dismissed EB-3 Case: Janitorial Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 6, 2024 In Re: 30231445 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner, a provider of janitorial services, sought to employ the Beneficiary as an industrial 
cleaning technician. The company requested his classification under the employment-based, third­
preference (EB-3) immigrant visa category as an "other worker." See Immigration and Nationality 
Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). U.S. businesses may sponsor 
noncitizens in this category to permanently work in jobs 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 and dismissed the Beneficiary's following motion to reopen. 1 The Director concluded that 
he mistakenly approved the petition, as the evidence did not demonstrate the Petitioner's required 
intent to employ the Beneficiary in the offered job. On appeal, the Beneficiary contends that the 
Director required the Petitioner to meet non-regulatory criteria and overlooked evidence of its intent 
to employ the Beneficiary in the job. 
In these revocation proceedings, the Petitioner bears the burden of demonstrating eligibility for the 
requested benefit by a preponderance of the evidence. Matter of Ho, 19 l&N Dec. 582, 589 (BIA 
1988) ( citation omitted). Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 I&N 
Dec. 537, 537 n.2 (AAO 2015), we conclude that, contrary to the offered job's stated duties, the 
company did not establish its intent to employ the Beneficiary at industrial worksites. We will 
therefore dismiss the appeal. 
I. LAW 
Immigration as an other - or unskilled - worker generally follows a three-step process. First, a 
prospective employer must obtain certification from the U.S. Department of Labor (DOL) that: there 
are insufficient U.S. workers able, willing, qualified, and available for an offered job; and a noncitizen's 
1 Beneficiaries usually cannot file motions or appeals in petition proceedings because they are not "affected parties." See 
8 C.F.R. § 103.3(a)(l)(iii)(B ). In petition revocation proceedings, however, U.S. Citizenship and Immigration Services 
(USCIS) treats beneficiaries as affected parties if they, like the Beneficiary here, qualify for "portability " under section 
204(j) of the Act, 8 U.S.C. § 1 l 54(j), and properly notified USCIS of their intent to "port" to a new job or employer. See 
Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11 , 2017). 
permanent employment in the job 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. § l 154(a)(l)(F). Among other things, the Agency 
determines 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. 
"[ A ]t any time" before a beneficiary obtains permanent resident status, USCIS may revoke a petition's 
approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by a 
record, an erroneous approval may justify a petition's revocation. See Matter ofHo, 19 I&N Dec. at 
590. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition's approval if the unrebutted or 
unexplained record at the time of the NOIR's issuance would have warranted the petition's denial. 
Matter of Es time, 19 I&N Dec. 450, 451 (BIA 1987). The Agency properly revokes a petition's 
approval if a party does not timely respond to a NOIR or the response does not overcome the 
revocation grounds. Id. at 452. 
II. FACTS 
The Petitioner filed the accompanying labor certification application in April 2016 and the petition in 
April 2017. At that time, the Beneficiary -
a South Korean native and citizen - lived in the United 
States in nonimmigrant student visa status, studying for a master's degree in theology. With the 
petition, he filed an application for adjustment of status. See 8 C.F.R. § 245.2(a)(2)(i)(B) (allowing 
concurrent filings of adjustment applications and certain employment-based immigrant visa petitions). 
Eleven days after the petition's filing, USCIS approved it. In April 2018, with his adjustment 
application still pending, the Beneficiary began working for the Petitioner. In March 2019, USCIS 
issued the Petitioner a NOIR, to which the company timely responded. About two months later, with 
the Beneficiary's adjustment application pending for almost two years, he notified USCIS of his plans 
to work in the same job for a different employer. See section 204(j) of the Act (allowing a petition to 
remain valid after a beneficiary switches jobs or employers if the beneficiary filed an adjustment 
application that has remained unadjudicated for at least 180 days and the new job is in the same or 
similar occupation as the one stated in the petition). 
In March 2020, USCIS found the Beneficiary eligible to port. The following month, the Director 
revoked the petition's approval, and the Beneficiary timely filed a motion to reopen. After the 
motion's dismissal, he filed this appeal. 
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III. ANALYSIS 
A business may file an immigrant visa petition if it is "desiring and intending to employ [a noncitizen] 
within the United States." Section 204(a)(l)(F) of the Act. A petitioner must generally intend to 
employ a beneficiary under the terms and conditions of an accompanying labor certification. See 
Matter of Izdebska, 12 I&N Dec. 53, 54 (Reg'l Comm'r 1966) (affirming a petition's denial where, 
contrary to the accompanying labor certification, the petitioner did not intend to employ the 
beneficiary as a domestic worker on a foll-time, live-in basis). 
On the Form I-140, Immigrant Petition for Alien Workers, and the accompanying labor certification, 
the Petitioner stated its intent to permanently employ the Beneficiary foll-time as an industrial cleaning 
technician. The documents indicate that he would work at the company's main office. 
The Director's NOIR, however, notes that the labor certification describes the offered job as 
"[p]erform[ing] heavy cleaning at industrial work sites." The labor certification and Form I-140 also 
list the Petitioner's office address and the job's primary worksite as the same residential address, the 
former home of the company's president/sole owner. The NOIR asks the Petitioner to explain how 
the Beneficiary would perform industrial cleaning services at the residential address and to provide 
documentary evidence, including: copies of the company's quarterly federal payroll taxes for 2017; 
contracts between itself and customers; and any evidence demonstrating its engagement in industrial 
janitor services at its office. 
The Director properly issued the NOIR. The Beneficiary's proposed work at a residential address cast 
significant doubt on the Petitioner's stated intent to employ him as an industrial cleaning technician. 
Thus, without explanation, the inconsistent worksite would have warranted the petition's denial. See 
Matter ofEstime, 19 I&N Dec. at 451. 
In response to the NOIR, the Petitioner's president stated that the company filed the petition because 
it intended to employ the Beneficiary in the offered job. As soon as the Beneficiary obtained an 
employment authorization document, see 8 C.F.R. § 274a.12(c)(9) (allowing adjustment applicants to 
apply for employment authorization), the president stated that the Beneficiary began working for the 
company in the offered job. As proof of his employment, the Petitioner submitted copies of its 
paystubs to him from April 2018 to December 2018. 
The Director, however, noted that neither the president's letter nor the Beneficiary's paystubs 
established his work at industrial sites or the Petitioner's intent to employ him at such sites. The 
company also submitted copies of a customer's payment checks to the Petitioner from March 2018 to 
December 2018. But the Director noted that the checks do not reflect payments from an industrial 
customer. Like the Petitioner's office address, the customer's address on the checks constituted a 
residential address. Thus, the record supports the Director's revocation of the petition's approval, as 
the Petitioner did not demonstrate its intent to employ the Beneficiary at industrial worksites under 
the labor certification's terms. 
On motion, the Director found additional evidence from the Beneficiary insufficient to demonstrate 
the Petitioner's intent to employ him in the offered job at industrial worksites. The Beneficiary 
submitted copies of an agreement and a related affidavit indicating the Petitioner's role as a 
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subcontractor to another company. The evidence also included a copy of a building entry card that 
the Beneficiary had purportedly used to enter a customer cleaning site. 
The Director noted that the motion's evidence stems from 2018 and therefore does not establish the 
Petitioner's intent to employ the Beneficiary at industrial worksites at the time of the petition's priority 
date in April 2016. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
The Beneficiary also submitted a copy of a spreadsheet listing the Petitioner's purported customers in 
2015 and 2016. As the Director found, however, without independent, corroborating evidence of the 
purported customers' relationships to the Petitioner at that time, the spreadsheet's information is 
unreliable. The Beneficiary also submitted copies of invoices to the Petitioner from a purported 
cleaning supplier. But the Director correctly found that these invoices do not demonstrate the 
Petitioner's possession of sufficient customers with industrial sites to employ the Beneficiary in the 
full-time offered job. 
On appeal, the Beneficiary contends that the Director miscited case law. First, the Director cited a 
precedential case for the proposition that a job offer's bona fides is an essential element in evaluating 
the offer's realisticness. See Matter of Great Wall, 16 I&N Dec. 142, 144-45 (Acting Reg'l Comm'r 
1977). The Beneficiary argues that, unlike the Director, the Regional Commissioner in Great Wall 
did not require evidence of the petitioner's "existing projects or transaction details" to demonstrate a 
realistic job offer. The Beneficiary states: 
The Director basically came up with [his] own additional requirements that the 
petitioner had to prove its financial ability in connection with its intent to employ the 
alien on [a] bona fide job offer despite the petitioner['s] full[] compli[ance] with the 
requirements to show its ability to pay the proffered wage. 
Because the Petitioner demonstrated its ability to pay the proffered wage, the Beneficiary contends 
that the company's 'job offer was ... bona fide in its financial aspect of the petitioner's eligibility." 
The facts of Great Wall, however, distinguish it from this case. Great Wall holds that the immigration 
service: 
must consider the merits of the petitioner's job offer, so that a determination can be 
made whether the job offer is realistic and whether the wage offer can be met, as well 
as determine whether the alien meets the minimum requirements to perform the offered 
job satisfactorily. 
Matter ofGreat Wall, 16 I&N Dec. at 145. There, the specific issue was the petitioner's ability to pay 
the proffered wage. Id. at 142. In contrast, the issue here is whether the Petitioner's job offer is 
realistic, specifically whether the company had the ability to employ the Beneficiary at industrial 
worksites as stated in the offered job's duties. Because Great Wall focuses on a different issue, its 
requirements differ from those of the Director in this case. Here, the Director appropriately sought 
evidence of the Petitioner's ability to assign the Beneficiary to industrial worksites at the time of the 
petition's filing. Thus, the Director did not again ask the company to demonstrate its financial ability 
to pay the proffered wage. Rather, the Director required the Petitioner to establish its ability to assign 
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full-time work to the Beneficiary in the offered job as described on the labor certification. Thus, the 
Director appropriately cited Great Wall to support his conclusion. 
The Beneficiary also claims that the Director miscited Matter of Izdebska, 12 I&N Dec. 53 (Reg'l 
Comm'r 1966). The Beneficiary contends that, unlike the petitioner in Izdebska, the Petitioner here 
complied with the terms of its labor certification. 
The Director cited Izdebska for the proposition that a petitioner must intend to employ a beneficiary 
under the terms and conditions of an accompanying labor certification. See Matter of Izdebska, 
12 I&N Dec. at 54. There, the Regional Commissioner affirmed a petition's denial because, contrary 
to the accompanying labor certification, the petitioner admitted that he did not intend to employ the 
beneficiary in the offered job on a full-time, live-in basis. Id. Here, the record does not support the 
Beneficiary's contention that the Petitioner intended to employ him under the terms of the labor 
certification. The labor certification states that the offered job involves cleaning industrial worksites. 
But the certification and the petition list the Beneficiary's primary proposed worksite as the company 
president's former home address. The Beneficiary has neither explained the inconsistent worksite nor 
demonstrated the Petitioner's ability to employ him at industrial worksites at the time of the filings of 
the labor certification and petition. 
The Beneficiary contends that, because the labor certification application did not instruct the Petitioner 
on how to indicate his proposed work in the offered job at yet-to-be-assigned customer locations, the 
company appropriately listed its president's former home address as the primary worksite. See Matter 
ofHealthAmerica, 2006-PER-0001, *20 (BALCA July 16, 2006) (en bane) (holding that "notions of 
fundamental fairness and due process" apply to the labor certification process). The Petitioner 
contends that it complied with DOL policy, which states: 
Applications involving job opportunities which require the beneficiary to work in 
various locations throughout the U.S. that cannot be anticipated should be filed ... [in] 
the area in which the employer's main or headquarters office is located. 
DOL Employment and Training Administration Field Memorandum 48-94, #10 (May 16, 1994). 
The Beneficiary's argument does not persuade us. First, the DOL regulation at 20 C.F.R. § 656.1 l(b) 
- promulgated in 2007 - supersedes HealthAmerica's holding. See, e.g., Matter o_f Volvo Grp. N Am., 
2012-PER-00317, **3-4 (BALCA Apr. 10, 2015). Second, the Beneficiary omits the second part of 
the DOL policy. The policy further states that "the employer should indicate [ on the labor certification 
application] that the alien will be working at various unanticipated locations throughout the U.S." Id. 
Thus, contrary to the Beneficiary's argument, the Petitioner did not comply with DOL policy, as the 
company did not indicate on the labor certification that he would work at various unanticipated 
locations. 
Finally, the Beneficiary asks us to consider equities purportedly favoring him, including: his role as 
an "essential employee" of his current employer; and "extreme hardship" that the petition's revocation 
would purportedly cause him and his family. But neither the Act, regulations, case law, nor USCIS 
policy allow us to consider such factors in deciding the Beneficiary's appeal. Thus, we lack 
authorization to consider the equitable factors. 
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III. CONCLUSION 
The Beneficiary has not demonstrated the Petitioner's intent to employ him in the offered job at 
industrial worksites as indicated in the job's duties. We will therefore affirm the petition's revocation. 
ORDER: The appeal is dismissed. 
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