remanded EB-3 Case: Locksmith Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 19391648 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 26, 2022 
The Petitioner, a locksmith services provider, seeks to employ the Beneficiary as a locksmith. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
category . Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U .S.C . 
§ 1153(B)(3)(A)(i). This employment-based "EB -3" immigrant classification allows a U.S. employer 
to sponsor a foreign national for lawful permanent residence to work in a position that requires at least 
two years of training or experience. 
The Director of the Nebraska Service Center initially approved the petition but subsequently revoked 
the approval on notice . In the revocation decision, the Director questioned whether the Petitioner had 
made a bona fide job offer that was "clearly open and advertised to any U.S. worker." The Director 
concluded that "the evidence suggests there was an agreement of employment prior to the filing of the 
1-140 petition and that employment with the petitioner is dependent on the approval of the 
beneficiary's [Form 1-485, Application to Register Permanent Residence or Adjust Status]." 
On appeal , the Petitioner contests the revocation decision , maintaining that it extended a bona fide job 
offer to the Beneficiary. The Petitioner emphasizes that an employment agreement between a 
petitioner and beneficiary "is the underlying premise of all employment-based sponsored green card 
applications " and that there is no statutory or regulatory requirement that the Beneficiary commence 
employment with the Petitioner prior to the approval of such application. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawathe, 25 l&N 
Dec . 369, 375 (AAO 2010). This office reviews the questions in this matter de nova. See Matter of 
Christa's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de nova review, we will withdraw the 
Director's decision and remand the case for further consideration. 
I. EMPLOYMENT-BASED IMMIGRATION 
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 I-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. 
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-INA228, 1991 WL 223955, *7 (BALCA 1991) (en bane); see 20 C.F.R. § 
656.17(1). 
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 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 I&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. 
II. ANALYSIS 
At issue in this case is whether the Director properly revoked the approval of the petition. For the 
reasons discussed below, we conclude that the NOIR did not contain a specific statement of the facts 
underlying the proposed revocation or a discussion of the supporting evidence, in accordance with 
8 C.F.R. § 205.2(b) and (c) and Matter of Estime. Further, the ultimate grounds for revocation, as 
stated in the revocation decision, were not adequately raised in the NOIR. Accordingly, we will 
withdraw the Director's decision and remand the matter for further consideration, issuance of a new 
NOIR, and entry of a new decision. 
A. Background 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states that to qualify for skilled worker classification: 
. . . the petition must be accompanied by evidence that the [beneficiary] meets the 
educational, training or experience, and any other requirements of the individual labor 
certification . . . The minimum requirements for this classification are at least two years 
of training or experience. 
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This petition for skilled worker classification was filed on August 1, 2017. The accompanying 
certified labor certification for a locksmith position required two years of experience as a locksmith 
and listed no training or educational requirements. The labor certification indicates that the 
Beneficiary exceeded the experience requirement by virtue of his employment as a locksmith atD 
I I in I South Korea from May 2005 until November 2008. Documentary 
evidence relating to that claimed employment was submitted with the petition, which was initially 
approved on August 9, 201 7. 
B. Notice oflntent to Revoke and Revocation 
On April 6, 2021, the Director issued a NOIR which provided the following explanation of the 
proposed grounds for revocation: 
After a review of the evidence submitted, it appears that the beneficiary may not be 
currently employed as a locksmith with the petitioner and may not have the required 
job-related experience as described on the ETA 9089 labor certificate. Furthermore, it 
appears that the beneficiary may be the owner and operator of his own restaurant 
business and is not currently employed as a locksmith with the petitioner. 
In view of the above, it appears that the approval of the petition should be revoked. 
The record reflects that the Petitioner disclosed on the labor certification and on the Form 1-140 that 
the Beneficiary was in the United States in E-2 treaty investor status, a nonimmigrant classification 
that authorizes his employment to direct and develop a U.S. enterprise in which he has invested. See 
section 101 (a)(l 5)(E)(ii) of the Act, 8 U.S.C. § 1101 (a)(l 5)(E)(ii). The Director did not cite to any 
statute or regulation requiring that the Petitioner establish that it already employed the Beneficiary in 
the job offered, or otherwise explain why the approval of the petition may be revoked on this basis. 
The NOIR also lacked an explanation as to how the Director concluded that "it appears that the 
beneficiary ... may not have the required job-related experience." Although the Director indicated 
that he reached this determination based on the evidence submitted with the petition, the record reflects 
that the Director had reviewed information that the Beneficiary had provided on a Form DS-156, 
Nonimmigrant Visa Application, and DS-157, Supplemental Nonimmigrant Visa Application, 
submitted to the U.S. Consulate in Seoul, South Korea, in August 2008. The information provided on 
that application did not corroborate his claimed employment as a locksmith. 
The Director is obligated to not only provide notice of any derogatory information that is discovered 
outside of the record of proceedings but must make that derogatory information part of the record 
along with any rebuttal provided by the Petitioner. 8 C.F.R. § 103.2(b)(l6)(i). The Director's failure 
to do so in this case constitutes error. 
In response to the NOIR, the Petitioner asserted that there is no requirement that it employ the 
Beneficiary at the time the Form 1-140 is filed. In this regard, the Petitioner emphasized that the 
USCIS Policy Manual's guidance on adjustment of status applications states that an adjudicating 
officer reviewing an employment-based application "should determine that the applicant is either 
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employed by the petitioner or the job offer still exists." 1 The Petitioner submitted a Form 1-485, 
Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability (Supplement J), 
signed by the Petitioner and the Beneficiary, which indicates both parties' intent for the Beneficiary 
to work in the job offered upon the approval of his Form 1-485. The Petitioner's response to the NOIR 
also included affidavits from both the Petitioner and the Beneficiary, indicating their shared 
understanding that the Beneficiary would commence employment with the Petitioner upon such 
approval. The Beneficiary explained his reasons for maintaining his E2 nonimmigrant status while 
awaiting the adjudication of his application to adjust status, noting that there is a degree of uncertainty 
in the application process and he did not want to risk jeopardizing his valid immigration status. 
Finally, the Petitioner resubmitted an employment certificate frottj I indicating that 
the Beneficiary had acquired more than three years of experience as a locksmith between 2005 and 
2008. 
In the revocation decision, the Director acknowledged that "it is true that there is no requirement or 
standard that states the beneficiary must be currently employed with the petitioner." Nevertheless, the 
Director determined that the Beneficiary's intent to accept employment with the Petitioner only upon 
obtaining lawful permanent residence status "raises the question on whether or not the job was open 
and advertised to any qualified U.S. applicants." The Director indicated that the approval was being 
revoked because "the evidence suggests there was agreement of employment prior to the filing of the 
petition and that employment with the petitioner is dependent on the approval of the beneficiary's 
1-485." 
The NOIR in this matter did not provide the Petitioner with sufficient notice that the bona fide nature 
of the job offer was in question or explain the specific facts that raised this concern. Further, the 
revocation decision did not acknowledge the Petitioner's submission of the Form 1-485 Supplement J 
or adequately address its arguments that neither the regulations nor the USCIS Policy Manual require 
a petitioner to employ the beneficiary of an immigrant petition prior to approval of a Form 1-485. In 
addition, the revocation decision did not address the Beneficiary's qualifications for the job offered, 
despite the inclusion of that issue as a potential basis for revocation in the NOIR. An officer must 
fully explain the reasons for denying a visa petition to allow the Petitioner a fair opportunity to contest 
the decision and to allow us an opportunity for meaningful appellate review. See 8 C.F.R. 
§ 103.3(a)(l)(i); see also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must 
fully explain the reasons for denying a motion to allow the respondent a meaningful opportunity to 
challenge the determination on appeal). Here, for the reasons discussed, the NOIR and the revocation 
decision were both inadequate. 
Accordingly, the Director's decision is withdrawn and the matter will be remanded. On remand, the 
Director is instructed to review the record and issue a new NOIR, which must include "a specific 
statement not only of the facts underlying the proposed action, but also of the supporting evidence." 
Es time, 19 I&N Dec. at 451. If the proposed revocation will be based on derogatory information from 
outside the record of proceedings, the Director must provide the Petitioner with notice of such 
information. 8 C.F.R. § 103.2(b)(l6)(i). 
1 See 7 USCIS Policy Manual A.6(B)(3), https://ww.uscis.gov/policy-manual/volume-7-part-a-chapter-6. 
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As noted, the Director reviewed a nonimmigrant visa application which contains information 
regarding the Beneficiary's prior employment that is inconsistent with the information provided on 
the labor certification and the employment certificate from his claimed prior employer. Based on this 
information, there are valid concerns regarding whether the Beneficiary has the required experience 
in the job offered. However, the Petitioner was not provided with adequate notice of those concerns 
in the NOIR. In addition, USCIS conducted a site visit at the proposed worksite and interviewed the 
Petitioner's president prior to issuing the NOIR. If information obtained during these post­
adjudicative actions raised questions regarding the bona fide nature of the job offer, the Director must 
provide the Petitioner with a specific statement of facts supporting those concerns. 
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 
Beneficiary's qualifications, the bona fide nature of the job offer, and the Petitioner's continuing 
ability to pay the proffered wage. 2 The Director is instructed to issue a new NOIR in accordance with 
the requirements of 8 C.F.R. § 205.2(b) and (c) and Matter of Estime. Following the Petitioner's 
response to the NOIR, or the expiration of the time period to respond, the Director shall issue a new 
decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further consideration 
and the entry of a new decision consistent with the foregoing analysis. 
2 The regulation at 8 C.F.R. § 204.5(g)(2) requires evidence of the Petitioner's ability to pay the proffered wage from the 
priority date (in this case, March 27, 2017) and continuing until the Beneficiary obtains lawful permanent residence. The 
record contains a copy of only the Petitioner's 2016 federal income tax return. 
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