remanded EB-3 Case: Poultry Processing

U.S. Citizenship 
and Immigration 
Services 
InRe: 01003195 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 26, 2022 
The Petitioner, a poultry processing business, seeks to employ the Beneficiary as a poultry processing 
worker. It requests classification of the Beneficiary as an "other worker" 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 residence 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 Texas Service Center denied the petition. The Director determined that the 
Petitioner was receiving free recruitment and other services on behalf of the Beneficiary during the 
labor certification process as a result of the Beneficiary's payments for such services to a recruiting 
company. The Director concluded that the Petitioner did not establish that the proffered position was 
a bona fide job offer open to U.S. workers. 
On appeal the Petitioner asserts that it directly paid all required costs for the labor certification process 
and did not violate the regulation at 20 C.F.R. § 656.12(b) relating to "Improper Commerce and 
Payment" during the labor certification process. 
The AAO conducts appellate review on a de nova basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The burden is on the petitioner in visa petition proceedings to establish eligibility for the 
benefit sought. See Matter of Brantigan, 11 l&N Dec. 493 (BIA 1966). The petitioner must prove by 
a preponderance of the evidence that the beneficiary is fully qualified for the benefit sought. See 
Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). To establish its eligibility for the 
immigration benefit it seeks under the preponderance of the evidence standard, the petitioner must 
submit sufficiently probative and credible evidence to establish that its claim is "more likely than not" 
or "probably" true. See Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
With respect to the basis for the Director's decision, the Petitioner's assertions on appeal are 
persuasive. The Petitioner must prove eligibility by a preponderance of evidence, such that the 
applicant's claim is "probably true" based on the factual circumstances of each individual case. Matter 
of Chawathe; Matter of E-M-. Upon de nova review, we determine that the Petitioner has established, 
by a preponderance of the evidence, that the proffered position was a bona fide job opportunity open 
to U.S. workers and that applicable regulations were not violated in the labor certification process. 
Accordingly, we will withdraw the Director's decision. 1 
We will remand the case for adjudication within the statutory and regulatory framework for I-140 
immigrant visa petitions. 
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 recognize that that the Director raised significant if somewhat speculative concerns. While not sufficiently developed 
for purposes of this visa petition, the Director is not barred from further inquiry, investigation, or the development of 
questions for consular processing or adjustment of status proceedings. See Matter of 0, 8 I&N Dec. 295 (BIA 1959) 
(stating that the immigrant visa petition is not the appropriate stage of the process for questions regarding admissibility). 
2