remanded EB-3 Case: Food Service

MATTER OF M-P-H- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 14, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER. 
The Petitioner, a restaurant operator, seeks to employ the Beneficiary as a pizza cook. It requests her 
classification as an unskilled worker under the third-preference, immigrant category. See 
Immigration and Nationality Act (the Act) section 203(b)(3)(iii), 8 U.S.C. § 1153(b)(3)(iii). This 
employment-based immigrant classification allows U.S. employer to sponsor a foreign national with 
less than two years of training or experience for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition. The Director concluded that, contrary 
to U.S. Department of Labor (DOL) instructions, the Beneficiary did not disclose her most recent 
employment history on the accompanying labor certification. 
On appeal, the Petitioner contends that the omission of the Beneficiary's employment was 
immaterial because the offered position requires no experience. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for further 
consideration consistent with the following opinion. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer files a 
labor certification application with the DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). The DOL must certify that the United States lacks able, willing, qualified, and 
available workers for an offered position, and that employment of a foreign national will not hurt the 
wages and working conditions of U.S. workers with similar jobs. Id If the DOL approves the labor 
certification application, the employer then files an immigrant visa petition with U.S. Citizenship 
and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. Finally, ifUSCIS 
approves a petition, the foreign national 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. 
USCIS may invalidate a labor certification after its issuance upon a finding of fraud or willful 
misrepresentation of a material fact involving the document. 20 C.P.R. § 656.30(d). A 
misrepresentation is material if it had a natural tendency to influence the government's decision. 
Witter v. INS, 113 F.3d 549, 554 (5th Cir. 1997) (citing Kungys v. United States, 485 U.S. 759, 772 
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Matter of M-P-H- LLC 
(1988)). Substantial evidence must support invalidation. See, e.g., Sugule v. Frazier, 639 F.3d 406, 
411 (8th Cir. 2011). 
II. ANALYSIS 
A. The Beneficiary's Omission on the Labor Certification Application Form 
In this case, the labor certification application form instructed the Beneficiary to list all of her 
employment during the three-year period immediately preceding the application's filing, plus any 
prior experience qualifying her for the offered position. She left this employment history section of 
the form blank. 
In a request for additional evidence (RFE), the Director asked the Petitioner to list all the jobs the 
Beneficiary ever had. In response, the Petitioner submitted a copy of the Beneficiary's resume. The 
resume states that a bridal boutique employed her as general manager for the 1 0 years 
immediately preceding the labor application's filing. 
Because the Beneficiary did not list her most recent job as the labor application instructed, the 
Director denied the petition, concluding that the omission "potentially closed a line of inquiry by 
DOL personnel that was necessary to render an accurate decision regarding the [labor certification] 
application." 
As the Petitioner asserts on appeal, however, the omission of the Beneficiary's employment was 
immaterial. As the labor application specifies, the offered position of pizza cook requires no 
experience. 1 Therefore, the record indicates that the omission of the Beneficiary's most recent job 
did not tend to influence the DOL's labor certification decision. 
The record does not support the materiality of the omission of the Beneficiary's employment on the 
labor certification. We will therefore withdraw the Director's decision. 
B. The Beneficiary's Use of a Recruitment Agency _ 
Although we will withdraw the Director's denial, the record does not establish the validity of the 
labor certification. Labor certification employers generally cannot "seek or receive payment of any 
kind for any activity related to obtaining permanent labor certification," including "reimbursement 
for costs incurred in preparing or filing a permanent labor certification application." 20 C.F.R. 
§ 656.12(b). For purposes of this regulation, labor certification-related activity includes 
"recruitment activity." DOL, Office of Foreign Labor Certification (OFLC), "OFLC Frequently 
Asked Questions and Answers," at https://www.foreignlaborcert.doleta.gov faqsanswers.cfm (last 
visited May 31, 201 7). A payment to an employer "undermines the labor certification process by 
potentially corrupting the search for qualified U.S. workers and creating serious doubt as to whether 
1 The position also requires no education or training. 
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Matter of M-P-H- LLC 
the employer is offering a bona fide job opportunity and making it available for U.S. workers." 
DOL, Final Rule on Labor Certifications for the Permanent Employment of Aliens, 72 Fed. Reg. 
27904,27919 (May 17, 2007). 
Here, the Petitioner attested on the labor certification that the company has not "received payment of 
any kind for the submission of this application." In response to the Director's RFE, however, the 
Beneficiary revealed that she obtained her job offer for the position of pizza cook through a 
recruitment agency. The Beneficiary stated that a friend "researched and found" the agency, then 
provided the information to the Beneficiary. The Beneficiary stated: "I was forwarded to an agent 
who discussed with me the legitimacy of the program and the job positions offered by [the 
Petitioner]." She said she paid the agency for its services, which included: a consultation; help with 
preparing visa documentation; and updates on her immigration process. 
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DOL regulations do not bar the Beneficiary from hiring an agent to assist her in the labor 
certification process. But the record does not establish the nature of the relationship between the 
agency and the Petitioner. If the Petitioner received payments or reimbursements from the agency 
regarding the Beneficiary's recruitment, the Petitioner may have willfully misrepresented a material 
fact on the labor certification. See 20 C.F.R. § 656.30(d). 
The Petitioner acknowledged that it learned of the Beneficiary's interest in the offered position from 
the recruitment agency, which provided it with her background information. But counsel stated that 
the Petitioner "did not hire any recruiter and, therefore, there is no contract between the [P]etitioner 
and any recruiter." Counsel's unsupported assertions, however, do not constitute evidence. Matter 
ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988) (citation omitted). 
The record does not establish the Petitioner's truthful attestation on the labor certification that it 
received no payment or reimbursement from the agency that recruited the Beneficiary for the offered 
position. The record therefore does not establish the certification's validity. As such, we will 
remand this matter to the Director for further fact-finding. 
On remand, the Director should notify the Petitioner of the evidentiary deficiency and afford the 
company a reasonable opportunity to respond. The Director should ask the Petitioner to provide the 
names and addresses of the recruitment agency and agent who helped the Beneficiary, and to 
indicate whether the Petitioner received payments or reimbursement from them. The Director may 
also request additional evidence regarding the Petitioner's relationship with the agency and any other 
potential grounds of denial. Upon the Petitioner's timely response, the Director should review the 
entire record and enter a new decision. 
III. CONCLUSION 
Because the offered position requires no experience, the omission of the Beneficiary's most recent 
employment history on the labor certification did not affect the document's validity. The 
Beneficiary's application for the offered position through a recruitment agency, however, merits 
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additional fact-finding to determine whether the Petitioner misrepresented a material fact on the 
labor certification. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further 
consideration consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of M-P-H- LLC, ID# 350610 (AAO June 14, 2017) 
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