remanded EB-3 Case: Landscaping

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 11, 2024 In Re: 32917024 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a landscaping business, seeks to employ the Beneficiary as a landscape foreman. 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 Texas 
Service Center Director revoked the petition's approval. The Director concluded that the Petitioner 
did not demonstrate that a bona fide job offer exists because there is a familial relationship between 
the Petitioner and the Beneficiary. The Director also found that the Petitioner willfully misrepresented 
the bona fide nature of the job offer, which is a material fact. The Director dismissed a subsequent 
motion to reconsider. The matter is now 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 Christa 's, Inc., 26 I&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. § 1182(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. IfUSCIS 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. Bona Fide Job Offer 
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. § l 154(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 l&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 l&N Dec. 283, 284 
(Reg'l Comm'r 1979) (affirming a petition's denial under 20 C.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 date1 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 l&N Dec. 142 (Acting Reg'l Comm'r 1977). 
A labor certification application must represent an offer of "[p ]ermanent, full-time work." 20 C.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 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. "In ... visa petition proceedings the Service must consider the merits of the 
1 The "priority date" of a petition 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 June 29, 2017. 
2 
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.C. § 1154(b). 
The labor certification in this case was filed on June 29, 201 7 for the offered position of "Landscape 
Foreman." The job duties of the offered position as stated on the labor certification are: 
Plan, organize and direct crew engaged in tree & lawn services such as pruning, stump 
grinding/chipping, mowing/blowing, core aeration, seeding, mulching and planting. 
Review contracts to determine service, machine, workforce requirements. Inform 
potential customers regarding methods, material and price ranges. Prepare estimates 
according to labor, material and machine costs. 
The labor certification and the petition list the work location for the offered position as I 
_____ Connecticut" 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 Petitioner in this matter is a landscaping business with nine employees. The Petitioner checked 
"yes" to question C.9 on the labor certification, "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, corporate officers, incorporators, or partners, and the 
alien?" 
In this petition, the Beneficiary's brothers are the owners of the business sponsoring him for lawful 
permanent resident status. The accompanying labor certification fully discloses the familial 
relationship between the Petitioner and the Beneficiary. 
After approving the petition in 2018, the Director sent the Petitioner a NOIR stating that a review of 
the filing indicated that the Petitioner may have misrepresented the Beneficiary's eligibility for the 
requested benefit. The Director noted that the familial relationship between the Petitioner and the 
Beneficiary casts doubt as to whether the Petitioner made a bona fide job offer to the Beneficiary. 
Further, because this fact is material, in signing the labor certification and the petition, the Director 
noted that the Petitioner may have willfully made a false representation. 
In response to the NOIR, to establish that a bona fide job offer exists, the Petitioner submitted evidence 
of its recruitment for the offered position, including a job order placed with the state workforce agency, 
newspaper and internet advertisements, an internal posting notice, and a report of recruitment results 
explaining that no resumes were received in response to the Petitioner's recruitment efforts. The 
Petitioner also submitted its tax and payroll records in support of its owner's statement that the 
Beneficiary has never had an ownership interest in, or any influence and control over the business. 
3 
I 
After receiving the Petitioner's response to the NOIR the Director revoked the petition's approval. 
The Director determined that the Petitioner did not establish that its job offer to the Beneficiary is bona 
fide and entered a finding of willful misrepresentation of a material fact against the Petitioner. 
Although the Director acknowledged receipt of the Petitioner's response to the NOIR he did not 
address or analyze that evidence or explain why it was not sufficient to overcome the reasons for 
revocation. The Director noted that the payroll records list multiple employees with the same last 
name as the Beneficiary and the Petitioner's owners, but he did not explain the relevance of this fact. 
The Director stated, "The evidence in the record indicates that the petitioner intends to employ the 
beneficiary outside the terms of the labor certification." However, he does not explain further what 
about the Beneficiary's proposed employment does not match the terms of the labor certification. Nor 
does the Director identify the Petitioner's specific misrepresentation or what information in the 
petition and underlying labor certification is "false." 
When revoking approval of a petition, a director has an affirmative duty to explain the specific reasons 
for the revocation; this duty includes informing a petitioner why the evidence did not to satisfy its 
burden of proof pursuant to section 291 of the Act. See 8 C.F.R. § 103.3(a)(l)(i). The Director's 
decision in this case does not explain why the information provided in response to the NOIR was 
insufficient or how it failed to satisfy its burden of proofregarding eligibility for the benefit sought. 
Similarly, the Director's decision dismissing the Petitioner's subsequent motion to reconsider also 
notes payroll records listing multiple employees with the same last name but does not explain the 
relevance of this fact. Nor does it analyze or address other evidence in the record. The Director states, 
"While determining whether the job is subject to the alien's influence and control, USCIS has 
evaluated the totality of the employer's circumstances, using the Modular Container systems criteria."2 
However, neither the NOR, nor the motion decision, analyzes the factors of Modular Container based 
on the evidence in the record or the documents the Petitioner submitted to demonstrate that the job 
opportunity is not subject to the Beneficiary's influence and control. 
Considering the above discussed deficiencies and following our review of the record, we are 
withdrawing the Director's revocation and the finding of willful misrepresentation against the 
Petitioner. However, we cannot affirmatively conclude that the Petitioner has established eligibility 
for the requested benefit because additional adverse information, not mentioned in the NOIR or the 
Director's revocation, casts doubt on the Beneficiary's claimed education and employment experience. 
2 The Director references Matter of Modular Container Sys., Inc. , 89-INA-228, 1991 WL 223955, *7 (BALCA Jul. 16, 
1991) (en bane). The DOL adopted the holding in Modular Container at 20 C.F.R. § 656.17(1) (listing supporting 
documentation that may be submitted to demonstrate the level of "influence and control over the job opportunity" where 
a familial relationship exists between an employer and a foreign worker). 
4 
B. The Beneficiary's Qualifications 
The accompanying labor certification in this case 
states that the offered position oflandscape foreman 
requires a bachelor's degree, or foreign educational equivalent, in business administration or business 
management, and 36 months of experience in the job offered. In the alternative, the Petitioner will 
accept "one year of college level education in business administration/management" and 12 years of 
experience in the job offered. Experience in an alternate occupation is not accepted. 
On the labor certification the Beneficiary claimed to have "one and one half years of college level 
education in business administration" as of 2006. He also claimed experience with two companies as 
a landscape foreman: 1)I Ifrom January 1, 2012 to June 29, 201 7 ( approximately five 
years, six months); and 2)1 I from November 20, 2004 to 
December 15, 2007 (approximately three years, one month). The labor certification also lists the 
Beneficiary's employment as a "section supervisor" for the government of Honduras, from August 
1996 to March 2003. The job duties are stated as, "Supervised other employees in the administration 
of taxes section. Managed customer complaints and requests. Processed customs tariff payments." 
The initial evidence submitted with the petition included the Beneficiary's high school diploma and 
university transcripts for studies from 1998 to 2006. The evidence also included an evaluation of the 
Beneficiary's academic credentials and work experience. The evaluation states that the Beneficiary 
"completed at least one and one half years of specialized courses in his area of concentration, Business 
Administration, as well as in other related subjects." 
The evaluation also states that the Beneficiary has "at least eighteen years of specialized training and 
work experience in Business Management, and related areas." The experience includes: 
• Section Supervisor with _________ from August 1996 to March 
2003. 
• Gardener with ________________ from November 2004 
to December 2007. 
• Self-employed owner of a transportation company, from May 2008 to the date of 
the evaluation, June 26, 201 7 . 
• Supervisor/Foreman with _____ from January 2012 to the date of the 
evaluation, June 26, 2017. 
The initial evidence also included letters from the Beneficiary's previous employers. A certificate of 
employment, signed February 17, 2018, attests to the Beneficiary's experience withl 
from January 1, 2012 to June 29, 2017. The letter does not state the Beneficiary's job title but lists his 
duties as, "Controlling weeds, managing staff, planting and transplanting, preparing materials and 
teams, driving a vehicle to move tools and product, preparing the soil for planting natural grass and 
plants, and fertilizing, fumigating and pruning decorative plants and fruit trees." 
A certificate, signed March 5, 2008, attests to the Beneficiary's experience with 
________ from November 20, 2004 to December 15, 2007. The letter does not state 
the Beneficiary's job title but lists his duties as, "Green space layout, replantation, weed control, 
fertilizing program management, phytosanitary and aesthetic pruning, tree cutting, agricultural 
5 
I 
I 
machinery and equipment management, and truck driving when moving the equipment and materials 
used in the working area." 
A certificate, signed December 17, 2010, attests to the Beneficiary's employment with l_____ 
las "national asset manager," from August 1, 1996 to March 28, 2003. The letter does not 
describe the Beneficiary's job duties. 
At the outset we note that the record does not demonstrate that the Beneficiary possesses 12 years of 
experience in the offered position of landscape foreman, as required by the labor certification. The 
Beneficiary's employment as national asset manager with the government of Honduras is not in the 
offered position oflandscar foreman. Further, the certificate describing the Beneficiary's experience 
with I does not establish that this experience was in the offered position of 
landscape foreman. The description of the duties does not indicate that the Beneficiary managed or 
directed staff in their duties, or that he managed or reviewed work requirements, both key elements of 
the job duties of the offered position as described on the labor certification. Further, the Beneficiary's 
employment with I Ioverlaps with his claimed college level studies, casting doubt, 
without further evidence, on whether his employment was full-time. 
Additionally, the information in the record is inconsistent with a nonimmigrant visa application that 
the Beneficiary submitted in 2016. In his prior nonimmigrant visa application, the Beneficiary stated 
that he completed his university education from June 1998 to June 2003. This is inconsistent with the 
Beneficiary's claim to have completed his college level studies in 2006. The Beneficiary also lists his 
current employment in August 2016 as assistant sales manager with I I The Beneficiary 
also listed his previous employment as pharmacy assistant with from February 
1, 2009 to February 1, 2011. The inconsistencies in the Beneficiary's employment history cast doubt 
as to his possession of the required education and 12 years of experience for the offered position. The 
Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where 
the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92. Unresolved material inconsistencies may lead 
us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. Id. 
Because we cannot affirmatively find that the Beneficiary possesses the education and experience 
required for the offered position, we wi11 remand the matter to the Director for further consideration. 
On remand, the Director may wish to issue a new NOIR outlining the deficiencies above, requesting 
additional independent objective evidence in support, 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. If the Director makes a finding of willful material 
misrepresentation against either the Petitioner, the Beneficiary, or both, the Director must articulate 
the basis for the finding(s) in accordance with the above-referenced case law. 
In a new NOIR, the Director may also wish to request evidence to establish the Petitioner's continuing 
ability to pay the offered wage of $81,806 per year. The record includes the Petitioner's federal 
income tax returns for 2017 through 2020, as well as bank statements and payroll records. However, 
to be eligible for the classification it requests for the Beneficiary, the Petitioner must establish that it 
has the ability to pay the proffered wage stated on the labor certification from the June 2017 priority 
date and continuing until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2) 
6 
III. CONCLUSION 
For the reasons discussed above, the Director's revocation and finding of willful misrepresentation of 
a material fact against the Petitioner are withdrawn. We will remand this case to the Director for 
further consideration of the Petitioner's eligibility for the requested benefit, including the 
Beneficiary's qualifications for the offered position and the Petitioner's continuing ability to pay the 
proffered wage. 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. 
7