dismissed EB-3 Case: Travel Services

U.S. Citizenship 
and Immigration 
Services 
In Re : 17448270 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP . 22, 2022 
The Petitioner, a travel agency, seeks to employ the Beneficiary as a manager of travel and tours. It 
requests ski11ed worker classification for the Beneficiary under the third preference immigrant 
category . 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" immigrant classification allows a U.S. employer to 
sponsor a foreign national for lawful permanent resident status to work in a position that requires at least 
two years of training or experience. 
The petition was initially approved by the Director of the Texas Service Center on May 10, 2006. The 
approval was subsequently revoked on November 30, 2009, by the Director of the Nebraska Service 
Center, on multiple grounds. The Director found that the Petitioner committed fraud or willfully 
misrepresented material facts in the labor certification with respect to its work address and the familial 
relationship between the Beneficiary and the Petitioner's owner /corporate officers . Based on the 
finding of fraud or willful misrepresentation of material facts the Director invalidated the labor 
certification and revoked the approval of the petition on the ground that it was not supported by a valid 
labor certification. As an additional ground for denial, the Director found that the Petitioner did not 
establish its ability to pay the proffered wage in the years 2006, 2007, and 2008, and thus did not 
establish its continuing ability to pay the proffered wage from the priority date of November 2, 2005, 
onward. 
The Petitioner filed an appeal, which we dismissed . The Petitioner has since then filed 13 motions to 
reopen and reconsider, 12 of which we have dismissed and the latest of which is currently before us . 
Upon review, we will dismiss the combined motion. 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R . 
§ 103.5(a)(2). A motion to reconsider must establish that our previous decision was based on an 
incorrect application of law or policy and that the decision was incorrect based on the evidence of 
record at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
As a preliminary matter, we note that motions for the reopening or reconsideration of immigration 
proceedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial 
on the basis of newly discovered evidence. See INS v. Doherty, 502 U.S. 314, 323 (1992)(citing INS 
v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy burden ." INS 
v. Abudu, 485 U.S. at 110. 
II. ANALYSIS 
A. Petitioner's Ability to Pay the Proffered Wage 
In prior decisions we found, consistent with the revocation decision in 2009, that the Petitioner had 
not established its ability to pay the proffered wage in the years 2006-2008. In the current motion the 
Petitioner refers to previously submitted evidence relating to those years which has already been 
considered in our previous decisions. No new facts are submitted with the current motion, nor any 
new documentation related to the Petitioner's ability to pay the proffered wage in the years 2006-2008. 
Nor does the Petitioner identify any incorrect application oflaw or policy in our prior decision(s) with 
regard to the Petitioner's ability to pay the proffered wage during the years 2006-2008. 
Accordingly, the Petitioner has not shown proper cause for reopening the proceedings or reconsidering 
our decision(s) on the issue of its continuing ability to pay the proffered wage from the priority date 
of the petition until the date of revocation. The combined motion is dismissible on this ground alone. 
B. Fraud or Willful Misrepresentation of Material Facts 
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 
a petition for classification. Section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(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. § l l 82(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 of Izdebska, 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 of Sunoco 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 date 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 Act requires USCIS to determine eligibility for the visa classification requested . See section 
204( a)( 1 )(F) of the Act, 8 U.S. C. § 1154( a)( 1 )(F). Certain classifications require a labor certification 
to establish eligibility . See section 203(b)(3)(C) of the Act, 8 U .S.C. § 1153(b)(3)(C); 8 C .F.R. 
§ 204.5(a)(2); 8 C.F.R. § 204.5(1)(3)(i). Section 204(b) of the Act allows a petition's approval only 
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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 ). For those petitions requiring a labor certification, USCIS' s investigation into the facts must 
include consultation with DOL. Id. Thus, the labor certification is not conclusive evidence of 
eligibility. Instead, it is a pre-condition to being eligible to file a Form I-140. USCIS is responsible 
for reviewing the Form I-140, and the labor certification is incorporated into the Form I-140 by statute 
and regulation. See section 203(b)(3)(C) of the Act, 8 U.S.C. § l 153(b )(3)(C); 8 C.F.R. § 204.5(a)(2); 
8 C.F.R. § 103.2(b )(i). USCIS is required to approve an employment-based immigrant visa petition 
only where it is determined that the facts stated in the petition, which incorporates the labor 
certification, are true and the foreign worker is eligible for the benefit sought. Section 204(b) of the 
Act, 8 U.S.C. § 1154(b). 
As the Director indicated in the revocation decision and we have affirmed in every decision since then, 
the record shows that the facts stated in the petition, which incorporates the labor certification, were 
not true insofar as the Petitioner denied the existence of a familial relationship between its owner and 
the Beneficiary. Thus, the petition did not meet the basic requirement of section 204(b) of the Act 
because not all of the stated facts were true. No new facts are submitted with the current motion, nor 
any new documentation related to the material misrepresentation on the labor certification regarding 
the familial relationship between the Petitioner and the Beneficiary. Nor does the Petitioner identify 
any incorrect application oflaw or policy in our prior decision(s) with regard to this issue. 
Accordingly, the Petitioner has not shown proper cause for reopening the proceedings or reconsidering 
our decision(s) on the issue of its misrepresentation of a material fact concerning the familial 
relationship between its owner and the Beneficiary. The combined motion is dismissible on this 
ground as well. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not shown proper cause for reopening the 
proceedings or reconsideration of our prior decision(s). Therefore, the Petitioner has not established 
eligibility for the benefit sought. 1 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
1 The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of 
the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
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