remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 19, 2023 In Re: 26244401 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a provider of nursing services, seeks to permanently employ the Beneficiary as a 
registered nurse. The company requests her classification under the employment-based, third­
preference (EB-3) immigrant visa category as a "skilled worker." See Immigration and Nationality 
Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). U.S. businesses may sponsor 
noncitizens for permanent residence in this category to work in jobs requiring at least two years of 
training or experience. Id. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that - before 
the petition's filing - the Beneficiary engaged in a "fraudulent" marriage to circumvent U.S. 
immigration laws, barring the petition's approval. On appeal, the Petitioner contends that the Director 
misapplied law and misstated facts and evidence. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 1 
Exercising de novo appellate review, see Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that the Director's decision does not establish application of the correct standard 
of proof. We will therefore withdraw the Director's decision and remand the matter for entry of a new 
decision consistent with the following analysis. 
I. LAW 
Immigration as a skilled worker usually follows a three-step process. First, to permanently fill a 
position with a foreign worker, a prospective U.S. employer must 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). If 
DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to USCIS. Section 204(a)(l)(F) of the Act, 8 U.S.C. § l 154(a)(l)(F). Finally, 
1 On appeal, the Petitioner contends that U.S. Citizenship and Immigration Services (USCIS) bears the burden of 
demonstrating the Beneficiary ' s entry into a fraudulent marriage. We agree that USCIS must initially examine the record 
to determine if there is evidence of a sham marriage. See Zerezghi v. USCIS, 955 F.3d 802, 805 (9th Cir. 2020); Matter of 
P. Singh , 27 I&N Dec. 598, 605 ( citing Matter ofKahy, 19 I&N Dec. 803, 806-07 (BIA 1988)). But a petitioner bears the 
ultimate burden ofrebutting marriage fraud evidence. Zerezghi, 955 F.3d at 805; Matter ofP. Singh , 27 I&N Dec. at 605. 
if USCIS grants a petition, a noncitizen beneficiary may apply abroad for an immigrant visa or, if 
eligible, "adjustment of status" in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
DOL, however, has already determined that the United States lacks sufficient registered nurses and 
that noncitizens' employment in these "Schedule A" positions will not harm the wages or working 
conditions of U.S. workers in similar jobs. 20 C.F.R. § 656.5. Thus, DOL authorizes USCIS to 
adjudicate Schedule A labor certification applications in immigrant visa petition proceedings . 
20 C.F.R. § 656.15(a). USCIS therefore rules not only on this petition, but also on its accompanying 
labor certification application. See 20 C.F.R. § 656.15( e) ( describing USCIS's Schedule A labor 
certification determinations as "conclusive and final"). 
II. ANALYSIS 
USCIS cannot approve a visa petition for a noncitizen who attempted or conspired to enter into a 
marriage "for the purpose of evading the immigration laws." Section 204( c) of the Act. Even iflegally 
valid where it occurred, a marriage "entered into for the primary purpose of circumventing the 
immigration laws" permanently bars approval of a visa petition. Matter ofP. Singh, 27 I&N Dec. at 
601 ( citations omitted). To determine the existence of a fraudulent or sham marriage, adjudicators 
must consider whether the parties "intended to establish a life together at the time they were married." 
Id. Officers must examine the parties' conduct before and after the marriage to ascertain their intent, 
but "only to the extent that it bears upon their subjective state of mind at the time they were married." 
Id. 
"Substantial and probative evidence" must support a marriage-fraud finding. 8 C.F.R. 
§ 204.2(a)(l)(ii). The Board of Immigration Appeals (BIA) recently clarified this standard of proof 
as meaning evidence that a marriage was "more than probably" fraudulent. Matter ofP. Singh, 27 I&N 
Dec. at 607. This standard exceeds a preponderance of the evidence but does not rise to the level of 
clear and convincing evidence. Id. at 607 n.7. 
Citing Matter of Tawfik, 20 l&N Dec. 166, 167 (BIA 1990), the Director stated that she found the 
Beneficiary's marriage to her former U.S. citizen spouse to be fraudulent based on "substantial and 
probative evidence." But the decision does not demonstrate that the Director found proof that the 
marriage was "more than probably" fraudulent. See Matter of P. Singh, 27 l&N Dec. at 607. The 
Director did not cite Singh or cases that follow it. See, e.g., Matter of Pak, 28 I&N Dec. 113, 118 
(BIA 2020). The decision also does not state that the Beneficiary "more than probably" engaged in a 
sham marriage. The decision therefore does not establish application of the correct standard of proof. 
Because the Director might have required less proof of marriage fraud than needed to bar the petition's 
approval, we will withdraw her decision and remand this matter. On remand, consistent with Singh, 
the Director should determine whether the record contains evidence that the Beneficiary's marriage 
was "more than probably" fraudulent. If so, the Director should then determine whether the Petitioner 
rebutted the derogatory information. Finally, the Director should enter a new decision. 
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ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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