remanded EB-3 Case: Fast Food Restaurant

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 21, 2025 In Re: 34814976 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner, an operator of fast-food restaurants, seeks to employ the Beneficiary as a "crew 
member." The company requests his classification under the employment-based, third-preference 
(EB-3) immigrant visa category as an "other worker." See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). Businesses may sponsor aliens for U.S. 
permanent residence in this category to work in jobs requiring less than two years of training or 
experience. See 8 C.F.R. § 204.5(1)(2) (defining the term "other worker"). 
After first granting the petition in 2021, the Director of the Texas Service Center revoked the filing's 
approval in 2024. The Director concluded that she mistakenly approved the petition because the 
Petitioner did not demonstrate its required intent to employ the Beneficiary in the offered job on a 
permanent basis. The Director also found that the company willfully misrepresented its compliance 
with a U.S. Department of Labor (DOL) regulation barring the company's receipt of payment for the 
filing of the accompanying labor certification. 
On appeal, the Petitioner contends that the Director overlooked evidence of the job offer's validity. 
The company also asserts that the Director violated its and the Beneficiary's constitutional due process 
rights and that the Director's purported "affirmative misconduct" estopped the petition's revocation. 
In these revocation proceedings, the Petitioner bears the burden of demonstrating eligibility for the 
requested benefit by a preponderance of the evidence. See Matter ofHo, 19 I&N Dec. 582,589 (BIA 
1988). Exercising de novo appellate review, see id., we conclude that insufficient evidence supports 
the Director's misrepresentation finding and that she did not explain her specific reasons for 
determining that the company lacked intent to employ the Beneficiary in the offered job. We will 
therefore withdraw the Director's decision and remand the matter for entry of a new decision 
consistent with the following analysis. 
I. LAW 
Immigration as an other - or "unskilled" - worker generally follows a three-step process. First, a 
prospective employer must obtain DOL certification that: there are insufficient U.S. workers able, 
willing, qualified, 
and available for an offered job; and an alien's permanent 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 a DOL-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). Among other things, USCIS determines whether an alien beneficiary meets the 
requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. 
§ 204.5(1)(3)(ii)(D). 
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. 
But, "at any time" before a beneficiary obtains permanent residence, USCIS may revoke a petition's 
approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. A petition's 
erroneous approval may justify its revocation. Matter ofHo, 19 I&N Dec. at 590. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition's approval if the record at the 
time of the NOIR's issuance would have warranted the petition's denial. Matter ofEstime, 19 I&N 
Dec. 450, 451 (BIA 1987). The Agency properly revokes a petition if a petitioner does not timely 
submit a NOIR response or the response does not overcome the revocation grounds. Id. at 451-52. 
TI. ANALYSIS 
A. Facts 
The Petitioner filed its application for labor certification in this matter in July 2020. The company 
attested that it would employ the Beneficiary, an Uzbekistani native and citizen, as a crew member at 
one of its restaurants on a permanent, full-time basis. The company also attested that it had not 
received "payment of any kind" in exchange for the labor certification application's submission. DOL 
certified the application in June 2021, and the Petitioner filed this petition in September 2021. That 
same month, USCIS approved the filing. 
About a year later, a USCIS officer interviewed the Beneficiary regarding his application for 
adjustment of status. See 8 C.F.R. § 245(a)(2)(B) (if visas are immediately available, allowing aliens 
to concurrently file adjustment applications with petitions). According to the officer's notes, the 
Beneficiary - a former programmer with a U.S. master of science degree in computer information 
sciences - stated that he applied for the offered fast-food job "[t]o get a green card [U.S. permanent 
residence]." He told the officer that he could not find work in his field that would lead to U.S. 
permanent residence. 
After the Beneficiary's adjustment interview, USCIS further investigated his job offer. In January 
2023, an officer telephoned the Petitioner's human resources administrator, who had signed both the 
labor certification and petition for the company. The administrator told the officer that the company 
used another firm to recruit the Beneficiary for the offered job. The recruiting firm also reportedly 
recommended a law firm that prepared and filed the labor certification application and petition. The 
2 
administrator stated that neither the recrniting firm nor the Beneficiary paid the Petitioner. The 
administrator also stated that the Petitioner did not pay the recrniting firm or counsel for their services. 
The following month, a USCIS officer telephoned the Beneficiary. He stated that he had learned of 
the recruiting firm from a friend and found the Petitioner's offered job on the firm's website. Evidence 
shows that he paid the recruiting firm total fees of $19,260 for: providing immigration consulting 
services; coordinating his placement with the Petitioner; and filing the petition and his adjustment 
application. 
The Beneficiary stated that he began working for the Petitioner in the offered job in August 2022, 
upon approval of his application for employment authorization. See 8 C.F.R. § 274a.12(c)(9) 
(allowing adjustment applicants to apply for permission to work in the United States). The company 
first paid him $8.42 an hour, the proffered wage stated on the labor certification and petition. But, at 
the time of the telephone interview in February 2023, he said that he earned $11 an hour. A copy of 
his May 2020 written and signed agreement with the recruiting firm indicates that he promised to work 
full-time for the Petitioner for at least one year. 
On April 2024, the Director issued a NOIR to the Petitioner, recounting the above information. After 
reviewing the company's timely response, the Director revoked the petition's approval the following 
month. 
B. The Petitioner's Due Process Claims Are Unavailing 
The federal government cannot deprive a person "of life, liberty, or property, without due process of 
law." U.S. Const. amend. V. The Petitioner contends that USCIS deprived it and the Beneficiary of 
due process by purportedly delaying the petition's approval and then revoking it. The company states: 
The government has severely harmed [the Petitioner and Beneficiary] with its delays, 
and this is a borderline, if not already, an unconstitutional denial of due process to have 
them wait this long, only to, years later, re-open questions that have already been 
answered to the satisfaction of USCIS. 
Case law forecloses the Beneficiary's due process claim. The U.S. Court of Appeals for the Fourth 
Circuit, which has jurisdiction over the residences of both the Beneficiary and the Petitioner, has held 
that a beneficiary of a revoked immigrant visa petition lacks a constitutionally protected interest in the 
petition's approval. Diomande v. Gonzales, 247 Fed.Appx. 450,451 (4th Cir. 2007). 
The Petitioner's due process claim also fails. To prevail on it, the company needed to show that the 
petition's revocation resulted in "prejudice," meaning that the purported due process violation likely 
affected the proceeding's results. See Ayala-Osegueda v. Garland, 92 F.4th 220, 236 n.11 (4th Cir. 
2024). The Petitioner has not sufficiently explained how the purported delayed approval and 
revocation would have likely affected the proceeding's results. Thus, the Petitioner's due process 
claim does not demonstrate the requisite prejudice. 
3 
C. We Lack Jurisdiction Over the Petitioner's Estoppel Claim 
The Petitioner also argues that its and the Beneficiary's reliance on the petition's initial approval 
equitably estopped the tiling's revocation. The company contends that USCIS engaged in "affirmative 
misconduct." The Petitioner states: "This NOIR is a clear example of affirmative misconduct by 
USCIS ... the Government's reckless misleading of [the Beneficiary]." 
Courts invoke the equitable estoppel doctrine to help parties who, in good faith and to their detriments, 
relied on others' representations. Casa de Maryland v. US. Dep 't ofHomeland Sec., 924 F .3d 684, 
705 ( 4th Cir. 2019). Estoppel against the federal government requires a showing of "affirmative 
misconduct." Keener v. E. Assoc 'd Coal Corp., 954 F.2d 209,214 n.6 (4th Cir. 1992) (indicating that 
"affirmative misconduct" would require "lying" to an applicant as opposed to "misleading" them or 
engaging in "malicious" conduct). 
As part of an administrative agency, however, we lack authority to apply the equitable estoppel 
doctrine. See Matter ofO-R-E-, 28 I&N Dec. 330, 336 (BIA 2021 ). Federal courts may estop USCIS, 
but we cannot. Id. Thus, we cannot consider the Petitioner's estoppel argument. 
D. The Record Does Not Support the Petitioner's Alleged Misrepresentation 
Unless accompanied by an application for Schedule A designation, an other-worker petition must 
include an individual labor certification from DOL. 8 C.F.R. § 204.5(1)(3)(i). USCIS may deny a 
petition that includes an invalid labor certification. See Matter ofSunoco Energy Dev. Co., 17 I&N 
Dec. 283, 284 (Reg'l Comm'r 1979) (affirming a petition's denial where, contrary to a DOL 
regulation, the petitioner did not intend to employ the beneficiary in the geographic area stated on the 
labor certification). 
The Director found that the Petitioner misrepresented a material fact on the accompanying labor 
certification. Question I.e.23 of the labor certification asked the company: "Has the employer 
received payment of any kind for the submission of this application?" The company checked the box 
marked "No." The Petitioner signed both the labor certification and the petition, declaring under 
penalty of perjury that it read and reviewed the filings and that their contents were true and accurate. 
Misrepresentations are willful if they are "deliberately made with knowledge of their falsity." Matters 
of Valdez, 27 I&N Dec. 496, 498 (BIA 2018) (citations omitted). A misrepresentation is material 
when it has a "natural tendency to influence, or [be] capable of influencing, the decision of the 
decision-making body to which it was addressed." Id. (citation omitted). A signature on an 
immigration application establishes "a strong presumption" that the signatory knew the application's 
contents and assented to them. Id. at 499. 
Question I.e.23 on the labor certification relates to a DOL labor certification regulation. Under 
20 C.F.R. § 656.12(b), an employer generally cannot "seek or receive payment of any kind for any 
activity related to obtaining permanent labor certification, including payment of the employer's 
attorneys' fees." 
4 
The Director's NOTR alleged that, in response to Question T.e.23 on the labor certification application, 
the Petitioner willfully concealed its receipt of payment for the application's preparation and filing. 
The Director asserted that, contrary to 20 C.F.R. § 656.12(b), an attorney who prepared and filed the 
labor certification application received payment from the money the Beneficiary paid to the recruiting 
firm. 
The record, however, is unclear regarding the Petitioner's purported regulatory violation. The 
applicable regulation also states: 
An alien may pay his or her own costs in connection with a labor certification, including 
attorneys' fees for representation of the alien, except that where the same attorney 
represents both the alien and the employer, such costs shall be borne by the employer. 
20 C.F.R. § 656.12(b ). The record does not demonstrate that the attorney who reportedly prepared 
and filed the Petitioner's labor certification represented both the company and the Beneficiary. The 
labor certification lists no preparer, nor did a preparer sign the certification. A copy of the written, 
signed agreement between the Beneficiary and the recruiting firm states that the firm would 
"recommend counsel to the Employer." But the agreement does not state that the firm would pay an 
attorney to file and prepare the labor certification application. The agreement states that the recruiting 
firm would: 
• Receive $5,000 upon the agreement's execution and the Beneficiary's placement with the 
Petitioner; 
• Pay Form I-140 legal and filing fees of $7,730 within 30 days of receiving an invoice from 
counsel; 
• Receive $2,470 upon I-140 approval; 
• Receive $1,500 once he obtains employment authorization; 
• Receive $1,500 once he obtain U.S. permanent residence. 
Further, the recruiting firm's services listed in the agreement do not involve preparing or filing the 
labor certification application. The record also lacks direct evidence that an attorney received payment 
to prepare and file the Petitioner's certification. 
Under these circumstances, the record lacks sufficient evidence that the Petitioner violated 20 C.F.R. 
§ 656.12(b) or willfully concealed its receipt of payment for any labor certification activity. We will 
therefore withdraw the Director's contrary finding. 
E. The Director Did Not Explain the Specific Reasons for Revoking the Petition Based on the 
Petitioner's Intent 
A business may file an immigrant visa petition if it is "desiring and intending to employ [ an alien] 
within the United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a 
beneficiary under the terms of an accompanying labor certification. See Matter oflzdebska, 12 T&N 
Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, contrary to the accompanying 
labor certification, the petitioner did not intend to employ the beneficiary as a domestic worker on a 
full-time, live-in basis). 
5 
For labor certification purposes, the term "employment" means "[p]]ermanent, full-time work." 
20 C.F .R. § 656.3. "Permanent" employment consists of work of "indefinite duration" and excludes 
a job with a limited employment term. Matter ofAlbert Einstein Med. Ctr., 2009-PER-00379, *64, 
*69 (BALCA Nov. 21, 2011) (en bane). 
The Director's written decision recites the facts contained in the NOIR verbatim, including: the 
Beneficiary's statements at his adjustment interview; the statements of the Petitioner's human 
resources administrator; the Beneficiary's later sworn statement; and his signed, written agreement 
with the recruiting firm. But the decision does not analyze those facts or state a conclusion drawn 
from them. 
When revoking a petition's approval, "the director shall provide the petitioner or the self-petitioner 
with a written notification of the decision that explains the specific reasons for the revocation." 
8 C.F.R. § 205.2(c). The Director's decision does not explain the specific reasons for revoking the 
Petitioner's petition based on the company's purported lack of intent to employ the Beneficiary in the 
offered job. The decision not only violated the regulation but also prevented the Petitioner from 
effectively responding to the revocation ground and us from effectively reviewing the decision. We 
will therefore withdraw the petition's revocation on this ground and remand the matter. 
On remand, if the Director continues to believe that the Petitioner lacked the required intent to employ 
the Beneficiary in the offered job on a permanent basis, the Director should issue a new decision 
explaining the specific reasons for revoking on this ground. The Director should discuss evidence and 
facts that she believes support the revocation ground and/or explain why the Petitioner's evidence is 
insufficient. 
If the Director wishes to alter allegations or rely on new facts or others unmentioned in the NOIR, the 
Director must issue a new NOIR. See Matter ofArias, 19 I&N Dec. 568, 570 (BIA 1988) (stating that 
a revocation can only be grounded upon, and a petitioner need only respond to, the factual allegations 
stated in a NOIR). If supported by the record, a new NOIR may also include new revocation grounds. 
III. CONCLUSION 
The record does not support the petition's revocation based on the Petitioner's alleged concealment of 
a labor certification-related payment. The Director did not sufficiently explain her conclusion that the 
company lacked intent to employ the Beneficiary in the offered job. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
6