remanded EB-3 Case: Media Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 07377076 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: JAN. 6, 2020 
The Petitioner, which describes itself as "total media service - photo /video" business , seeks to employ 
the Beneficiary as a videographer. It requests "other worker" classification for the Beneficiary under 
the third preference immigrant category. Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). This employment-based "EB-3" immigrant 
classification allows a U.S. employer to sponsor for lawful permanent resident status a foreign national 
who is capable of performing unskilled labor that requires less than two years of training or experience 
and is not of a temporary or seasonal nature. 
The Director of the Nebraska Service Center initially approved the petition , but subsequently revoked 
the approval. The Director found that the Petitioner had not resolved all of the issues raised in an 
adjustment application interview of the Beneficiary and a site visit by immigration officers to the 
Petitioner's business premises. On appeal the Petitioner asserts that all of the issues raised by the 
interview and the site visit have been resolved and that the revocation decision was ill-founded. 
Upon de nova review , we will withdraw the Director's decision. We will remand the case for further 
consideration and the issuance 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 , 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 with U.S. Citizenship and Immigration 
Services (USCIS) . See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS 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. 
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 Es time, 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 
The petition in this case was filed in October 2016 and approved in November 2016. In April 2019, 
however, the Director issued a NOIR based on derogatory information obtained in an interview of the 
Beneficiary in October 2017 in connection with his application for adjustment of status (Form 1-485) 
and by immigration officers in a site visit to the Petitioner's business address in April 2018. With 
respect to the 1-485 interview, the NOIR cited the Beneficiary's statement that he worked part-time 
for the Petitioner and noted that the proffered position in this petition is for full-time employment. 
With respect to the site visit, the NOIR stated that the immigration officers encountered the 
Beneficiary, but not the company president, in the business premises, that the Beneficiary was unable 
to provide the president's phone number, and that there was no signage or visible business license 
linking the business to its president. The NOIR stated that the day following the site visit the 
Beneficiary emailed copies to the immigration officers of his employment agreement with the 
Petitioner (dated the same day as the site visit), his 2017 Form 1099, and handwritten paychecks. The 
NOIR stated that the signature on the employment agreement appeared inconsistent with the signatures 
on the handwritten paychecks and the Form 1-140 petition. The NOIR summarized the issues as 
follows: 
• No business presence of the Petitioner at its claimed address. 
• The Beneficiary not having the phone number of the owner/president of the business. 
• The Beneficiary's status as a part-time employee. 
• The lack of signage identifying the Petitioner as tenant of the business premises. 
• No available business license. 
• The Beneficiary's employment agreement dated the same day as the site visit. 
In response to the NOIR the Petitioner submitted myriad documentation addressing the six issues listed 
by the Director. Regarding item one, the Petitioner submitted business records, lease agreements, tax 
returns, bank statements, bills, invoices, and photographs, all of which identified the Petitioner's 
business as operating and located at its claimed address. Regarding item two, the Petitioner submitted 
an affidavit from the Beneficiary asserting that he did not remember being asked by immigration 
officers for the president's phone number, as well as the president's business card which identifies his 
phone number. Regarding item three, the Petitioner acknowledged that the Beneficiary only worked 
part-time at present but reaffirmed that the Beneficiary would be employed full-time once his 1-485 
application is approved. Regarding item four, the Petitioner asserted that there was signage of its 
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business at the time of the site visit, and as evidence thereof submitted photographs of the premises 
and a Google street view image. Regarding item five, the Petitioner indicated that there was no 
business license on the premises because none is required for a photo and video services business. 
Regarding item six, the Petitioner stated that the employment agreement was prepared for the 
immigration officers to confirm that, notwithstanding the Beneficiary's current part-time status, the 
Petitioner intended to employ him foll-time once his I-485 application was approved. Finally, the 
Petitioner stated that the handwritten paychecks to the Beneficiary were not signed by the president, 
but rather by the "manager/PD," which accounts for their inconsistent appearance with the signatures 
on other documents. 
Following receipt of the Petitioner's response to the NOIR, the Director proceeded to revoke the 
approval of the petition without discussing any of the evidence submitted by the Petitioner. The 
Director simply recounted the issues raised in the NOIR, but did not address the documentation offered 
by the Petitioner in response to those issues. Moreover, while appearing to question the bona fides 
of the proffered position, the Director did not specifically identify the ground for revoking the 
petition's approval. 
Due to these shortcomings in the Director's decision, we will remand this case to the Director for 
farther consideration, focusing on the materials submitted in response to the NOIR which have been 
resubmitted on appeal. If deemed necessary, the Director may request additional evidence from the 
Petitioner. 1 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. 
1 We note that the Petitioner claimed on the labor certification application in 2015 and on the 1-140 petition in 2016 to 
have two employees, and the letter submitted with the petition asserted that they were full-time employees. Yet the 
Petitioner reported salaries and wages of only $13,200 on its federal income tax returns for 2015, 2016, and 2017. On 
remand the Director may wish to investigate this situation further (such as requesting Form 941 s rrom the Petitioner) to 
establish whether the Petitioner actually had, and continues to have, two full-time employees, and whether the Petitioner 
actually intends to employ the Beneficiary full-time, as claimed. 
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