remanded EB-3 Case: Printing

U.S. Citizenship 
and Immigration 
Services 
In Re: 22727727 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 24, 2022 
The Petitioner, a printing business, seeks to employ the Beneficiary as a business intelligence consultant. 
It requests classification of the Beneficiary as a professional under the third preference immigrant 
classification. Immigration and Nationality Act (the Act), section 203(b)(3)(A)(ii), 8 U.S.C. 
§ 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition. The Director concluded that the record 
did not establish that a bona fide job offer open to U.S. workers existed because a pre-existing 
relationship between the Beneficiary and the Petitioner was not revealed on the labor certification. 
Furthermore, the Director found that the Petitioner willfully misrepresented a material fact by failing 
to disclose the pre-existing friendship between its president/co-owner's spouse and the Beneficiary's 
spouse on the labor certification. 
On appeal the Petitioner contests the Director's findings, asserting that the Director misconstrued the 
facts and misapplied the law. 
The AAO reviews the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 
537, 537 n.2 (AAO 2015). It is the Petitioner's burden to establish eligibility for the requested benefit 
by a preponderance of the evidence. See Section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 
25 l&N Dec. 369, 375 (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 l&N Dec. 77, 79-80 (Comm'r 1989). 
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. We will remand the case for adjudication within the statutory and 
regulatory framework for 1-140 immigrant visa petitions. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, the prospective 
employer must obtain a labor certification approval from the U.S. Department of Labor (DOL) to 
establish that there are not sufficient U.S. workers who are available for the offered position. Section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL approval signifies that insufficient U.S. workers are 
able, willing, qualified, and available for a position. Id. Labor certification also indicates that the 
employment of a foreign national will not harm wages and working conditions of U.S. workers with 
similar jobs. Id. Second, the employer must submit the approved labor certification with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. 
§ 1154. The immigrant visa petition must establish that the foreign worker qualifies for the offered 
position, that the foreign worker and the offered position are eligible for the requested immigrant 
classification, and that the employer has the ability to pay the proffered wage. See 8 C.F.R. § 204.5.1 
Finally, if USCIS approves the immigrant visa petition, the foreign worker may apply for an immigrant 
visa abroad or, if eligible, for adjustment of status in the United States. Section 245 of the Act, 8 
U.S.C. § 1255. 
II. ANALYSIS 
The Petitioner is a printing business that was established in 2009 and has approximately seven 
employees. The instant petition was filed with USCIS on December 28, 2020, accompanied by a labor 
certification that was filed with the DOL on March 17, 2020, and certified on July 21, 2020. The 
petition was denied on October 8, 2021. 
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-. We find that the Petitioner has met that burden with respect to the Director's findings. 
Accordingly, we will withdraw the Director's decision.2 
In section N of the labor certification (Employer Declaration), the Petitioner certified 10 conditions of 
employment for the proffered position of business intelligence consultant, one of which was: "The job 
opportunity has been and is clearly open to any U.S. worker." This certification, accorded with the 
regulation at 20 C.F.R. § 656.10(c)(8), requires an employer to attest that "[t]he job opportunity has 
been and is clearly open to any U.S. worker." The petitioner has the burden of establishing that a bona 
fide job opportunity exists when asked to show that the job opportunity is clearly open to U.S. workers. 
See Matter of Amger Corp., 87-INA-545 (BALCA 1987); see also 8 U.S.C. § 1361. 
1 These requirements must be satisfied by the priority date of the immigrant visa petition. See 8 C.F.R. § 204.5(g)(2), 
Matter of Wing's Tea House, 16 l&N Dec. 158, 159 (Act. Reg'I Comm'r 1977). For petitions that require a labor 
certification, the priority date is the date on which the DOL accepted the labor certification application for processing. See 
8 C.F.R. § 204.5(d). In this case, the priority date is March 17, 2020. 
2 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 l&N Dec. 295 {BIA 1959) 
(stating that the immigrant visa petition is not the appropriate stage of the process for questions regarding admissibility). 
2 
In denying the petition, the Director stated that: 
the [P]etitioner contends that he and the [B]eneficiary are not friends, nor have they 
been friends or acquaintances in the U.S. or abroad in their home country of 
Venezuela. However, the [P]etitioner and [B]eneficiary's spouses are friends and have 
had a long-lasting friendship prior to the newly created position. And it so happens 
that the only qualified candidate to apply for this position was the [B]eneficiary. 
The Director further states that although the Petitioner went through the necessary steps to obtain a 
labor certification, "[i]t appears that the [P]etitioner intends to employ the [B]eneficiary outside the 
terms of the labor certification. Therefore, the evidence does not show that the [P]etitoner made a 
bona fide job offer to the [B]eneficiary, or that the [P]etitioner desires and intends to employ the 
[B]eneficiary in the offered position." The Director cites to Matter of Sunmart, 374, 2000-INA-93 
(BALCA May 15, 2000) stating that "[a] relationship invalidating a bona fide job offer may arise 
where the beneficiary is related to the petitioner by 'blood' or it may 'be financial, by marriage, or 
through friendship."' The Director cites to Matter of Sunmart but does not sufficiently explain how 
the case is applicable to the instant case. 3 
The Director based the decision on evidence in the record, including sworn statements from the 
Petitioner's president/co-owner, the Beneficiary, and their respective spouses indicating that the 
spouse of the Beneficiary and the spouse of the Petitioner's president/co-owner had a pre-existing 
friendship since 2016, and such relationship was not revealed to DOL during the labor certification 
process. The Director pointed out that the Petitioner did not reveal this friendship between the spouses 
when submitting the labor certification to DOL by answering "No" to the compound question on page 
1, item C.9, of the labor certification which reads: "Is the employer a closely held corporation, 
partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial 
relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the 
alien?" The Director also pointed out that Petitioner did not reveal the spousal friendship when 
submitting this petition, and it was only later revealed when the Petitioner replied to a request for 
evidence notice. The Director found an issue with "the manner in which the [B]eneficiary was 
introduced to the [P]etitioner and the fact that a pre-exisitng friendship between the spouses of the 
[P]etitioner and [B]eneficiary was not disclosed to the DOL during the labor certification process." 
A pre-existing friendship relationship between the spouses of the Beneficiary and the Petitioner's 
president/co-owner, however, appears to be beyond the scope of the question at C.9, and a failure to 
disclose it does not demonstrate that the job offer at issue was not open to U.S. workers. The question 
at C.9 does not ask whether a relationship exists based on friendship, but instead asks specifically 
whether there is familial relationship between the Beneficiary and anyone associated with the 
Petitioner, or whether the Beneficiary has an ownership interest in the Petitioner.4 Therefore, the 
Petitioner answering "No" to question C.9 is correct based on the record as currently constituted. 
3 The Petitioner distinguished Matter of Sunmart, by pointing out that in that case, the beneficiary was suspected of being 
a part owner of the petitioning business, thereby possibly having a controlling interest in the petitioner. The petitioner in 
Matter of Sunmart failed to tum over requested relevant business records to demonstrate the petitioner's ownership 
interests. 
4 On July 28, 2014, the DO L's Office of Foreign Labor Certification provided guidance for the PERM Program definition 
3 
We therefore withdraw the Director's finding on this issue. For the same reasoning, we withdraw the 
Director's finding that the Petitioner made a willful misrepresentation of a material fact. 
However, we note that the record, as currently constituted, does not establish the Petitioner's 
continuing ability to pay the proffered wage from the priority date of the petition onward. 8 C.F.R. § 
204.5(g)(2). In this case, the proffered wage is $65,354 per year and the priority date is March 17, 
2020. The Petitioner submitted a copy of its 2019 federal income tax return. The record does not 
contain evidence of the Petitioner's ability to pay the proffered wage for 2020 onward. Without the 
necessary financial documentation, we are unable to determine the Petitioner's continuing ability to 
pay the Beneficiary's proffered wage based on its net income or net current assets from the priority 
date of March 17, 2020, onward. 
Therefore, we will remand this case for the Director to request the submission of regulatory required 
evidence from the Petitioner, as specified in 8 C.F.R. § 204.5(g)(2), for the priority date year of 2020 
and any subsequent year(s) in the Director's discretion. The Director may also request any other 
evidence that may be deemed necessary to determine the Petitioner's eligibility for the requested 
immigration benefit. 
111. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's eligibility for the immigration benefit it seeks on behalf of the Beneficiary. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
of familial relationship when responding to question C.9 of the labor certification, "A familial relationship includes any 
relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, 
grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws 
and step-families." DOL, Employment & Training Administration, Foreign Labor Certification, OFLC Frequently Asked 
Questions and Answers, PERM Program, https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm. 
4