remanded EB-3 Case: Martial Arts

U.S. Citizenship 
and Immigration 
Services 
In Re : 15821034 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 4, 2021 
The Petitioner, an operator of a martial arts school , seeks to employ the Beneficiary as a master 
instructor . The company requests his classification under the third-preference , immigrant category for 
"other workers." See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii).1 
The Director denied the petition, concluding that the record does not establish the Beneficiary's 
qualifications for the requested classification. The Director found that the Petitioner did not provide 
requested evidence regarding the Beneficiary's authorization to work in the United States or the 
relationship between his field of study and the offered position. 
The Petitioner appeals the decision and bears the burden of establishing eligibility for the requested 
benefit by a preponderance of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the 
burden of proof); see also Matter ofChawathe, 25 I&N Dec . 369,375 (AAO 2010) (discussing the 
standard of proof) . Upon de nova review , we will withdraw the decision and remand the matter for 
entry of a new decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an unskilled worker generally follows a three-step process. First, to permanently fill 
a position in the United States with a foreign worker, a prospective employer must obtain certification 
from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(aX5). 
DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a 
position. Id. Labor certification also signifies that 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 job 
1 The Petitioner initially requested the Beneficiary's classification as a "professional" under section 203(b )(3)(A)(ii) of the 
Act. In response to the Director 's written request for additional evidence (RFE), however , the company submitted an 
amendedForml-140, which the Directoraccepted , requesting the Beneficiary's classification as an "other worker." 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
a petition, a designated noncitizen 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. 
II. MATERIALITY OF THE OMITTED EVIDENCE 
USCIS may deny a petition if a petitioner does not submit requested evidence that "precludes a 
material line of inquiry." 8 C.F.R. § 103.2(b)(l4). Aline of inquiry is material if it has a "natural 
tendency to influence, or [be] capable of influencing, the decision of the decision-making body to 
which it was addressed." Matter of Valdez, 27 I&N Dec. 496,498 (BIA 2018) (citation omitted). 
In the RFE and a following notice of intentto deny (NOID) the petition, the Director noted that, before 
the filings of the petition and its accompanying labor ce1iification application, the Beneficiary gained 
admission to the United States in F-1 nonimmigrant visa status as a college student. See section 
10l(a)(l5)(F) of the Act, 8 U.S.C. § l 10l(a)(l5)(F). In both documents, the Director requested 
evidence that the Beneficiary's college authorized him to work in the country and that the offered 
position "is in the beneficiary's field of study." See 8 C.F.R. §§ 214.2(f)(9), (10) (describing 
circumstances under which foreign students may legally work in the United States). 
In response to both the RFE and NOID, the Petitioner submitted evidence. But, contrary to the 
Director's requests, the materials did not demonstrate the Beneficiary's authorization to work in the 
United States or detail his field of study at college. In its NOID response, the Petitioner explained that 
the Beneficiary "is not employed by the petitioner. He will be employed on approval of his [lawful 
permanent residence]." Because the Petitioner did not submit the requested evidence, however, the 
Director denied the petition. The Director found the Beneficiary "ineligible" for the requested 
classification. 
The requested evidence regarding the Beneficiary's employment authorization and field of study was 
immaterial to the petition's grant or denial. A petition and an accompanying labor certification offer 
permanent U.S. employment to a noncitizen in thefi1ture, beginning upon his or her admission to the 
country as a lawful permanent resident. During a petition's pendency, a beneficiary need not work for 
a petitioner, have legal authorization to do so, or even be in the United States. Even if beneficiaries 
never work for their petitioning employers, they may gain lawful admission to the United States as 
permanent residents if they intend to work for their petitioners at the time of their admissions. Matter 
of Cardoso, 13 I&N Dec. 228,230 (BIA 1969). Similarly, "[a]n alien is not required to have been 
employed by the certified employer prior to adjustment of status." Matter of Rajah, 25 I&N Dec. 127, 
132 (BIA 2009). Thus, contrary to 8 C.F.R. § 103.2(b)(l 4), the omitted evidence of the Beneficiaty's 
authorization to work in the United States did not tend to influence, nor could it have influenced, the 
petition decision. USCIS therefore erred in denying the petition based on the omission of the requested 
evidence. 
Also, neither the accompanying labor certification nor the requested immigrant classification require 
any education. See section 203(b )(3)(A)(iii) of the Act (requiring "other workers" to be able to 
perform unskilled labor requiring less than two years of training or experience); see also Matter of 
Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977) (requiring a petitioner to 
demonstrate a beneficiary's possession of all DOL-certified job requirements). Thus, the 
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Beneficiary's field of study in the United States does not affect his qualifications for the offered 
position or the requested classification. 
For the foregoing reasons, the Petitioner's omission ofrequested evidence regarding the Beneficiaiy's 
employment authorization and field of study did not warrant the petition's denial. We will therefore 
withdraw the Director's decision .2 
III. THE BONA FIDES OF THE JOB OFFER 
The appeal overcomes the denial ground. But the record does not establish the petition's approvability. 
The Petitioner has not demonstrated the bonajides of its job offer. 
A business may file an immigrant visa petition if it is "desiring and intending to employ [ a noncitizen] 
within the United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a 
beneficiary under the terms and conditions stated on an accompanying labor certification. See M after 
of Izdebska , 12 l&N Dec. 54, 5 5 (1966) ( affirming a petition's denial where, contrary to the 
accompanying labor certification, the petitioner did not intend to employ the beneficiary as a domestic 
worker on a full-time, live-in basis). 
On the petition and accompanying labor certification , the Petitioner stated its intention to permanently 
employ the Beneficiary as master instructor at the company's facility inl I Virginia on a full­
time basis. The Petitioner's website includes a schedule of martial arts classes at the location. The 
schedule, however, indicates that the classes total only about 30 hours a week. DOL requires full-time 
employment to entail at least 35 hours a week. DOL Field Memorandum No, 48-94 from Barbara 
Ann Farmer, Admin'r for Reg'l Mgmt., Policy Guidance on Alien Labor Certification Issues, 2 (May 
16, 1994 ). Also, the Petitioner's website indicates that the company has several instructors, suggesting 
that the Beneficiary would not teach all scheduled classes. (last visited Apr. 30, 2021 ). The record 
therefore does not establish the Petitioner's intention to employ the Beneficiary in the offered position 
on a full-time basis. See section 204(b) of the Act ( authorizing USCIS to determine whether "the facts 
stated in the petition are true"); see also Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a 
petitioner to resolve inconsistencies ofrecord with independent, objective evidence pointing to where 
the truth lies). 
The Director did not notify the Petitioner of this evidentiarydeficiency. See 8 C.F.R. 103.2(b)(16)(i) 
(requiring USCIS to advise petitioners of material, derogatory information of which they may not be 
aware and to provide them with opportunities to respond). We will therefore remand the matter. On 
remand, the Director should inform the company of the deficiency and request additional evidence of 
the Petitioner's intention to employ the Beneficiary in the offered position on a full-time basis. 
2The U.S. immigration status ofa beneficiary during petition proceedings may affect his or her future admissibility to the 
country. See section2 l 2(a)(l) of the Act (stating that non citizens who are inadmissible are ineligible to receive visas and 
to be admitted to the United States). Inadmissibility , however , is not a ground for denial of a visa petition, nor arepetfun 
proceedings the appropriate fora to determine substantive issues of admissibility . Mattera J O-, 8 l&NDec . 295, 296-98 
(BIA1959). 
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If supported by the record, the Director may notify the Petitioner of any additional, potential grounds 
of denial. The Director, however, must afford the company a reasonable opportunity to respond to all 
issues on remand. Upon receipt of a timely response, the Director should review the entire record and 
enter a new decision. 
IV. CONCLUSION 
The record does not support the Director's denial of the petition based on the omission of requested 
evidence. The Petitioner, however, has not demonstrated its intention to employ the Beneficiary in 
the offered position on a full-time basis. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for en tty of a new 
decision consistent with the foregoing analysis. 
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