remanded EB-3 Case: Childcare

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-R-, P.C. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 1, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner seeks to privately employ the Beneficiary as a nanny. 1 He requests classification of the 
Beneficiary as a skilled worker under the third preference immigrant classification. 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 immigrant classification allows a U.S. employer to sponsor a foreign national for lawful 
permanent resident status to work in a position that requires 2 years of training or experience. 
The Director, Texas Service Center, approved the petition, but following receipt of information from a 
consular interview, the Director issued a notice of intent to revoke after further consideration and 
concluded that the Petitioner had not established that the Beneficiary was eligible tor the requested 
benefit. The Director also invalidated the labor certification 
and revoked the approval of the petition. 
The matter is now before us on appeal. The Petitioner asserts that the Director's notice of intent to 
revoke \vas not supported by sufficient detail. The Petitioner further asserts that the Director did not 
fully consider its response to the notice of intent to revoke. 
Upon de novo review, we will withdraw the Director's decision and remand the case for further 
proceedings as outlined below. 
I. BACKGROUND AND LEGAL FRAMEWORK 
Section 205 of the Act, 8 U.S.C. § 1155,-provides that "[t]he Attorney General [now Secretary, 
Department of Homeland Security] may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition approved by him under section 204." The realization by 
1 
We note the following conflict in the evidence. 20 C.F.R. § 656.3 describes an employer as ·'[a] person, association. 
firm, or a corporation that currently has a location within the United States ... that proposes to employ a full­
time employee." Here, both the petition and the labor certification identify the employer as · at 
which is a physician's office. However, both the petition and the labor certification 
state that the Beneficiary will be employed as a nanny at a separate worksite, which appears to be a private residence, 
and it does not appear that she will be employed by the entity that filed the petition with Federal Employer Identification 
Number 
(b)(6)
Matter of A-R- , P.C. 
the director that the petition was approved in error may be good and sufficient cause for revoking the 
approval. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). 
The petitioner must establish that the beneficiary satisfied all of the educational, training, experience 
and any other requirements of the offered position by the priority date. 8 C.F.R . § I 03.2(b)(l), (12). See 
Matter C?f'Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); see also Matter of 
Katigbak . 14 I&N Dec. 45, 49 (Reg '! Comm ' r 1971). 
In the instant case, the labor certification states that the offered position requires a high school diplom a, 
24 months experience in the offered job of nanny , a driver's license , and car insurance? The Petition er 
described the job duties on the labor certification as, "General childcare duties, including driving to and 
from preschool and playdates, cooking, cleaning and laundry." 
The Beneficiary claimed employment experience as a baby-sitter for three different employers in the 
Philippines for a total of 52 months from 1979 until 1984: The Petition er submitted employment letters 
from the three claimed former employers , and one additional employer who was not claimed on the 
labor certification. 
The Director issued a notice of intent to revoke (NOIR) on October 15, 2015 . The Director stated that 
he intended to revoke the approval of the petition because the Petitioner had not established that the 
Beneficiary satisfied all of the requirements stated in the labor certification. The Director stated that 
this determination was based on a consular interview where: 
It was determined that the beneficiary could not articulate the requirements of the job 
nor could the beneficiar y discuss the basic duties of what being a nanny entails , when 
asked by the adjudicating consular officer. Specifically , the beneficiary stated that her 
work experience was a housekeeper. The beneficiary has never held a job that required 
her to drive. The beneficiary indicated that she was uninsured and did not hold a valid 
driver's license. 
The Director notified .the Petitioner in the NOIR that the labor certification is subject to invalida
tion 
pursuant to 20 C.F.R . 
§ 656.30(d) upon a determination of fraud or willful misrepresentation of a 
material fact involving the labor certification application . 
In response to the NOIR , the Petitioner stated that he first met the Beneficiary during a vacation to the 
Philippines in 2006 and noted that he was seekin g to employ a nanny to care tor his own children. The 
Petitioner stated that during his vacation he personally spoke with numerou s individuals in the 
province who affirmed that the Beneficiary drives , and that she had worked as a helper and babysitter 
there since the 1970s. The Petitioner submitted a statement from the Beneficiary, who contested the 
statements attributed to her in the NOIR. Specifically , the Beneficiary stated that she did "not use the 
• 1 When the employer lists s pecific skills and other requir ements for the job opportunit y in Section H, Question 14, the 
employer must also demonstrate on the ETA Form 9089 that the foreign worker possesses those skills and requir ements. 
See Mafler of Smart Zip Analytics, 20 16-PER~00695 (B ALCA Nov . 9, 20 16). 
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(b)(6)
\ 
Matter of A-R- , P.C. 
word 'nanny' but I used the word baby-sitter," and named three individuals for whom she claimed to 
have provided childcare from 1979 until 1984. The Beneficiary explained that she "took care of my 
Employer's children all day every day that I was at work." The Petitioner submitted a copy of the 
Beneficiary's current driver's license issued by the Republic of the Philippines, and a ce1iification from 
the Republic of the Philippines that the Beneficiary had held 
a driver's license since October 13,2006. 3 
The Director revoked the approval of the petition on February 25, 2016 , and invalidated the labor 
certification after a determination of fraud or willful mi,srepresentation of a material fact involving the 
labor certification application. The Director's notice of revocation (NOR) cites the same infom1ation 
stated in the NOIR; however, the NOR does not fully address the evidence that the Petitioner submitted 
in response to the NOIR. 
II. ANALYSIS 
We find that the Petitioner's response to the NOIR does not appear to have been fully considered by 
the Director and it is unclear from the record on what specific basis the Director determined that the 
labor certification involved fraud or willful misrepresentation and whether the fraud was solely 
against the Beneficiary based on claimed experience or in relation to the question of a bonafide job 
ofier. The Director on remand should fully consider the Petitioner's response to the NOIR and 
articulate more fully what aspect the Petitioner or the Beneficiary misrepresented to allow the 
Petitioner an opportunity to fully address these issues . 
.Additionally, on remand the Petitioner should be allowed to address the following: as the 
Beneficiary stated in her interview that she did not drive and the driver 's license submitted is dated 
October 13, 2006, the same day as the priority date, we attempted to verify this document and the 
accompanying certification with the Republic of the Philippines 
The issued a letter certifying that the Beneficiary's name "with 
driver's license number does not exist in our cun·ent file of licensed drivers.'' On 
February 23, 2017, the issued a letter certifying that "driver's 
license number was 
not issued by this office,'' and they had no record of a license issued to the Beneficiary. As the 
Petitioner has not had an opportunity to address this derogatory information as it relates to whether 
the J_>etitioner can establish that the Beneficiary had the required skills in H.14 of the labor 
certification by the priority date , we will remand the case to the Director for further action . 
III. CONCLUSION 
In view of the foregoing, the Director's notice of revocation is withdrawn. The petition is remanded 
to the Director. 
3 We note that October 13, 2006, is also the priority date in the cun·ent matter. 
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Matter ofA-R-, P.C. 
On remand, the Director may request additional evidence. Similarly, the Petitioner may provide 
additional evidence within a reasonable period of time to be determined by the Director. Upon 
receipt of all the evidence, the Director will review the entire record and enter a new decision. 
ORDER: The decision of the Director, Texas Service Center, is withdrawn. The matter is 
remanded to the Director, Texas Service Center, for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of A-R-, P.C., ID# 78203 (AAO Mar. 1, 2017) 
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