remanded EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 22678615 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
OCT. 25, 2022 
Form 1-140, Immigrant Petition for Professional or Skilled Worker 
The Petitioner, an information technology company, seeks to employ the Beneficiary as a programmer 
analyst. It requests a third preference classification of the Beneficiary as a skilled worker or 
professional.1 Immigration and Nationality Act (the Act) 203(b)(3)(A)(i) and (ii), 8 U.S.C. 
§ 1153(b)(3)(A)(i) and (ii). These employment-based immigrant classifications allow a U.S. employer 
to sponsor an individual for lawful permanent resident status. 
The petition was initially approved. The Director of the Texas Service Center subsequently revoked 
the approval of the petition. The Director concluded: (1) the job opportunity listed on the labor 
certification was not bona fide; (2) the labor certification contained inconsistent requirements for the 
offered position; and (3) the Petitioner has not demonstrated that it has the continuing ability to pay 
the proffered wage. The Director also concluded that both the Petitioner and the Beneficiary 
misrepresented the location of the offered position. The matter is now before us on the Beneficiary's 
appeal. Although normally not the case, under certain circumstances described below a beneficiary 
may be considered to be an affected party in immigrant petition revocation proceedings. 
The AAO reviews the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 
537, 537 n.2 (AAO 2015). It is the Beneficiary's burden to establish eligibility for the requested 
benefit by a preponderance of the evidence. See Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Chawathe, 25 l&N Dec. 369,375 (AAO 2010). Upon de nova review, we will withdraw the Director's 
decision and remand the matter to the Director. 
I. THE BENEFICIARY AS AN AFFECTED PARTY 
U.S. Citizenship and Immigration Services (USCIS) regulations do not generally allow a beneficiary 
to appeal a petition's revocation. See 8 C.F.R. § 103.3(a)(l)(iii)(B) (stating that a beneficiary is not an 
"affected party" with legal standing in a proceeding). However, certain "portability-eligible" 
beneficiaries of revoked 1-140 visa petitions are treated as affected parties in revocation proceedings. 
1 USCIS revised the Form 1-140 as of January 6, 2010, and separated the professional (now box "e") and skilled worker 
(now box "f") categories, which requires the Petitioner to select one category or the other for consideration. Previously, 
and at the time of filing the instant petition, the two categories were combined into one box (box "e"). 
Section 204(j) of the Act, 8 U.S.C. § 1154(j). See Matter of V-S-G-lnc., Adopted Decision 2017-06 
(AAO Nov. 11, 2017). Under the portabi I ity provision of section 204(j) of the Act, approved petitions 
may remain valid under certain conditions even after eligible beneficiaries change jobs or employers. 
A beneficiary of a valid visa petition, whose application for adjustment of status remains pending for 
at least 180 days, may "port" the petition to a new job if that job is in the same or a similar occupational 
classification as the position offered in the petition. See 8 C.F.R. § 245.25(a)(2)(i). Thus, even though 
the petitioner for the visa classification and its beneficiary are no longer in an employment relationship, 
the underlying petition may remain valid for purposes of the beneficiary's adjustment of status 
application. 
In this case, the immigrant visa petition (Form 1-140) was initially approved in July 2006. The 
Beneficiary filed two adjustment of status applications (Form 1-485), in September and October 2007, 
and they are still open and pending. The Director issued the initial notice of intent to revoke (NOIR) 
to the Petitioner in August 2016.2 However, in January 2019, the Director issued a second NOIR to 
both the Petitioner and the Beneficiary after determining the Beneficiary's standing in the revocation 
proceeding.3 The Director issued the revocation decision to both the Petitioner and the Beneficiary, 
which states, "The beneficiary was found to be eligible to receive notices and, therefore, was granted 
the opportunity to respond in revocation proceedings, ... in accordance with the findings in the 
adopted decision in Matter of V-S-G-, Inc ..... " Therefore, the Beneficiary is considered an affected 
party in these revocation proceedings. 
II. 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). 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)(l)-(I I) 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, 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. 
Section 205 of the Act, 8 U.S.C. § 1155, provides that the Secretary of Homeland Security 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). USCIS 
must give the petitioner notice of its intent to revoke the prior approval of the petition and the 
2 According to Wyoming Secretary of State Business Division's website, the Petitioner was dissolved in April 2012. In 
the decision, the Director erroneously stated that the Petitioner's response to the first NOIR was received in September 
2016. However, the record contains a response from the Beneficiary in 2016 stating that the Petitioner went out of business 
in 2012 and therefore, the Beneficiary was responding to the NOIR. 
3 In the second NOIR, the Director stated that in July 2016, USCIS received a written request from the Beneficiary to port 
and has made a favorable determination. 
2 
opportunity to submit evidence in opposition thereto, before proceeding with written notice of 
revocation. See 8 C.F.R. § 205.2(b) and (c). A notice of intent to revoke (NOIR) "is not properly 
issued unless there is 'good and sufficient cause' and the notice includes a specific statement not only 
of the facts underlying the proposed action, but also of the supporting evidence." Matter of Estime, 19 
l&N Dec. 450, 451 (BIA 1987). Per Matter of Estime, "[i]n determining what is 'good and sufficient 
cause' for the issuance of a notice of intention to revoke, we ask whether the evidence of record at the 
time the notice was issued, if unexplained and unrebutted, would have warranted a denial based on the 
petitioner's failure to meet his or her burden of proof." Id. 
Ill. ANALYSIS 
A. Bona fide job offer 
Upon review of the record in its totality, we conclude that the Beneficiary has established by a 
preponderance of the evidence that the Petitioner made a bona fide job offer. The record demonstrates 
that the Petitioner followed the Department of Labor (DOL)'s guidance to indicate its headquarters as 
the job location on the labor certification and included a clarifying statement that the position would 
be at various unanticipated client sites across the United States.4 Accordingly, we will withdraw the 
Director's finding that the Petitioner did not demonstrate that it made a bona fide job offer to the 
Beneficiary. 
B. Willful misrepresentation 
The Director also concluded that both the Petitioner and the Beneficiary made willful 
misrepresentations regarding the location of the job. In particular, the Director stated that the 
Petitioner misrepresented the location of its business operations and the job offer, and the Beneficiary 
misrepresented his "intent to engage in the employment arrangement as attested to on the labor 
certification as he never lived or worked in Wyoming." Upon review, we will withdraw the Director's 
conclusion regarding willful misrepresentation for the Petitioner and the Beneficiary and remand the 
petition for further review and to provide sufficient explanation of the grounds for willful 
misrepresentation. 
While we acknowledge the Director's concerns regarding the actual job location, we note that the 
Director did not sufficiently explain the basis to support the finding of willful misrepresentation. To 
find a willful and material misrepresentation of fact, an immigration officer 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 l&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 l&N Dec. 288, 
289 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from 
4 See the DOL's Employment and Training Administration - Field Memorandum No. 48-94 (May 16, 1994) § 10 -- which 
provided that "[a]pplications involving job opportunities which require the [noncitizen] beneficiary to work in various 
locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having 
jurisdiction over the area in which the employer's main or headquarters office is located." See alsol I 
I I (BALCA Sept. 3, 2009), the Board indicated that for roving employees, the employer's main or 
headquarters office was the proper designation for place of employment. 
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accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy 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 l&N Dec. 536,537 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa petition 
proceedings, they must determine: 1) that the petitioner or beneficiary made a false representation to 
an authorized official of the United States government; 2) that the misrepresentation was willfully 
made; and 3) that the fact misrepresented was material. See Matter of M-, 6 l&N Dec. 149 (BIA 1954); 
Matter of L-L-, 9 l&N Dec. 324 (BIA 1961); Matter of Kai Hing Hui, 15 l&N Dec. at 288. 
Here, the Director noted the inconsistencies in the record and the findings from the investigative 
interviews and concluded that the Petitioner misrepresented its business operations. However, the 
Director did not apply the willful misrepresentation of a material fact elements as outlined above in 
analyzing the factors to support the finding of willful misrepresentation. Furthermore, while the 
Director stated that the Beneficiary misrepresented his "intent" to engage in the employment 
arrangement as indicated on the labor certification, the Director did not elaborate on how he 
determined the Beneficiary's "intent." The Director's finding of willful misrepresentation of material 
facts against the Beneficiary is neither specific nor well grounded. On appeal, the Beneficiary asserts 
that he did not misrepresent any of his work locations or his addresses on any of the forms he filed 
with any of the government agencies. Accordingly, we wi 11 withdraw the Director's findings of willful 
misrepresentation by the Petitioner and the Beneficiary and remand this matter to the Director for 
further consideration and a proper analysis of the willful misrepresentation issue against the Petitioner 
and the Beneficiary. 5 
C. Inconsistencies regarding job requirements 
In the decision, the Director stated that the Petitioner indicated inconsistent job requirements on the 
labor certification and also was unable to determine whether the specific requirements on the labor 
certification meet the classification of a professional because the Petitioner did not submit the 
requested information. On appeal, the Beneficiary asserts that the petition was properly filed under the 
third preference category as the position requires either a U.S. bachelor's degree or the foreign equivalent 
or at least two years training or experience. He further asserts that the labor certification supports the 
petition as the position requires "more than two years training or expe1ience." 
The Petitioner checked box "e" in Part 2 of the Form 1-140, which is for either a professional or a 
skilled worker. As we noted earlier, at the time of filing the instant petition, the professional and 
skilled worker categories were combined into one box (box "e"). The record indicates that the Director 
initially approved the petition under the "professional" category.6 However, the approval notice sent 
to the Petitioner did not indicate the specific category, rather it listed the sections of the law for both 
5 We recognize that that the Director raised significant if somewhat speculative concerns. While not sufficiently developed 
for purposes of this visa petition, the Director is not barred from further inquiry, investigation, or the development of 
questions for consular processing or adjustment of status proceedings. See Matter of 0, 8 l&N Dec. 295 {BIA 1959) (stating 
that the immigrant visa petition is not the appropriate stage of the process for questions regarding admissibility). 
6 Under the classification section of the petition, the immigration services officer checked the box next to the section of 
the law for the professional category. 
4 
the skilled worker category (section 203(b)(3)(A)(i) of the Act) and the professional category (section 
203(b)(3)(A)(ii) of the Act). 
In the labor certification and in the letter submitted in support of the petition, the Petitioner stated that 
the position requires a bachelor's degree or a foreign equivalent in computer science, math, 
engineering, or the related fields (business administration, accounting, commerce, or finance) and nine 
months of experience in the job offered. The Petitioner checked "no" for the question in H.8 of the 
labor certification asking whether there is an alternate combination of education and experience that 
is acceptable. However, in the addendum section of the labor certification for H.14, "Specific skills 
or other requirements," the Petitioner explained that it would also accept a suitable combination of 
education, experience, and training equivalent to a bachelor's degree and stated that it routinely accepts 
3 years of professional experience for each year of coursework at the bachelor's level. 7 The Petitioner 
included the same requirement of combination of education, experience, and training in the support 
letter. 
Here, as the Petitioner explained, both the labor certification and the support letter indicate that the 
Petitioner accepts alternatives to a four-year U.S. bachelor's degree in the form of experience and training, 
therefore, it is reasonable to presume that the Petitioner intended to classify the Beneficiary as a skilled 
worker.8 As the Director has not evaluated the evidence under the skilled worker classification, we will 
remand for the Director to determine whether the Beneficiary qualifies as a skilled worker. 
D. Ability to pay 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish, among 
other things, that it has the ability to pay the proffered wage stated in the labor certification. As 
provided in the regulation at 8 C.F.R. § 204.5(g)(2): 
The petitioner must demonstrate this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence. Evidence of 
this ability shall be either in the form of copies of annual reports, federal tax returns, or 
7 The rule which equates three years of experience to one year of education applies to non-immigrant H-1B petitions, not 
to immigrant petitions. See 8 CFR § 214.2{h)(4)(iii)(D)(5). 
8 The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states, in pertinent part: 
If the petition is for a professional, the petition must be accompanied by evidence that the [beneficiary] 
holds a United States baccalaureate degree or a foreign equivalent degree . . . . Evidence of a 
baccalaureate degree shall be in the form of an official college or university record showing the date the 
baccalaureate degree was awarded and the area of concentration of study. 
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under section 
203(b)(3)(A)(ii) of the Act with anything less than a full baccalaureate degree from a college or university. Where the 
analysis of the beneficiary's credentials relies on a combination of work and/or multiple lesser degrees, the result is the 
"equivalent" of a bachelor's degree rather than a single-source "foreign equivalent degree." In order to have education 
equating to a bachelor's degree under section 203(b)(3)(A)(ii) of the Act, the beneficiary must have a single degree that is 
the "foreign equivalent degree" to a United States baccalaureate degree from a college or university. A beneficiary must 
also meet all of the education. training, experience, and other requirements of the labor certification as of the petition's 
priority date. See Matter of Wing's Tea House, 16 l&N Dec. 158, 159 (Acting Reg'I. Comm'r 1977). 
5 
audited financial statements. In a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by [USCIS]. 
The priority date of the petition is December 29, 2005. The Beneficiary states that he worked for the 
Petitioner until May 10, 2009, when he ported to a new employer.9 Therefore, the Petitioner must 
demonstrate that it had the ability to pay from 2005 until May 2009.10 The Director concluded that 
the Petitioner has not demonstrated that it has the abi I ity to pay the proffered wages. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
Here, the record contains the copies of the Beneficiary's Internal Revenue Service (IRS) Form W-2, 
Wage and Tax Statements, for the years 2005-2009 demonstrating the Petitioner paid the Beneficiary 
more than the proffered wage for the years in question.11 While acknowledging that the Petitioner 
paid the Beneficiary more than the proffered wages, the Director stated, "doubt has been cast on the 
documents submitted" and requested corroborating evidence in the form of official IRS transcripts for 
the relevant years. However, the Director did not sufficiently explain the reasons why a "doubt has 
been cast" and did not identify inconsistencies in the evidence provided necessitating corroborating 
evidence. Accordingly, we will withdraw the Director's finding that the Petitioner did not demonstrate 
that it had the ability to pay the Beneficiary and remand the matter to the Director to provide full 
analysis of the evidence submitted and to discuss whether any inconsistencies contained in the 
evidence submitted in support of the Petitioner's ability to pay and why a doubt was cast on the 
evidence. 
IV. CONCLUSION 
For the reasons discussed above, we are withdrawing the Director's decision on all grounds and 
remanding the case to the Director for further review and to provide sufficient explanation of the 
grounds for willful misrepresentation against the Petitioner and the Beneficiary, as well as the 
Petitioner's ability to pay. Furthermore, the Director should evaluate the evidence for the skilled 
9 The record contains a written request to port to a new employer submitted in August 2009 by the Beneficiary pursuant to 
section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), now section 204(j) of 
the Act. The job offer letter from the new employer is dated May 12, 2009. 
10 USCIS policy does not permit petitioners to prorate proffered wages in the years of priority date. However, the Petitioner 
must establish by a preponderance of evidence that it has the continuing ability to pay the proffered wage until the 
Beneficiary ported to another similar employment in May 2009. 
11 2009 wages are prorated until the Beneficiary ported to a new employer. 
6 
worker classification and whether the Beneficiary is qualified as a skilled worker. The Director may 
request any additional evidence considered pertinent to the new determination and any other issues. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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