dismissed EB-3 Case: Public Relations

U.S. Citizenship 
and Immigration 
Services 
In Re : 22737622 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 10, 2022 
The Petitioner, a restaurant , seeks to employ the Beneficiary as a public relations specialist. It requests 
classification of the Beneficiary as a professional worker under the third preference employment-based 
immigrant visa category . Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 8 U.S.C . 
§ 1153(b )(3)(A)(ii). 
The Director of the Nebraska Service Center initially approved the petition but subsequently revoked 
that approval on notice. The Director concluded that the Beneficiary paid costs associated with the 
preparation of the labor certification application in violation of 20 C.F.R . § 656.12 . The Petitioner 
subsequently filed a combined motion to reopen and reconsider, which the Director granted but 
ultimately affirmed the decision to revoke the petition after determining that the Petitioner's new 
evidence and legal arguments were insufficient to overcome the basis for revocation . The matter is 
now before us on appeal. 
On appeal, the Petitioner asserts that it reimbursed the Beneficiary for all costs and did not violate the 
regulation at 20 C.F.R. § 656.12(b) relating to "Improper Commerce and Payment" during the labor 
certification process. The Petitioner also disputes the applicability of 20 C.F.R. § 656.12(b) to the 
facts presented here and asserts that the delay in issuance of a notice of intent to revoke (NOIR) 
violated principles of fundamental fairness and due process . 
We review the questions in this matter de nova. Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 
(AAO 2015). In this proceeding, the petitioner bears the burden of proof to establish eligibility for 
the requested benefit by a preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010) . Upon de nova review, we will dismiss the 
appeal. 
I. LAW 
A. Employment Based Immigration 
Employment-based immigration generally follows a three-step process . First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). See section 
212(a)(5) of the Act, 8 U.S.C. § l 182(a)(5). By approving the labor certification, the DOL certifies 
that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered 
position and that employing a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS 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. 
B. Revoking an Approved Immigrant Petition 
At any time before a beneficiary obtains lawful 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 the record, a petition's erroneous approval justifies its revocation. Matter of Ho, 19 I&N 
Dec. at 590. 
USCIS properly issues a notice of intent to revoke a petition's approval if the unexplained and 
unrebutted record at the time of the NOIR's issuance would have warranted the petition's denial. 
Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). The NOIR provides the opportunity to submit 
evidence in support of the petition and in opposition to the alleged grounds for revocation. 8 C.F.R. § 
205.2(b ). If a petitioner does not submit a NOIR response or the response does not overcome the 
stated revocation grounds, USCIS properly revokes the petition's approval. Estime, 19 I&N Dec. at 
452. If the approval of the petition is revoked, the director must provide the petitioner with a written 
decision that explains the specific reasons for the revocation. 8 C.F.R. § 205.2(c). 
II. ANALYSIS 
A. Improper Commerce and Payment in the Labor Certification Process 
The regulation at 20 C.F.R. § 656.12(b) states: 
An employer must not seek or receive payment of any kind for any activity related to 
obtaining permanent labor certification, including payment of the employer's 
attorneys' fees, whether as an incentive or inducement to filing, or as a reimbursement 
for costs incurred in preparing or filing a permanent labor certification application, 
except when work to be performed by the alien in connection with the job 
opportunity would benefit or accrue to the person or entity making the payment, based 
on that person's or entity's established business relationship with the employer. An 
alien may pay his or her own costs in connection with a labor certification, 
including attorneys' fees for representation of the alien, except that where the 
same attorney represents both the alien and the employer, such costs shall be borne by 
the employer. 
A payment to an employer "undermines the labor certification process by potentially corrupting the 
search for qualified U.S. workers and creating serious doubt as to whether the employer is offering a 
bona fide job opportunity and making it available for U.S. workers." DOL, Final Rule on Labor 
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Cert[ficationsfor the Permanent Employment of Aliens, 72 Fed. Reg. 27904, 27919 (May 17, 2007). 
DOL's intent in implementing this provision of the 2007 Final Rule was "to make it clear that 
employers who submit applications for permanent labor certification do so with the full understanding 
that the costs they incur for the preparation and filing of the application and obtaining permanent labor 
certification are to be exclusively borne by the employer." Id. 
B. Procedural History 
The Petitioner's labor certification was filed in November 2015 and certified by DOL in June 2016. 
The Petitioner marked "No" on the ETA Form 9089 at Section I, Part E.23, which states "Has the 
employer received payment of any kind for the submission of this application?" As noted, the Director 
initially approved the Form 1-140 filed in October 2016. 
The Director issued the NOIR on January 11, 2022, and advised the Petitioner of the following 
information: 
The beneficiary was interviewed by USCIS during which she admitted to paying all 
fees for her labor certification. USCIS also interviewed who signed the 
ETA Form 9089 in part N. Employer Declaration. indicated that [s]he "didn't 
pay any fees and was not billed" by the preparer for the labor certification or petition. 1 
The Director informed the Petitioner that the Beneficiary's "payment of labor certification, legal and 
advertising fees without the employer being charged any fee violates 20 C.F.R. § 656.12." The 
Petitioner was provided with 30 days to submit evidence in support of the petition and in rebuttal to 
the proposed grounds for revocation. 
In response, the Petitioner provided a statement and evidence showing that, on January 14, 2022, it 
reimbursed the Beneficiary in the amount of $13,300, which is the amount she had previously paid to 
the immigration consultant who prepared the labor certification, Form 1-140 and Form 1-485.2 The 
Petitioner maintained that, based on this evidence that the Beneficiary had been reimbursed, there was 
no violation of 20 C.F.R. § 656.12(b) and the approval of the petition should be affirmed. The 
Petitioner's response also included an affidavit from the Beneficiary, who confirmed that the Petitioner 
reimbursed her for all costs billed to her by the immigration consultant in connection with her case. 
In the revocation decision, the Director acknowledged the evidence that the Petitioner had reimbursed 
the Beneficiary upon receipt of the NOIR. However, the Director observed that "there is no provision 
in the regulations for reimbursement after the fact, therefore the record indicates the beneficiary paid 
all fees related to her labor certification process." 
As noted, the Petitioner subsequently filed a combined motion to ropen and reconsider. The 
Petitioner's evidence on motion included sworn declarations from both and the Beneficiary, 
1 USCTS interviewed the Beneficiary in February 2018 in connection with her Fonn T-485, Application to Register 
Permanent Residence or Adjust Status. The Petitioner's owner,I I was interviewed by USCTS during a March 2020 
site visit. 
2 The itemized invoice from the immigration consultant indicated the Beneficiary was charged $5990 for the labor 
ce1tification (a $2500 down payment, $990 in advertising costs, and $2,500 due upon approval of the labor certification). 
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who both stated that, on or around April 15, 2014, they entered an oral agreement concerning the 
Beneficiary's immigration process. Specifically, both parties state that when the Petitioner initially 
offered the Beneficiary a position, the Petitioner "clearly promised" the Beneficiary that, after six 
months of satisfactory job performance, it would submit a labor certification on her behalf In addition, 
both declarations state that the parties agreed that the Beneficiary would pay for all costs associated 
with the labor certification in advance and the Petitioner would reimburse her "later on." 
The Director affirmed his decision to revoke the approval of the petition, noting that the sworn 
declarations from the Petitioner and Beneficiary were insufficient based on both parties' previous 
admissions that the Beneficiary had paid all fees related to the labor certification. The Director 
emphasized that neither the Beneficiary nor the Petitioner made any mention of an existing oral 
agreement or any intention for the Petitioner to reimburse the Beneficiary when interviewed by users 
and that the Petitioner did not claim the existence of such an agreement when it submitted its response 
to the NOIR. 
e. Discussion 
On appeal, the Petitioner disputes the Director's determination that the sworn declarations submitted 
on motion were insufficient to establish its existing intention to reimburse the Beneficiary for the costs 
associated with the labor certification. The Petitioner suggests that it was "impossible" to disclose the 
existence of the agreement sooner because neither party was specifically asked whether the 
Beneficiary would be reimbursed for payment of costs, and if so, under what terms. The Petitioner 
maintains that its certification on the ETA Form 9089 that it received no payments in connection with 
the labor certification was justified because of the prior oral agreement made in April 2014 and based 
on its actual reimbursement payment made to the Beneficiary in January 2022. 
The Petitioner's assertion that it was reasonable to inform users of the existence of the claimed oral 
agreement for the first time on motion is not persuasive. Both the Beneficiary and Petitioner's 
representative were clearly asked to clarify who paid for the costs associated with the preparation and 
filing of the labor certification (including advertisement fees) in 2018 and 2020, respectively. There 
was no indication in either of their responses that the Beneficiary expected to be reimbursed, or that 
the Petitioner intended to reimburse her, for any costs. We agree with the Director's determination 
that the introduction of an alleged longstanding oral agreement between the two parties, under which 
the Petitioner would reimburse the Beneficiary "later on," was inconsistent with their previous 
statements and therefore insufficient to overcome the Director's determination that there was a 
violation of 20 C.F.R. § 656.12(b ). Further, we cannot overlook the fact that such reimbursement did 
not occur until immediately after users notified the Petitioner of its intent to revoke the approval of 
the petition, more than six years after the filing of the labor certification and nearly eight years after 
the parties allegedly entered the agreement. 
We further agree with the Director that, regardless of whether there was in fact an existing oral 
agreement between the parties, the regulations do not include a provision that would allow an employer 
to reimburse a beneficiary for the costs of the labor certification at some undisclosed later date. The 
DOL Final Rule implementing those regulations contains ample support for a determination that 
employers are expected to pay such costs as they are incurred. Specifically, it states, "[t]o the extent 
the [beneficiary] who is the subject of the labor certification application and, later, the immigrant 
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petition, is financially involved in the application process directly or indirectly, this involvement casts 
suspicion on the integrity of the process and the existence of a bona fide job opportunity." 72 Fed. 
Reg. 27904, 27920 (May 17, 2007). 
On appeal, the Petitioner further contends that the regulation at 20 C.F.R. § 656.12(b) requires 
employers to pay all labor certification costs only when both parties are represented by the same 
attorney, and that the Director's revocation decision reflects a "misunderstanding" of this regulation. 
The Petitioner maintains that since the labor certification was prepared by a registered immigration 
consultant, and neither party hired an attorney in connection with the matter, the regulation is 
inapplicable. 
The Petitioner's claim, which is based on an incomplete reading of 20 C.F.R. § 656.12(b), is not 
persuasive. The Petitioner relies on the following passage: "An alien may pay his or her own costs 
in connection with a labor certification, including attorneys' fees for representation of the alien, except 
that where the same attorney represents both the alien and the employer, such costs shall be borne by 
the employer." The quoted language provides that a beneficiary is free to retain counsel to represent 
his or her interests in the labor certification process and also to assume responsibility for those costs 
unless both the beneficiary and the employer are represented by the same attorney. 3 Regardless of 
whether an attorney is retained by one or both parties, the regulation, when read as a whole, clearly 
indicates that the employer's costs of preparing and filing the labor certification must be borne by the 
employer. The Beneficiary's decision to hire an immigration consultant instead of an attorney does 
not exempt the Petitioner from any responsibility for paying the employer costs associated with its 
labor certification . 
Finally, the Petitioner contends on appeal that the Director "clearly violated the due process under the 
USA Constitution because your office failed to send the inten[t] to revoke notice within 180 days or 
any other reasonable period after the date of your conducted 1-485 interview." 
The Petitioner has not supported its claim that a notice of intent to revoke must be issued within a 
designated timeframe. Section 205 of the Act states: "The Secretary of Homeland Security may, at 
any time, for what he deems to be good and sufficient cause, revoke the approval of any petition 
approved by him under section 204." (Emphasis added). 
Further, while the Petitioner claims a violation of due process, there are no due process rights 
implicated in the adjudication of an immigrant petition. See Azizi v. Thornburgh, 908 F.2d 1130, 1134 
(2d Cir. 1990) ( explaining that the Fifth Amendment protects against the deprivation of property rights 
granted to immigrants without due process; however, petitioners do not have an inherent property right 
in an immigrant visa). In addition, even where due process rights are implicated, an individual must 
show prejudice to establish a violation. See generally, Garcia-Villeda v. Mukasey, 531 F .3d 141, 149 
(2d Cir. 2008). Here, prior to the revocation, the Petitioner was afforded an opportunity to rebut the 
derogatory information regarding the Beneficiary's payment of all costs associated with the labor 
certification. It also had the opportunity to rebut the derogatory information on motion and on appeal. 4 
3 See 72 Fed. Reg. 27904, 27920. 
4 lt is the Petitioner 's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
5 
We have complied with 8 C.F.R. § 103.2(b)(l6)(i). See Hassan v. Chertoff, 593 F.3d at 789 (USCIS 
did not violate 8 C.F.R. § 103.2(b )(l 6)(i) or due process where applicant had notice of derogatory 
information and opportunity to respond). 
III. CONCLUSION 
The Petitioner has not met its burden to establish by a preponderance of the evidence that it filed the 
labor certification in compliance with 20 C.F.R. § 656.12(b ). The approval of the petition was properly 
revoked on this basis. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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