remanded EB-3 Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
In Re: 8090905 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Professional Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 7, 2021 
The Petitioner seeks to employ the Beneficiary as a physical therapist under the third-preference, 
immigrant classification for professional workers. See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). 
After initially granting the filing, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that the Petitioner did not demonstrate the bonafides of the job 
opportunity. 
In these revocation proceedings, the Petitioner bears the burden of establishing eligibility for the 
requested benefit. See Matter of Ho, 19 I&N Dec. 582,589 (BIA 1988) (citation omitted). Upon de 
nova review, we will withdraw the Director's decision and remand the matter for entry of a new 
decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional usually 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(a)(5). 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). Section 204 of the Act, 8 U.S.C. 
§ 1154. IfUSCIS grants a petition, a designated noncitizen may finally apply abroad for an immigrant 
visa or, if eligible, for 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 physical therapists and 
that employment of noncitizens in these "Schedule A" positions will not harm the wages or working 
conditions of U.S. physical therapists. 20 C.F.R. § 656.5. DOL therefore does not require labor 
certification employers to advertise physical therapy positions to U.S. workers in the general 
population and authorizes USCIS to adjudicate labor certification applications for physical therapists 
in immigrant visa petition proceedings. 20 C.F.R. § 656.15(a) . Thus, in this matter , USCIS rules not 
only on the petition, but also on its accompanying labor certification application. See 20 C.F.R. 
§ 656.15(e) (describing USCIS's labor certification determinations for Schedule A positions as 
"conclusive and final"). 
"[A]t any time" before a beneficiary obtains lawful permanent residence, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by a record, the enoneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
USCIS may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and 
unrebutted record at the time of the notice's issuance would have wananted the petition's denial 
Matter of Estime, 19 I&N Dec. 450,451 (BIA 1987). If a petitioner's NOIR response does not 
overcome the stated revocation grounds, USCIS may revoke a petition's approval. Id. at 451-52. 
II. THE BONA FIDES OF THE JOB OPPORTUNITY 
A labor certification employer - including one seeking certification of a Schedule A occupation - must 
attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." 20 C.F.R. 
§ 656.10(c)(8). 
Where the alien for whom labor certification is sought is in a position to control hiring 
decisions or where the alien has such a dominant role in, or close personal relationsrup 
with, the sponsoring employer's business that it would be unlikely that the alien would 
be replaced by a qualified U.S. applicant, the question arises whether the employer has 
a bona fide job opportunity. 
MatterofModularContainerSys . .lnc., 89-INA-228, slip op. at*7 (BALCA July 16, 1991) (en bane). 
The Petitioner filed this petition and its accompanying Schedule A application for the offered position 
of physical therapist in January 2017. The Director's NO IR notes that the company posted notice of 
the filing of the Schedule A application to its employees beginning in November 2016. See section 
212 of the Act, n. 6; 20 C.F.R. § 656.10(d)(6) (refeningto 20 C.F.R. § 656.I0(d)(l)(ii)) (requiring 
labor certification employers to post notices of their filings for at least 10 consecutive business days). 
But, at a later interview regarding his immigrant visa application, the Beneficiary stated that he learned 
of the Petitioner's job opportunity in June or July of 2016, before the company posted notice of the 
position to its employees. 1 The Beneficiary, who lives in Pakistan, said he learned of the job from his 
uncle, a physical therapist in the United States. Also, in 2010 or 2013, the Beneficiaryrep01iedlymet 
1 On appeal, the Petitioner argues that, by omitting the location of the Beneficiary's interview, the NOTRdid not sufficiently 
describe the interview and hindered the company's ability to respond to the notice's allegations. But the Beneficiaty's 
immigration status and theNOIR's context made clear the notice's reference to the Beneficiary's immigrant visa interview. 
Also, the Petitioner's NOIR response asserted that USC IS should have provided the company with a copy of the report on 
the immigrant visa interview. Thus, the Petitionerunderstood the NOIR's reference to the Beneficiary's immigrant visa 
interview. Regarding the assertion in the NOTRresponse, USCISneed not let a petitioner inspect a document if the Agency 
advised the business of the document's derogatory information before issuing an adverse decision based on the 
information. 8 C.F.R. § 103.2(b )(16)(i). The NOIR sufficiently notified the Petitioner of the derogatory information in 
the report on the immigrant visa interview. The Petitioner's arguments are therefore unavailing. 
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the Petitioner's administrator/owner at a wedding in Pakistan. Based on this evidence, the NOIR states 
that "it appears the job was not properly offered and/or advertised to potential U.S. workers." 
The NOIR's allegations, however, would not have warranted the petition's denial. The NOIR appears 
to assert that an employer cannot off er a noncitizen a permanent job in the United States before 
notifying its U.S. workers of the position. But the NOIR cites no legal authority for this proposition, 
nor are we aware of any. Employers must adve1iise most kinds of positions before filing labor 
certification applications. 20 C.F.R. § 656.17( e ). But, as to when employers can offer positions to 
noncitizens, the Act and DOL's regulations are silent. DOL's prior labor certification regulations 
required employers to off er positions to noncitizens before filing applications and placing 
advertisements. See 20 C.F.R. § 656.21 (g) (2004 ). When issuing the current regulations, DOL did 
not indicate that employers must delay offering positions to noncitizens until after notifying U.S. 
workers of the job opportunities. See Final Rule for Labor Ce1iification for the Pennanent 
Employment of Aliens in the United States, 69 Fed. Reg. 77326 (Dec. 27, 2004). 
Moreover, as previously indicated, DOL has already determined that the United States lacks sufficient 
physical therapists. Labor certification employers therefore need not advertise positions for physical 
therapists to U.S. workers in the general population. See 20 C.F.R. § 656.15 (stating requirements for 
Schedule A applications). The NOIR alleges that "the job was not properly ... advertised to potential 
U.S. workers." But USCIS cannot fault the Petitioner for failing to do what was not required. 
The NOIR apparently uses the term "advertised" to refer to the filing notice that DOL regulations 
required the Petitioner to post to its employees. DOL, however, does not consider recruitment of U.S. 
workers as the major function of a posting notice. "In our view, Congress' primary purpose in 
promulgating the notice requirement was to provide a means for persons to submit documentaiy 
evidence bearing on the [labor certification] application," for example, evidence regarding available 
workers, wages, working conditions, or an employer's level of compliance with a position's terms and 
conditions. Final Rule for Labor Certification, 69 Fed. Reg. at 77326. In any event, the Petitioner 
provided a copy of its posting notice demonstrating the company's compliance with applicable 
regulations. The record therefore does not support the Petitioner's alleged, improper "advertisement'' 
of the position to U.S. workers. 
In addition, the NOIR does not allege a personal relationship between the Beneficiary and the 
Petitioner's administrator/owner substantial enough to render the offered position unavailable to U.S. 
workers. The NOIR states that the men met several years ago at a wedding. The description of this 
single, social meeting does not establish a "close personal relationship" that would likely prevent the 
Petitioner's hiring of a qualified U.S. worker for the position. See Matter of Modular Container, slip 
op. at *7. 
Even if the meeting between the men indicated a close personal relationship, the revocation decision 
does not properly analyze the bona fides of the job opportunity. A determination of the availability of 
an offered position to U.S. workers requires a totality-of-the-circumstances test involving 
consideration of a varietyoffactors, no one of which is determinative. Matter of Modular Container, 
slip op. at* 8. The factors include whether a foreign national: can control or influence hiring decisions 
regarding an offered position; has a relationship with an employer's corporate directors, officers, or 
employees; is so inseparable from an employer that it would not likely continue operations in his or 
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her absence; incorporated or founded the business; owns all or part of it; part1c1pates in its 
management; serves on its board of directors; is one of a small number of employees; or qualifies for 
a job based on specialized or unusual job duties or requirements. Id. at **8-10. Adjudicators must 
also consider an employer's level of compliance and good faith during labor certification proceedings. 
Id.at*I0. 
The Director declined to apply Modular Container's test, stating that decisions of DO L's Board of 
Alien Labor Certification Appeals (BALCA) do not bind USCIS officers. See 8 C.F.R. § 103.l0(b) 
(providing that published decisions of the U.S. Attorney General and Board of Immigration Appeals 
bind Department of Homeland Security employees in proceedings involving similar issues). Although 
BALCA decisions do not formally bind USCIS, Congress gave DOL authority over labor certification 
applications. See section 212(a)(l)(A)(5) of the Act. DOL allows users to adjudicate labor 
certification applications for Schedule A occupations. See 20 C.F.R. § 656.15(a). But DOL issued 
the regulations that users must follow in adjudicating these applications. Id. An administrative 
agency should defer to the reasonable regulatory interpretations of another agency that Congress has 
charged with administering applicable rules. Martin v. Occupational Health & Safety Review 
Comm 'n, 499 U.S. 144, 150-59 (1991). Through BALCA, DOL established a reasonable test to 
determine the availability of an offered position to U.S. workers. The Director therefore should have 
followed Modular Container in determining the bona fides of the offered position. 
For the foregoing reasons, we will withdraw the Director's decision and remand the matter. If the 
Director believes that the record would have warranted the petition's denial based on the bonafides 
of the job opportunity, she must issue a new NOrR on remand. A new NOrR must sufficiently allege 
grounds for the proposed revocation and provide the Petitioner with a reasonable period to respond. 
See 8 C.F.R. § 205.2(b). 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record at the time of the NOrR's issuance did not establish 
the Petitioner's ability to pay the proffered wage of the offered position. A petitioner must demonstrate 
its continuing ability to pay a proffered wage, from a petition's priority date until a beneficiary obtains 
lawful permanent resident status. 8 C.F.R. § 204.5(g)(2). If a petitioner employs less than 100 people, 
as here, evidence of ability to pay must include copies of annual reports, federal tax returns, or audited 
financial statements. Id. 
The labor certification states the proffered wage of the offered position of physical therapist as $62,000 
a year. The petition's priority date is January 13,201 7, the date of the petition's filing. See 8 C.F.R. 
§ 204.5(d) (explaining how to determine a petition's priority date). users also approved the petition 
in 2017. 
The Petitioner submitted a copy of its federal income tax return for 2015. The record, however, lacks 
required evidence of the Petitioner's ability to pay in 20 I 7, the year of the petition's priority and 
approval dates. Therefore, contrary to 8 C.F.R. § 204.5(g)(2), the Petitioner did not demonstrate its 
ability to pay the proffered wage from the petition's priority date. 
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On remand, the Director should issue a new NOIR instructing the Petitioner to submit copies of an 
annual report, federal tax return, or audited financial statement for 2017. The Petitioner may also 
submit additional evidence of its ability to pay the proffered wage that year, including evidence of any 
wages it paid the Beneficiary or materials supporting the factors stated in Matter ofSonegawa, 12 I&N 
Dec. 612, 614-15 (Reg'l Comm'r 1967). 
If supp01ied by the record, the new NOIR may include additional, potential revocation grounds. The 
Director should afford the Petitioner a reasonable period to respond to all issues raised on remand. 
Upon receipt of a timely response, the Director should review the entire record and enter a new 
decision. 
IV. CONCLUSION 
The NOIR's allegations would not have warranted the petition's denial. The Petitioner, however, did 
not demonstrate its ability to pay the proffered wage of the offered position. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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