dismissed EB-3 Case: Retail

MATTER OF H-F-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: AUG. 8, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a convenience store and gasoline station, seeks to employ the Beneficiary as a store 
clerk (night shift). It requests classification of the Beneficiary as an "other worker" under the third 
preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 
8 U.S.C. § 1153(b)(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a 
U.S. employer to sponsor for lawful permanent resident status a foreign national who is capable of 
performing unskilled labor that requires less than two years of training or experience and is not of a 
temporary or seasonal nature. 
The Director of the Texas Service Center denied the petition for two reasons, both of which are 
grounded in the Director's finding that the Petitioner willfully misrepresented a fact in the labor 
certification regarding a familial relationship with the Beneficiary which was material to the 
question of whether the proffered position was a bona fide job opportunity open to U.S. workers. 
The Director stated that the Petitioner's failure to resolve the misrepresentation issue involving the 
familial relationship between its owner and the Beneficiary was the first reason for denying the 
petition . The Director also invalidated the labor certification based on the willful misrepresentation 
finding, and proceeded to deny the petition for the additional reason that it was not supported by a 
valid labor certification . 
On appeal the Petitioner asserts that it did not willfully misrepresent any fact on the labor 
certification regarding the relationship between its owner and the Beneficiary, that there is no 
binding legal authority on what constitutes a familial relationship , and that even if there were an 
inadvertent misrepresentation, it was not material in any event because the store clerk position was a 
bona fide job opportunity open to U.S. workers. 
Upon de nova 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 from the U.S. Department of Labor (DOL) . See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i) . By approving the labor certification, DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
Matter of H-F- Inc. 
offered position and that employing a foreign national in the position will not adversely affect the 
wages and working conditions of U.S. 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, 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. 
II. ANALYSIS 
The issues on appeal are whether the Petitioner and the Beneficiary willfully misrepresented a fact 
on the labor certification regarding a familial relationship between the Petitioner's owner/president 
and the Beneficiary, and if so whether the misrepresentation was material to the question of whether 
the store clerk (night shift) position was a bona fide job opportunity open to all qualified applicants 
at the time it was advertised by the Petitioner. 
The regulation at 8 C.F.R. § 204.5(a)(2) provides that petitions for employment-based immigrant 
classifications, including those for "other worker" classification, must generally be accompanied by 
an individual labor certification from the Department of Labor. A petition that lacks a required 
individual labor certification is not considered properly filed. See id. 
The regulation at 20 C.F.R. § 656.30(d) provides, in pertinent part, that "after issuance, a labor 
certification is subject to invalidation by the DHS [Department of Homeland Security] .... upon a 
determination, made in accordance with [its] procedures or by a court, of fraud or willful 
misrepresentation of a material fact involving the labor certification application." A willful 
misrepresentation of a material fact "made in connection with an application for visa or other 
documents" is one which "tends to shut off a line of inquiry which is relevant to the alien's 
eligibility." Matter of S- and B-C-, 9 I&N Dec. 436,447 (BIA 1961). 
In section C of the labor certification (Employer Information) the Petitioner answered "No" to the 
following question at C.9: 
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, or incorporators, and the alien? 
In a notice of intent to deny (NOID), however, the Director cited USCIS records indicating that the 
Beneficiary is the uncle of the Petitioner's owner/president, which appeared to contradict the 
Petitioner's answer at section C.9 of the labor certification denying a familial relationship between 
the Petitioner and the Beneficiary. The Director stated that in view of this misrepresentation of the 
familial relationship between the Petitioner and the Beneficiary and the Petitioner's indication ( on 
both the labor certification and the petition) that it had only one employee, it was not reasonable to 
conclude that the store clerk position was a bona fide job offer available to any U.S. worker. The 
Director requested that evidence be submitted to address the apparent misrepresentation of the 
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Matter of H-F- Inc. 
familial relationship between the Petitioner's owner/president and the Beneficiary and to establish 
that a bona fide job opportunity was available to U.S. workers. 
In response to the NOID the Petitioner submitted documentation relating to its recruitment efforts for 
the store clerk position. The Petitioner also submitted a memorandum from counsel asserting that 
the term "familial relations" is not defined in section C.9 of the labor certification or in DOL 
regulations, and a letter from the Petitioner's owner/president stating that he "did not consider" his 
particular relationship to the Beneficiary - nephew and uncle through the Beneficiary's mother - to 
be a familial relationship by "blood or marriage" under Pakistani or Islamic tradition. The Petitioner 
also asserted that its answer to the question at C.9 of the labor certification was not material in any 
event because the Petitioner's recruitment efforts produced no qualified applicants for the store clerk 
position. 
In his decision the Director indicated that the complete text of the question at C.9 of the labor 
certification makes it clear that the DOL is attempting to determine if there is any interest or 
relationship between the Petitioner and the Beneficiary that might have an influence on the 
availability of the job offer to U.S. workers. Given the fact that the Beneficiary is the maternal uncle 
of the Petitioner's president/owner, the Director found the Petitioner's claim that it did not consider 
its owner/president and the Beneficiary to be in a "familial relationship" for the purposes of the C. 9 
question not credible. The Director stated that answering "No" to the question at C.9 cut off a line 
of inquiry that the DOL might have wanted to pursue to determine whether U.S. workers were fairly 
considered for the job. The Director concluded that the Petitioner did not resolve the 
misrepresentation issue regarding the familial relationship between the Petitioner's owner/president 
and the Beneficiary, which constituted grounds for denying the petition in accord with Matter of 
Chawathe, 25 I&N Dec. 369 (AAO 2010). The Director also invalidated the labor certification for 
the willful misrepresentation of a material fact, which constituted a second ground for denying the 
petition because it was not accompanied by a valid labor certification. 
On appeal the Petitioner reasserts that it did not willfully misrepresent a material fact. For the 
reasons discussed below, however, we conclude that the record supports the Director's findings. 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 I&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). 
We find that all three of these factors are met in this case. First, the Petitioner made a false 
representation to the DOL at section C.9 of the labor certification application by failing to 
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Matter of H-F- Inc. 
acknowledge a "familial relationship" between the Petitioner's owner/president and his uncle, the 
Beneficiary. On appeal, the Petitioner reiterates its contention that it did not consider its 
owner/president to have a "familial relationship" with the Beneficiary within the context of question 
C.9 of the labor certification. The Petitioner refers once again to cultural and religious traditions in 
Pakistan in which familial relationships are viewed on a patrilineal rather than a matrilineal basis, 
and alleges that because the blood link between the Petitioner's owner and the Beneficiary is a 
female it is not considered to establish a familial relationship between the two. Whatever the merits 
of the Petitioner's claims concerning "familial relationships" in Pakistan, we find that they have no 
bearing in this proceeding. The question at C.9 of the labor certification must be viewed through the 
prism of the country in which it was drafted and in which the Petitioner seeks an immigration benefit 
on behalf of the Beneficiary. We are not persuaded that the Petitioner, assisted throughout this 
proceeding by American legal counsel, failed to realize that the term "familial relationship" in the 
context of the question at C.9 of the labor certification would encompass a close family tie like the 
one the Petitioner's owner/president has with the Beneficiary - nephew and uncle - linked by the 
blood relative who is sister to the Beneficiary and mother to the Petitioner's owner. 
The Petitioner asserts that there is no binding legal authority regarding the definition of "familial 
relationship" and that it was improper for the Director to rely on non-binding guidance. While the 
Director did discuss certain non-binding interpretations of "familial relationship" in his decision, the 
Director did not rely primarily on such guidance in his decision, but rather on the language of the 
C.9 question itself. Taking the question as a whole, the Director concluded that the DOL is trying to 
cast as broad a net as possible to determine if there is any sort of relationship between a petitioner 
and a beneficiary which could influence the availability of a proffered position to U.S. workers. The 
Director also quoted the DOL' s answer in its website section on frequently asked questions (FAQs) 
to the question "When should an employer mark 'yes' when responding to the Question C.9?" The 
first sentence of DOL' s answer states that "[a] familial relationship includes any relationship 
established by blood, marriage, or adoption, even if distant." This DOL interpretation certainly 
encompasses the relationship in this case between the Petitioner's owner/president and the 
Beneficiary. 1 We agree with the Director that it "is simply not credible" that the Petitioner's 
owner/president did not realize that the nephew/uncle relationship he has with the Beneficiary would 
be considered a "familial relationship" under C.9 of the labor certification. 
Second, we find that the misrepresentation was willfully made by the Petitioner without a persuasive 
rationale for believing that the nephew/uncle relationship between the Petitioner's owner/president 
and the Beneficiary did not constitute a "familial relationship" as contemplated in the question at C.9 
of the labor certification. Although, the Petitioner claims that it was unreasonable for the Director to 
find that the Petitioner willfully misrepresented a material fact because the Petitioner had no intent to 
deceive, the Petitioner signed the form attesting to the truthfulness of the information provided. The 
1 In line with the DO L's interpretation regarding the question at C.9 of the labor certification application, the Board of 
Alien Labor Certification Appeals (BALCA) held that a relationship invalidating a bona fide job offer may arise where 
the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or through friendship. " 
Matter of Sunmart, 374. 00-INA-93 (BALCA May 15, 2000). 
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Matter of H-F- Inc. 
signature on the petition by the Petitioner's owner/president established a strong presumption that he 
knew its contents and accepted them. See Matter of A. J Valdez, 27 l&N Dec. 496, 502 (BIA 2018). 
Third, we conclude that the misrepresentation of fact was material because it cut off a line of inquiry 
the DOL may have pursued, had it known of the nephew/uncle relationship between the Petitioner's 
owner/president and the Beneficiary, to determine whether the store clerk position was a bona fide 
job offer open to U.S. workers. On appeal, the Petitioner states that even if there was a familial 
relationship between the Petitioner's owner/president and the Beneficiary, it was not a material 
misrepresentation because it did not influence the recruitment process and therefore did not 
undermine the bona fides of the job opportunity for U.S. workers. The efficacy of the recruitment 
process, however, is not the only factor to consider in determining whether the misrepresentation of 
a familial relationship is material in the labor certification process. As referenced earlier in this 
decision, a willful misrepresentation of a material fact "made in connection with an application for 
visa or other documents" is one which "tends to shut off a line of inquiry which is relevant to the 
alien's eligibility." Matter of S- and B-C-. While the Petitioner states that its recruitment process 
did not yield any qualified applicants for the store clerk position, its failure to acknowledge the close 
ties between the Petitioner's owner/president and the Beneficiary as a "familial relationship" cut off 
a line of inquiry the DOL may have pursued, had it known about that relationship, to determine 
whether the store clerk position was a bona fide job offer open to U.S. workers. 
The petitioner has the burden of establishing that a bona fide job opportunity exists when it is asked 
to show that the job is clearly open to U.S. workers. See Matter of Amger Corp., 87-INA-545 
(BALCA 1987); see also 8 U.S.C. § 1361; 20 C.F.R. § 656.17(1). The factors to be examined in 
determining whether a bona fide job offer exists are set forth in a decision by the Board of Alien 
Labor Certification Appeals in Matter of Modular Container Systems, Inc. 89-INA-288 (BALCA 
1991). Those factors include such items as whether the beneficiary (a) is in the position to control or 
influence hiring decisions regarding the job for which labor certification is sought; (b) is related to 
the corporate directors, officers, or employees; (c) was an incorporator or founder of the company; 
(d) has an ownership interest in the company; (e) is involved in the management of the company; (f) 
is on the board of directors; (g) is one of a small number of employees; (h) has qualifications for the 
job that are identical to specialized or unusual job duties and requirements stated in the application; 
and (i) is so inseparable from the sponsoring employer because of his or her persuasive presence and 
personal attributes that the employer would be unlikely to continue in operation without the 
beneficiary. 
Among the foregoing factors, at least two apply in this case. The Beneficiary is closely related to the 
Petitioner's owner/president and is, or would be, one of a small number of employees. A 
beneficiary's familial relationship or employment within a small group of employees is an important 
factor in determining the bonafides of a job opportunity. See 20 C.F.R. § 656.17(1)(5). Had the 
DOL been apprised of the familial relationship between the Petitioner's owner/president and the 
Beneficiary, and considering the Petitioner's small employee roster, the DOL may have decided to 
investigate more deeply whether the proffered position of store clerk (night shift) was a bona fide job 
opportunity open to all qualified applicants. By withholding information about the familial 
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Matter of H-F- Inc. 
relationship, therefore, the Petitioner shut off a line of inquiry by the DOL that was relevant to the 
Beneficiary's eligibility for the requested classification of "other worker" under the Act. 
Based on the foregoing analysis, we conclude that by answering "No" to the question at C.9 of the 
labor certification the Petitioner willfully misrepresented a material fact concerning the familial 
relationship between its owner/president and the Beneficiary, and has not established that the 
proffered position of store clerk (night shift) is a bona fide job offer open to U.S. workers. 
III. CONCLUSION 
The Petitioner has not overcome the Director's findings that the Petitioner willfully misrepresented 
the familial relationship between its owner/president and the Beneficiary and that this 
misrepresented fact is material to the issue of whether the proffered position is a bona fide job offer 
open to U.S. workers. Nor has the Petitioner overcome the Director's ground for invalidating the 
labor certification. Therefore, we will not disturb the Director's decision to deny the petition for the 
willful misrepresentation of a material fact and for lack of a valid labor certification. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-F-Inc., ID# 4699729 (AAO Aug. 8, 2019) 
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