remanded EB-3 Case: Bookkeeping

U.S. Citizenship 
and Immigration 
Services 
In Re : 16154123 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 8, 2022 
The Petitioner seeks to employ the Beneficiary as a bookkeeping clerk under the third-preference, 
immigrant visa category for skilled workers . See 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 with at least two years of training or experience for lawful permanent 
resident status . The Texas Service Center Director initially approved the Form 1-140, Immigrant 
Petition for Alien Workers (petition), then revoked that approval after issuing two notices of intent to 
revoke (NOIR). The matter is now before us on appeal. 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 I&N Dec. 369, 375 (AAO 2010) . We review the questions in this matter de nova. 
Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we conclude 
that a remand is warranted in this case . 
I. LAW 
Immigration as a skilled worker usually follows a three-step process . First , to permanently fill a 
position in the United States with a foreign worker , a prospective employer must obtain certification 
from the U.S. Department of Labor (DOL) on an ETA Form 9089 (labor certification) . See section 
212(a)(5) of the Act, 8 U.S.C . § 1182(a)(5) . If the DOL approves a position, an employer must next 
submit the certified labor application with an immigrant visa petition to U.S. Citizenship and 
Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. § 1154. IfUSCIS grants a petition, 
a designated noncitizen may finally apply abroad for an immigrant visa or, if eligible , for adjustment 
of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. USCIS 
may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and unrebutted 
record at the time of the notice's issuance would have warranted the petition's denial. Matter of 
Estime , 19 l&N Dec. 450, 451 (BIA 1987). If a petitioner's NOIR response does not overcome the 
stated revocation grounds, USCIS may revoke a petition's approval. Id. at 451-52 . 
II. ANALYSIS 
The Director initially approved the petition in March 2016, then revoked the petition's approval in 
August 2020 for the following bases, with each identified as an independent ground: 
• The Petitioner did not demonstrate the Beneficiary possessed the required experience; 
• The Beneficiary misrepresented her work experience; 
• The Petitioner did not establish a bona fide job offer existed; and 
• The Petitioner misrepresented a material fact relating to a familial relationship. 
The Director further invalidated the DOL labor certification based on these issues. However, the 
record does not sufficiently support any of the above bases for revoking the petition's approval for the 
reasons discussed below. 
A Beneficiary's Experience 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states that to qualify for the skilled worker 
classification: 
[T]he petition must be accompanied by evidence that the [beneficiary] meets the 
educational, training or experience, and any other requirements of the individual labor 
certification . . . . The minimum requirements for this classification are at least two 
years of training or experience. 
The Petitioner filed the labor certification supporting this petition in August 2014 and the petition in 
November 2015, each listing the position as a bookkeeping clerk. On the labor certification, the 
Petitioner and the Beneficiary indicated the experience that qualified her for the position occurred 
between 1995 and 2002 in a foreign country. The Petitioner supported the Beneficiary's experience 
claim with a document titled Certificate of Employment issued in July 2014. That document reflects 
the Beneficiary worked as a bookkeeping clerk listing the Department as thtj I 
Water Supply Construction Office from May 1995 to February 2002 in a full-time capacity, it listed 
her duties, and the document contains a customary seal from the issuing authority, but it is not 
accompanied by a signature or text reflecting the author's name. Responding to a February 2016 
request for evidence, the Petitioner provided a second experience letter that was nearly identical to the 
first letter, except the new letter contained a printed name and physical signature from the letter's 
author. 
After initially accepting this evidence as sufficient and approving the petition in March 2016, the 
Director issued the two NOIRs on the same date, in part, requesting additional material to demonstrate 
the Beneficiary possessed the required experience before the Petitioner filed the labor certification. 
Responding to the NOIRs, the Petitioner provided a third experience letter verifying her employment 
at IWater Resources Corporation as a bookkeeping clerk for the same timeframe identified in 
the initial letters. 
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1. Possession of the Required Experience 
The second and third experience letters satisfied the requirements for this type of evidence listed 
8 C.F.R. §§ 204.5(g)(l), (1)(3)(ii)(A). In the Director's final revocation notice, when reviewing a 
"Certificate of Income" that listed the Beneficiary's "Home Address," the Director raised the issue 
that it was unlikely the Beneficiary traveled approximately two and a half hours each way to commute 
from her residential address listed on the third experience letter to the location of the work identified 
on the labor certification. The Director rejected this claimed fact as they did not "believe it to be true." 
We note the Director did not inquire where the Beneficiary physically resided when she accrued the 
experience at IWater Resources Corporation. In other words, it is possible the Beneficiary listed 
her home address on the Certificate of Income, but that was not the actual address where she resided. 
More importantly, this adverse information was not contained in either NOIR and the Director did not 
offer the Petitioner an opportunity to address it before revoking the petition's approval. The Board of 
Immigration Appeals (BIA) determined that"[ a] decision to revoke approval of a visa petition can only 
be grounded upon ... the factual allegations specified in the notice of intention to revoke." Matter of 
Arias, 19 I&N Dec. 568, 570 (BIA 1988). Good and sufficient cause to revoke an approved petition 
means the evidence in the record at the time of the decision, including explanatory and rebuttal evidence, 
warrants a denial based on a petitioner's failure to sustain his or her burden of proof Matter of R. I. 
Ortega, 28 I&N Dec. 9, 10 (BIA 2020) (citingEstime, 19 I&N Dec. at 451-52). A "notice of intention 
to revoke must include a specific statement of the facts and evidence underlying the proposed action, 
and the petitioner must be given an opportunity to counter such facts and evidence." Id. at 570 n.4 
(BIA 1988). "Where a notice of intention to revoke is [ served and] ... the petitioner is unaware and has 
not been advised of derogatory evidence, revocation of the visa petition cannot be sustained. Estime, 
19 I&N Dec. at 452. 
In the interest of due process and fairness, petitioners must be afforded the appropriate opportunity to 
advocate for and demonstrate eligibility. Including adverse reasons in a final revocation notice that were 
not detailed within an NOIR is not a proper method to revoke a petition's approval. Es time, 19 I&N Dec. 
at 452; R. I. Ortega, 28 I&N Dec. at 10. In the same manner that filing parties must adhere to the process 
and procedural requirements specified in the Act and the regulations, so must we as government 
representatives. "If men must tum square comers when they deal with the government, it cannot be 
too much to expect the government to tum square comers when it deals with them." Niz-Chavez v. 
Garland, 141 S. Ct. 1474, 1486 (2021). 
Here, the Director's decision did not comply with the regulation or other requirements pertaining to 
revoking a petition's approval. And we withdraw their determination as it relates to whether the 
Beneficiary possessed the required work experience to qualify for the offered position. 
2. Misrepresentation Relating to the Beneficiary's Work Experience 
As part of the Director's determination that the Petitioner and the Beneficiary misrepresented a 
material fact within the petition filing, they decided conflicting information existed between her work 
experience location listed on the labor certification when compared to the third experience letter. The 
labor certification reflects the Beneficiary worked inl !South Korea while the Director's 
decision reflects the third experience letter "states that she worked in I Korea." 
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The Director was incorrect about the Beneficiary's work location as represented in the third experience 
letter. There are three experience letters in the record. The author of the first two letters did not state 
the Beneficiary worked in I ISouth Korea. Instead, they indicated the Beneficiary worked under 
the Department of lw ater Supply Construction Office. They do not state the 
location of the office where the Beneficiary worked, nor do they reflect whether that office is still 
located in the city where it was situated when she worked there from 1995 through 2002. 
The third experience letter reflects the Beneficiary worked for the I I Water Resources 
Corporation, but it also does not reveal the location where she performed the work she relies on as 
previous experience. Like some other adverse information, the Director did not include this allegation 
in either NOIR, and it should not serve as a basis to revoke the petition's approval without affording 
the Petitioner an opportunity to address the issue. As a result, the record does not support the 
Director's allegation that the Beneficiary misrepresented a material fact relating to her work 
experience, and we withdraw this determination. 
B. Job Opportunity Bona Fides 
Under the bona fides of the job offer concept, the Director revoked the petition's approval on two 
primary bases. The first basis was the likelihood that the Beneficiary would not work for the 
petitioning organization and the second was associated with a familial relationship between the 
Beneficiary's spouse and the petition's signatory. Regarding the first basis, within the Director's 
NOIR and revocation notices, they stated: 
In reviewing the evidence in the record, the beneficiary appears to be the owner and 
president of lwhich appears to be a restaurant. This was indicated by the 
ETA Form 9089 and also listed on the beneficiary's Form G-325A. Also, according to 
the web site for the Georgia Secretary of State, the beneficiary is shown to be the 
President and owner of this company. The beneficiary is shown to have been operating 
this company since its incorporation, June 8, 2010. It does not appear that the 
beneficiary will be an employee for the petitioning company. 1 
Responding to one of the NOIRs, the Petitioner noted the Beneficiary organized and registeredD 
in 2010 and she operated that business while on her nonimmigrant treaty investor's visa. The 
Beneficiary operated the business from 2010 through 2014 when she handed the organization over to 
another individual, and she ceased operating the company. I I dissolved after another person 
took over the organization from the second owner. Also within the NOIR response, the Petitioner 
claimed the Beneficiary has been working for them since 2018. As is evidenced in the above quote, 
the Director failed to respond to these claims in the final revocation notice. As such we withdraw the 
Director's determination that this case lacks a bona fide job offer on this basis. 
The remaining basis the Director relied on in determining no bona fide job offer existed was the 
possible relationship between the Beneficiary's spouse and the individual who formed and registered 
1 The NOIR did not contain this exact quote, but it does include this same allegation. 
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the petitioning organization,._I _____ Pertaining to this relationship, the Director noted the 
following in the revocation notice: 
• According to various USCIS records and databases,! I has been associated with 
the Beneficiary's husband since 2008; 
• I I is a possible relative of the Beneficiary's husband; 
• Bothl I and the Beneficiary's husband listed the same residential address on 
previous applications; 
• The labor certification failed to disclose this familial relationship between the parties; 
• A relationship invalidating a bona fide job offer may arise where the beneficiary is related to 
the petitioner by blood or the relationship may be financial, by marriage, or through friendship. 
See Matter of Sunmart 374, 00-INA-93 (BALCA May 15, 2000); 
• A material issue in this case is whether the Petitioner deliberately misrepresented its 
relationship to the Beneficiary and whether the job offer was open and available to all qualified 
U.S. workers; and 
• By claiming the Petitioner made a bona fide job offer, the Petitioner willfully made a false 
representation, and it is material to whether the Beneficiary is eligible for the requested benefit. 
The Petitioner responded to the relationship allegation in one of the NOIR responses in which they 
denied any familial relationship between any of the parties. The Petitioner explained that the 
Beneficiary's spouse andl I were acquaintances, and because her spouse did not have any 
family in the United States, he listed I !information when he entered the country. Again, the 
Director's final revocation notice did not address the information the Petitioner provided in the NOIR 
response to rebut the agency's allegations and we withdraw the Director's finding that the Petitioner 
misrepresented a material fact on this basis. 
In instances such as this, it is appropriate to apply a totality of the circumstances approach to decide 
whether a personal or familial friendship has the potential to impact whether a bona fide job 
opportunity exists. A DOL appellate authority has stated: "In order to determine whether a bona fide 
job opportunity exists, the Board [Board of Alien Labor Certification Appeals (BALCA)] must weigh 
the totality of the circumstances, considering [ several factors]." Matter of Apex Logistics Int 'l, Inc., 
2013-PER-03390, at *3 (BALCA May 11, 2018). It further made reference to another BALCA 
decision (Matter of MME Stucco, LLC, 2011-PER-01881 (Aug. 30, 2016)) that cited to the PERM 
final rule noting that no single factor is controlling. 
We observe the Director's final revocation decision characterized the relationship a familial one 
instead of a friendship. Additionally, the Beneficiary has been working for the petitioning 
organization for several years and in response to the NOIR they provided evidence that they made a 
good faith effort in the recruitment process. However, the Director did not address this claim and 
evidence in the decision to revoke the petition's approval. 
Further, the Beneficiary no longer operates! I nor has she since 2014. Even though the 
Petitioner provided evidence to support those claims, the Director did not address the claims or the 
evidence in the revocation notice. We will not make a totality of the circumstances decision here, in 
the first instance, when that is in the Director's purview. If the Director determines it is necessary, 
they may perform such an analysis on remand. Ultimately, we are withdrawing what appears to be 
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the two main bases the Director relied on to determine there was a lack of a bona fide job offer 
associated with this petition filing. 
C. Labor Certification Invalidation 
Although the Director's revocation decision reflects they were invalidating the labor certification 
according to 20 C.F.R. § 656.30( d), neither the record nor USCIS systems reflect whether they took 
any action to notify DOL of the invalidation action. If on remand the Director determines the labor 
certification should no longer be invalidated, they should take the necessary steps to remove any 
confusion about the labor certification's status in the physical record, within USCIS systems, as well 
as with DOL. 
III. CONCLUSION 
The Director did not properly revoke the approved petition as the final revocation notice contained 
adverse elements not included in the NOIR. This did not afford the Petitioner the opportunity of 
addressing the issues presented in the final revocation. Additionally, the final revocation notice did 
not address some rebuttal claims and evidence the Petitioner provided, and we noted above other errors 
on the Director's part. We will therefore remand the matter to the Director to either issue a new NOIR 
in accordance with the applicable provisions or to process the case in accordance with the claims and 
the evidence in the record. The Director should also take steps to rectify the invalidated labor 
certification's status, if necessary. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision, 
which, if adverse to the Petitioner, shall be certified to us for review. 
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