remanded EB-3 Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 17833335 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUGUST 23, 2021 
The Petitioner, a martial arts and self-defense school, seeks to employ the Beneficiary as an operations 
manager. It requests classification for the Beneficiary as an "other worker" under the third preference 
immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent resident status a foreign national who is capable of 
performing unskilled labor that requires less than two years of training or experience and is not of a 
temporary or seasonal nature. 
The Director of the Texas Service Center denied the petition on the grounds that (1) the record 
contained inconsistent evidence about the Beneficiary's work history and therefore did not establish 
that the Beneficiary had the requisite experience to meet the terms of the labor certification that 
accompanied the petition, and (2) the Beneficiary and/or the Petitioner willfully misrepresented 
material facts on the labor certification by denying a familial relationship between the Beneficiary and 
the Petitioner and by submitting fabricated evidence of the Beneficiary's employment history. 
On appeal the Petitioner submits a brief and additional documentation. The Petitioner asserts that the 
evidence of record confirms that the Beneficiary met the experience requirement of the labor 
certification and that it did not misrepresent any fact on the labor certification concerning the 
Beneficiary's employment history or a familial relationship between the Petitioner and the 
Beneficiary. The AAO reviews the questions in this matter de nova. See Matter of Christo 's Inc., 
26 I&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will withdraw the Director's decision. We will remand the case for further 
consideration and the issuance of a new decision. 
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)-(II) of the 
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 foreign national 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. PROCEDURAL HISTORY AND ANALYSIS 
The petition in this case was filed in January 2020, requesting "other worker" classification for the 
Beneficiary. The accompanying labor certification specified that two months of experience in 
business management, human resources, or a related field were required to qualify for the proffered 
position, and asserted that the Beneficiary exceeded that requirement by working for a business called 
~-----~ inl I Brazil, initially as an HR assistant from January 2011 through 
December 2012 and then as the human resource manager from January 2003 to August 2015. 1 The 
initial evidence included an "employment verification" letter dated December 16, 2019, on the 
letterhead o~ I and signed byl !Account Manager, which stated that 
the Beneficiary was employed on a full-time basis from January 2011 to August 2015, initially as HR 
assistant before her promotion to human resource manager in January 2013, and described her duties 
in the latter job. 
The Director issued a request for evidence (RFE) which noted that the "employment verification" 
letter was not acceptable evidence of the Beneficiary's experience because it lacked the employer's 
address. 2 In addition, the Director cited USCIS records indicating that the Beneficiary had asserted a 
different employment history during the years 2011-2015 - as a psychology student and psychologist 
inl 11 I Brazil - in nonimmigrant visa applications she filed in 2011 and 2015. 
The Director requested that independent, objective evidence be submitted to overcome the 
discrepancies in the Beneficiary's employment history. In particular, the Director requested the 
submission of all the Beneficiary's employment agreements with her former employer(s), her earning 
statements and certified income tax returns for the years 2011-2015, and any other pertinent 
documentation, including employment verification letter( s) that comport with the regulatory 
requirements of 8 C.F.R. § 204.5(g)(l). 
In response to the RFE the Petitioner submitted additional documentation which covered all of the 
Director's specific requests except for the Brazilian income tax returns. In addition, the Petitioner 
submitted a statement from the Beneficiary's father which indicated that he and the Beneficiary co­
owned~-----~ each with a 50% interest, and described the business as "doing engineering 
services associated with the construction and maintenance of small dams and electric grids." The 
father's statement indicated that the Beneficiary worked for thel I from January 2011 
1 The regulation at 8 C.F.R. § 204.S(l)(ii)(D) provides that "[i]fthe petition is for an unskilled (other) worker. it must be 
accompanied by evidence that the [beneficiary] meets any educational, training and experience, and other requirements of 
the labor certification." 
2 The regulation at 8 C.F.R. § 204.S(g)( 1) states, in pertinent part, that "[ e ]vidence relating to qualifying experience ... 
shall be in the f01m ofletter(s) from cmrent or f01mer employer(s) ... and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien ... " 
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to August 2015, initially as an HR assistant and later as the HR manager, and described the duties the 
Beneficiary performed as an HR assistant and as the HR manager. The Petitioner also submitted an 
affidavit from the Beneficiary which provided the same information as her father about her association 
withl I and asserted that she worked for the company at the same time she was 
pursuing her professional career as a psychologist. The Beneficiary claimed that she did not list her 
work withl I on her nonimmigrant visa applications in 2011 and 2015 because she 
thought she should only list her professional activities and that she did not list her professional 
activities on the labor certification application in 2019 because it only called for a listing of jobs in the 
past three years or other qualifying experience for the job offered, neither of which applied to the 
Beneficiary's activities in the psychology field. 
The Director proceeded to deny the petition. After acknowledging the materials submitted by the 
Petitioner in res{onse to the RFE, the Director stated that the Petitioner did not indicate on the labor 
certification tha lwas a family-owned business in which the Beneficiary held a 50% 
interest. The Director also stated that "it appears that the beneficiary's pay stubs were fabricated" 
based on some apparent miscalculations on some of the forms. Without discussing any other evidence 
in detail, the Director concluded that the documentation submitted in response to the RFE was not 
sufficient to establish that the Beneficiary met the experience requirement on the labor certification or 
to resolve the evidentiary inconsistencies discussed in the RFE. The Director then found that the 
Petitioner and the Beneficiary willfully misrepresented material facts on the labor certification in two 
respects: (1) by submitting "fabricated" pay stubs as evidence of the Beneficiary's alleged 
employment withl I in the years 2011-2015, 3 and (2) by denying any familial 
relationship between the Petitioner and the Beneficiary in answering "No" to the compound question 
at section C.9 of the labor certification - 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, or incorporators, and the alien? - since 
"USCIS research" indicated that the Beneficiary's brother-in-law,.__ _______ ___, holds a 
position of "Chief Master/Executive" with the Petitioner. 
On appeal the Petitioner points out that the Director's finding that the Petitioner and the Beneficiary 
misrepresented a material fact at section C.9 of the labor certification by not disclosing a familial 
relationship between the Beneficiary and.__ _______ ___, violated procedural requirements 
because the Petitioner was not given notice of this derogatory information in the RFE and afforded the 
chance to reply before the Director issued a decision. The regulation at 8 C.F .R. § 103 .2(b )(16)(i) -
Derogat01y information to petitioner or applicant - provides that: 
3 A misrepresentation is an assertion or manifestation that is not in accord with the true facts. For an immigration officer 
to find a willful and material misrepresentation of fact, he or she must determine that (1) the petitioner or beneficiary made 
a false representation to an authorized official of the U.S. government, (2) the misrepresentation was willfully made, and 
(3) the fact misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N 
Dec. 288, 289 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from accidentally, 
inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 
(BIA 1979). A "material" misrepresentation is one that "tends to shut off a line of inquiry relevant to the alien's eligibility." 
Matter of Ng, 17 I&N Dec. 536, 53 7 (BIA 1980). Any alien who seeks an immigration benefit by fraud or willfully 
misrepresenting a material fact is ineligible for a visa or admission to the United States. See section 212(a)(6)(C)(i) of the 
Act. 
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If the decision will be adverse to the applicant or petitioner and is based on derogatory 
information considered by [USCIS] and of which the applicant or petitioner is unaware, 
he/she shall be advised of this fact and offered an opportunity to rebut the information 
and present information in his/her own behalf before the decision is rendered, except 
as provided in [ three paragraphs inapplicable to this proceeding]. Any explanation, 
rebuttal, or information presented by or on behalf of the applicant or petitioner shall be 
included in the record of proceeding. 
The Petitioner denies that its answer of "No" to the labor certification question at C.9 was incorrect, 
and submits documentary evidence in support of this claim. Since the Director should have given the 
Petitioner the opportunity to submit these materials prior to the decision, the Director's finding that 
the Petitioner willfully misrepresented a material fact by denying any familial relationship between 
itself and the Beneficiary was improper and will be withdrawn. 
We also note that the evidence submitted on appeal, including corporate documentation from the 
Petitioner and an affidavit from~-------~while confirming that the Beneficiary and[] 
I I are brothers-in-law, does not corroborate the "USCIS research" cited by the Director 
tha~ I is a "Chief Master/Executive" or has any other official position with the Petitioner. 
In fact, the corporate documentation submitted on appeal identifies I las the Petitioner's 
sole owner, corporate officer, and incorporator. This information appears to confirm that the 
Petitioner's answer of "No" at section C.9 of the labor certification was correct because there is no 
evidence that the Beneficiary has an ownership interest in the Petitioner or that there is any familial 
relationship between the Beneficiary and any owner, officer, or incorporator of the Petitioner. 
With regard to the Beneficiary's alleged experience wit~ I the Petitioner offers some 
explanations for the apparent pay stub discrepancies discussed in the Director's decision, along with 
some additional documentation that purports to set the numbers straight. The Petitioner complains 
that the Director "completely ignored" other employment-related documents it submitted in response 
to the RFE. Furthermore, the Petitioner asserts that the Director erred in citing, as a ground for denying 
the petition, the non-disclosure on the labor certification that the Beneficiary's alleged experience was 
gained in a family business that she co-owned with her father. As the Petitioner correctly points out, 
neither the law nor the ETA Form 9089 itself requires the disclosure of this specific fact. 
III. CONCLUSION 
For the reasons discussed above, we determine that the Director's decision is not well grounded. 
Accordingly, we will remand this case to the Director for further consideration. At his discretion the 
Director may issue another request for evidence, or a notice of intent to deny. Following the 
Petitioner's response to such request or notice, or the expiration of the time period to respond, the 
Director shall issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for farther consideration 
and the entry of a new decision consistent with the foregoing analysis. 
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