remanded EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
In Re : 11931649 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 27, 2020 
The Petitioner, a home healthcare business , seeks to employ the Beneficiary as a clinical program 
development strategist. It requests classification of the Beneficiary as a professional under the third 
preference immigrant classification. 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 Nebraska Service Center revoked the approval of the petition, concluding that the 
Petitioner did not establish that the Beneficiary possessed the required experience for the offered 
position. 
The Petitioner bears the burden of establishing eligibility for the requested immigration benefit. See 
section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will withdraw the Director's 
decision and remand the appeal for the issuance of a new decision. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional usually follows a three-step process. First, the prospective employer 
must obtain a labor certification approval from the U.S. Department of Labor (DOL) to establish that 
there are not sufficient U.S . workers who are available for the offered position . Section 212(a)(5) of 
the Act, 8 U.S .C. § 1182(a)(5). 
Second, the employer must submit the approved labor certification with an immigrant visa petition to 
U.S . Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S .C. § 1154. The 
immigrant visa petition must establish that the foreign worker qualifies for the offered position, that 
the foreign worker and the offered position are eligible for the requested immigrant classification , and 
that the employer has the ability to pay the proffered wage . See 8 C.F.R. § 204 .5. These requirements 
must be satisfied by the priority date of the immigrant visa petition. See 8 C.F.R. § 204.5(g)(2) ; Matter 
of Wing's Tea House, 16 I&N Dec . 158, 159 (Act. Reg'l Comm'r 1977). For petitions that require a 
labor certification, the priority date is the date on which the DOL accepted the labor certification 
application for processing. See 8 C.F.R. § 204.5(d). In this case, the priority date is December 12, 
2018. 
USCIS may revoke its prior approval of an immigrant visa petition "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. Revocations under 8 C.F.R. § 205.2 may 
be made only after issuing a notice of intent to revoke (NOIR) to the petitioner which provides the 
opportunity to submit evidence in support of the petition and in opposition to the alleged grounds for 
revocation. If the petition approval is revoked, the director must provide the petitioner with a written 
decision that explains the specific reasons for the revocation. Id. 
A NOIR is issued for "good and sufficient cause" if the record of proceeding at the time of issuance 
would warrant the denial of the petition. Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). 
Similarly, the approval of the petition is properly revoked if the record (including any NOIR response 
submitted by the petitioner) warrants the denial of the petition. Id. at 452; see also Matter of Ho, 19 
I&N Dec. 582, 590 (BIA 1988) (the realization by the director that the petition was approved in error 
may be good and sufficient cause for revoking its approval). 
Finally, ifUSCIS approves the immigrant visa petition, the foreign worker may apply for an immigrant 
visa abroad or, if eligible, for adjustment of status in the United States. Section 245 of the Act, 8 
U.S.C. § 1255. 
II. REVOCATION OF IMMIGRANT VISA PETITION APPROVAL 
The labor certification in this case states that the offered position requires a bachelor's degree in 
physiology and 24 months of experience in health education or health management. The Beneficiary's 
qualifying education is listed on the labor certification as a bachelor's degree in physiology from 
I I University in Nigeria, awarded in 2010. The labor certification also states that the 
Beneficiary worked 40 hours per week as a lecturer (health promotion/education) atl I 
College of Health Technology, Nigeria from November 1, 2012 to November 20, 2016. This is the 
only potentially qualifying experience listed on the labor certification. 
The petition contains an employment experience letter by~----------~ on~I -~ 
LJ College of Health Technology letterhead, which attests to the Beneficiary's full-time 
employment as a lecturer as well as a copy of his college diploma and an educational equivalency 
evaluation stating that his bachelor's degree in physiology is the foreign equivalent of a U.S. 
bachelor's degree. 
The Director approved the immigrant visa petition and then revoked its approval approximately seven 
months later. In this case, the director's NOIR was properly issued for "good and sufficient cause" as 
it raised at least one potential ground for revocation that, if unrebutted, would warrant the denial of 
the petition. Specifically, the NOIR stated that the Beneficiary did not possess the claimed experience 
for the offered position. 1 
1 The NOTR also stated that the Petitioner did not establish its ability to pay the proffered wage and that the Petitioner did 
not fully comply with the notice requirements for the labor certification process under 20 C.F.R. § 656.10. After reviewing 
the Petitioner's NOIR response (which included multiple Releases and Satisfaction of Judgments from the Ohio 
Department of Taxation), the Director concluded that the Petitioner had met its burden of proof for these issues. 
2 
Regarding the Beneficiary's experience, the NOIR noted that the Beneficiary's prior visa applications 
stated that he was employed as a logistics manager for I I from 2009 to 2015. In 
addition, on a subsequent application and interview, where the Beneficiary claimed that he was 
employed as an assistant lecturer of physiology, it was reported that the Beneficiary was unable to 
demonstrate a basic understanding of physiology. The NOIR also stated that the Beneficiary had 
claimed to be a farmer in a prior visa application. Finally, the NOIR stated that USCIS attempted to 
verify the Beneficiary's employment using the contact information on the employment experience 
letter, but the school did not respond. 2 
The Petitioner's brief in response to the NOIR contained the names and addresses of two additional 
references who could purportedly verif the Beneficia 's employment. The response also confirmed 
that the Beneficiary worked for Specifically, the Petitioner claimed that the 
Beneficiary worked for ~----------~(where the Beneficiary was at the location only 
on the weekends "with remote work during the weekdays") while employed foll-time by I I 
College of Health Technology. 3 The brief also states that the Beneficiary had worked as a farmer, but 
that it was only for one hour per day for family's business. 4 
In support of the brief: the NOIR response contained a new employment verification letter fromD 
I Io~ !College of Health Technology letterhead. The letter, which 
contains a yahoo.com email address for the author, states that the author was not aware of any attempt 
to contact him by USCIS and reasserted that the Beneficiary worked 40 hours per week as a lecturer 
from November 2012 to August 2016. This August 2016 end date differs from the November 2016 
end date stated on his prior employment letter and at section K of the labor certification. The NOIR 
response also contains a letter onl I letterhead froml I HR/Sales 
Representative, stating that the Beneficiary was employed as a part-time "Logistic Manager" where 
he worked remotely during the week and on-site during weekends from August 2009 until June 2015. 
The letter does not state the hours per week that the Beneficiary worked in this position. 
After reviewing the Petitioner's NOIR response, the director revoked the approval of the petition. The 
decision concludes that the Petitioner did not resolve the inconsistencies pertaining to the 
Beneficiary's employment history with independent, objective evidence and therefore did not establish 
that the Beneficiary possessed the required experience for the offered position. See Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988) (a petitioner must resolve inconsistencies in the record with 
independent, objective evidence pointing to where the truth lies). We find that, based on the evidence 
in the record before the Director, the approval of the petition was revoked for good and sufficient 
2 The employment experience letters submitted with the petition and the NOIR response contain a yahoo.com email address 
for the school and the author. 
3 The brief also states that the Petitioner did not list the Beneficiary's employment with~ _____ _, because he 
stopped working there over three years prior to the filing date of the labor certification and therefore it was not required to 
be disclosed. Section K of the labor certification, titled "Alien Work Experience," states: "List all jobs the alien has held 
during the past 3 years. Also list any other experience that qualifies the alien for the job opportunity for which the employer 
is seeking certification." The brief does not explain why the Beneficiary's employment as a farmer was not disclosed, or 
whether the Beneficiary engaged in any other employment in the three years prior to the filing date of the labor certification. 
4 Assertions of counsel do not constitute evidence. Matter ofObaigbena, 19 l&N Dec. 533,534 n.2 (BIA 1988) (citing 
Matter of Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 1980)). Counsel's statements must be substantiated in the record 
with independent evidence. 
3 
cause because the Petitioner failed to adequately resolve the inconsistencies in the Beneficiary's 
claimed employment experience with independent, objective evidence. The two employment letters 
from I O ICollege of Health Technology have different end dates of employment. The 
employment letters do not sufficiently address how the Beneficia was able to work foll-time for 
I I College of Health Technology and part-time for such as explaining 
the number of hours the Beneficiary worked each week for.__ ______ __r_nd how he performed 
his duties remotely during the week. The Petitioner did not explain why the Beneficiary was unable 
to answer basic questions about physiology in his visa interview. 
On appeal the Petitioner submits the Beneficiary's tax record ofl I Internal Revenue Service, 
showing his tax income and deductions for 2012 to 2016 for emplorment wit~ I College of 
Health Technology; and a taxpayer assessment register from the !Government Internal 
Revenue Service showing the Beneficiary's income and tax paid for 2012 to 2016, but does not state 
the name of any employer. Finally, the appeal contains a letter from the National Youth Service Corps 
of Nigeria tol I College of Health Technology stating that the Beneficiary would be assigned 
there for one year of "National Service." 
Since the Director has not had an opportunity to review this new evidence, we are remanding this 
matter to the Director to determine whether or not the documents resolve the inconsistencies in the 
record relating to the Beneficiary's qualifying employment experience and establish that the 
Beneficiary has the required experience for the offered position. On remand, the Director should 
request updated evidence of the Petitioner's ability to pay the proffered wage as well as an explanation 
for the basis of the former tax judgments against the company by the Ohio Department of Taxation. 5 
The Director should also request evidence establishing that the Petitioner is not currently subject to 
any state or federal tax liens that may impact the Petitioner's ability to continue operations or pay the 
proffered wage. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
5 The Petitioner must demonstrate its continuing ability to pay the proffered wage from the priority date and continuing 
until the Beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). In this case, the Petitioner's 2019 federal 
income tax return was not yet due as of the petition filing date. 
4