remanded EB-3 Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
In Re : 20930573 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 13, 2022 
The Petitione r, a dental office , seeks to employ the Beneficiary as an administrative assistant. It reque sts 
skilled worker classification for the Beneficiary under the third-preference immigrant category . 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 "EB-3" immigrant classification allows a U .S. employer to sponsor a foreign 
national for lawful permanent resident status to work in a position that requires at least two years of 
training or experience. 
The Director of the Nebraska Service Center initially approved the petition , but later revoked the 
approval, concluding that the record did not establish that the offered position was for full-time 
employment, and that it was available to U.S. workers. 
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 ;Matt erofChawathe , 25 I&N 
Dec. 369 , 375 (AAO 2010) . The Administrative Appeals Office (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 this matter for the entry ofa new decision 
consistent with the following discussion. 
I. LAW 
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. DepartmentofLabor(DOL). See section 212(aX5) 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 con siders 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. 
II. ANALYSIS 
As noted above, the Director initially approved this petition, but after an onsite inspection conducted 
at the Petitioner's office, he issued a notice of intent to revoke (NOIR) which focused on the amount 
of hours the Beneficiary was working for the Petitioner at the time, as well as the nature of those 
duties. 
A. Full-time Position 
An employer must off er permanent, full-time employment to a beneficiary on whose behalf an 
application for labor certification has been filed. 20 C.F.R. § 656.3. Here, the Petitioner indicated in 
the labor certification as well as in Part 6, question 4 of Form I-140 that the position of administrative 
assistant was full-time. During the subsequent onsite inspection, the Petitioner's signatory and sole 
shareholder indicated that the Beneficiary worked in the office three days per week for a total of 22 or 
23 hours, and would sometimes work after-hours or be on call. In his decision to revoke the approval 
of the petition, the Director acknowledged the Petitioner's explanation that the signatory had forgotten 
when responding to the inspecting officers that the Beneficiary worked at home, but noted that his 
Forms W-2 for 2018 and 2020 showed him earning less than the offered wage, suggesting that he was 
working part-time in those years. He also noted that some of the Beneficiary's duties listed in the 
labor certification involved direct contact with clients and therefore could not be performed at home. 
The Director ultimately concluded that this evidence showed that the Beneficiary's work schedule was 
inconsistent with a full-time position. 
On appeal, the Petitioner repeats its assertion from its response to the Director's NOIR that the 
Beneficiary was and is currently employed full-time, attributing his reduced earnings in 2018 and 2020 
to the date of the Beneficiary's attainment of employment authorization and a state-mandated 
temporary closure of its business due to the COVID-19 pandemic, respectively. More importantly, 
however, the Petitioner also cites to Matter ofRajah, 25 I&N Dec. 12 7 (BIA 2009) in arguing that the 
Beneficiary was not required to have been employed by the Petitioner prior to his adjustment of status 
to lawful permanent resident, and reiterates its intention to employ the Beneficiary per the terms of 
the labor certification at that time. It also notes that many of the duties of the offered position can be 
performed at home, and the position does not require the Beneficiary to be in the office at all times. 
Upon review, we agree that the Director erred in revoking the approval of the petition based upon his 
conclusion that the Beneficiary had not been employed by the Petitioner in a full-time position, and 
withdraw his decision. 
B. Job Open to any U.S. Worker 
In addition to revoking the approval of this petition on the ground discussed above, the Director also 
stated in his decision that the fact that the Beneficiary is a sibling of the Petitioner's sole shareholder 
2 
raised significant questions of"whether a bona fide position existed for U.S. workers." 1 However, in 
issuing a labor certification, DOL certifies that there are not sufficient U.S. workers available and that 
the employment of the alien will not adversely affect the wages and working conditions of workers in 
the United States similarly employed. 20 C.F.R. § 656.1 DOL has exclusive authority over the labor 
certification process, and barring evidence of fraud or a willful misrepresentation of material facts by 
a petitioner or beneficiary in the labor ce1iification process, USC IS must accept the tenns of the offered 
position as they are ce1iified by DOL.2 Here, in responding to Question 9 in Part C of the Form ETA 
9089, the Petitioner indicated that it was a closely held corporation in which the Beneficiary either had 
an ownership interest or had a familial relationship with its owners or stockholders. Therefore, it did 
not misrepresent the familial relationship between the Petitioner's shareholder and the Beneficiary, 
and there was no basis for the Director to question DOL's certification that the offered position was 
available to U.S. workers. As such, to the extent that the Director based his decision on doubts 
concerning DO L's certification, we withdraw that decision. 
C. Beneficiary's Qualification for the Offered Position 
In Part H of the labor certification which accompanied the petition, the Petitioner indicated that the 
position of administrative secretary requires at least a high school diploma and 24 months of 
experience in the job offered, as well as fluency in the English and Tagalog languages. The Director 
noted in his decision that the Beneficiary appeared to be highly over-qualified for the position based 
upon his master's degree in business administration. As noted by the Petitioner on appeal, by itself 
the Beneficiary's possession of educational credentials far above the minimum required for the 
position does not affect his eligibility for the requested benefit. 
However, while not addressed by the Director in his NOIR or decision to revoke the approval of the 
petition, on remand he should review the evidence to determine whether it establishes that the 
Beneficiary also possesses the required work experience for the offered position. Specifically, letters 
were submitted from two of the Beneficiary's previous employers, each of which confirms his job title 
and dates of employment with the company, and is accompanied by a document entitled "Job Details." 
However, despite being attached to letters from two different employers, these accompanying 
documents are identical in te1ms of font and fmmat, and neither is referenced in the experience letters. 
As they therefore do not appear to have been prepared by those previous employers, this evidence 
does not meet the requirements at 8 C.F.R. § 204.S(g)(l) for such letters. We further note that neither 
letter indicates whether the Beneficiary worked full-time or part-time in these positions. Accordingly, 
on remand the Director should provide the Petitioner an opportunity to address these deficiencies in 
this evidence. 
1 The Director's NOTR did not include this ground as a basis for revocation of the petition, and therefore deprived the 
Petitionerofanopportunitytorespondasrequiredper8 C.F.R. § 205.2(b). 
2 Section 204(b) of the Act, 8 U.S.C. § l 153(b ), allows USCIS to approve a petitiononlyafteraninvestigationofthe facts 
in each case to ensure that the facts stated in the petition (and any required labor certification) are true. USC IS is 
responsible for reviewing the Form T-140, and the labor certification is incorporated into the Form T-140 by statute and 
regulation. See section 203(b)(3)(C) of the Act, 8 U.S.C. § 1153(b)(3)(C); 8 C.F.R. § 204.5(a)(2): 8 C.F.R. 
§ 103 .2(b)(1). USC IS will only a pp rove an employment-based immigrant visa petition if it determines that the facts stated 
in the petition, which incorporates the labor certification, are true and the foreign worker is eligible for the benefit 
sought. Section204(b) of the Act, 8 U.S.C. § l 154(b). 
3 
ORDER: The Director's decision is withdrawn and the matter remanded for the entry of a new 
decision consistent with the foregoing analysis. 
4