remanded EB-3 Case: Agriculture

PUBLIC C0.PY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
PETITION: 
 Immigrant petition for Alien Worker as an Other Worker, Unskilled pursuant to section 
203(b)(3)(iii) of the Immigration and Nationality Act, 8 U.S.C. 3 1 153(b)(3)(iii) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
~ob'ert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: the Director, Vermont Service Center, initially approved the employment-based preference visa 
petition. In connection with a review of the beneficiary's alien registration file number, the director served the 
petitioner with notice of intent to revoke the approval of the petition (NOIR). In a Notice of Revocation (NOR), 
the director ultimately revoked the approval of the Immigrant Petition for Alien Worker (Form 1-140). The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The director's decision dated January 25, 
2006 shall be withdrawn, and the matter remanded to the director for the full adjudication of the 1-140 petition. 
The petitioner is an apple orchard. It seeks to employ the beneficiary permanently in the United States as an 
orchard supervisor. The petition was filed for classification of the beneficiary under section 203@)(3)(A)(i) of the 
Immigration and Nationality Act (the Act) as a skilled worker, which the petitioner subsequently changed to unskilled 
worker, pursuant to pursuant to section 203(b)(3)(iii) of the Immigration and Nationality Act, 8 U.S.C. 
3 1153@)(3)(iii). As required by statute, the petition was accompanied by an individual labor certification, the 
Application for Alien Employment Certification (Form ETA 750), approved by the Department of Labor (DOL). 
The petitioner's Form ETA 750 was filed with DOL on January 5, 1998 and certified by DOL on February 24, 
1998. The petitioner subsequently filed Form 1-140 with CIS on March 13, 1998, which was approved on June 
22, 2002. The beneficiary's application for lawful permanent residence (Form 1-485) in connection with the 
approved Form 1-140 was pending at the time the director issued the NOR. 
The approval of this petition was revoked as a result of the beneficiary's previous immigrant visa petition. A 
Form 1-1 30, Petition for Alien Relative, was filed on the beneficiary's behalf on August 18, 1997. Concurrent 
with the filing of Form 1-130, the beneficiary also sought lawful permanent residence and employment 
authorization as the immediate relative of a U.S. citizen. The file contains the completed forms, signed by the 
beneficiary, a copy of the claimed wife's birth certificate and a copy of a Certificate of Marriage between the 
beneficiary and 
In connection with the Form 1-130, the district director of the CIS office located in Palm Beach Gardens, Florida 
issued a decision dated February 23, 1999. The decision denied the Form 1-130 because the petition had been 
terminated. A memorandum in the file indicates the petition was terminated because the beneficiary did not show 
up for an adjustment of status interview on August 25, 1998. The Form 1-140 was filed on January 28,2004 and 
subsequently approved on June 15, 2004, and the beneficiary filed Form 1-485 with supporting forms and 
documentation on January 23,2004. 
Section 204 of the Act governs the procedures for granting immigrant status. Section 204(c) provides for the 
following: 
Notwithstanding the provisions of subsection (b)' no petition shall be approved if 
(1) the alien has previously been accorded, or has sought to be accorded, an immediate 
relative or preference status as the spouse of a citizen of the United States or the spouse 
of an alien lawfully admitted for permanent residence, by reason of a marriage 
1 
 Subsection (b) of section 204 of the Act refers to preference visa petitions that are verified as true and 
forwarded to the State Department for issuance of a visa. 
Page 3 
determined by the [director] to have been entered into for the purpose of evading the 
immigration laws or 
(2) the [director] has determined that the alien has attempted or conspired to enter into a 
marriage for the purpose of evading the immigration laws. 
In addition, 8 C.F.R. 8 204.2, (a)(l)(ii) states: 
Fraudulent marriage prohibition. Section 204 (C) of the act prohibits the approval of a visa 
petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for 
the purpose of evading the immigration laws. The director will deny a petition for immigrant 
visa classification filed on behalf of any alien for whom there is substantial and probative 
evidence of such attempt or conspiracy, regardless of whether that alien received a benefit 
through the attempt or conspiracy. Although it is not necessary that the alien have been 
convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or 
conspiracy must be contained in the alien's file. 
On June 15, 2005, the director sent a Notice of Intent to Revoke (NOIR) to the petitioner stating the following: 
A review of the beneficiary's alien registration file number indicates that he 
conspired to procure an immigration benefit through an alleged marriage that was a fraud at 
its inception. 
The director continued: 
Based on a marriage 
 in Palm Beach Gardens, 
Florida, the beneficiary married 
 n September 26, 1996 in West 
Palm Beach, Florida. 
 for Alien Relative 
(Form 1-1 30) for the beneficiary. On that same day, the beneficiary filed an Application to 
Register Permanent Residency or Adjust Status (Form 1-485). The basis for the beneficiary's 
application was his marriage to Ms. ho claimed to be a U.S. citizen. 
On April 22 and August 25, 1998, the beneficiary and Ms 
 ere scheduled to appear 
for interview in Palm Beach Gardens, Florida. They faile 
 and did not request that 
the interview be rescheduled. Therefore, on February 23, 1999, the Forms 1-130 and 1-485 
filed on behalf of the beneficiary were denied. The Form 1-485 was denied pursuant to 
Section 203(f) of the INA. 
 I 
Evidence in the file fi-om the West Palm Beach District Offices concludes that Ms 
birth certificate was probably fraudulent, and that the marriage certificate for 
and the beneficiary was unquestionably ffaudulent. 
Further, according to the Form G-325A located with the beneficiary's current Form 1-485 
application, the beneficiary claims to have been married to 
- since June 14, 
Page 4 
1986. He failed to disclose this information on the Form 1-1 30 filed by - 
It appears that the marriage betwee- andwas entered into solely 
for the purpose of procuring immigration benefits on behalf of the beneficiary. 
In light of the aforementioned facts, it appears that the beneficiary and Ms. 
 onspired 
to enter into a marriage for the purpose of circumventing immigration 
evidence of record, it appears that the marriage was a sham at its inception. For this reason, it 
appears that Form 1-140 petition cannot be approved. 
The NOIR provided no further description of discrepancies contained in the beneficiary's records, although the 
NOIR indicates that enclosures were sent to the petitioner. While the enclosures are not identified, the record also 
contains a memorandum to the file dated October 5. 1998 from the CIS West Palm Beach office. This redacted 
document stated the following: "The birth certificate of 
 appears to be bogus and the marriage 
to subject is definitely 
 number of the marriage certificate 
een used in other fraud cases." This memorandum and copies of the alleged wife's birth 
certificate and the marriage certificate appear to have been provided to the beneficiary and counsel either with the 
NOIR or when the approved petition was revoked. 
In the NOR, the director requested that the beneficiary provide evidence to establish that the marriage between 
him and 
 was not entered into for the purpose of evading immigration law. The director provided a 
list of documentation that could be provided, including leases showing joint tenancy of a common residence, 
records showing commingling of financial resources, birth certificates of children born to the beneficiary and his 
wife, and affidavits of third parties having knowledge of the bona fides of the marriage relationship. The director 
added that any affidavits should be supported by one or more types of documentary listed above, and should 
contain the full 
w 
address, date and place of birth of the person making the affidavit and his or her 
relationship to M 
 or the beneficiary, if any. The affidavit must contain complete information and details 
explaining how the person acquired his or her knowledge of the marriage. The director added that such persons 
may be required to testify before an immigration officers as to the information contained in the affidavit. 
The director also requested evidence to establish that Ms. intent in marriage was to establish a life 
together. The director indicated that evidence of such an intent might include but was not limited proof that the 
beneficiary had been listed as ~ssouse on insurance policies, property leases, mortgages, income tax 
forms or bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared 
residence and experience. 
The director also requested evidence of the legal termination of the marriage of and the 
beneficiary, such as a divorce decree, death certificate, or annulment document. The director added that in order 
for the legal termination of a marriage to be considered valid for immigration purposes, it must have been 
registered with a civil authority. 
The AAO notes that the NOIR was properly issued pursuant to Matter of Arias, 19 I&N Dec. 568 (BIA 1988) and 
Matter ofEstime, 19 I&N Dec. 450 (BIA 1987). Both cases held that a notice of intent to revoke a visa petition is 
properly issued for "good and sufficient cause" when the evidence of record at the time of issuance, if 
unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet 
his burden of proof. The director's NOIR sufficient1 detailed the evidence of the record, primarily questionable 
documentation including the birth certificate of Ms. 
ias 
and the marriage certificate between the beneficiary 
and Ms 
 and also the fact that the beneficiary 1 not reveal the prior marriage on his 1-485 Form. In 
version of the memo that addressed the questions of fraudulent documents appears to have 
been provided to the beneficiary and his attorney of record. 
In response to the NOIR, counsel submits a letter dated July 14, 2005. In her letter, counsel stated that the 
beneficiary entered the United States more than fifteen years ago and that he entered legally as a farm worker. 
Counsel stated that the beneficiary applied for the SAW program2 but was denied under a court decision that 
determined sugar was not a crop. Counsel then stated that beneficiary did not intend to enter into a fraudulent 
marriage or to evade immigration laws. Counsel stated that the beneficiary's friend had an appointment with a 
woman who had obtained permission to work for another friend and that the beneficiary's fiend encouraged the 
beneficiary to come to the appointment with him and apply for permission to work in the United States. Counsel 
stated that when the two persons met the woman, she gave them very little information and they were asked to 
sign one or two papers that were not explained to the beneficiary or his friend, nor were they given a chance to 
read what they were signing. Counsel states that all the beneficiary was told was that he would receive an 
appointment to go to the immigration office. According to counsel, the beneficiary could not contact this person 
again, as she changed her telephone number and disappeared. Counsel stated that the beneficiary never received 
permission to work and never saw the woman again. Counsel concluded that the beneficiary was cheated by an 
individual who took advantage of a poorly educated farm worker. Counsel also stated that since the beneficiary 
was unaware that the documentation submitted showed a marriage, he was unable to submit the requested 
information. 
On January 25, 2006, the director revoked the approval of the 1-140 petition. The director stated that in response 
to the NOIR, the beneficiary submitted a letter from his attorney and that no additional evidence or documentation 
was submitted with the letter. The director referenced counsel's comments with regard to the beneficiary not 
knowingly intending to commit fraud but rather being mislead by the individual who submitted forms in the 
beneficiary's behalf. The director stated that the statement made by counsel without documentation to verify the 
statement cannot be considered sufficient evidence to overcome the grounds for the revocation of the instant 
petition. 
On appeal, counsel states again that the beneficiary did not enter into a fraudulent marriage and did not intend to 
evade immigration laws. Counsel states the beneficiary was defrauded by someone who stated she could get him 
permission to work, but did not give him information to understand what she intended to do on the beneficiary's 
behalf. 
2 
 Special Agricultural Worker program is a legacy INS program in which certain agricultural workers were 
determined eligible to apply for legal residency. Following litigation over the crops to be included in the program, 
sugar cane was not found to be a perishable commodity, and thus, sugar cane workers were not eligible for the 
program. 
Page 6 
Counsel submits a notarized affidavit from the beneficiary. In this affidavit, the beneficiary states the he lives in 
Modena, New York and has worked as a supervisor for the petitioner, an apple orchard, for almost ten years. The 
beneficiary also stated that he has lived in the United States since 1990 and described his involvement in the 
House of God Church in Newburgh, New York and fbrther states that he has never been arrested, either in the 
United States or in Jamaica. 
The beneficiary then states that he truly regrets following his friend's advice and getting involved with the woman 
in Florida. The beneficiary states that he never had any intention of entering into a marriage or evading the 
immigration law. The beneficiary stated that he entered the United States legally as a farm worker and applied for 
the SAW program and was issued permission to work and travel. 
The beneficiary also states that after his fiend and he met a woman in Florida, all he was told was that he would 
receive permission to work. The beneficiary stated that the woman never gave his friend and him much 
information and that eventually they could not contact her at all. The beneficiary states that the woman deceived 
him and his fiend and cheated them and took advantage of the fact that he did not understand the immigration 
laws. 
The beneficiary concludes by stating that he is not able to submit any documentation with regard to the marriage 
fraud. The beneficiary states that he cannot find the woman who defrauded him and that he is sure that she would 
not assist him if he could find her. The beneficiary adds that if he is not permitted to adjust status to permanent 
residence, it would be a great hardship for him, his wife, and his employer. The beneficiary states that he has 
supervised his crew of apple workers for so many years that it would be difficult to replace him. 
Counsel also submits notarized letters from the son of the 
petitioner and partner in the petitioner's business operations; and 
Hebrew Pentecostal Church, Newburgh, New York. 
In her affidavit, the beneficiary's wife states that she has visited her husband several times previously and that it 
was very difficult living apart from her husband and that she had expected him to become a permanent resident 
when he was issued permission to work and travel under the SAW program. The beneficiary's wife asserts that 
her husband has worked very hard in the United States and has been at the same job for almost ten years. The 
beneficiary's wife states that she knows that her husband and his friend were fooled and cheated by a woman in 
Florida and that her husband had no intention of disobeying the immigration law. The beneficiary's wife states 
that all the beneficiary was told was that he would receive permission to work. 
in his affidavit, states that the beneficiary has been em lo ed by the petitioner since November 1996 
as a supervisor, and is an excellent and reliable worker. Mr. *states that the business relies 
beneficiary and the business would suffer greatly if he were not permitted to stay in the United States. Mr 
states that the beneficiary is familiar with every inch of the vetitioner's avvle orchard and knows how to keeu the 
trees in the best possiblk condition for a good harvest. ~ri. 
 alsd states that the beneficiary is es 
good at supervising work crews and having them pick the apples and keep them from being damaged. Mr 
concludes by stating that he knows the beneficiary to be a man of ho 
 g@ 
d integrity, and that he did not t 1 
the beneficiary would knowingly disobey the immigration law. Mr. 
 adds that the beneficiary is not an 
educated man and could be taken in by unscrupulous people. 
M the pastor of the beneficiary's church, states that the beneficiary and his 
 a part of the 
church family for some time and they are very valuable to the uc ess of the church. Mr 
 escribes the work 
done by both the beneficiary and his wife for the church, Mr.ktates that he 
action against the beneficiary and his that would adversely affect them. Mr. states that he has known them 
for some time, has been to their home, and spent time with their friends and that he has only seen and heard good 
things concerning them. 
The standard for reviewing section 204(c) appeals is laid out in Matter of Tawjk, 20 I&N Dec. 166 (BIA 1990). 
In Tawfik, the Board held that visa revocation pursuant to section 204(c) may only be sustained if there is 
substantial and probative evidence in the record of proceeding to support a reasonable inference that the prior 
marriage was entered into for the purpose of evading immigration laws. See also Matter of Kahy, 19 I&N Dec. 
803 (BIA 1988); Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 1978); Matter of La Grotta, 14 I&N Dec. 110 
(BL4 1972). 
There is not sufficient probative evidence in the record of proceeding to support a reasonable inference that the 
beneficiary entered into a previous marriage for the purpose of evading immigration laws. Rather, the record 
shows that the beneficiary did not enter into a marriage. Instead, the USC sponsor misrepresented to CIS that they 
had. The record, based on the beneficiary's affidavit, supports the beneficiary's signing documents that were used 
in conjunction with a fraudulent 1-130 filing. The record indicates that CIS officials in West Palm Beach 
considered the documents submitted to the record to be similar to those submitted with other petitions found to be 
fraudulent in that the marriage certificate and its number has been used in other relative-based immigrant 
petitions. Action on the 1-130 petition was terminated for this reason and also because of the non-appearance of 
the alleged couple at a CIS interview. The record appears to support the fraudulent nature of the marriage 
document submitted with the 1-130 i 
 . However, the record does not reflect any marriage 
entered into by the beneficiary and 
 Based on the fraudulent marriage certificate, no 
marriage took place in connection with the filing of the previous immediate relative. Therefore section 204(c) is 
not applicable in the instant petition. See Matter of Anselmo 16 I&N 152 (BIA 1977). However, it is noted that the 
beneficiary is inadmissible for fraud pursuant section 212(a)(6)(c) of the Act. The director's decision dated 
January 25,2006 shall be withdrawn, and the matter remanded to the director for the full adjudication of the 1-140 
petition. 
ORDER: The director's decision is withdrawn. The matter is remanded to the director for consideration of the I- 
140 petition.