remanded EB-3 Case: Logistics

MATTER OF Y-S-C 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. II. 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a logistics business, seeks to employ the Beneficiary as a market research analyst. It 
requests classification of the Beneficiary as a professional under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3 )(A)(ii). 8 U.S.C. 
§ 1153(B)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The petition was initially approved. However, the Director of the Nebraska Service Center 
subsequently revoked the approval based on a finding that the evidence in the record did not 
establish that the Beneficiary was performing the duties of a market research analyst. in 
conformance with the job duties described on the labor certification. The Director concluded that 
fraud or willful misrepresentation had been committed in the labor certification process. and 
invalidated the labor certification. 
On appeal the Petitioner submits a brief and supporting documentation. The Petitioner asserts that 
the evidence in the record establishes that it occupies the premises identified on the labor 
certification as the job location for the proffered position, and that the duties being performed by the 
Beneficiary in the proffered position are those of a market research analyst. 
Upon de novo review, we will withdraw the Director's decision and remand the case for further 
consideration and the entry of a new decision. 
I. LAW 
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)(A)(i) of the Act. 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification. 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)-(Il) of the Act. Second, the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USC IS). See section 204 of the Act, 8 U.S.C. § 1154. Third, 
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if USCIS approves the petition , the foreign national may apply tor 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 ofthe 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 tor the revocation comes to the attention of (USCIS]." 8 C.F.R . § 205.2(a). 
users 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). 
II. ANALYSTS 
The labor certification in this case described the job duties to be performed by the Beneficiary in the 
position of market research analyst and identified the primary worksite location as 
m California. 
In his revocation decision the Director discussed evidence in the record that raised concerns about 
whether the Beneficiary was employed at the location identified on the labor cet1itication, and 
indicated that it cast doubt on the bona fides of the job offer. These concerns arose from a site visit 
by USCIS to California- the address identified in the labor 
certification as the primary worksite for the market research analyst. The site visit revealed that 
another company - a subsidiary of a South Korean company 
with which the Petitioner has a contract to provide warehousing 
and transport services - was located 
in the premises , and that the Beneficiary was not working at that location . The Director did not 
reach a final conclusion with respect to the above issues in his revocation decision. Instead, he 
reviewed the job duties described in the labor certification and in the recruitment postings, stated that 
they do not correlate with the services the Petitioner provides to under their contract and 
indicated he was not persuaded that the Beneficiary is performing the duties of a market research 
analyst. The Director found that fraud or willful misrepresentation of material facts had been 
committed with regard to the labor certification application , and invalidated the labor certification. 
On appeal the Petitioner acknowledges that the Beneficiary, whom it claims to have employed since 
October 2012, was transferred from California, to its New Jersey branch office 
in early 2013. It asserts that the Beneficiary has conducted market research work which resulted in 
agreements with two other logistics companies in the region to expand business services. The 
Petitioner contends that it needs a market research analyst to expand its business in the logistics 
service industry. The Petitioner asserts that the Director ignored the extensive evidence it submitted 
that not only but also the Petitioner, conducted business and had employees located at 
California. 
The Petitioner states that it is a third party logistics provider whose main client is under a 
contract signed in September 2012. The subject contract identifies the principal offices of 
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and the Petitioner as and respectively. both located in 
California . The contract states that business includes 
manufacturing, marketing, and selling prepared food products. as well as importing and distributing 
goods from Korea and elsewhere, and that the Petitioner would provide warehousing and logistical 
services for the storage and transfer of its products. The Petitioner indicates that it has oftice space 
in facilities in and has provided employee atlidavits, 
business invoices, and other documents showing that it conducted operations at that location from 
2012 onward. We find that the 
evidence in the record is sufficient to establish that the Petitioner had 
an office and employees working in 
California , from 2012 onward. 
warehouse premises at 
The Petitioner acknowledges that the Beneficiary was transferred from the above address to another 
facility in New Jersey in early 2013 , and was therefore not working at the "primary worksite" 
identified in the labor certification on the date it was tiled with the DOL June 26, 2013. As far as 
the record shows, the Beneficiary is still working at the New Jersey location. A labor certification 
for a specific job offer is valid only for the particular job opportunity. the alien for whom the 
ce1titication was granted, and for the area ()/'intended employment stated on the [labor certification 
application]. 20 C.F.R. § 656.30(c)(2). (Emphasis added.) The fact that the Beneficiary is not 
currently employed at the primary worksitc, however, is not persuasive evidence in and of itself that 
the Petitioner does not intend to employ the Beneficiary at that location in the future. The job offer 
is prospective and does not require that the Beneficiary be employed at the primary worksite before 
the Beneficiary is granted lawful permanent residence. 
The Director's revocation decision was based on a belief that the Beneficiary is not performing the 
duties of a market research analyst because the Petitioner is a provider of logistical and warehousing 
services to The Petitioner does not claim that 
the Beneficiary is performing market 
research analysis for however, and the Director did not solicit specific evidence of the 
Beneficiary's work product during his time of employment with the Petitioner. Furthermore. since 
the job offer is prospective, the Beneficiary is not required to perform the duties of the proffered 
position before being granted lawful permanent residence. Accordingly, the Director's conclusion 
that the Beneficiary is not performing the duties of a market research analyst lacks evidentiary 
weight. The revocation decision. therefore, is not well grounded and will be withdrawn. 
We also withdraw the finding of fraud or willful misrepresentation of a material fact and the 
invalidation of the labor certification. The Director stated that fraud or willful misrepresentation of 
material facts had been found involving the labor certification application, but did not identify any 
specific instances of fraud or misrepresentation in the revocation decision.' The Director did not 
explain whether the finding of fraud or willful misrepresentation of material facts in the revocation 
decision related to his finding that the Beneficiary is not performing the duties of a market research 
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The Director raised the issue of fraud or misrepresentation in the NOIR when noting that the labor certification 
supporting the petition did not list previous experience with another employer, but this issue was not addressed in the 
revocation decision. 
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analyst , or to the Beneficiary ' s employment at a worksite location not listed in the labor certification. 
or to the Petitioner's claimed business presence at 
California. 
Based on the foregoing analysis , we will remand this case to the Director for further consideration of 
two issues: (I) whether the Petitioner, given the nature of its business, intends to employ the 
Beneficiary as a market research analyst, in accord with the job duties described in the labor 
certification and the "particular job' ' requirement of 20 C.F .R. § 656.30(c)(2), and (2) whether the 
Petitioner intends to employ the Beneficiary at the primary worksite location indicated in the labor 
certification , in accord with the ''area of intended employment" requirement of 20 C.F .R. 
§ 656.30(c)(2). 
III. CONCLUSION 
For all of these reasons, we will withdraw the Director's revocation decision, as well as his tinding 
of fraud or willful misrepresentation of material facts in the labor certification process, and the 
invalidation of the labor certification. We will remand this case to the Director for further review in 
accordance with our decision . If deemed necessary, the Director may request additional evidence 
from the Petitioner. The Director shall then issue a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
FURTHER ORDER: The ETA 9089, case number . is reinstated. 
Cite as Matter (?fY-S-C-. ID# 847779 (AAO Jan. 11, 2018) 
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