dismissed EB-3 Case: Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 20, 2024 In Re: 33359549 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
The Petitioner, a convenience store with two employees, sought to employ the Beneficiary as a 
convenience store sales associate. It requested classification of the Beneficiary under the third­
preference, immigrant classification for other workers. Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based category allows a U.S. 
business to sponsor a foreign national for lawful permanent resident status based on a job offer 
requiring less than two years of training or experience. 
After initially approving the Form 1-140, Immigrant Petition for Alien Worker (petition), the Texas 
Service Center Director revoked the petition's approval. The Director concluded that the Petitioner 
did not demonstrate that a bona fide job offer exists because its business is no longer operating at the 
intended work location, and it no longer intends to employ the Beneficiary. The Director also found 
that the Petitioner willfully misrepresented the bona fide nature of the job offer as permanent, full­
time employment, which is a material fact. The matter is now before us on the Petitioner's appeal. 8 
C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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)(l)-(11) 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. 
Employment-based immigrant visa petitions "shall remain valid" for certain beneficiaries who obtain 
new job offers from the same or different employers. Section 204(j) of the Act, 8 U.S.C. § l 154(j). To 
qualify for job portability, a beneficiary must have filed an application for adjustment of status that 
remained unadjudicated for at least 180 days, and their new job offer must be in the same or similar 
occupational classifications as the job stated in their petition. Id. 
Under 8 C.F.R. § 245.25(a)(2)(ii)(B), if a beneficiary's immigrant petition is pending when the 
beneficiary notifies USCIS of a new job offer on Form 1-485 Supplement J, and such notification is 
made at least 180 days after the date the beneficiary filed an adjustment of status application, the 
following conditions apply to the adjudication of the petition: 
(1) Adjudication of the pending petition shall be without regard to the requirement in 
8 C.F.R. § 204.5(g)(2) to continuously establish the ability to pay the proffered 
wage after filing and until the beneficiary obtains lawful permanent residence; and 
(2) The pending petition will be approved if it was eligible for approval at the time of 
filing and until the beneficiary's adjustment of status application has been pending 
for 180 days unless approval of the qualifying immigrant visa petition at the time 
of adjudication is inconsistent with a requirement of the Act or another applicable 
statute. 
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. If 
supported by the record, a petition's erroneous approval may justify its revocation. Matter of Ho, 
19 l&N Dec. 582, 590 (BIA 1988). USCIS properly issues a notice of intent to revoke (NOIR) a 
petition if the unrebutted and unexplained record would have warranted the filing's denial. Matter of 
Estime, 19 l&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 
The labor certification in this case was filed on April 29, 2019, for the offered position of convenience 
store sales associate. At the time the labor certification was filed, the Petitioner stated that it was 
operating a convenience store with two employees. Shortly after filing the labor certification, the 
business was sold in 2019. Following DOL approval of the labor certification, and after the sale 
of the business, the Petitioner filed the petition with USCIS on February 6, 2020. 1 The Petitioner 
indicated on the petition that the offered position is permanent and full-time. 
1 The Beneficiary concurrently filed a Form I-485, Application to Register Permanent Residence or Adjust Status, on 
February 10, 2020. 
2 
After approving the petition in March 2020, the Director sent the Petitioner a NOIR stating that a 
review of the filing indicated that the Petitioner may have misrepresented the bona fides of the job 
offer. The Director stated that USCIS conducted a site visit to the work location listed on the labor 
certification and the petition in March 2021. The site visit revealed that the Petitioner sold its 
convenience store business to a new owner in 2019 and ceased operating at that work location upon 
sale. Because this fact is material, in signing the petition in February 2020, the Director noted that the 
Petitioner may have willfully made a false representation. The Director requested evidence that the 
Petitioner continues to do business and intends to employ the Beneficiary in the offered position, as 
well as evidence to establish that the Petitioner made a bona fide job offer to the Beneficiary under the 
terms of the labor certification. 
In response to the NOIR, the Petitioner submitted a statement from its president. The Petitioner's 
president stated, "In 2019, [the Petitioner] sold the gas station/convenience store to the owner of 
the real estate ... From that point, [the Petitioner] ceased providing goods and services to the public. 
[The Petitioner], however, legally exists; it is simply inactive." 
The Petitioner's president further stated, "[The Petitioner] no longer does business. However, it is our 
understanding that [ the Beneficiary] has been offered a position doing similar type of work . . . [The 
Beneficiary] aims to assume this occupation [Store Sales Associated] under I-140 job portability 
rules." 
The Petitioner submitted evidence of its recruitment for the offered position, including a job order 
placed with the state workforce agency, newspaper advertisements, an internal posting notice, and a 
report of recruitment results explaining that no resumes were received in response to its recruitment 
efforts. The Petitioner also submitted its state issued business licenses and permits issued in 2018, 
and its utility bill for the period October to November 2018. 
Also included with the NOIR response was a Form I-485 Supplement J, signed by the Beneficiary, 
with supporting evidence, requesting job portability under section 204(j) of the Act. 
After receiving the Petitioner's response to the NOIR the Director revoked the petition's approval. 
The Director determined that the Petitioner did not establish that its job offer to the Beneficiary was 
bona fide and entered a finding of willful misrepresentation of a material fact against the Petitioner. 
On appeal, the Petitioner does not submit additional evidence or a brief. In describing the basis for 
the appeal, the Petitioner asserts that it was still operating at the time the labor certification was filed 
and its job offer to the Beneficiary was bona fide at that time. The Petitioner states, "Though the 
employer later stopped operations, if bona fide job offer is measured as of the priority date, then the 
Service Center Director's finding is erroneous and should be withdrawn." The Petitioner further states 
that the Director erred in not considering the Beneficiary's eligibility for job portability under section 
204(j) of the Act. 
A. Bona Fide Job Offer 
Pursuant to the statutory framework for the granting of immigrant status, any United States employer 
desiring and intending to employ an alien entitled to immigrant classification under the Act may file 
3 
a petition for classification. Section 204(a)(l)(F) of the Act, 8 U.S.C. § l 154(a)(l)(F); see 8 C.F.R. § 
204.5( c ). Such petitions must be accompanied by a labor certification from the DOL. See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5); see also 8 C.F.R. § 204.5(1)(3)(i). The Petitioner must 
intend to employ a beneficiary under the terms and conditions of an accompanying labor certification. 
See Matter ofIzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming denial where, contrary 
to an accompanying labor certification, a petitioner did not intend to employ a beneficiary under the 
terms of the labor certification); see also Matter ofSunoco Energy Dev. Co., 17 I&N Dec. 283, 284 
(Reg'l Comm'r 1979) (affirming a petition's denial under 20 C.F.R. § 656.30(c)(2) where the labor 
certification did not remain valid for the intended geographic area of employment). Because the filing 
of a labor certification establishes a priority date2 for any immigrant petition later based on the labor 
certification, the petitioner must establish that the job offer was realistic as of the priority date and that 
the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. The bona fides of the job opportunity are essential elements in evaluating whether a job 
offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977). 
The Petitioner cannot establish the offered position as a bona fide job opportunity based solely on its 
stated intent to employ the Beneficiary in the offered position once he obtains lawful permanent 
resident status. It must provide evidence establishing the existence of a valid job offer as of the 
petition's priority date. "In ... visa petition proceedings the Service must consider the merits of the 
petitioner's job offer, so that a determination can be made whether the job offer is realistic." Matter 
of Great Wall, 16 l&N Dec. at 145. 
Section 204(b) of the Act allows a petition's approval only after an investigation of the facts in each 
case to ensure that the facts stated in the petition, which necessarily includes the labor certification, 
are true. Section 204(b) of the Act, 8 U.S.C. § 1154(b ). 
As noted above, the Petitioner's job offer must be realistic as of the priority date and remain realistic 
for each year thereafter. The Petitioner's president stated in the NOIR response that it ceased 
operations of its convenience store when it sold the business in 2019. 3 Therefore, at the time the 
petition was filed in February 2020, the Petitioner's job offer was no longer realistic. 
Additionally, in signing and filing the petition in February 2020, after its business ceased operating, 
the Petitioner misrepresented its intention to offer full-time, permanent employment to the 
Beneficiary. As the Director noted in the NOIR and notice of revocation, the Petitioner answered yes 
to the following questions in Part 6 of the Form 1-140: 
• Question 4. Is this a full-time position? 
• Question 6. Is this a permanent position? 
2 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.S(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date, which in this case is April 29, 2019. 
3 A labor certification is only valid for the particular job opportunity stated on the application form. 20 C.F.R. § 656.30( c ). 
If the petitioner is a different entity than the labor certification employer, then it must establish that it is a successor-in­
interest to that entity. See Matter ofDial Auto Repair Shop, Inc. , 19 I&N Dec. 481 (Comm'r 1986). The Petitioner here has 
not asserted that the new owner of the convenience store is a successor to the labor certification employer. Nor does the 
record include any documentation of the purported sale of the Petitioner to a new owner. 
4 
The Petitioner has not provided independent, objective evidence establishing that, at the time the 
petition was filed in February 2020, it was conducting business and intending to offer full-time, 
permanent employment to the Beneficiary as a convenience store sales associate. Therefore, we agree 
with the Director that the Petitioner's job offer was not bona fide. We further agree that the Petitioner's 
answers to the questions in Part 6 of the Form I-140 were misrepresentations of material facts in this 
matter. 
B. Job Portability 
In response to the NOIR and on appeal, the Petitioner indicates that the Beneficiary has a new 
employment offer from a different U.S. employer. An adjustment of status applicant may 
affirmatively demonstrate to USCIS, on Form 1-485 Supplement J that he or she has a new offer of 
employment from a different U.S. employer in the same or similar occupational classification, 
provided that the application to adjust status has been pending for 180 days or more, and the qualifying 
immigrant visa petition has already been approved or is subsequently approved. See generally, 8 
C.F.R. § 245.25(a). A pending immigrant petition will be approved if it was eligible for approval at 
the time of filing and until the applicant's adjustment of status has been pending for 180 days, unless 
approval of the qualifying immigrant visa petition at the time of adjudication is inconsistent with a 
requirement of the Act or another applicable statute. 8 C.F.R. § 245.25(a)(2)(B)(2). 
The regulation at 8 C.F.R. § 204.5(e)(5) provides: 
A petition filed under section 204( a )(1 )(F) of the Act for an alien shall remain valid 
with respect to a new employment offer as determined by [U.S. Citizenship and 
Immigration Services (USCIS)] under section 204(j) of the Act and 8 C.F.R. § 245.25. 
An alien will continue to be afforded the priority date of such petition if the 
requirements of paragraph ( e) of this section are met. 
In order to "remain valid with respect to a new employment offer" under the portability provision, a 
petition must also have been "valid" to begin with. Matter ofAl Wazzan, 25 I&N Dec. 359,365 (AAO 
2010). For portability purposes, the term "valid" means that USCIS must have "approved" the petition 
and that the beneficiary must have "entitled" to the requested visa classification. Id., at 367. 
As discussed above, the record does not establish that the Petitioner was operating its business and 
intending to offer the Beneficiary employment at the time the Form 1-140 was filed. In order for the 
Beneficiary to benefit from the Act's job portability provisions, the pending Form 1-140 must be 
approved, and it may only be approved if the record shows that the Petitioner's job offer was bona 
fide. See 8 C.F.R. § 245.25(a)(2)(B)(l). 
5 
III. CONCLUSION 
The record does not establish that the Petitioner's job offer was bona fide. The Director's finding of 
willful misrepresentation of a material fact against the Petitioner is supported by the record and upheld. 
It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). Here, 
the burden has not been met. 
ORDER: The appeal is dismissed. 
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