dismissed EB-3 Case: Janitorial Services

MATTER OF A-M- CO. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 12. 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of janitorial services, seeks to employ the Beneficiary as an assistant 
manager. It requests his classification as a skilled worker under the third-preference, immigrant 
category. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national with at least two years of training or experience for lawful permanent resident 
status. 
After first granting the petition, the Director of the Texas Service Center revoked its approval. The 
Director invalidated the accompanying employment certification from the U.S. Department of Labor 
(DOL), finding that the petitioning corporation willfully concealed the identity of a co-shareholder 
as the Beneficiary's father. The Director therefore concluded that the petition lacked a valid labor 
certification. 
On appeal, the Petitioner submits additional evidence and denies concealing the relationship between 
the co-shareholder and the Beneficiary. 
Upon de novo review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First. an employer tiles a 
labor certification application with DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). DOL must determine whether the United States lacks able, willing, qualified, and 
available workers for an offered position, and whether employment of a foreign national would hurt the 
wages and working conditions of U.S. workers with similar jobs. Jd 
If DOL certifies a foreign national to permanently till an otTered position, the employer must next 
submit the certification with an immigrant visa petition to U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. If USCIS approves a petition, the 
foreign national may finally apply for an immigrant visa abroad or, if eligible. adjustment of status in 
the United States. See section 245 ofthe Act, 8 U.S.C. § 1255. 
Matter of A-M- Co. 
At any time before a beneficiary obtains lawful permanent residence, however, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. 
USCIS properly issues a notice of intent to revoke where the record as of the notice's issuance, if 
unrebutted and unexplained. would have warranted the petition· s denial. Matter of' Estime, 19 I&N 
Dec. 450, 451 (BIA 1987). Similarly, good and sufficient cause supports revocation of a petition's 
approval where the record as of the decision, including any rebuttal evidence or argument submitted 
by a petitioner, would have warranted a denial. ld. at 451-52. 
II. THE INVALIDATION OF THE LABOR CERTIFICATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a skilled worker petition must include a valid, 
individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). USCIS may invalidate a certification after 
its issuance upon a finding of "fraud or willful misrepresentation of a material fact involving the 
labor certification.'' 20 C.F.R. § 656.30(d). If the labor certification is invalidated after a finding of 
fraud or willful misrepresentation of material fact, the petition's approval may be revoked because it 
is no longer supported by a valid labor certification. 
Here, the Director issued the notice of intent to revoke (NOIR) for good and sufficient cause and 
informed the Petitioner that the record indicated the willful misrepresentation of a material fact. A 
willful misrepresentation of a material fact requires a deliberate and voluntary misrepresentation 
made with knowledge of its falsity. Xing Yang Yang v. Holder, 770 F.3d 294.303 (4th Cir. 2014). 
Fraud requires an additional intention to deceive. ld. A misrepresentation is material if it tends to 
shut off a line of inquiry that would predictably have disclosed facts relevant to eligibility for an 
immigration benefit. Matter qf D-R-, 27 I&N Dec. 105, 113 (BJA 2017). The Petitioner answered 
"No" to Part C.9 on the labor certification application form, which 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, 
incorporators, and the alien?" Contrary to the Petitioner's response, evidence identified a co­
shareholder of the company as the Beneficiary's father. The Petitioner submitted copies of its 
federal income tax returns for 2011, the year of the labor certification's tiling. listing the company's 
two shareholders at that time. In 2013, the Beneficiary filed an application for adjustment of status 
containing a Form G-325A, Biographic Information, and a copy of his family register from South 
Korea. Both of these documents identify one of the Petitioner's shareholders as the Beneficiary's 
father. USCIS records also indicate that, in an unrelated application in 2007, the shareholder 
identified the Beneficiary as his son. Thus, evidence indicated that on the labor certification, the 
Petitioner concealed a family relationship between the shareholder and the Beneficiary. 
The misrepresentation appears to be willful. The Petitioner presumably knew of the family 
relationship between its shareholder and the Beneficiary. See Matter l~( Silver Dragon Chinese 
Rest., 19 I&N Dec. 401, 404 (Comm'r 1986) (finding that "the officers and principals of a 
corporation are presumed to be aware and informed of the organization and staff of their 
enterprise''). 
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Matter of A-M- Co. 
The misrepresentation is also material. A labor certification employer must attest to the clear 
availability of an offered position to U.S. workers. 20 C.F.R. ~ 656.10(c)(8). If a family relationship 
exists between a shareholder and a foreign national, an employer must be able to demonstrate the 
bona fides of a job opportunity. 20 C.F.R. ~ 656.17(1). Thus, the Petitioner's concealment of the 
relationship terminated a line of inquiry that would predictably have disclosed facts relevant to the 
Petitioner's eligibility for the labor certification. If unrebutted or unexplained, the record therefore 
would have warranted the invalidation of the labor certification and the petition's denial. 
In response to the NOIR, the Petitioner did not deny the family relationship between the shareholder 
and the Beneficiary. Rather, it asserted its disclosure of the relationship on the labor certification 
application. The Petitioner submitted a copy of the application fonn it purportedly mailed to the 
DOL in 2011, indicating "Yes" to Part C.9's question. 1 It also provided a copy of a 2017 letter that 
its counsel purportedly sent to the DOL, asking the agency to confirm the Petitioner's disclosure of 
the family relationship on the application form? , 
When the DOL receives a labor certification application by mail, agency employees enter data from 
the filing into the DOL's online system. See, e.g, Matter of Youth Soccer All.. LLC, 2011-PER-
01349, 2012 WL 4339020 *1 (BALCA Sept. 18, 2012). In Youth Soccer, the Board of Alien Labor 
Certification Appeals (BALCA) reversed a certification denial where the DOL mistakenly omitted 
information in a mailed-in application from the online system. 2012 WL 4339020 at *3. The 
discrepancy between the date on the mailed application and the information entered online was clear 
because BALCA's record contained both forms: the one mailed to the DOL; and the online version 
the DOL created. /d. 
Here, our record contains the online form the DOL created and certified, but not the form the 
Petitioner mailed to the agency. The Petitioner has not established the authenticity of its copy of the 
purported mailed-in application. The record lacks documentary proof of the application's mailing 
and receipt on the designated dates, or affidavits from the Petitioner and counsel regarding the 
filing's preparation, signing, copying, and submission. 
Also, counsel and a representative of the Petitioner signed the online form after its certification, 
attesting under penalty of perjury to their review of the form and to the truth and accuracy of the data 
on it. Ifthe DOL erroneously listed the Petitioner's response to Part C.9 on the certified form, the 
record does not explain why counsel and the company's representative signed it and submitted the 
allegedly erroneous labor certification with the immigrant petition. 
1 
The DOL encourages online filing of labor certification applications, but also accepts them by mail. If mailed. an 
application must contain original signatures of the employer, the foreign nationaL and the application's preparer (if 
different than the employer). 20 C.F.R. § 656.17(a). 
2 
The Petitioner stated that it would notify USCIS once the DOL responded to its letter. As of this decision, we have not 
received any notice from the Petitioner of a response. 
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Matter of A-M- Co. 
On appeal, the Petitioner "concedes'' that its C.9 response on the labor certification should have been 
corrected before the company's representative signed the approved document. But counsel asserts 
that this was an "inadvertent oversight." Counsel's assertion, however, does not constitute evidence 
explaining why the Petitioner signed an incorrect labor certification. See Matter of Obaigbena. 19 
I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 
1980)). Counsel's statement must be substantiated in the record with independent evidence, which may 
include affidavits and declarations. Thus, a preponderance of evidence establishes the Petitioner's 
willful concealment on the labor certification of the family relationship between the shareholder and the 
Beneficiary. 
The Petitioner also contends that the misrepresentation was immaterial. It notes that a family 
relationship between an employer and a foreign national does not automatically bar the existence of a 
bonafide job opportunity. See. e.g.. Matter qf Paris Bakery Corp., 88-INA-337, 1990 WL 1232931 
( 1990) (en bane) (finding a bona .fide job opportunity despite the position's offer to the brother of an 
employer's president/sole shareholder). On appeal, the Petitioner submitted evidence of its recruitment 
in response to a DOL audit, arguing that the audit established the existence of a bona fide job 
opportunity. However, there is no indication that the Petitioner sought to correct the erroneous 
information provided in part C.9 during the audit process or that DOL was otherwise made aware of the 
relationship between the Beneficiary and the Petitioner. Had DOL been made aware of the familial 
relationship, it may have further analyzed the Petitioner's compliance with the labor certification 
process and more closely examined whether or not a bonafide job opportunity exists. 
A labor certification employer with a shareholder related to a foreign national, however, must be able to 
demonstrate the bona .fides of the offered position. 20 C.F.R. § 656.17(1). The relationship therefore 
creates a "presumption that the job opportunity is not bonafide." Matter ol Transmark Real Estate, 
2011-PER-00475, 2012 WL 2192303 *2 (BALCA June 8, 2012). The Director's NOIR provided 
the Petitioner with an opportunity to rebut this presumption. But the Petitioner's response did not 
establish the clear availability of the position to U.S. workers. In addition to the family relationship 
between the shareholder and the Beneficiary, the record indicates that the Beneficiary would serve as 
part of a small group of employees. See Matter (~{Modular Container Sys .. Inc., 89-INA-228, 1991 
WL 223955, *8 (BALCA 1991) (en bane) (listing factors to be considered in determining the bona 
fides of a job opportunity). The Director directly requested evidence to establish the bona fide 
nature of the job opportunity in the NOIR, but the Petitioner declined to present evidence regarding 
whether the Beneficiary has other relatives who invested or worked for the company or which 
company official(s) interviewed applicants and made hiring decisions regarding the offered 
position. 3 Given the Beneficiary's father's position in the company as an owner, director, and vice 
president, it appears that he may have influenced the hiring decisions being made. The Petitioner's 
3 
Copies of the Petitioner"s tax returns after 20 II indicate that the Beneficiary's father held 49 percent of the 
corporation's stock in 2015 and that the other shareholder owned all ofthe company's stock in 2013 and 2014. Online 
public records also identify the Beneficiary's father as the Petitioner's registered agent from 2012 to 2016, and as a vice 
president and director of the company in 2015 and 2016. See Va. State Corp. Comm'n, Bus. Entity Search, at 
https://sccefile.scc.virginia.gov/Find/Business (last visited Nov. 27, 20 17). 
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Matter of A-M- Co. 
other stockholder also shares the same family name as the Beneficiary and his father, but the record 
does not establish whether family relationships exist among them. The Petitioner has therefore not 
met its burden to establish the bona fides of the job opportunity. See, e.g., Matter ol Orly Beauty 
Salon & Barber Shop, 2013-PER-02548 (BALCA Feb. 24, 2017) (finding no bona fide job 
opportunity where, despite an absence of U.S. applicants, the employer's owner/president, 
owner/vice president, and owner/partner were the foreign national's sister, spouse, and son, 
respectively). 
For the foregoing reasons, the record establishes the Petitioner's willful misrepresentation of a 
material fact on the labor certification. 
III. CONCLUSION 
The record supports the Director's invalidation of the accompanying labor certification based on the 
Petitioner's willful misrepresentation of a material fact. The petition therefore lacks a valid labor 
certification. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-M- Co., ID# 743577 (AAO Dec. 12, 2017) 
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