disclosed that his younger biological brother is the Petitioner's principal/sole owner. In 
response to the Director's NOIR, the company conceded the relationship's existence. Prior counsel, 
who prepared the labor certification application, stated that he knew of the family relationship. But 
he said that he did not carefully read part e.9 of the application and therefore did not realize that the 
section asked a question about the relationship. 
The Director correctly found that the labor certification misrepresents the family relationship between 
the Petitioner's principal and the Beneficiary. Thus, the facts stated in the petition are untrue. See 
section 204(b) of the Act. As indicated above, DOL must certify that "there are not 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 principal and a sponsored noncitizen creates 
a presumption that an offered position is not clearly available to U.S. workers. See 20 e.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 alien). Therefore, under section 
204(b) of the Act, the Director properly revoked the petition's approval based on the misrepresentation 
at part e.9 of the labor certification. 
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The Director further found 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 concealed relationship, the job opportunity was bona fide. 
USCIS, however, lacks authority to determine the bona fides of a job opportunity. Congress 
authorized DOL - not USCIS - 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 USCIS - must 
determine the bona fides of the Petitioner's job opportunity. The Director's findings and the 
Petitioner's arguments regarding the bona fides of the job opportunity 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 ofGen. Elec. Co., 201 l-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 error's correction) (citation 
omitted). 
The Petitioner asserts that, during the labor certification proceedings, the "bona fide job offer [was] 
tested by DOL's audit of the employer's recruitment process." But DOL did not determine the 
position's availability to U.S. workers under the true, relevant facts. The Petitioner's NOIR response 
included a copy of the audit notice that DOL sent the company. The notice requests documentary 
proof of the Petitioner's compliance with DOL regulations regarding recruitment of U.S. workers for 
the offered position. But the notice does not question the relationship between the company's principal 
and the Beneficiary. Thus, the record indicates that DOL did not know of 20 C.F.R. § 656.17(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 record therefore does not support DO L's proper, statutory 
determination of the offered position's availability to U.S. workers. 
III. CONCLUSION 
The petition misstates a fact bearing on a statutory labor certification requirement. The Director 
therefore properly revoked the filing's approval. 
ORDER: The appeal is dismissed. 
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