remanded EB-3 Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-A- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: Aug. 13, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORMI-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a restaurant, seeks to employ the Beneficiary as a marketing specialist. 
It requests his classification under the third-preference, immigrant category as a professional. 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This 
employment-based, "EB-3" categmy allows a U.S. business to sponsor a foreign national for lawful 
permanent resident status to work in a job requiring at least a bachelor's degree. 
After initially granting the filing, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director found that the record did not demonstrate the Petitioner's employment of the 
Beneficiaiy in the offered position. 
On appeal, the Petitioner asserts that it demonstrated its employment of the Beneficiary in the offered 
position. It contends that the Director improperly focused on another employee's misidentification of 
the Beneficiary during an immigration officer's visit to the restaurant. 
Upon de nova review, we will withdraw the Director's decision and remand the matter for entry of a 
new decision. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process. 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)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and 
available for an offered position, and that employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If the DOL approves a position, an employer must next submit the labor certification 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 determines whether a beneficiary meets the 
requirements of a DOL-certified position and the requested classification. If USCIS grants a petition, 
Matter of S- A- LLC 
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. 
"[A]t any time" before a beneficiary obtains lawful permanent resident status, however, USCIS may 
revoke a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. 
USCIS may issue a notice of intent to revoke (NOIR) if the unexplained and unrebutted record would 
have warranted the petition's denial. Matter ofEstime, 19 I&N Dec. 450, 451 (BIA 1987). The 
Agency may revoke a petition's approval if a petitioner's NOIR response does not overcome the 
alleged revocation grounds. Id. at 452. 
II. THE NOTICE OF INTENT TO REVOKE 
USCIS must give a petitioner an opportunity to submit evidence supporting a petition and opposing 
its proposed revocation. 8 C.F.R. § 205.2(b). An NOIR must include "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. at 451-52. "Where a notice of intention to revoke is based on an unsupported statement 
or an unstated presumption, or where the petitioner is unaware and has not been advised of derogatory 
evidence, revocation of the visa petition cannot be sustained." Id. at 452. 
Here, the Director's NOIR stated that, after a USCIS officer interviewed the Beneficiary regarding his 
application for adjustment of status: 
it was dete1mined the beneficiary does not qualify for the position of marketing 
specialist, and could not provide evidence of working or being paid the proffered wage. 
Evidence from the interview also determined the petitioner only had 2 employees; 
neither of which was the beneficiary. Information from a site visit of the beneficiary's 
work, determined none of the people at that location knew the beneficiary by name or 
photograph. One employee advised that the beneficiary was a sushi cook, but had quit. 
The beneficiary could not provide any evidence of his work product as a marketing 
specialist. 
Although asserting the Beneficiary's lack of qualifications for the offered position, the NOIR did not 
specify facts or evidence supporting the assertion. The labor certification states the position's only 
job requirement as a U.S. bachelor's degree, or a foreign equivalent degree, in business administration, 
business, or economics. As of the NOIR's issuance, the record contained documentation indicating 
that the Beneficiary's bachelor of business administration degree from South Korea equates to a U.S. 
bachelor's degree in the same field. The NOIR did not state any contra1y facts or evidence. We 
therefore cannot sustain revocation of the petition's approval based on the Beneficiary's alleged lack 
of qualifications. 
The NOIR also asserted that the Beneficiary's 2018 adjustment interview revealed the Petitioner's 
employment of only two people. But the notice did not specify evidence supporting that assertion or 
explain how the claim would have warranted the petition's denial. On the Form 1-140, Immigrant 
Petition for Alien Worker, and the accompanying labor certification, the Petitioner stated its 
employment of 26 people. A copy of a 2015 federal income tax return listed the Petitioner's payment 
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Matter of S- A- LLC 
of more than $300,000 in salaries and wages. Internal USCIS reports also do not support the 
Petitioner's employment of only two people. A USC IS officer's written summaiy of the Beneficiary's 
adjustment interview suggests that the NOIR may have confused the Petitioner's number of employees 
with its number of owners. The summary refers to the Beneficiary's statement that "he does not know 
how many employees are employed with [the Petitioner]," but that the company had two owners. 
Also, an immigration officer reported that, when she entered the Petitioner's restaurant, "multiple 
employees were inside" and that, during the visit, she spoke to at least three of them. Thus, the record 
does not support the NOIR's allegation that the Petitioner had only two employees. The record also 
does not explain how the claim would have merited the petition's revocation. 
The remainder of the NOIR alleged facts indicating that the Petitioner did not cunently employ the 
Beneficiary in the offered position or at the proffered wage rate. Until a beneficiary obtains lawful 
permanent residence, however, a petitioner need not employ him or her in an offered position or at a 
proffered wage rate. A labor certification employer must certify only that it "will be able to place the 
alien on the payroll on or before the date of the alien 's proposed entrance into the United States." 
20 C.F .R. § 656.10( c )( 4) ( emphasis added). A petitioner is not required to employ a beneficiary in the 
job offered during the pendency of the immigration petition. Thus, even if true, the Petitioner's alleged 
non-employment of the Beneficiary would not have wan-anted the petition's denial. 
For the foregoing reasons, the NOIR did not specify facts and evidence supporting revocation of the 
petition's approval. We cannot affirm a revocation based on a deficient NOIR. "A decision to revoke 
approval of a visa petition can only be grounded upon, and the petitioner is only obliged to respond 
to, the factual allegations specified in the notice of intention to revoke." Matter of Arias, 19 I&N Dec. 
568, 570 (BIA 1988). Because of the deficient NOIR, we are remanding the matter to the Director to 
further develop the record. If the Director finds that a new NOIR is wan-anted, he may issue a new 
notice in accordance with the above stated case law, addressing any issues that are identified upon 
further review. 
III. CONCLUSION 
The NOIR did not specify facts or evidence supporting the revocation of the petition's approval. We 
will withdraw the Director's decision and remand this case for further consideration. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter ofS-A-LLC, ID# 4197380 (AAO Aug. 13, 2019) 
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