remanded EB-3 Case: Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 03, 2024 In Re: 31282749 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, an independent school district, seeks to employ the Beneficiary as a secondary school 
teacher. It requests the Beneficiary's classification as a professional under the third preference 
immigrant classification. See Immigration and Nationality Act (the Act), section 203(b )(3)(A)(ii), 
8 U.S.C. § 1153(b )(3)(A)(ii). This employment-based immigrant classification allows a U.S. 
employer to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Texas Service Center initially approved the petition, but later revoked the approval 
on notice. Following a multi-agency government investigation into the recruitment practices of the 
Petitioner's former executive director of human resources (HR), that individual pled guilty to 
falsifying immigration documents and was sentenced to 24 months in federal prison. Specifically, the 
former employee admitted to (1) signing and submitting documents to the U.S. Department of Labor 
(DOL) falsely attesting that despite the Petitioner 's attempts to recruit U.S. workers for open teacher 
positions, no U.S. workers were found to be qualified, interest or available , and (2) fabricating 
recruitment reports which contained additional false statements regarding the number of applications 
received and the reasons for rejecting U.S. applicants. 
After receiving the Petitioner ' s response to a notice of intent to revoke (NOIR), the Director concluded 
that the record did not establish the Petitioner had a bona.fide job opportunity to which U.S. workers 
could apply. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). While we conduct de novo review on 
appeal, Matter of Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we conclude that a remand 
is warranted in this case because the Director's decision is insufficient for review. Specifically, the 
decision lacks analysis and discussion of relevant evidence the Petitioner submitted in response to the 
NOIR. Accordingly, we will withdraw the Director's decision and remand the matter for entry of a 
new decision consistent with the following analysis. 
I. LAW 
Immigration for noncitizens classified as professionals under section 203(b)(3)(A)(ii) of the Act 
generally follows a three-step process. First, a prospective employer must apply to DOL for 
certification that: there are insufficient U.S. workers able, willing, qualified, and available for an 
offered position; and a noncitizen's employment in the position would not harm wages and working 
conditions of U.S. workers with similar jobs. Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. 
§ 1154(a)(l)(F); 8 C.F.R. § 204.5(1)(3)(i). Among other things, USCIS determines whether a 
noncitizen beneficiary meets the requirements of a DOL-certified position and a requested immigrant 
visa category. 8 C.F.R. § 204.5(1 )(3)(ii)(C). Finally, if USCIS approves a petition, a beneficiary 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. 
Section 205 of the Act, 8 U.S.C. § 1155, provides that the Secretary of Homeland Security may "for 
good and sufficient cause, revoke the approval of any petition." By regulation this revocation authority 
is delegated to any USCIS officer who is authorized to approve an immigrant visa petition "when the 
necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). USCIS must 
give the petitioner notice of its intent to revoke the prior approval of the petition and the opportunity 
to submit evidence in opposition thereto, before proceeding with written notice of revocation. See 
8 C.F.R. § 205.2(b) and (c). 
The Board oflmmigration Appeals has determined that"[ a] notice of intention to revoke a visa petition 
is properly issued for "good and sufficient cause" where the evidence of record at the time the notice 
is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the 
petitioner's failure to meet his burden of proof. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) 
(citing Matter ofEstime, 19 I&N Dec. 450 (BIA 1987)). 
II. PROCEDURAL HISTORY 
The Petitioner filed the underlying labor certification for the offered position of secondary school 
teacher with DOL on June 25, 2007. In filing the labor certification, the Petitioner's former executive 
director of HR attested, on behalf of the Petitioner, that the job opportunity was open to any U.S. 
worker, that it conducted its recruitment for able, willing, qualified, and available U.S. workers between 
February and April 2007, 1 and that the U.S. workers who applied for the job opportunity were rejected 
for lawful job-related reasons. DOL approved the labor certification, and USCIS subsequently 
approved the instant petition on August 27, 2008. 
1 DOL's regulations require an employer to provide its employees notice of the filing of the application for permanent 
employment certification. See 20 C.F.R. § 656.10( d). The employer must also conduct required pre-filing recruitment 
including placing a job order with the State Workforce Agency and advertisements and prepare a recruitment report. See 
20 C.F.R. § 656.l 7(e)-(g). 
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The Director issued the NOIR in May 2022. In the NOIR, the Director detailed the admissions made 
by the Petitioner's former executive director of HR in an interview with government officials held in 
March 2016, and in his guilty plea entered inl 12017. The Director emphasized that the scope 
and nature of the former employee's admissions cast doubt on whether the labor certification 
accompanying this petition, which was signed by the same individual, was valid. 
Accordingly, the NOIR requested evidence to establish that the job opportunity was clearly open to 
any U.S. worker and that U.S. workers who applied for the job opportunity were rejected for lawful 
job-related reasons. The Director specified that the Petitioner should provide, in part, copies of job 
posting notices, print advertisements, internet job advertisements, State Workforce Agency (SW A) 
job orders, and copies ofrecruitment reports as evidence of its recruitment efforts, along with evidence 
related to the Beneficiary's ongoing employment with the school district. Following the Petitioner's 
submission of a timely response to the NOIR, the Director revoked the approval of the petition. 
III. ANALYSIS 
The sole issue before us on appeal is whether the Director properly revoked the approval of the 
petition. While the record reflects that the Director issued the NOrR for good and sufficient cause, 
the revocation decision does not address relevant evidence the Petitioner provided in response to the 
NOrR. Accordingly, we will withdraw the Director's decision and remand the matter for entry of a 
new decision. 
Under its statutory authority, users must examine the bona fides of a job opportunity to evaluate the 
merits of a petition filed by an employer "desiring and intending to employ" a foreign worker under 
the employment-based preference categories that require a labor certification. See section 204( a)( 1)(F) 
of the Act. Under sections 204(b) and 212(a)(5)(A)(i) of the Act, users ensures that the facts of the 
labor certification are true - that there are insufficient workers able, willing, qualified, and available 
whose employment will not adversely affect the wages and working conditions of similarly employed 
U.S. workers. Here, the admissions made by the Petitioner's former executive director of HR were 
sufficient to prompt the Director to inquire about the bona fides of the job offers in other approved 
petitions with underlying labor certifications signed by the same former employee. 
The Director ultimately concluded the Petitioner did not establish that it had a bona fide job 
opportunity that was truly open to U.S. workers. In reaching this determination, the Director stated 
that the Petitioner's response to the NOrR included "two advertisements it ran in preparation for the 
labor certification filing and a report identifying a shortage of teaching professionals in its 
geographical location." The Director observed that this evidence shows the Petitioner advertised the 
position and may have complied with some of the recruitment requirements but did not directly address 
or overcome the concerns raised in the NOrR and the admissions made by its former executive director 
of HR, who signed the labor certification in this matter. 
On appeal, the Petitioner emphasizes that the Director failed to address much of the evidence it 
submitted in response to the NOIR, emphasizing that it did not merely provide copies of two 
newspaper advertisements as stated in the revocation decision. The Petitioner summarizes the 
recruitment-related documentation included with its NOrR response, and notes that the notice of 
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revocation "makes no reference to ... specific information provided to substantiate the recruitment 
process used in 2007." 
The Petitioner's assertions are persuasive. The record indicates the Petitioner submitted the following 
documentation as evidence of pre-filing recruitment efforts for the offered position: copies of two 
advertisements from thel Morning News (dated February 18 and February 25, 2007); a posting 
from thel Morning News website (February 18 to March 3, 2007); an SW A job order placed 
with the Texas Workforce Commission on February 20, 2007; a job posting that appeared on the 
school district's website beginning in February 2007; draft and final recruitment reports dated May 
22, 2007; email correspondence between the Petitioner's former executive director of HR and a law 
firm; and printouts from an internal HR software program used to track job applicants, which include 
handwritten notes about why certain applicants were rejected. The Petitioner emphasized that the 
dates of the various job postings and advertisements correspond to the recruitment information 
provided on the Beneficiary's labor certification (Form ETA 9089) at Part I, Recruitment Information. 
The Petitioner also submitted documentation of the school district's recruitment efforts in relation to 
other labor certifications filed in 2006, 2008, 2012 and 2013, including additional recruitment reports, 
job postings, related correspondence, and printouts from its internal human resources software. The 
Petitioner maintained that the submitted evidence contradicts its former employee's admission that he 
"never" interviewed U.S. job applicants in connection with any labor certification and that he 
fabricated all associated recruitment reports. 
The Director erred by not addressing this evidence in the notice of revocation. An officer must explain 
the specific reasons for denying a visa petition. See 8 C.F.R. § 103.3(a)(i). This explanation should 
be sufficient to allow the Petitioner a fair opportunity to contest the decision and to allow us an 
opportunity for meaningful appellate review. See, e.g. Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) 
( finding that a decision must fully explain the reasons for denying a motion to allow the respondent a 
meaningful opportunity to challenge the determination on appeal). 
Here, the Director's decision acknowledges the Petitioner's submission of two newspaper 
advertisements and does not address the remainder of the evidence detailed above. While the evidence 
of record may ultimately be insufficient to establish that there was a bona fide job opportunity available 
to U.S. workers in this case, the Director's decision did not adequately address the evidence and 
arguments submitted in response to the NOTR, and therefore did not sufficiently explain why such 
evidence did not overcome the grounds for revocation. For this reason, we will withdraw the 
Director's determination and remand the matter for entry of a new decision. 
The Petitioner also contests the Director's statement that "it appears that the petitioner intends to 
employ the beneficiary outside the terms of the labor certification." The Petitioner emphasizes that it 
endeavored to respond to a claim in the NOTR that there were "inconsistencies" with respect to the 
Beneficiary's employment with the school district, noting that such inconsistencies were not detailed 
in the NOIR. It is unclear whether the quoted statement was intended to be a separate determination, 
unrelated to the determination that the Petitioner did not make a bona fide job offer that was open to 
U.S. workers. If it was the Director's intent to make a separate ineligibility determination, such 
determination was not adequately addressed in the NOIR or in the revocation decision. 
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Finally, we acknowledge the Petitioner's claim that USCIS failed to provide it with sufficient notice 
of derogatory information of which it was unaware, as required by 8 C.F.R. § 103.2(b )(16)(i). 
Specifically, the Petitioner references a March 14, 2016, interview with its former director of HR, 
which the Director mentioned in the NOIR and notice of revocation. The Director noted that, in that 
interview with government officials, the Petitioner's former employee admitted that he "never 
interviewed or considered every qualified U.S. citizen applicant" before filing a labor certification and 
that "all of the recruitment reports he provided" in support of labor certifications were fabricated. The 
Petitioner maintains that it has "has been provided no direct access by USCIS" to corroborate this 
admission. 
The regulation at 8 C.F.R. § 103 .2(b )(16)(i) requires only that a petitioner be "advised of'' the 
derogatory information that may be relied on in an adverse decision. The regulation does not place 
upon USCIS a requirement to provide "direct access" to such information. Here, the NOIR issued by 
the Director provided sufficient details regarding the March 14, 2016, interview to apprise the 
Petitioner of its former employee's statements. 
IV. CONCLUSION 
The Director's notice of revocation did not address relevant evidence submitted in response to the 
NOIR. As a result, the revocation decision did not explain why the Petitioner's rebuttal to the NOIR 
was deficient and afford the Petitioner a reasonable opportunity to provide specific responses on 
appeal. Accordingly, the Director's decision is withdrawn, and the matter will be remanded to the 
Director for further consideration and issuance of a new decision. 
In that new decision, the Director must consider and address the evidence submitted in response to the 
NOIR. The Director should also consider the evidence and arguments submitted in support of the 
Petitioner's appeal and may request any additional evidence considered pertinent to the new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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