remanded EB-3 Case: Household Cook

U.S. Citizenship 
and Immigration 
Services 
In Re: 01281752 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 10, 2021 
The Petitioner, a private individual, seeks to employ the Beneficiary as a household cook. She requests 
classification of the Beneficiary as an "other worker" under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii) , 8 U.S.C. § 1153(B)(3)(A)(iii) . 
This employment-based "EB-3" immigrant classification allows a U.S. employer to sponsor for 
permanent resident status a foreign national who is capable of performing unskilled labor that is not 
temporary or seasonal in nature and requires less than two years of training or experience . 
The petition was initially approved. However , the Director of the Texas Service Center subsequently 
revoked the approval based on findings that the Petitioner submitted an invalid labor certification, that 
the Beneficiary did not meet the experience requirement of the labor certification, that evidentiary 
discrepancies regarding the Beneficiary's name and identity were not resolved, and that the Petitioner 
did not disclose a relationship to the Beneficiary which called into question whether the proffered 
position was a bona fide job opportunity open to U.S. workers. In connection with these 
determinations the Director also found fraud or willful misrepresentations of material facts by the 
Petitioner in the labor certification with regard to the Beneficiary's alleged work experience and an 
undisclosed relationship between the Petitioner and the Beneficiary that called into question whether 
the proffered position was a bona fide job offer open to all qualified applicants. 
The Petitioner filed a combined motion to reopen and reconsider, which the Director dismissed. On 
appeal the Petitioner does not contest the revocation of the petition's approval or the invalidation of 
the labor certification, but asserts that she did not commit fraud or willfully misrepresent any material 
facts in the labor certification. Accordingly, the Petitioner requests that the Director's findings of 
fraud or willful misrepresentation of material facts be withdrawn . 
Upon de nova review, we will remand this case to the Director for further consideration of whether 
the Petitioner committed fraud or willfully misrepresented any material facts in the labor certification. 
Though the appeal is restricted to this single issue, we will also address the other issues discussed by 
the Director in the revocation decision because they form the basis of the Director's 
fraud/misrepresentation finding against the Petitioner and must be considered anew on remand to 
determine whether any such finding is warranted by the evidence. 
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 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 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. 
Section 205 of the Act 8 U.S.C. § 1155, provides that the Secretary of Homeland Security (DHS) may 
"for good and sufficient cause, revoke the approval of any petition." By regulation this revocation 
authority is delegated to any USCIS officer who is authorized to approve an immigrant visa petition 
"when the necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). 
The regulation at 20 C.F.R. § 656.30(d) provides, in pertinent part, that "after issuance, a labor 
certification is subject to invalidation by the DHS ... upon a determination, made in accordance with 
[its] procedures or by a court, of fraud or willful misrepresentation of a material fact involving the 
labor certification application." A petition that lacks a requisite labor certification is not considered 
properly filed. See 8 C.F.R. § 204.5(a)(2). Thus, a petition whose underlying labor certification has 
been invalidated is not approvable. 
II. PROCEDURAL HISTORY AND ANALYSIS 
The record shows that the instant petition was filed in March 2007, accompanied by a labor 
certification that was filed with and certified by the DOL in February 2007. The petition was approved 
in November 2007. 
In April 201 7, nearly ten years after approving the petition, the Director issued a notice of intent to 
revoke (NOIR) the approval. Following receipt of the Petitioner's response to the NOIR, the Director 
revoked the petition's approval in June 2017 1 on four grounds: (1) the Petitioner submitted an invalid 
1 In the revocation decision the Director incorrectly stated that the Petitioner's response to the NOIR was not filed by the 
due date of May 21, 2017. The NOIR was issued on April 18, 2017, and advised the Petitioner that a response was due in 
33 days. Since the 33rd day fell on Sunday, May 21st, however, the next business day, Monday, May 22, 2017, was the 
actual due date. See 8 C.F.R. § 1.2. The record includes documentary evidence in the form of a Federal Express tracking 
label and a confirmation letter from FedEx that the Petitioner's response to the NOIR was received by USCIS on May 22, 
2017. Therefore, it was timely filed. 
At the outset of the NOIR response the Petitioner requested that she be allowed to withdraw her petition. In the revocation 
decision the Director indicated that the withdrawal request would not granted because it was received more than 180 days 
after the approval of the Form 1-140 petition, citing 8 C.F.R. § 205.l(a)(3)(C), which states, in pertinent part, that: "A 
petition that is withdrawn 180 days or more after its approval, or 180 days or more after the associated adjustment of status 
application has been filed, remains approved unless its approval is revoked on other grounds." The Petitioner did not 
renew a request for withdrawal in the subsequent motions to reopen and reconsider or on appeal. 
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labor certification; (2) the Beneficiary did not meet the labor certification's experience requirement; 
(3) the Petitioner did not submit sufficient evidence to resolve inconsistencies regarding the 
Beneficiary's name and identity; and (4) the Petitioner did not establish that the proffered position was 
a bona fide job opportunity open to all qualified applicants. The Director also found that the Petitioner 
committed fraud or willfully misrepresented material facts in connection with the labor certification, 
but did not distinguish between the two or specify which -- either fraud or willful misrepresentation 
of material facts - applied in this case. 
On appeal, following the Director's dismissal of the Petitioner's combined motions to reopen and 
reconsider in October 2017, the Petitioner asserts that the Director's revocation decision contains 
factual inaccuracies and that his findings of fraud or willful misrepresentation of material facts against 
the Petitioner are ill-founded. The Petitioner claims that any and all inaccuracies in the petition and 
the labor certification were due to the malpractice of the attorney, I I with whom she 
allegedly never had an attorney-client relationship 2 and who has since been convicted of immigration 
fraud, 3 and possible misrepresentations by the Beneficiary of her employment history of which the 
Petitioner had no prior knowledge. While the Petitioner does not contest the Director's revocation of 
the petition's approval and the invalidation of the labor certification, we will nonetheless discuss the 
Director's grounds for these determinations because each must be reviewed on remand to determine 
whether a finding of fraud or willful misrepresentation of material facts by the Petitioner is warranted 
by the evidence of record. 
A. Grounds for Revocation in Director's Decision 
1. Finding that Petitioner Submitted an Invalid Labor Certification 
When the Petitioner filed the instant petition in March 2007 it was accompanied by a labor certification 
that was prepared by the attorney! lfiled with the DOL on February 11, 2007 (ETA 
Case Number,__ ____ __,, certified by the DOL on February 22, 2007, and signed by the 
Petitioner and the Beneficiary on March 12, 2007. The Petitioner also submitted a letter from the DOL 
certifying officer to the Petitioner, c/o I !advising of his positive determination on the labor 
certification application for the Beneficiary's employment as a household cook. 
The record indicates that in connection with the Beneficiary's application to adjust status, Form I-485, 
also prepared b~,__---~~nd filed in October 2007, another labor certification approval le~ 
the DOL was submitted to users. That letter was addressed tq l c/ol___J 
I hd referenced ET A Case Numberl I which was purportedly filed on behalf of 
2 Contrary to the Petitioner's contention, the record shows that she did have an attorney-client relationship with I,__ __ ~ 
since the Form 1-140 petition she filed in March 2007 was accompanied by a Form G-28, Notice of Entry of Appearance 
as Attorney or Represen~ative identifvinP I I as the attorney for both the Beneficiary and the Petitioner. The Form 
G-28 was co-signed byl.__ ----~!and th~ Petjtjoner who also wrote the date March 12, 2007. The Form 1-140 
petit~as als? ca-sioued bv t~e Petitioner and l:as "Attorney or Representative." 
3 In L..,._J 201 St._ ____ _.} pleaded guilty in federal district court to conspiring with others to provide fraudulent 
documentation in support of employment-b~sed immigration petitions He was sentenced to 27 months in urison among 
other penalties. See https://www.justice.gov!_ I I I (last visited Jan. 26, 2021 ). 
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the Beneficiary for the occupation of cake decorator in January 2001 and approved by the DOL in July 
2006. 
In the revocation decision of June 2017 the Director referenced both of these labor certifications and 
stated that the DOL had no record of the earlier dated labor certification, ETA Case Numberl I I I The Director concluded that the Petitioner had not established the validity of the labor 
certification submitted in support of her Form I-140 petition, and that the petition was therefore 
unreviewable because it did not meet threshold filing requirements which mandate that a petition be 
accompanied by a valid labor certification, citing 8 C.F.R. § 103 .2(b ). As previously discussed, 
however, the record clearly shows that the labor certification submitted in support of the instant 
petition was ETA Case Numberl I While that document was not signed by the preparer, 
I I it does bear the requisite signatures of the Petitioner and the Beneficiary. 
2. Finding that Beneficiary did not Meet Experience Requirement of the Labor Certification 
A beneficiary must meet all of the education, training, experience, and other requirements of the labor 
certification as of the petition's priority date,4 which in this case was February 11, 2007. The labor 
certification filed with the instant petition requires two years of experience as a household cook, and 
asserts that the Beneficiary acquired this experience working for a household inl I Czech 
Republic, from February 1997 to July 1999. As evidence of this experience the Petitioner submitted 
a letter from a member of the household, ~-----~ 
In the revocation decision, however, the Director stated that according to USCIS records the 
Beneficiary did not mention any employment in the Czech Republic in her application for a B-2 visa 
to the United States, which was approved and issued i~ I in March 1999. Since no evidence was 
submitted in the current proceeding to resolve this discrepancy between the work history indicated in 
the labor certification and the lack thereof in the visa application, the Director found that the record 
did not demonstrate that the Beneficiary had the requisite work experience to qualify for the job 
offered. 
~eal the Petitioner contends that she is not responsible for any false employment history □ 
L___Jmay have claimed for the Beneficiary in the labor certification because she had no reason to 
doubt the information provided byl I in that document at the time it was submitted to the 
DOL and USCIS in 2007, nor any reason to doubt the information provided in the employment 
verification letter received froml I at that time. In addition, the Petitioner states that she 
was not privyl to any rnflicting information the Beneficiary may have provided in 1999 on her visa 
application in The Petitioner has submitted two personal affidavits in support of these claims. 
3. Finding that Petitioner did not Resolve Discrepancies regarding Beneficiary's Name and Identity 
In the revocation decision the Director noted that there were differences in the Beneficiary's name in 
the various documents of record, and found that these inconsistencies raised questions as to whether 
4 The priority date of an employment-based immigrant petition is the date the underlying labor certification was filed with 
the DOL. See 8 C.F.R. § 204.S(d). 
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all of the documents referred to the same individual. Most of these discrepancies are explained by 
marriage documents showing that the Beneficiary has added her husband's family name to her maiden 
name. The other apparent discrepancy is on an I-94 arrival and departure form filled in by hand, which 
includes one letter in the Beneficiary's maiden name which the Director read as an "H" rather than an 
"M" and resulted, according to the Director, in a spelling of l t rather than I ~ 
In our view the subject letter, as written, is not clearly an "H" and could be seen as an "M" consistent 
with the Beneficiary's maiden name. In sum, we do not share the Director's view that the purported 
discrepancies raise any serious doubt about the Beneficiary's name and identity. 
4. Finding that Proffered Position was not a Bona Fide Job Opportunity Open to U.S. Workers 
In the revocation decision the Director found that the labor certification was filed for a family member, 
that there was no evidence the Beneficiary's relationship to the Petitioner was disclosed to the DOL 
during the labor certification process, that this failure to disclose raised questions about the availability 
of the job opportunity to U.S. workers, and that the labor certification application would not have been 
approved if all the facts had been presented to the DOL. The Director stated that these findings 
warranted the invalidation of the labor certification. 
There is no basis in the record for these findings regarding an undisclosed relationship between the 
Petitioner and the Beneficiary. In Part C, item 9, of the labor certification, the Petitioner answered 
"No" in response to the following compound question: "Is the employer a closely held corporation, 
partnership, or sole proprietorship 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 Director does not identify any business or familial relationship between the Petitioner and 
the Beneficiary at the time the labor certification was processed in 2007, none was acknowledged by 
those two individuals, and there is no evidence in the record of any business or familial relationship 
between the Petitioner and the Beneficiary at that time. 
B. Finding of Fraud or Willful Misrepresentation of Material Facts by the Petitioner 
As previously indicated, the only issue the Petitioner contests on appeal is the Director's finding that 
she committed fraud or willfully misrepresented material facts in the labor certification - specifically, 
with respect to the Beneficiary's work experience and whether the proffered position is, or was, a bona 
fide job opportunity open to U.S. workers. 
A finding of fraud requires a determination that the alien made a false representation of a material fact 
with knowledge of its falsity and with the intent to deceive an immigration officer. Furthermore, the 
false representation must have been believed and acted upon by the officer. See Matter of G-G-, 
7 I&N Dec. 161 (BIA 1956). 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 of M-, 6 I&N Dec. 149 (BIA 1954); Matter of Kai 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 
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Matter of HeaZv and Goodchild, 17 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, 53 7 (BIA 1980). 
In the revocation decision the Director did not specify whether he found that the Petitioner committed 
fraud in the labor certification, or whether the Petitioner willfully misrepresented material facts in the 
labor certification. The Director did not apply either the fraud elements outlined in Matter of G-G- or 
the willful misrepresentation of a material fact elements outlined in Matter of M- and Matter of Kai 
Hing in analyzing the Petitioner's assertions in the labor certification regarding (1) the Beneficiary's 
qualifying experience and (2) the lack of any business or familial relationship between the Petitioner 
and the Beneficiary that would undercut the bonafides of the proffered position as a job opportunity 
open to U.S. workers. Thus, the Director's finding(s) of fraud or willful misrepresentation of material 
facts against the Petitioner are neither specific nor well grounded. 
IV. CONCLUSION 
In accord with the foregoing analysis, we will withdraw the Director's finding(s) of fraud or willful 
misrepresentation of material facts by the Petitioner in the labor certification. We will remand this 
matter to the Director for further consideration and a proper analysis of this issue. 
The Director's revocation of the petition's approval and the invalidation of the labor certification, 
uncontested in the Petitioner's appeal, remain undisturbed. 
ORDER: The matter is remanded for further proceedings consistent with the foregoing decision 
and the entry of a new decision on the issue of whether the evidence of record warrants 
a finding of fraud or willful misrepresentation of a material fact against the Petitioner 
in the labor certification. 
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