remanded EB-3 Case: Bookkeeping

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 05, 2024 In Re: 31389680 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a convenience store, seeks to employ the Beneficiary as a bookkeeper. It requests his 
classification as a skilled worker under the third preference immigrant classification. Immigration and 
Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U .S.C. § 1153(b )(3)(A)(i). This employment­
based immigrant classification allows a U.S. employer to sponsor a noncitizen for lawful permanent 
resident status to work in a position that requires at least two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that it has a bona fide job opportunity that is open to any U.S. worker. 1 The matter is now 
before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). While we conduct de novo review on 
appeal, Matter of Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we conclude that a remand 
is warranted in this case because the Director's decision is insufficient for review. Specifically, the 
decision lacks any discussion of the Petitioner's response to a notice of intent to deny (NOID). 
Accordingly, we will withdraw the Director's decision and remand the matter for entry of a new 
decision consistent with the following analysis. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies 
that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered 
position and that employing a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(11) of the 
1 The Director initially denied the petition on July 25, 2019, concluding the Petitioner did not demonstrate that the 
Beneficiary met the minimum experience requirements stated on the labor certification and therefore did not establish that 
he is qualified for the offered position. The Petitioner filed a timely combined motion to reopen and reconsider that 
decision on Form 1-290B, Notice of Appeal or Motion The Director subsequently issued a notice of 
intent to deny on March 9, 2023, and, on October 6, 2023, issued the decision that is now before us on appeal. 
Act. Second, the employer files an immigrant visa petition (Form I-140) 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 beneficiary 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 
At issue in this case is whether the Petitioner established that there is a bona fide job opportunity that 
was open and available to U.S. workers. For the reasons discussed below, we will withdraw the 
Director's decision and remand the matter for further consideration and 
entry of a new decision. 
A labor certification employer must attest 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 attestation "infuses the recruitment process with 
the requirement of a bona fide job opportunity: not merely a test of the job market." Matter a/Modular 
Container Sys., Inc., 89-INA-228, 1991 WL 223955, at 7 (BALCA 1991) (en bane); see 20 C.F.R. § 
656.17(1). 
In both the notice of intent to deny (NOID) issued on March 9, 2023, and in the decision denying the 
petition, the Director addressed the existence of a friendship between the Petitioner's owner and the 
Beneficiary's maternal uncle. The Director, citing Matter ofSunmart, 00-INA-93 (BALCA May 15, 
2020), emphasized 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." The Director determined that "the beneficiary's relationship to the petitioner, the small 
number of employees, and the discrepancies found regarding the place of employment calls into 
question the true availability of the position to all U.S. workers" and concluded that the Petitioner did 
not establish that it made a bona fide job offer. 
On appeal, the Petitioner emphasizes that Director's decision makes no reference to the evidence and 
arguments it provided in its response to the NOID, noting that the denial is "in all substantive matters 
identical to the Notice of Intent to Deny." The Petitioner reiterates its contention that the Beneficiary 
has no personal relationship with its owner. In addition, it maintains that even if the record 
demonstrated that such relationship existed, the Director failed to conduct a "totality of the 
circumstances" test, and "failed to consider all the factors which weigh in favor of finding that a bona 
fide job opportunity exists." Finally, the Petitioner maintains the Director erroneously stated that it 
has a "small number of employees" and failed to explain the "discrepancies found regarding the place 
of employment." 
The Petitioner's assertions are persuasive. The Director's failure to acknowledge the Petitioner's 
response to the NOID was clearly in error. An officer must explain the specific reasons for denying a 
visa petition. See 8 C.F.R. § 103.3(a)(i). This explanation should be sufficient to allow the Petitioner 
a fair opportunity to contest the decision and to allow us an opportunity for meaningful appellate 
review. See, e.g. Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully 
explain the reasons for denying a motion to allow the respondent a meaningful opportunity to 
challenge the determination on appeal). Because the Director did not address the Petitioner's response 
to the NOID, the decision did not adequately explain why the evidence was insufficient to establish 
eligibility. 
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Further, as emphasized by the Petitioner, even if the record established a friendship or other close 
personal relationship between the Beneficiary and the Petitioner's owner, it would represent only one 
factor to be considered among multiple other factors when determining whether it made a bona fide 
job offer. These other factors include, but are not limited to, whether a noncitizen: is in a position to 
control or influence hiring decisions regarding the offered position; incorporated or founded the 
company; has an ownership interest in the company; is involved in the management of the company; 
sits on its board of directors; is one of a small group of employees; has qualifications matching 
specialized or unusual job duties or requirements stated in the labor certification; and is so inseparable 
from the sponsoring employer because of his or her pervasive presence that the employer would be 
unlikely to continue in operation without the noncitizen. Matter of Modular Container Sys., Inc., 
1989-INA-228 (BALCA Jul. 16, 1991) (en bane). 
The Petitioner addressed these factors in its response to the NOTD and they were not given due 
consideration in the Director's decision. Further, we agree with the Petitioner that the Director did 
not adequately explain their determination that the Petitioner has a small number of employees and 
that there were "discrepancies" regarding the Beneficiary's place of employment. We will not make 
a totality of the circumstances determination regarding the bona fides of the job offer here, in the first 
instance, as that is in the Director's purview. 
Finally, the procedural history of this case leaves open the question of whether the Petitioner resolved 
the grounds of ineligibility as stated in the initial notice of denial dated July 19, 2019. The Director 
initially denied the petition after determining that the Petitioner did not establish that the Beneficiary 
had at least two years of work experience, which is the minimum requirement stated on the labor 
certification. As noted, the Petitioner filed a timely combined motion to reopen and reconsider that 
decision. While the Director subsequently issued a new NOTD in March 2023, neither the NOTD nor 
the October 6, 2023, decision addresses the previous denial or includes an affirmative finding that the 
Petitioner's motion overcame the original basis for denial. The Director is therefore instructed to 
address this unresolved issue on remand. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case for further consideration of whether the 
Petitioner and the Beneficiary meet all eligibility requirements, including, but not limited to, whether 
there is a bona fide job offer and whether the Beneficiary meets the requirements for the offered 
position. After further consideration of the issues addressed in this decision, the Director may issue a 
new NOID, in accordance with the applicable provisions at 8 C.F.R. § 103.2(b)(8) and 103.2(b )(l 6)(i), 
prior to issuing a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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