remanded EB-3 Case: Business Solutions

U.S. Citizenship 
and Immigration 
Services 
In Re: 16608481 
Appeal of Cleveland Field Office Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 30, 2021 
The Petitioner seeks to employ the Beneficiary as a business solutions provider. It requests 
classification of the Beneficiary under the third-preference, immigrant classification for professional 
workers. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 8 U.S .C. 
§ 1153(b)(3)(A)(ii). This employment-based, "EB -3" category allows a U.S. employer to sponsor a 
professional with a baccalaureate degree for lawful permanent resident status . 
After the tiling's initial grant, the Director of the Cleveland Field Office revoked the petition's 
approval. The Director found that the Beneficiary previously married to evade U.S. immigration laws, 
barring the petition's approval. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawathe, 25 I&N 
Dec. 369, 375 (AAO 2010). 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 and remand the matter for entry of a new decision consistent with the following 
analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position . 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If 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). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification . If USCIS approves 
the petition, a foreign national may finally 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. 
At any time before a beneficiary obtains lawful permanent residence, however, USeTS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.e. § 1155. If 
supported by the record, a petition's erroneous approval may justify its revocation. Matter of Ho, 
19 T&N Dec. 582, 590 (BIA 1988). 
users may issue a notice of intent to revoke (NOIR) if the unrebutted and unexplained record, as of 
the NOTR's issuance, would have warranted the petition's denial. Matter of Estime, 19 T&N Dec. 450, 
451 (BIA 1987). Similarly, users may revoke a petition's approval if a petitioner's response does 
not overcome the grounds stated in an NOIR. Id. at 452. 
II. THE MARRIAGE FRAUD BAR 
USeTS cannot approve an immigrant petition for a beneficiary who "attempted or conspired to enter 
into a marriage for the purpose of evading the immigration laws." Section 204( c) of the Act. The 
"central question" in determining whether a "fraudulent" or "sham" marriage occurred is whether the 
parties "intended to establish a life together at the time they were married." Matter of P. Singh, 27 
I&N Dec. 598, 601 (BIA 2019) ( citations omitted). users must examine a record to determine if 
there is "substantial and probative evidence" of fraud warranting a petition's denial under section 
204(c) of the Act. 8 e.F.R. § 204.2(a)(l)(ii); Matter of P. Singh, 27 T&N Dec. at 602. 
A petitioner bears the initial burden of proving a beneficiary's eligibility for a requested benefit by a 
preponderance of evidence. Section 291 of the Act, 8 U.S.e. § 1361. If a record contains evidence of 
marriage fraud, a petitioner must generally rebut that derogatory information by the same 
preponderance-of-evidence standard. Matter of P. Singh, 27 I&N Dec. at 606. If: however, users 
denies (or revokes) a petition under section 204(c) of the Act based on marriage fraud, a record must 
contain substantial and probative evidence of the fraud, meaning evidence that a marriage was more 
than probably a sham. Id. at 606-07. 
Here, the Director issued a written notice of intent to revoke the instant petition's approval, informing 
the Petitioner of the Beneficiary's prior marriage to a U.S. citizen. As the NOIR notes, the 
Beneficiary's former spouse petitioned for him to obtain lawful permanent resident status as her 
"immediate relative" by filing Form I-130, Petition for Alien Relative, in 2014. See section 
201(b)(2)(A)(i) of the Act, 8 U.S.e. § 1151(b)(2)(A)(i) (exempting close relatives of U.S. citizens 
from numerical limitations on immigrant visas). During the couple's initial interview for the I-130 
petition, they provided discrepant testimony regarding several aspects of their life together. 
Additionally, following multiple site visits to the couple's purported residences, users officers 
concluded that the couple did not regularly reside together. USeTS ultimately denied the I-130 
petition, finding that the Beneficiary's spouse had not demonstrated the bona fide nature of the 
marriage. 1 This decision was appealed to the Board of Immigration Appeals (BIA), which remanded 
the matter to allow both parties to further develop the record. After review of additional evidence on 
remand, USeIS again denied the I-130 petition, finding that the record did not demonstrate the bona 
fides of the marriage. 2 
1 Following the denial, the Beneficiary's spouse filed a second 1-130 petition in 2016, which USCIS also denied. We note 
that the written notice of denial of the second 1-130 petition was not found in the record. 
2 This denial was also appealed to the BIA, however because the couple subsequently divorced, this second appeal to the 
BIA is moot. As of the date of this decision, no infmmation on the status of the second appeal was available from the BIA. 
2 
After receiving the Petitioner's NOTR response, the Director reviewed the record and concluded that 
the Beneficiary's marriage was not bona fide at inception. The Director therefore concluded that 
section 204(c) of the Act barred the petition's approval. 
The Petitioner notes on appeal that neither the initial denial of the first I-130 petition, nor the denial 
after the BIA remand, states that the record included substantial and probative evidence of marriage 
fraud. Rather, the Director states that the record did not establish that the Beneficiary and his spouse 
"resided together in a bona fide relationship as ... both have claimed." Although the denial of the I-
130 petition did not include a finding of marriage fraud, we note that this does not preclude application 
of section 204(c) of the Act barring the instant petition's approval. In a recent decision, the BIA stated: 
The plain language of the statute and the regulation does not foreclose the application 
of the section 204( c) bar in cases where the prior visa petition filed on the beneficiary's 
behalf was denied based on failure to establish a bona fide marital relationship, but the 
marriage had not been determined to be fraudulent. 
Matter of Jongbum Pak, 28 I&N Dec. 113 at 116-117 (BIA 2020). 3 
The BIA issued Singh prior to the Director's decision in October 2020. Singh clarifies that substantial 
and probative evidence of marriage fraud, which triggers the bar to a petition's approval under section 
204( c) of the Act, means evidence establishing "that it is more than probably true that the marriage 
[was] fraudulent." Matter of P. Singh, 27 I&N Dec. at 607. The requisite degree of proof is lower 
than clear and convincing evidence, but higher than a preponderance of evidence, the normal standard 
of proof in petition proceedings. Id. 
Because Singh is a precedent decision, all USCIS officers must follow it in proceedings involving the 
marriage fraud bar. See 8 C.F.R. § 103.l0(b). However, the Director did not include a discussion of 
Singh or the substantial and probative nature of the evidence of marriage fraud. We will therefore 
withdraw the Director's decision and remand the matter. 
On remand, the Director should review the record to conduct a proper independent analysis of the 
applicability of section 204( c) of the Act. This should include review of the notice of denial of the 
second I-130 petition not currently in the record. If, pursuant to Singh, the Director finds evidence 
establishing that the Beneficiary "more than probably" engaged in marriage fraud, she should notify 
the Petitioner and explain how the evidence meets the standard of proof. 
III. ABILITY TO PAY 
Although not discussed by the Director, the record does not contain regulatory-required evidence of 
the Petitioner's ability to pay the proffered wage of $67,933 per year, from the priority date on 
November 27, 2017, and continuing until the beneficiary obtains lawful permanent residence. 4 The 
3 In that case, the BIA concluded that the Director independently analyzed the applicability of section 204( c) of the Act 
and did not "erroneously equate the beneficiary's first wife's failure to prove the bona fides of their marriage with the 
beneficiary's intent in entering into that marriage." Id. at 119. 
4 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
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regulation at 8 C.F.R. § 204.5(g)(2) requires that "[e]vidence of this ability shall be either in the form 
of copies of annual reports, federal tax returns, or audited financial statements." 
The record includes the Petitioner's annual report for 2016 but does not contain regulatory-prescribed 
evidence of the Petitioner's ability to pay for 2017, the year of the priority date, onward. Without this 
regulatory-required evidence, we cannot affirmatively find that the Petitioner has the continuing ability 
to pay the proffered wage from the priority date. 
Therefore, on remand the Director should analyze the record and determine whether the Petitioner has 
established its ability to pay the proffered wage. The Director should request such regulatory-required 
evidence and allow the Petitioner reasonable time to respond. 
IV. CONCLUSION 
The Director applied the marriage fraud bar without consideration of the BIA's most recent guidance 
on the subject. Also, the Petitioner has not demonstrated the Petitioner's continuing ability to pay the 
proffered wage pursuant to 8 C.F.R. § 204.5(g)(2). 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
§ 204.5( d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date. 
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