remanded EB-3 Case: Janitorial Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 02, 2024 In Re: 293 77178 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner seeks to employ the Beneficiary as a manager janitorial services. It requests 
classification of the Beneficiary under the third-preference, immigrant classification for skilled 
workers. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U .S.C. 
§ 1153(b)(3)(A)(i). This employment-based category allows a U.S. business to sponsor a foreign 
national for lawful permanent resident status based on a job offer requiring at least two years of 
training or experience. 
After initially approving the Form 1-140, Immigrant Petition for Alien Worker (petition), the Nebraska 
Service Center Director revoked the petition's approval. The Director concluded that the Petitioner 
did not demonstrate the bona fides of the job opportunity. The Petitioner appealed and we determined 
that the revocation of the petition's approval was not proper, as the Petitioner was not provided an 
opportunity to address derogatory information provided in the final revocation. We remanded the 
matter for further proceedings. After properly notifying the Petitioner of the derogatory information 
the Director again revoked the petition's approval on the same grounds. The matter is again before us 
on the Petitioner's appeal. 8 C.F.R. § 103.3. 
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 
To permanently fill a position in the United States with a foreign worker, a prospective employer must 
first obtain certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 
8 U.S.C. § l 182(a)(5). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for a position. Id. Labor certification also indicates that the employment of a foreign 
national will not harm wages and working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a foreign national may finally 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. 
At any time before a beneficiary obtains lawful permanent residence, however, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by the record, a petition's erroneous approval may justify its revocation. Matter of Ho, 
19 l&N Dec. 582, 590 (BIA 1988). USCIS properly issues a notice of intent to revoke (NOIR) a 
petition if the unrebutted and unexplained record would have warranted the filing 's denial. Matter of 
Estime, 19 l&N Dec. 450, 451 (BIA 1987). The Agency properly revokes a petition's approval if a 
petitioner does not respond to a properly issued NOIR, or their NOIR response does not overcome all 
alleged revocation grounds. Id. at 451-52. 
II. ANALYSIS 
A. Procedural History 
The labor certification in this case was filed on March 17, 2006 for the offered position of "Manager 
Janitorial Services." The job duties of the offered position as stated on the labor certification are: 
Supervision of workers to ensure clean, orderly and attractive rooms at hospitals, 
educational institutions and similar establishments. Assign job duties, investigate 
complaints regarding housekeeping service and equipment and take corretive [sic] 
action. May purchse [sic] housekeeping supplies and equipments. Take periodic 
inventories, screen applicants, train new employees and recommend dismissals. 
The labor certification and the petition list the work location for the offered position as l....____ __, 
I I California," and no additional work sites are listed. On the petition (in Part 6, 
Question 5), the Petitioner indicated that the offered position is full-time. 
The Director approved the petition in 2009. After the Beneficiary attended a visa interview for 
consular processing, USCIS performed two site visits in 2019. First, USCIS visited the work location 
listed on the petition and on the labor certification. The location is a residential address and no signage 
for the Petitioner's business was found and no employees were identified on site. Next, USCIS visited 
the Petitioner's owner's home address and spoke with the Petitioner's owner. During this site visit 
the Petitioner's owner stated that the Petitioner had no employees, that it had three part-time 
contractors to provide janitorial services, and that it planned to hire employees for the Beneficiary to 
supervise once he arrived in the United States. The Director issued a notice of intent to revoke (NOIR) 
the petition's approval in January 2021, notifying the Petitioner that "because there are no regular 
employees to supervise, it does not appear that the job as described on the labor certification exists," 
and giving the Petitioner an opportunity to respond. The Director also stated that the Petitioner must 
demonstrate the ability to pay the Beneficiary's wage from the date it filed the petition until he attains 
lawful permanent resident status. 
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The Petitioner, a sole proprietorship, responded to the NOIR with copies of its owner's federal income 
tax returns and other documentation to demonstrate its business operations and continuing ability to 
pay the proffered wage. The Petitioner asserted that its personnel were not listed on its payroll as 
they were working as independent contractors, and that two of those individuals, while not direct 
employees, were working full-time. The Petitioner contested the allegation that it did not have 
personnel for the Beneficiary to supervise. The Director determined the NOIR response was not 
sufficient to overcome the grounds listed in the notice and it revoked the approval. The Director 
indicated that the Petitioner sufficiently addressed the ability to pay issue, but, relying on the tax 
returns, determined that "the job offered is not a bona fide position that has been available to U.S. 
workers." Specifically, the Director noted that the tax returns listed no wages paid to employees in 
2014 and 2015, and that the wages paid in 2016 and 2017 demonstrated only part-time work. On 
appeal, we concluded that the Director's reliance on the tax returns in his revocation was improper, as 
this information was not included in the NOIR and the Petitioner was not afforded an opportunity to 
address these issues. 
Upon remand, the Director issued a second NOIR. In the second NOIR, the Director cited the 
Petitioner's owner's 2014 and 2015 tax returns, noting that no wages paid and no expenses for contract 
labor were recorded in those years. The Director also cited the Petitioner's owner's 2016 and 2017 
tax returns that reflected minimal amounts paid for contract labor. The Director stated that the offered 
position is supervisory in nature and the record did not demonstrate that there were employees 
requiring full-time supervision from 2014 through 2017. In response to the second NOIR the 
Petitioner submitted additional tax returns, additional Internal Revenue Service (IRS) Form 1099, 
Nonemployee Compensation, reflecting three contractors in 2021 and four in 2022, as well as 
affidavits from the Petitioner's owner's spouse and brother asserting that they each performed 
janitorial services for the Petitioner without being paid wages from 2014 to 2017. 
The Director determined that the Petitioner did not establish that the position existed and could be 
filled by the Beneficiary from 2014 to 2017. The Director specifically noted that the record did not 
include evidence to substantiate the information in the affidavits from the Petitioner's owner's family 
members, or that they were considered "employees" that the Beneficiary would supervise when they 
provided volunteer labor. The Director again revoked the petition's approval because the Petitioner 
did not establish that the offered position is a bona fide job offer and remains so from the priority date 
until the beneficiary obtains lawful permanent residence. 
B. Terms of the Labor Certification 
Pursuant to the statutory framework for the granting of immigrant status, any United States employer 
desiring and intending to employ an alien entitled to immigrant classification under the Act may file 
a petition for classification. Section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F); see 8 C.F.R. § 
204.5( c ). Such petitions must be accompanied by a labor certification from the DOL. See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5); see also 8 C.F.R. § 204.5(1)(3)(i). The Petitioner must 
intend to employ a beneficiary under the terms and conditions of an accompanying labor certification. 
See Matter ofIzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming denial where, contrary 
to an accompanying labor certification, a petitioner did not intend to employ a beneficiary under the 
terms of the labor certification); see also Matter ofSunoco Energy Dev. Co., 17 I&N Dec. 283, 284 
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(Reg'l eomm'r 1979) (affirming a petition's denial under 20 e.F.R. § 656.30(c)(2) where the labor 
certification did not remain valid for the intended geographic area of employment) . Because the filing 
of a labor certification establishes a priority date I for any immigrant petition later based on the labor 
certification, the petitioner must establish that the job offer was realistic as of the priority date and that 
the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. The bona fides of the job opportunity are essential elements in evaluating whether a job 
offer is realistic. See Matter of Great Wall, 16 r&N Dec. 142 (Acting Reg'l eomm'r 1977). 
A labor certification application must represent an offer of "[p]ermanent, full-time work." 20 e .F.R. 
§ 656.3 (defining the term "employment"). Similarly, the requested immigrant visa classification of 
skilled worker requires the performance of "skilled labor (requiring at least 2 years training or 
experience), not of a temporary or seasonal nature." Section 203(b)(3)(A)(i) of the Act (emphasis 
added). The Petitioner also indicated on the petition that the offered position was full-time and that 
the only work location was the Petitioner's address at I I 
Thus, consistent with the Act and the accompanying labor certification, the Petitioner must intend to 
employ the Beneficiary in the offered position of manager janitorial services on a full-time, permanent 
basis at the stated location on the labor certification of ._________________.... 
The Petitioner cannot establish the offered position as a bona fide job opportunity based solely on its 
stated intent to employ the Beneficiary in the offered position once he obtains lawful permanent 
resident status. It must provide evidence establishing the existence of a valid job offer as of the 
petition's priority date, i.e., it must prove that, at the time it filed the labor certification, it had existing 
projects on which the Beneficiary could have worked in the offered position. "In ... visa petition 
proceedings the Service must consider the merits of the petitioner's job offer, so that a determination 
can be made whether the job offer is realistic .. . " Matter of Great Wall, 16 I&N Dec. at 145. 
Section 204(b) of the Act allows a petition's approval only after an investigation of the facts in each 
case to ensure that the facts stated in the petition, which necessarily includes the labor certification, 
are true. Section 204(b) of the Act, 8 U.S.e. § 1154(b ). users is responsible for reviewing the Form 
r-140, and the labor certification is incorporated into the Form r-140 by statute and regulation. See 
section 203(b)(3)(e) of the Act, 8 U.S.e . § 1153(b)(3)(e); 8 e.F.R. § 204.5(a)(2); 8 e .F.R. 
§103 .2(b )(i). users is required to approve an employment-based immigrant visa petition only where 
it is determined that the facts stated in the petition, which incorporates the labor certification, are true 
and the foreign worker is eligible for the benefit sought. Section 204(b) of the Act, 8 U.S.e. § l 154(b ). 
Here, we cannot conclude that the facts of the labor certification are true. 
While we acknowledge the Petitioner's appellate arguments, we cannot conclude that the Petitioner is 
able to employ the Beneficiary in the job opportunity on a full-time basis at the work location described 
on the labor certification. As noted above, a labor certification is valid only for the particular job 
opportunity, beneficiary, and area of intended employment identified on the labor certification. See 
Matter ofSunoco Energy Development Co., 17 r&N Dec. 283 (Reg'l eomm'r 1979) and 20 e.F.R. § 
656.30(C)(1 ). 
1 The "priority date" of a p etition is the date the underlying labor certification is filed with the DOL. See 8 C .F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date, which in this case is March 17, 2006. 
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I 
In this case the labor certification identifies the specific worksite as._____________ __, 
I No other work locations are listed. However, in the Petitioner's response to the first 
NOIR, the Petitioner states, "Also, there is no office supervision required for the employees, ... as a 
Manager Janitorial Service he is only supervising employees work, so he goes to the worksite where 
employees are assigned with different business entities locations." The Petitioner's statement directly 
contradicts the information to which it attested on the labor certification, that the only work location 
was._________________ __, However, the Petitioner was not made aware of this 
deficiency, nor given an opportunity to respond. 
Because we cannot affirmatively find that the Petitioner has a pos1t10n available to employ the 
Beneficiary in a permanent, full-time position at the location listed on the labor certification, we will 
remand the matter to the Director for further consideration. On remand, the Director should issue a 
new NOIR outlining the deficiencies above and allowing the Petitioner an opportunity to respond. 
The Director must state how the record fails to demonstrate eligibility for the classification sought 
under the pertinent regulatory scheme. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration. If 
the Director issues a new NOIR, the content of that notice and the consideration of any evidence 
submitted by the Petitioner should comply with the requirements of 8 C.F.R. § 
205 .2(b) and ( c) and Matter ofEs time . The Director shall then issue a new decision. 
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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