remanded EB-3 Case: Dental Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 18984607 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 30, 2021 
The Petitioner seeks to employ the Beneficiary as a dental laboratory technician. It requests 
classification of the Beneficiary as an unskilled worker under the third preference immigrant 
classification. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C . 
§ 1153(b )(3)(A)(iii). 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 less 
than 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 made a bona fide job offer to the Beneficiary. The Director also entered a finding of 
willful misrepresentation of material fact against the Petitioner. 1 The matter is now before us on 
appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's 
decision and remand the matter to the Director for the entry of a new decision . 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL) .2 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 id. Second , the employer files an immigrant visa petition 
with U.S. Citizenship and Immigration Services (USCIS) with the certified labor certification. See 
section 204 of the Act, 8 U.S.C. § 1154. Third, upon approval of the petition, a foreign national may 
1 The Director formally entered a finding of willful misrepresentation of material fact against the Petitioner , but his decision 
also references the Beneficiary 's willfu l misrepresentation ofa material fact. Ifa finding of willful misrepresentation of 
material fact was entered against the Beneficiary, we will withdraw it. 
2 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
August 23, 2019. See 8 C.F.R. § 204.S(d). 
apply for an immigrant visa abroad, or if eligible, adjust status in the United States to lawful permanent 
resident. See section 245 of the Act, 8 U.S.C. § 1255. 
II. ANALYSIS 
On appeal, upon review of the entire record, we conclude that the Petitioner has established by a 
preponderance of the evidence that it made a bona fide job offer to the Beneficiary. Thus, the Director 
erred in denying the petition and entering a finding ofwillfol misrepresentation of material fact against 
the Petitioner. We will therefore withdraw the Director's decision and finding of willful 
misrepresentation of material fact against the Petitioner. We will also withdraw any finding ofwillfol 
misrepresentation of material fact entered against the Beneficiary involving the labor certification. 
Although the Director's decision is withdrawn, we cannot affirmatively conclude that the Petitioner 
has established eligibility for the benefit sought. Unless accompanied by an application for Schedule 
A designation or documentation of a beneficiary's qualifications for a shortage occupation, a petition 
for an unskilled worker must include an original, valid labor certification. 8 C.F.R. § 204.5(1)(3)(i). 
If an original labor certification was lost or destroyed, a petitioner may ask USCIS to request a 
duplicate copy from DOL. See 6 USCIS Policy Manual E.6(C), https://www.uscis.gov/policymanual. 
DOL will issue a duplicate labor certification only to the USCIS officer who requested it. Id.; see also 
20 C.F .R. § 656.30( e )(1). 
Here, the petition does not contain an original labor certification, 3 and the record does not contain a 
duplicate copy of the labor certification from DOL. It does not appear that the Petitioner asked USCIS 
to request one. Thus, we cannot affirmatively find that the petition is accompanied by the required 
labor certification. See 8 C.F.R. § 204.5(1)(3)(i). We will therefore remand the matter to the Director 
for farther review. 
III. CONCLUSION 
In conclusion, we withdraw the Director's decision on the issue of bona fide job offer, and we remand 
the matter to the Director for farther review. Additionally, we withdraw the Director's finding of 
willful misrepresentation of material fact against the Petitioner and Beneficiary involving the labor 
certification application. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
3 The record contains a photocopy of the labor certification. 
2