remanded EB-3 Case: Home Health

U.S. Citizenship 
and Immigration 
Services 
In Re: 9016467 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 06, 2020 
The Petitioner seeks to employ the Beneficiary as a home health aide. It requests classification of the 
Beneficiary as an unskilled worker under the third preference immigrant classification. Immigration 
and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. § l 153(b)(3)(A)(iii). This 
employment-based immigrant classification allows a U.S. employer to sponsor a foreign national for 
lawful permanent resident status to work in a position that requires less than two years of training or 
expenence. 
The Director of the Texas Service Center revoked the approval of the petition based on "[i]mproper 
payment by the employer including payment of the employer's attorney fees." The matter is now 
before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's 
decision and remand the matter to the Director for the entry of a new decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). 1 See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that there 
are insufficient U.S. workers who are able, willing, qualified , and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(11) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, 
the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
August 13, 2014. See 8 C.F.R. § 204.S(d). 
II. REVOCATION OF A PETITION'S APPROVAL 
After granting a petition, USCIS may revoke the petition's approval "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record, a director's 
realization that a petition was erroneously approved may justify revocation. Matter of Ho, 19 I&N 
Dec. 582, 590 (BIA 1988). 
Good and sufficient cause exists to issue a notice of intent to revoke (NOIR) where the record at the 
time of the notice's issuance, if unexplained or unrebutted, would have warranted the petition's denial. 
Matter of Est;me, 19 I&N Dec. 450, 451 (BIA 1987). Similarly, revocation is proper if the record at 
the time of the decision, including any explanation or rebuttal evidence provided by a petitioner, 
wairnnted a petition's denial. Id. at 452. 
The regulation at 20 C.F.R. § 656.12(b) states: 
An employer must not seek or receive payment of any kind for any activity related to 
obtaining permanent labor certification, including payment of the employer's 
attorneys' fees, whether as an incentive or inducement to filing, or as a reimbursement 
for costs incurred in preparing or filing a permanent labor certification application, 
except when work to be perfmmed by the alien in connection with the job opportunity 
would benefit or accrue to the person or entity making the payment, based on that 
person's or entity's established business relationship with the employer. 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. For purposes of 
this paragraph (b ), payment includes, but is not limited to, monetary payments; wage 
concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, 
or tributes; in kind payments; and free labor. 
The regulation at 20 CFR § 656.12( c) further states: 
Evidence that an employer has sought or received payment from any source in 
connection with an application for permanent labor certification or an approved labor 
certification, except for a third party to whose benefit work to be perf mmed in 
connection with the job opportunity would accrue, based on that person's or entity's 
established business relationship with the employer, shall be grounds for investigation 
under this part or any appropriate Government agency's procedures, and may be 
grounds for denial under § 656.32, revocation under § 656.32, debarment under § 
656.31 (t), or any combination thereof. 
Part I.e.23 of the labor certification asks, "Has the employer received any kind of payment for the 
submission of this application?" The Petitioner answered, "No" to this question. The Director issued 
the NOIR on October 12, 2018. It stated that the Beneficiary "confessed to having paid $36,000 to a 
Korean immigration broker in conjunction with the petition." The Director stated that he intended to 
revoke the approval of the petition based on "[i]mproper payment by the employer including payment 
of the employer's attorney fees." The NOIR stated that having the immigration agents prepare and 
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file the labor certification for the Petitioner solely using funds paid the Beneficiary violates the 
regulation at 20 C.F.R. § 656.12(b). It further stated that the Petitioner's failure to disclose the 
improper payment on the labor certification constitutes fraud or willful misrepresentation of a material 
fact. The NOIR sufficiently detailed the evidence of the record that, if unexplained and unrebutted, 
would warrant a denial. The Petitioner, through counsel, timely responded to the NOIR with 
significant evidence to rebut the ground of revocation, including the Petitioner's retainer agreement 
with its counsel; copies of the checks written by the Petitioner to its counsel for recruitment services; 
invoices and checks written by the Petitioner to pay for advertisements; invoice and check written by 
the Petitioner to pay its counsel for preparation of the labor certification; the Petitioner's bank 
statements; an explanation of the Petitioner's business and the role of staffing agencies and 
immigration agencies in its recruitment and hiring process; and an explanation of the Beneficiary's 
recruitment. 
The Director issued a notice of revocation (NOR) on October 2, 2019, stating that "[i]mproper 
payment by the employer including payment of the employer's attorney fees" formed the single basis 
for the revocation. The Director noted the Petitioner's response to the NOIR but did not detail or 
analyze any of the evidence that was submitted in that response. It is unclear whether the Director 
considered all of the evidence submitted in response to the NOIR. Therefore, we will withdraw the 
Director's decision and remand the matter for entry of a new decision analyzing the information 
provided in response to the NO IR. 
Further, the Director noted in the NOR that "USCIS may also revoke this Form I-140 with a finding 
of fraud or willful misrepresentation of a material fact" against the Petitioner. However, he did not 
include that formal finding in his grounds of revocation, and it is not clear if the finding was entered 
against the Petitioner. If the Director entered a finding of fraud or willful misrepresentation of a 
material fact against the Petitioner, we will also withdraw this finding. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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