dismissed EB-3 Case: Healthcare

MATTER OF U-M-R-I-N- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 1, 2019 
PETITION: FORM r-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a healthcare services business, seeks to employ the Beneficiary as a registered nurse. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
category. Immigration _and Nationality Act (the Act} section 203(b)(3)(A)(i), 8 U.S.C. 
§ J 153(b)(3)(A)(i). This employment-based "EB-,3" immigrant classification allows a U.S. 
employer to sponsor a foreign national fo: lawful permanent resident status to work in a positon that 
requires at least two years of training or experience. 
The petition was initially approved. The Director of the Texas Service Center subsequently revoked 
the approval on multiple grounds and stated that the labor certification was invalidated based on a 
finding of fraud or willful misrepresentation of a. material fact. 
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On appeal, the Petitioner contests all of the grounds for revocation. Upon de nova review, we will 
withdraw some of _the Director's findings. However, we conclude that the Petitioner has not 
overcome all of the bases for the Director's decision to revoke the petition's approval. Accordingly, 
we will dismiss the appeal. 
I. LAW 
This petition is for a Schedule A occupation. A S~hedule A occupation is one codified at 20 C.F.R. 
§ 656.5(a) for which the Department of Labor (DOL) has determined that there are not sufficient 
U.S. workers who are able, willing, qualified and available and that the wages and working 
conditions of similarly employed U.S. workers will not be adversely affected by the employment of 
aliens in such occupations. The current list of Schedule A occupations includes professional nurses. 
Id. Petitions for Schedule A occupations do not require the petitioner to test the labor market and obtain 
a certified ET A Form 9089, Application for Permanent Employment Certification (ETA 9089), from 
. the DOL prior to filing the petition with U.S. Citizenship and Immigration Services (USCIS). Instead, 
the petition is filed directly with USCIS with an uncertified ETA 9089 in duplicate. See 8 C.F:R. §§ 
204.5(a)(2) and (k)(4); see also 20. C.F.R. § 656.15. If USCIS 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. 
Matter of U-M-R-1-N- Corp. 
Section 205 of the Act, 8 U.S.C. § 1155, provides that the Secretary of Homeland Security may "for 
good and sufficient cause, revoke the approval of any petition." By regulation this revocation 
authority is delegated to any USCIS officer who is authorized to approve an immigrant visa petition 
"when the necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a) . 
. USCIS must give the petitioner notice of its intent to revoke the prior approval of the petition and .the 
opportunity. to submit evidence in opposition thereto, before proceeding with written notice of 
revocation. See 8 C.F.R. § 205.2(b) and (c) . 
. II. ANALYSIS 
Because the Form 1-140, Immigrant Petition for Alien Worker (I-140 petition), is for a Schedule A 
occupation, the ETA 9089 that accompanied it did not require certification by the DOL. The l_-140 
petition, accompanied by the uncertified ETA 9089, in September 2011 and approved in November 
2012. Following the issuance of a notice of intent to revoke (NOIR) in March 2018, to which the 
Petitioner did not respond, the Director issued a decision revoking the approval of the petition in 
June 2018. The Petitioner's appeal is now before us. For the reasons discussed hereinafter, we will 
withdraw two of the Director's grounds for revocation, but affirm two others as well as the finding 
of willful misrepresentation of a material fact. 
A. No Labor Certification 
As one ground for revoking the approval of the I-140 petition, the Director found that it was not 
accompanied by a certified ET A 9089 once the "labor certification" was invalidated by USCIS. 
However, the ET A 9089 did not require and did not receive DOL certification since it accompanied 
an I-140 petition for a Schedule A occupation. Therefore, the Director could not invalidate the ETA 
9089, and the I-140 petition's approval could not be revoked for lack of a labor certification due to 
invaliµation. Accordingly, we will withdraw this ground for revocation. 
B. Beneficiary's Identity 
In his decision the Director also cited inconsistent information provided on the ETA 9089 as grounds 
for revocation. Specifically, the information provided in the ET A 9089 that identified the 
Beneficiary's country of birth and citizenship as the Philippines, contradicts other documentation in 
the record indicating that the Beneficiary was born in South Africa and had a Canadian passport. 
While the Director found that the Petitioner did not resolve this conflicting evidence, we find that the 
record as a whole contains ample documentation showing that the Beneficiary was born in South 
Africa, as claimed by the Petit_ioner, and that she has held Canadian citizenship during her multiple 
entti~s into the United States. We do not find any evidence in the record that.the Petitioner or the 
Beneficiary deliberately attempted to deceive USCIS as to the Beneficiary's country of birth and 
citizenship. Ba.sed on the entire record we conclude that the inconsistent information in the ET A 
9089, \\'.'hich is the only document in the record that identifies the B·eneficiary's country of birth and. 
citizenship as the Philippines, was an inadvertent · error which does not cast doubt on the 
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Matter of U-M-R-I~N-Corp. 
Beneficiary's identity. Accordingly, we will withdraw the Director's finding thal the incorrect 
·information in the ET A 9089 is a ground for revocation. 
C. Petitioner's Ability to Pay the Proffered Wage 
'In her decision the Director further found that the record did not demonstrate the Petitioner's ability 
to pay the proffered wage of $70,000. In this revocation proceeding, the Petitioner must establish its 
ability to pay the proffer~d wage .from the priority date of the petition, 1 in this case September 8, 
2011, to the date of the petition's initial approval on November 23, 2012.2 Required evidence, as 
stated in the regulation at 8 C.F.R. § 204.5(g)(2), "shall be either in the form of copies of annual 
reports, feder~l tax returns, or audited financial statements." · 
In determining a petitioner's ability to pay the proffered wage, USCJS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. In this case, the Petitioner stated in the ETA 9089 that 
it began employing the Beneficiary as a professional nurse on November 4, 2010. With its initial 
evidence the Petitioner submitted a copy of the Form W-2, Wage and Tax Statement, it issued to the 
Beneficiary for 2010, which recorded "wages, tips, other compensation" totaling $11,100 through 
the end of that year. The Petitioner also submitted copies of two paychecks it issued to the 
Beneficiary in April 2011, each in the amount of $2,669.75. There is no further evidence in the 
record of wages paid to the Beneficiary in the rest of 2011 or any of 2012. Therefore, the Petitioner 
has not established its continuing ability to pay the Beneficiary's proffered wage of $70,000 per year 
from the priority date of September 8, 2011, to the initial approval date of November 23, 2012. · 
If a petitioner does not establish that it has paid the beneficiary an amount equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax retum(s), annual report(s), or audited 
financial statements(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, the petitioner would ordinarily be considered able to pay the proffered 
wage during that year. On appeal, the Petitioner has submitted copies of its federal income tax 
returns (Forms 1120) for 2011 and 2012, which recorded net current assets of $313,144 in 201 I and 
$403,848 in 2012. Thus·, the Petitiqner's net current assets exceeded the Beneficiary's proffered 
wage in both 2011 and 2012. 
1 The "priority date" of a petition is ordinarily the date the underlying labor certification application is filed with the 
DOL. See 8 C.F.R. § 204.5(d). Since this petition is for a Schedule A occupation, the ETA 9089 is not certified by the 
DOL and the priority date is the date that it along with the uncertified ET A 9089 is filed with USC IS. · 
2 As noted in Matter of Estime,-"with respect to a decision to revoke, we .ask whether the evidence of record at the time 
the decision was issued ... warranted such a denial." 19 l&N Dec. at 452 (emphasis added). 
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Matter of U-M-R-1-N- Corp. 
However, when a petitioner has filed other Form I-140 petitions, it must establish that its job offer is 
realistic not only for the instant beneficiary, but also for the beneficiaries of its other petitions (I-140 
beneficiaries). A petitioner's ability to pay the proffered wage is an essential elenient in evaluating 
whether a job offer is realistic. See Matter o_f'Great Wall, 16 l&N Dec. 142 (ActingReg'l Comm'r 
1977). · Accordingly, the Petitioner must demonstrate its ability to pay the combined proffered wages 
of the instant Beneficiary and every other 1-140 beneficiary from this petition's priority date of 
September 8, 2011, until its initial approval date of November 23, 2012. See Patel v. Johnson, 2 
1 F.Supp. 3d 108, 124 (D.Mass. 2014) (upholding our denial of a petition where a petitioner did not 
1 demonstrate its ability to pay multiple beneficiaries). 3 -.; 
USCIS records indicate that the Petitioner filed other I-140 petitions before and during the time 
period in question. In the NOIR, the Director requested documentary evidence showing that the 
Petitioner had the ability to pay the proffered wages of those I-140 petitions filed from 201 lonward. 
The Petitioner did not_ respond to the NOIR. Nor has the Petitioner submitted any evidence on 
appeal relating to its 1-140 beneficiaries to whom it owed wages in the years 2011 and 2012. 
Therefore, the Petitioner has not established its ability to pay its proffered wage obligations to of all 
its 1-140 beneficiaries from the priority date of the instant petition, September 8, 2011, until its initial 
approval on November 23, 2012. 
D. Intent to Employ the Beneficiary in ~he Offered Position 
The Director also revoked the petition's approval finding that the record did not demonstrate the 
bona.fide nature of the job offered. In order to be eligible for the classification sought, the Petitioner 
must demonstrate that it intends to employ the Beneficiary in the position described on the I-140 
petition and on the ETA 9089. See section 204(a)(l)(F) of the Act, see also Matter o_f'lzdebska, 12 
I&N Dec. 54, 55 (Reg'l Comm'r 1966). 
In this case, the Director concluded that the duties of the proffered position were inconsistent with 
the location of the employment, which cast doubt on the Petitioner's intent to make a bona.fide job 
offer to the Beneficiary of a registered nurse position. Specifically, the Director found that the 
worksite location identified on four different documents in the record - the 1-140 petition, the ET A 
9089, the Form ETA 9141, Application for Prevailing Wage Determination (ETA 9141), and the 
posting notice for the proffered position - is a private home4 and, as such, would not ordinarily have 
the facilities and equipment needed for the Beneficiary to perform the duties·of a professional nurse, 
as described in description of the proffered position . The Director noted that the job duties of the 
3 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not considered: 
• A fter the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition tiled on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; or · 
• B efore the priority date of the 1-140 petition fi led on behalfoft he other benefi ciary. 
4 The address~ - is also the Petitioner' s business address. 
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Matter of U-M-R-1-N-Corp. 
proffered position included "providing general nursing care to patients in hospitals, nursing homes, 
infirmaries, or other health care facilities" which clearly could not be performed in a residential 
setting. Yet the Petitioner did not indicate on any of the four documents above, nor elsewhere in the 
record, that there would be any other worksite location(s) for the Beneficiary to perform the duties of 
the proffered position. As such, the Director found that the Petitioner did not establish that it would 
employ the Beneficiary in the offered position. 
On appeal the Petitioner has not provided any further evidence or information to refute the 
Director's findings on this issue. According to the Petitioner, the information provided in the 1-140 
petition and associated documents regarding the worksite location of the proffered position was the 
product of inadequate representation by its previous attorney. But the Petitioner has provided no 
evidence that it has a worksite that is suitable for the Beneficiary to be able to perform the duties of 
the offered job. The Petitioner did not indicate on the 1-140 petition, or the ETA 9089, or the posting 
notice that there would be any other work location(s), and on the ET A 9141 specifically indicated 
that there would not be multiple work locations. The Petitionei: does not identify any additional 
worksites on appeal, much less submit any evidence of additional locations. Nor does the Petitioner 
explain how all the duties of the offered registered nurse position, including those involving general 
nursing care to patients in hospitals, nursing homes, infirmaries, or other health care facilities, could 
be performed in a private home. Thus, the Petitioner has not resolved the mismatch between the 
worksite location and the job duties described in the petition. As job location is incompatible with 
the duties of_ the offered position, the Petitioner has not demonstrated its intent to employ the 
Beneficiary in the job of(ered. 
E. Fraud or Willful Misrepresentation of a Material Fact 
The Director also made a finding of fraud or willful misrepresentation against the Petitioner 
regarding its intent to employ the Beneficiary in the offered job. A misrepresentation is an assertion 
or manifestation that is not in accord with the true facts. For an immigration officer to find a willful 
and material misrepresentation of fact, he or she must determine that (1) the petitioner or beneficiary 
made a false representation to an authorized official of the U.S. government, (2) the 
misrepresentation was willfully made, and (3) the fact misrepresented was material. See Matter of 
M-. 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui. 15 I&N Dec. 288, 289 (BIA 1975). The 
term "willfully" means knowing and intentionally, as distinguished from accidentally, inadvertently, 
or in an honest belief that the facts are otherwise. See Matter of Healy and Goodchild, 17 l&N Dec. 
22, 28 (BIA (1979). A "material" misrepresentation is one that "tends to shut off a line of inquiry 
relevant to the alien's eligibility." Matter of Ng. 17 I&N Dec. 536, 537 (BIA 1980). In addition to 
the three elements of misrepresentation, a finding of fraud also requires a determination that the alien 
made a false representation of a material fact with knowledge of its falsity and with the intent to 
deceive an immigration officer. Furthermore; the false representation must have been believed and 
acted·upon by the officer. See Matter ofG~G-, 7 I&N Dec. 161 (BIA 1956). 
In this case, the record supports a finding that the Petitioner willfully misrepresented a material fact. 
. The Petitioner attributes "misstatements as, to the location of the offered position" in the I-140 
petition and accompanying documents to previous counsel, and acknowledges that they are material 
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Matter of U-M-R-1-N- Corp. 
to the Petitioner's eligibility for the requested immigration benefit', but asserts. that no willful 
misrepresentation of the job location was made on its part. However, as the Director pointed out, the 
Petitioner stated on the 1-140 petition that the Beneficiary would perform her nursing duties at 
in New York, and does not dispute the fact that this is a residential 
address. The Petitioner's president and CEO signed the 1-140 petition beneath a statement reading "I 
certify, unde~ penalty of perjury under the laws of the United States of America, that this petition 
and the evidence submitted with it are all true and correct." The signature on the petition by the 
Petitioner's president and CEO established a strong presumption that he knew its contents and 
accepted them. See Matter <~f A . .J Valdez, 27 I&N Dec. 496, 502 (BIA 2018). 
For the reasons discussed above, we conclude that the Petitioner made false representations to 
authorized officials of the U.S. government on the 1-140 petition, the posting notice regarding the 
worksite location and the job duties of the proffered position, that the misrepresentations were 
willfully made by the Petitioner with its signature on the 1-140 petition certifying to the truthfulness 
and correctness of its contents, and that the fact misrepresented was material to the question of 
whether the Petitioner intended to employ the Beneficiary in the proffered position in accord with 
the job duties described in the I-140 petition. 
III. CONCLUSION 
The revocation of the previously approved petition 1s affirmed for the above stated reasons, with 
each considered an independent and alternative basis for the decision. The burden of proof to 
establish eligibility for the benefit sought remains with the petitioner in revocation proceedings. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Cheung, 12 l&N Dec. 715 (BIA 1968); and 
Matter of Estime, 19 l&N Dec. 450, 452, n.1 (BIA 19.87). The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of U-M-R-I-N- Corp., ID# 2288861 (AAO Mar. 1, 2019) 
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