dismissed EB-3 Case: Stone Fabrication

U.S. Citizenship 
and Immigration 
Services 
MATTER OF U-S-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 25,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an importer, fabricator, and installer of natural stones, seeks to permanently employ the 
Beneficiary as a stone fabrication technician. It requests classification of the Beneficiary as a skilled 
worker under the third preference immigrant classification. See Immigration and Nationality Act (the 
Act) § 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This classification allows a U.S. employer to 
sponsor a foreign worker for lawful permanent resident status in a position that requires at least two 
years of training or experience. 
After approving the petition on December 19, 2011, the Director, Texas Service Center, revoked the 
petition's approval on September 10, 2015. The Director concluded that the Petitioner did not 
disclose a family relationship between its president and the Beneficiary on the accompanying labor 
certification. The Director also found that the record did not establish the Petitioner's intention to 
employ the Beneficiary in the offered position. 
The matter is now before us on appeal. The Petitioner argues that the offered position was available 
to U.S. workers and that it still intends to employ the Beneficiary in the position. Upon de novo 
review, we will dismiss the appeal. 
I. THE NOTICE OF INTENT TO REVOKE 
U.S. Citizenship and Immigration Services (USCIS) may revoke a petition's approval "at any time" 
for "good and sufficient cause." INA § 205, 8 U.S.C. § 1155. If supported by the record, a 
director's realization that he erroneously approved a petition may constitute good and sufficient 
cause for revocation. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). 
Good and sufficient cause exists to issue a notice of intent to revoke if the evidence at the time of the 
notice's issuance, if unexplained and unrebutted, would have warranted a petition's denial. Matter 
of Estime, 19 I&N Dec. 450, 451 (BIA 1987). Similarly, a petition's approval is properly revoked if 
the evidence at the time of the revocation, including any explanation and rebuttal evidence submitted 
by a petitioner in response to a notice of intent to revoke, warranted the petition's denial. !d. at 452. 
In the instant case, the record supports the Director's issuance of the notice of intent to revoke 
(NOIR) of May 26,2015. In a sworn statement before a USCIS officer on November 18,2013, the 
Matter of U-S-, Inc. 
Beneficiary stated that the Petitioner's president, who signed the accompanying ETA Form 9089, 
Application for Permanent Employment Certification (labor certification), is his uncle. In contrast, 
the Petitioner indicated on the labor certification that "no" familial relationships existed between the 
Beneficiary and its officers. 
The Petitioner's apparent concealment of the familial relationship between its president and the 
Beneficiary provided grounds for potential invalidation of the accompanying labor certification. See 
20 C.P.R. § 656.30(d) (authorizing USCIS to invalidate a labor certification after its issuance upon a 
finding of "fraud or willful misrepresentation of a material fact involving the labor certification 
application"); see also 8 C.P.R. § 204.5(1)(3)(i) (requiring a skilled worker petition to be 
accompanied by a labor certification, an application for Schedule A designation, or evidence of a 
beneficiary's qualifications for a shortage occupation). 
The record also indicated the Petitioner's promotion of the Beneficiary from the offered position of 
stone fabrication technician to a managerial position before the petition's filing in 2011. Thus, the 
record suggested the Petitioner's intention to employ the Beneficiary in a different position. See 20 
C.F.R. § 656.30(c)(2) (stating that a labor certification remains valid only for the particular job 
opportunity, the foreign national, and the geographic area of intended employment stated on it); see 
also Matter of Jzdebska, 12 I&N Dec. 54, 54 (Reg'l Cornrn'r 1966) (affirming a petition's denial 
where a petitioner did not intend to employ a beneficiary as a live-in domestic worker as specified 
on the accompanying labor certification). 
Thus, the record indicates the NOIR's issuance for good and sufficient cause. 
II. THE PETITIONER'S MISREPRESENTATION ON THE LABOR CERTIFICATION 
As previously indicated, a petition for a skilled worker must be accompanied by a labor certification, 
an application for Schedule A designation, or evidence of a beneficiary's qualifications for a 
shortage occupation. 8 C.P.R. § 204.5(1)(3)(i). USCIS may invalidate a labor certification after its 
issuance upon a finding of "fraud or willful misrepresentation of a material fact involving the labor 
certification application." 20 C.F.R. § 656.30(d). 
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 intention to deceive. !d. A misrepresentation is material if it "had a natural 
tendency to influence" the government's decision. Kungys v. United States, 485 U.S. 759, 772 
(1988). 
A. The Familial Relationship between the Petitioner's President and the Beneficiary 
In the instant case, the Petitioner responded "No" to Question C.9 on the accompanying ETA Form 
9089. Question C.9 asks: "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?" 
2 
(b)(6)
Matter of U-S-, Inc. 
The Petitioner's response to Question C.9 on the ETA Form 9089 was false, as the Petitioner admits 
that its president is the Beneficiary's uncle. Specifically, the Petitioner's president is the younger 
brother ofthe Beneficiary's father.
1 
See U.S. Dep't ofLabor, Office of Foreign Labor Certification, 
"OFLC Frequently Asked Questions and Answers," at http://www.foreignlaborcert.doleta.gov/ 
faqsanswers.cfm (accessed Feb. 11, 2016) (defining the term "familial relationship" to include "any 
relationship established by blood, marriage, or adoption, even if distant"). 
However, despite the Petitioner's false response to Question C.9 on the ETA Form 9089, we agree 
with the Director that the record does not support a finding of fraud or willful misrepresentation of a 
material fact on the labor certification. The record does not indicate that the Petitioner fraudulently 
or willfully concealed the relationship between its president and the Beneficiary. 
The record indicates that, before the filing of the labor certification application, the Petitioner's 
president told counsel and counsel's former associate who prepared the ETA Form 9089 of his 
relationship to the Beneficiary. Counsel states that his former associate erred by not responding 
"Yes" to Question C. 9 on the form. 2 
The Petitioner 's president declared under penalty of perjury on the ETA Form 9089 that he had read 
and reviewed the labor certification application and that its contents were true and accurate to the 
best of his knowledge. However, the record supports his claim that he did not intend to conceal his 
relationship to the Beneficiary. 
The Beneficiary states that he disclosed his relationship to the Petitioner's president to a U.S. 
consular officer in , China in May 2008, when the Beneficiary applied for a nonimmigrant 
visa to work for the Petitioner in the offered position in the United States. The family relationship 
did not disqualify the Beneficiary from receiving the nonimmigrant visa. Thus, the Petitioner 's 
president 
credibly states that he did not believe the relationship would disqualify the Beneficiary 
from obtaining an immigrant visa and therefore did not intentionally conceal the relationship on the 
labor certification. 
Moreover, the record indicates that USCIS rejected the Petitioner's president as an English language 
translator for the Beneficiary at his interview before a USC IS officer on November 18, 2013 after 
the president disclosed the family relationship between the two men. If the Petitioner 's president , 
who shares the same family name as the Beneficiary , sought to conceal his relationship to the 
Beneficiary, he would not likely have risked drawing attention to the relationship by attending the 
interview, presenting himself as a translator , and disclosing the relationship to the users officer. 
1 As indicated in the Director 's NOIR, the Petitioner's feder al income tax return for 20 I 0 also identifies the Petition er' s 
president as its sole shareholder. However, the record contains corporate documentation and a June 16, 2015, affidavit 
from the Petitioner's president indicating that the Petitioner is wholly owned by its parent company in China, which , in 
tum, is wholly owned by the Petitioner 's president. 
2 Counsel attested that he contacted the former associate , who no longer works for counsel's firm, regarding this matter, 
but that the former associate declined to comment. 
3 
Matter of U-S-, Inc. 
Although finding no fraud or willful misrepresentation, the Director nonetheless revoked the 
petition's approval because the Petitioner "failed to notify the [U.S.] Department of Labor of the 
familial relationship." However, such concealment of a familial relationship warrants revocation or 
denial of a petition only if accompanied by a fraudulent or willful intent. See 20 C.F.R. § 656.30( d). 
The record does not support a finding that the Petitioner fraudulently or willfully concealed the 
relationship between its president and the Beneficiary on the labor certification. The record 
therefore does not support revocation of the petition's approval based on the Petitioner's 
misrepresentation of the relationship between its president and the Beneficiary. 
B. The Availability of the Job Opportunity to U.S. Workers 
The familial relationship between the Petitioner's president and the Beneficiary also raises the 
question of whether the Petitioner willfully misrepresented the availability of the offered position to 
U.S. workers on the accompanying labor certification. 
By signing an ETA Form 9089, an employer attests, among other things, that "[t]he job opportunity 
has been and is clearly open to any U.S. worker." 20 C.F.R. § 656.10(c)(8). "This provision infuses 
the recruitment process with the requirement of a bonafide job opportunity: not merely a test of the 
job market." Matter of Modular Container Sys., Inc., 89-INA-228, 1991 WL 223955, *7 (BALCA 
1991) (en bane) (referring to the former, identical regulation at 20 C.F.R. § 656.20(c)(8)). 
USCIS may deny a petition accompanied by a labor certification that does not comply with DOL 
regulations. See, e.g., Matter of Sunoco Energy Dev. Co., 17 I&N Dec. 283, 284 ( Reg'l Comm'r 
1979) (upholding a petition's denial where the accompanying labor certification was invalid for the 
area of intended employment). 
A familial relationship between the alien and the employer does not establish the lack 
of a bonafide job opportunity per se. Ultimately, the question of whether a bonafide 
job opportunity exists in situations where the alien has a familial relationship with the 
employer depends on 'whether a genuine determination of need for alien labor can be 
made by the employer corporation and whether a genuine opportunity exists for 
American workers to compete for the opening.' [citing Matter of Modular Container 
Sys., supra, at *7}. Therefore, the employer must disclose such relationships, and the 
[adjudicator] must be able to determine that there has been no undue influence and 
control and that these job opportunities are available to U.S. workers. When the 
employer discloses a family relationship, and the application raises no additional 
denial issues, the employer will be given an opportunity to establish, to the 
[adjudicator's] satisfaction, that the job opportunity is legitimate and, in the context of 
the application, does not pose a bar to certification. The [adjudicator] will consider 
the employer's information and the totality of the circumstances supporting the 
application in making this determination. 
4 
Matter of U-S-, Inc. 
U.S. Dep't of Labor, Office of Foreign Labor Certification, "OFLC Frequently Asked Questions & 
Answers," at http://www.foreignlaborcert.doleeta.gov/faqsanswers.cfm (accessed Feb. 11, 2016). 
In determining whether a bona .fide job opportunity exists, adjudicators must consider multiple 
factors, including but not limited to, whether a beneficiary: is in a position to control or influence 
hiring decisions regarding the offered position; is related to corporate directors, officers, or 
employees; incorporated or founded the company; has an ownership interest in it; is involved in the 
company's management; sits on its board of directors; is one of a small group of employees; and has 
qualifications matching specialized or unusual job duties or requirements stated in the labor 
certification. !d. at *8. Adjudicators must also consider whether a beneficiary's pervasive presence 
and personal attributes would likely cause the petitioner to cease operations in the beneficiary's 
absence and whether the employer complied with regulations and otherwise acted in good faith. !d. 
In the instant case, many of the Modular Container factors do not apply. The record does not 
indicate that the Beneficiary incorporated or founded the petitioning corporation, has an ownership 
interest in it, or sits on its board of directors. The record also does not indicate that the Beneficiary's 
qualifications match specialized or unusual job duties or that the Petitioner would cease operations 
without the Beneficiary's involvement. 
However, the Petitioner admits the Beneficiary's familial relationship to its president. The 
Beneficiary also appears to be one of a small group of employees, as the Petitioner stated its 
employment of 15 people on the Form I-140, Immigrant Petition for Alien Worker.3 
The record also indicates the Beneficiary's involvement in the Petitioner's management, although 
not until after the filing of the labor certification on December 12, 2008. The record contains a 
November 16, 2012, letter from the Petitioner's president in support of a nonimmigrant visa petition 
on behalf of the Beneficiary, indicating the Beneficiary's promotion to "Shop Manager" in 2009 and 
"Executive Manager" in 2013. The Beneficiary's November 18, 2013, sworn statement similarly 
indicates his promotion to "Administrative Manager in charge of the factory" in 2010 where he 
supervised seven of the Petitioner's 15 employees. 
Because the Beneficiary did not assume a managerial position with the Petitioner until after the labor 
certification's filing, the record does not indicate his ability to control or influence hiring decisions 
regarding the offered position. The record also does not otherwise indicate the Beneficiary's ability 
to hire or fire employees. 
The Petitioner submitted recruitment documentation that indicates it received only one application 
from a U.S. worker for the offered position during labor certification proceedings. The record 
indicates the Petitioner lawfully rejected the applicant for lacking experience in the offered position. 
3 The record indicates the Petitioner's employment of the Beneficiary's wife. However, because her job duties with the 
Petitioner are unclear, the record does not indicate whether her employment affected the availability of the offered 
position to U.S. workers. 
Matter of U-S-, Inc. 
Thus, after careful consideration of all of the Modular Container factors, the preponderance of the 
evidence indicates the availability of the offered position to U.S. workers. The record therefore does 
not indicate the Petitioner's fraudulent or willful misrepresentation ofthe availability of the position 
to U.S. workers on the labor certification. 
II. THE BONA FIDES OF THE JOB OFFER 
An employer may file a petition if it is "desiring and intending" to employ a foreign national in the 
United States. INA § 204(a)(1 )(F). A petitioner must intend to employ a beneficiary pursuant to 
the terms of an accompanying labor certification. See Izdebska, 12 I&N Dec. at 54. 
In the instant case, the accompanying labor certification states the job duties of the offered position of 
stone fabrication technician as processing stone fabrication requests, maintaining machines, and 
controlling fabrication quality. However, as previously indicated, the record contains evidence that the 
Petitioner promoted and employed the Beneficiary in a different position before the petition's filing on 
March 22, 2011. 
In the November 16, 2012, letter in support of a nonimmigrant visa petltwn on behalf of the 
Beneficiary, the Petitioner's president stated that the Beneficiary was promoted to the position of "shop 
manager" in 2009. In a letter in response to a request for evidence on the petition in February 2013, the 
Petitioner's president stated the job duties of the position of shop manager as managing the stone 
fabrication team and operation, conducting quality control, maintaining operations safety, and reporting 
to the executive manager. 
The Beneficiary's November 18, 2013, sworn statement similarly states that he was promoted to the 
position of "Administrative Manager in charge of the factory" in 2010. Thus, at the time of the 
petition's filing in 2011, the record indicated that the Petitioner employed the Beneficiary in a position 
with more responsibilities than the offered position, suggesting that the Petitioner no longer intended to 
employ him in the offered position. 
In response to the Director's NOIR, the Petitioner asserted that the Beneficiary had "outperformed his 
job" and should not be penalized for his promotion if he was qualified for the offered position. Counsel 
also asserted that the Petitioner intends to employ the Beneficiary in the offered position because of a 
"voluntary elimination of a line of jobs based on changed business plan." However, the record does not 
contain evidence to support that assertion. See INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984) 
(finding that counsel's unsupported assertions do not establish facts of record). 
On appeal, the Petitioner asserts that the Beneficiary "has never left the job that he was originally 
offered, and the company has never hired another Stone Fabrication Technician to replace him. 
Instead, he was given more responsibilities to manage [the] stone cutting and fabrication shop in the 
company." 
The Petitioner's assertions are contradictory. The first statement states that thr;: Beneficiary 
"outperformed his job," while the second statement asserts that he "never left the job." The 
(b)(6)
Matter of U-S-, Inc. 
contradictory assertions cast doubt on the true facts and therefore on the Petitioner's claimed 
intention to employ the Beneficiary in the offered position. See Ho, 19 I&N Dec. at 591 (requiring a 
petitioner to meet its burden of proof and resolve inconsistencies of record by independent, objective 
evidence). 
The Petitioner's assertion on appeal is also contradicted, in part, by the Beneficiary's sworn 
statement ofNovember 18, 2013. The Beneficiary told the USCIS officer that, since his promotion 
to a managerial position, the Petitioner hired two other employees in his former position and that his 
responsibilities included training those employees. 
In addition, a petitioner cannot make material changes to a petition that it has already filed in an 
attempt to make an apparently deficient petition 
conform to Service requirements. Matter of Izummi, 
22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). The addition of responsibilities to the job duties of 
the offered position would materially change the petition. The DOL would likely have classified the 
Beneficiary's current managerial position as a different occupation than the offered position. Thus, 
the Beneficiary's current position would likely have required a higher proffered wage, may have 
entailed different job requirements, and may have attracted more U.S. applicants. We therefore 
reject the Petitioner's argument that the Beneficiary remains in the offered position with additional 
responsibilities. 
For the foregoing reasons, the record does not establish that the Petitioner intended to employ the 
Beneficiary in the offered position specified on the accompanying labor certification. We will 
therefore affirm the Director's revocation of the petition's approval and dismiss the appeal. 
III. THE PETITIONER'S ABILITY TO PAY THE PROFFERED WAGE 
The Director also could have revoked the petition's approval because the record did not establish the 
Petitioner's ability to pay the proffered wage at the time of the petition's approval. 
A petitioner must demonstrate its continuing ability to pay a proffered wage from a petition's 
priority date until a beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. Jd. 
The record demonstrates that the Petitioner paid the Beneficiary below the proffered wage of $49,525 
per year in 2008, 2009, and 2010. USCIS records also show that the instant Petitioner filed three Forms 
I-140 for other beneficiaries that remained pending at the time of the instant petition's approval on 
December 19,2011. 4 
4 users records identify the other pending petitions by the following receipt numbers: 
Matter of U-S-, Inc. 
A petitioner must demonstrate its ability to pay the proffered wage of each petition it files. See 8 C.F.R. 
§ 204.5(g)(2). Therefore, the instant Petitioner must have established its ability to pay the combined 
proffered wages of the instant Beneficiary and the beneficiaries of the other petitions that remained 
pending at the time of the instant petition's approval. The Petitioner must have demonstrated its ability 
to pay the combined proffered wages from the instant petition's priority date until the other 
beneficiaries obtained lawful permanent resident, or until their petitions were denied, withdrawn, or 
revoked. See Patel v. Johnson, 8 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our denial of a 
petition where the petitioner did not establish its ability to pay multiple beneficiaries). 
The record does not document the priority dates or proffered wages of the other pending petitions, or 
whether the Petitioner paid wages to any of the other beneficiaries. The record also does not indicate 
whether any of the other petitions were withdrawn, revoked, or denied, or whether any of the other 
beneficiaries obtained lawful permanent residence. 
The record at the time of the petition's approval did not establish the Petitioner's continuing ability to 
pay the combined proffered wages of the instant Beneficiary and the beneficiaries of its other petitions. 
Thus, in any future filings in this matter, the Petitioner should provide additional information about the 
pending petitions to demonstrate its ability to pay the combined proffered wages at the time of the 
petitions' approval. 
IV. CONCLUSION 
The record does not establish the Petitioner's fraudulent or willful misrepresentation of a material fact 
on the accompanying labor certification based on the familial relationship between the Petitioner's 
president and the Beneficiary. However, the record does not establish the Petitioner's intention to 
employ the Beneficiary in the offered position. We will therefore affirm the Director's revocation of 
the petition's approval and dismiss the appeal. 
The petition's approval will be revoked for the above stated reasons, with each considered an 
independent and alternative basis for revocation. As in visa petition proceedings, a petitioner in visa 
revocation proceedings bears the burden of proving eligibility for the benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Ho, 19 I&N Dec. at 589. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of U-S-, Inc., ID# 16144 (AAO Mar. 25, 2016)