remanded EB-3 Case: Household Cook

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 25680074 Date : MAY 18, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner seeks to permanently employ the Beneficiary as a private household cook. The 
Petitioner requests the Beneficiary's classification under the third-preference, immigrant visa category 
as an "other worker" requiring less than two years of training or experience. See Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 C.F.R. § l 153(b)(3)(A)(iii). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
make a bona fide job offer to the Beneficiary and that they misrepresented a material fact in not 
disclosing their familial relationship . 1 The matter is now before us on appeal. 
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). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
Employment-based immigration generally follows a three-step process . First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5) . 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)-(II) of the 
Act. Second , the employer files an immigrant visa petition (Form 1-140) with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
approves the 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. 
1 Specifically , the Petitioner 's sister is married to the Beneficiary's brother. 
II. ANALYSIS 
A. Ability to Pay 
A petitioner must demonstrate its continuing ability to pay an offered position's proffered wage, from 
a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of a business's annual reports, 
federal tax returns, or audited financial statements. Id. 
The Petitioner's accompanying labor certification states the proffered wage of the offered position of 
private household cook as $35,000.00 a year. The petition's priority date is March 1, 2019, the date 
DOL accepted the labor certification application for processing. See 8 C.F.R. § 204.5( d) ( explaining 
how to determine a petition's priority date). The Petitioner filed the Form 1-140 on July 12, 2019. 2 
While the Petitioner submitted his 2018 and 2019 federal income tax returns, the record does not 
include evidence of his ability to pay from 2020 onward. We will therefore remand the matter for the 
Director to render a determination regarding the Petitioner's continuing ability to pay. The Director 
should request the Petitioner to submit additional evidence of his ability to pay the proffered wage 
starting in 2020 and thereafter. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate their 
ability to pay "continuing until the beneficiary obtains lawful permanent residence"). 
B. Bona Fide Job Offer 
The Director's decision discussed an undisclosed familial relationship involving the Petitioner's 
sister's marriage to 
the Beneficiary's brother. The Director concluded that the record did not establish 
that the Petitioner made a bona fide job offer to the Beneficiary or that the job was clearly open to any 
U.S. worker. A labor certification employer must attest that "[t]he job opportunity has been and is 
clearly open to any U.S. worker." 20 C.F.R. § 656.10(c)(8). This attestation "infuses the recruitment 
process with the requirement of a bona fide job opportunity: not merely a test of the job market." 
Matter of Modular Container Sys., Inc., 89-INA-228, 1991 WL 223955, at 7 (BALCA 1991) (en 
bane); see 20 C.F.R. § 656.17(1). 
To assess whether a bona fide job offer may be at issue, section C.9 of the labor certification asks, "Is 
the employer a closely held corporation ... in which the alien has an ownership interest, or is there a 
familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and 
the alien?" The Petitioner checked "No" in response to this question. Based on the Petitioner's 
response, the Director concluded the evidence did not show that the Petitioner made a bona fide job 
offer to the Beneficiary or that he intended to employ her in the offered position. 
On appeal, the Petitioner contends that he truthfully responded "No" to section C.9 of the labor 
certification, asserting that "no family relationship that is currently defined by the DOL exists between 
the Petitioner and Beneficiary. They are not blood relatives nor can they be considered cousins, aunts, 
uncles, grandparents, in-laws or stepfamilies." The Petitioner further argues that "having siblings who 
2 The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(D) requires that a petition filed under this classification must be accompanied 
by evidence meeting "any educational, training and experience, and other requirements of the labor certification." Form 
1-140, Part 6 indicates that the position is for full-time employment. 
2 
are married is so de minimus and separated by so many familial degrees that no word currently exists 
for this kind of alleged relationship. Furthermore, the DOL instructions do not clearly indicate if the 
alleged relationship between the Petitioner and Beneficiary clearly represents a familial relationship." 
The DOL, however, requires the disclosure of "any" familial relationships between the noncitizen and 
the owners, stockholders, partners, corporate officers, and incorporators at section C.9 on the labor 
certification. As emphasized by the Petitioner on appeal, published DOL guidance on this issue states 
that a familial relationship includes "any relationship established by blood, marriage, or adoption, 
even if distant" (emphasis added). For example, the guidance indicates that a familial relationship 
includes cousins of all degrees, aunts, uncles, grandparents, and grandchildren as well as relationships 
established through marriage, such as in-laws and stepfamilies. See DOL, Office of Foreign Labor 
Certification, "OFLC Frequently Asked Questions and Answers," at https://www. 
foreignlaborcert.doleta.gov/faqsanswers.cfm). 
The Petitioner and Beneficiary's familial relationship, however, represents only one factor to be 
considered among multiple other factors when determining whether the Petitioner made a bona fide 
job offer. These other factors include, but are not limited to, whether a noncitizen: is in a position to 
control or influence hiring decisions regarding the offered position; incorporated or founded the 
company; has an ownership interest in the company; is involved in the management of the company; 
sits on its board of directors; is one of a small group of employees; has qualifications matching 
specialized or unusual job duties or requirements stated in the labor certification; and is so inseparable 
from the sponsoring employer because of his or her pervasive presence that the employer would be 
unlikely to continue in operation without the noncitizen. Modular Container, 1991 WL 223955 at 8-
10. The DOL adopted the holding in Modular Container at 20 C.F.R. § 656.17(1 ). 
Here, the Director did not fully consider other factors beyond the Petitioner and Beneficiary's familial 
relationship to determine whether the Petitioner made a bona fide job offer. See Modular Container, 
1991 WL 223955 at 8-10. We will not make a totality of the circumstances determination regarding 
the bona fides of the job offer here, in the first instance, as that is in the Director's purview. For this 
reason, we will withdraw the Director's determination on this issue and remand the matter for further 
consideration of whether a bona fide job offer was made by the Petitioner. 
C. Willful Misrepresentation of a Material Fact 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts. For an 
immigration officer to find a willful and material misrepresentation of fact, he or she must determine 
that ( 1) the petitioner or beneficiary made a false representation to an authorized official of the U.S. 
government, (2) the misrepresentation was willfully made, and (3) the fact misrepresented was 
material. See Matter ofM-, 6 I&N Dec. 149 (BIA 1954); Matter ofKai Hing Hui, 15 I&N Dec. 288, 
289 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter ofHealy and 
Goodchild, 1 7 I&N Dec. 22, 28 (BIA 1979). A "material" misrepresentation is one that "tends to shut 
off a line of inquiry relevant to the alien's eligibility." Matter of Ng, 17 I&N Dec. 536, 537 (BIA 
1980). 
3 
The Director determined that both the Petitioner and the Beneficiary willfully misrepresented a 
material fact by not disclosing their familial relationship. In the appeal brief, the Petitioner contends 
that "DOL instructions do not clearly indicate if the alleged relationship between the Petitioner and 
Beneficiary clearly represents a familial relationship. Here, the Petitioner answered Part C.9 of the 
labor certification according to his reasonable, honest belief that he was doing so correctly." The 
Petitioner therefore requests that the finding of willful misrepresentation be withdrawn. 
With respect to the Beneficiary, her signature in section L of ETA Form 9089 declared "under penalty 
of perjury that Sections J and Kare true and correct." The Beneficiary did not attest to the truthfulness 
or correctness of the response provided in section C.9 and therefore it cannot be concluded that she 
made a false representation to an authorized official of the U.S. government. Accordingly, we 
withdraw the Director's finding of willful material misrepresentation relating to the Beneficiary. 
We also withdraw the Director's finding relating to the Petitioner's willful misrepresentation. While 
the record raises some serious questions, the Director's decision did not specifically articulate how the 
Petitioner's response to section C.9 represented a willful misrepresentation of a material fact on the 
labor certification. 3 The Director should determine if the Petitioner's misrepresentation was knowing 
and intentional, as distinguished from accidental, inadvertent, or in an honest belief that there was no 
familial relationship. We are therefore remanding for the Director to fully consider the Petitioner's 
arguments on this issue and determine if his misrepresentation was willfully made. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case for further consideration of whether the 
Petitioner and the Beneficiary meet all eligibility requirements, including, but not limited to, the bona 
fide nature of the job offer, ability to pay, and full-time employment. If supported by the record, the 
Director may notify the Petitioner of any other potential denial grounds, including willful 
misrepresentation of a material fact. The Director, however, must afford the Petitioner a reasonable 
opportunity to respond to all issues raised on remand. Upon receipt of a timely response, the Director 
should review the entire record and enter a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
3 The Director's decision also indicated that "[t]he Petitioner and Beneficiary have submitted conflicting testimony, under 
penalty of perjury," but it does not explain how their statements were contradictory. 
4