remanded EB-3 Case: Public Relations

U.S. Citizenship 
and Immigration 
Services 
In Re: 1623075 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 29, 2020 
The Petitioner seeks to employ the Beneficiary as a public relations specialist. 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 revoked the petition's approval, concluding that the 
Petitioner and the Beneficiary willfully misrepresented the Beneficiary's employment history and that 
the Beneficiary engaged in unauthorized employment prior to the Form 1-140 being approved . He 
also invalidated the labor certification based on willful misrepresentation of material facts. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S.C. § 1361. Upon de novo review, we will remand the matter to the 
Director for further consideration and entry of a new decision . 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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). 1 See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). 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 id. 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, if USCIS approves the petition, the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
July 7, 2010. See 8 C.F.R. § 204.5(d). 
II. REVOCATION OF A PETITION'S APPROVAL 
After granting a petition, USCIS may revoke the petition's approval "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record, a director's 
realization that a petition was erroneously approved may justify revocation. Matter of Ho, 19 I&N 
Dec. 582, 590 (BIA 1988). 
Good and sufficient cause exists to issue a notice of intent to revoke (NOIR) where the record at the 
time of the notice's issuance, if unexplained or unrebutted, would have warranted the petition's denial. 
Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). Similarly, revocation is proper if the record at 
the time of the decision, including any explanation or rebuttal evidence provided by a petitioner, 
warranted a petition's denial. Id. at 452. 
III. THE BENEFICIARY'S EXPERIENCE 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12); Matter o_f Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). Section Hof the labor certification states 
that the offered position of public relations specialist requires a bachelor's degree in any field and 24 
months of experience in the job offered. Experience in an alternate occupation is not acceptable. At 
issue in this case is the Beneficiary's qualifying experience. 
The labor certification states that the Beneficiary was unemployed from June 20, 2009, to July 5, 2010; 
that he worked foll-time (40 hours per week) as a teacher for a public school inl !Texas, from 
August 5, 2005, to June 19, 2009; and that he worked as a foll-time (40 hours per week) as a public 
relations specialist at~---------~ in Spain from February 1, 2000, to June 30, 2005. 
Evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer, and a specific description of the 
duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). With the petition, the Petitioner 
submitted a letter dated May 12, 2008, with English translation, from the President ofc=] stating that 
the Beneficiary "worked from June 2000 through June 2005 as a public relations specialist." The letter 
listed his duties. 
In the NOIR, the Director indicated that the Beneficiary was interviewed by a consular officer in Spain 
on May 3, 2016; that he stated under oath that he worked as a teacher in Spain from 2000 to 2005; and 
that he stated that he was a member otc=J during that time, but he did not indicate that he worked 
foll-time as a public relations specialist for them. Further, the Director noted that the Beneficiary's 
I l his employment history document from Spain, does not list his employment 
with I I Instead, the document shows that the Beneficiary held other jobs between 2000 and 2005 
and that his primary employment was as a teacher. The Director also stated in the NOIR that the 
Beneficiary's Linkedln account lists his employment as a teacher from 2000 to 2005 but makes no 
reference to his employment withl I The Director indicated that the Beneficiary presented an 
email stating that the irregular hours of a teacher and summer vacations permitted him to work for 
~ foll-time for five years. The Director also indicated that Spanish law prohibits the number of 
hours a worker can work, "making his claim of holding two foll-time jobs an impossibility." Further, 
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the Director stated that Spanish employers must provide a contract to employees and rlgisterb the 
contract with Spanish social security authorities, and that the record did not indicate that ver 
registered the working relationship and contract with the Spanish social security authorities. The 
Director additionally stated that the Beneficiary provided a letter from the Secretary ofl bating 
that the Beneficiary worked full-time as a public relations specialist from 2000 to 2005 and that he 
received compensation of 400 euros per month in cash in lieu of a salary, but that this amount is well 
below Spain's minimum wage. The Director further noted that the Beneficiary stated in a phone 
conversation with the consular officer that he was paid under the table wir pety cash to avoid leaving 
records of payments. However, the Director noted that the President of could not confirm in a 
phone call with the consular officer that the Beneficiary was a full-time employee, and that no paystubs 
were submitted following the Beneficiary's interview as requested by the consular officer. 
The Director further stated in the NOIR that the Beneficiary worked for the Petitioner concurrent to 
his full-time employment as a teacher in the State of Texas from November 2007 to October 2008, 
and that the Beneficiary stated that he worked without pay until his petition to work two concurrent 
jobs was authorized in July 2008. The Director stated that this evidence of unauthorized employment 
further calls into question the integrity of the petition. The Director asserted in the NOIR that the 
Petitioner must resolve incongruities in the record with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect 
of the Petitioner's proof may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Id. The Director further asserted in the NOIR that the evidence 
suggests that the Petitioner and the Beneficiary willfully misrepresented professional experience to 
qualify for an immigration benefit, and that USCIS may invalidate the labor certification based upon 
a finding of fraud or willful misrepresentation. 
In response to the NOIR, the Petitioner asserted that the Beneficiary worked on a full-time basis for 
I I as a volunteer from 2000 to 2005. It submitted additional documents supporting the 
Beneficiary's experience, including an affidavit from the Beneficiary; a letter from the President of 
a letter from the Secreta of a letter from the Second Vice President of thd I 
r-------------it---,------' ; a letter from the Gener~ary of-c=] a legal report from 
a letter from the Director of theL___J1ewspalser Today; and a letter 
._fi_ro_m_t_h_e_P_r_e-s1-.d-e_n_t_o_f-th_e_P-re_,ss Association oj I The President o · stated that he serves in 
a full-time, voluntary role a~ile working full-time as a surgeon and serving as head of the 
surgery service at Hospital L___J and he confirmed that that the Beneficiry als~ worked full­
time fo~~~~rom 2000 to 2005 on a similar voluTary Iasis. The Secretary of onfirmed that 
the Beneficiary worked full-time as a volunteer for from 2000 to 2005, and that he was paid a 
"gratuity" of "400 monthly cash" to cover his expenses. The General Secretary of c=J stated that 
c=Jis a nonprofit political entity; that Spanish law requires volunteer organizations to be integrated 
or have volunteers and to develop part or all of its actions through volunteer pTgrajs; that such 
entities have the right to issue volunteers a certificate detailing their activities; that cannot offer 
a labor contract to its volunteers or register them for social security; that such volunteer activities "are 
carried out without economic or material consideration, without pl ejudye to payment of the 
reimbursable expenses;" that the Beneficiary was a voluntary worker for from 2000 to 2005; and 
that the Beneficiary received 400 euros per month for reimbursable expenses as permitted under 
Spanish law. The legal report described the legal nature of volunteer activities in nonprofit entities in 
Spain and stated that the Beneficiary legally provided volunteer services without a work contract or 
3 
salary for LJbetween 2000 and 2005 while also providing renumerated services to a public entity 
under a work contract. Additionally, in response to the NOIR, the Petitioner denied that it employed 
the Beneficiary on an unauthorized basis between 2007 and 2008, and the Beneficiary denied that he 
ever told the consular officer that he was employed by the Petitioner without authorization. 
The Director revoked the approval of the petition on March 15, 2018, concluding that the Petitioner 
and the Beneficiary willfully misrepresented the Beneficiary's employment history and that the 
Beneficiary engaged in unauthorized employment prior to the Form I-140 being approved. He also 
invalidated the labor certification based on the willful misrepresentation of material facts. He stated 
in the notice of revocation (NOR) that the Petitioner failed to provide the Beneficiary's government­
issued work histo document and noted that the letters submitted contradict the Beneficiary's official 
He focused on the lack of renumeration provided to the Beneficiary by 
and the lack of payroll documentation provided to the record, but he did not appear to consider 
the claims in the NOIR response that the Beneficiary's experience with0 was gained on a 
volunteer basis without a salary or work contract. 
In the NOR, the Director also noted the Beneficiary's employment with the Petitioner concurrent to 
his foll-time employment as a teacher in the State of Texas from November 2007 to October 2008. 
The Director stated that in response to the NOIR, the Beneficiary denied that he engaged in 
unauthorized employment despite previously indicating to the consular officer that he worked without 
pay until his petition to work two concurrent jobs was authorized in July 2008. The Director 
determined that the Beneficiary's statement in response to the NOIR was insufficient to overcome his 
statement to the consular officer, as evidence of unauthorized employment calls into question the 
integrity of the petition. 
On appeal, the Petitioner submits additional evidence of the Beneficiary's experience, incluling anl 
email from the Beneficiary; an email from the Petitioner's counsel; a letter from the editor of 
Television News; a certificate from the current head of the communications office of the Delegation 
of the Government of Spain I I a copy of a newspaper clipping; and an affidavit from the 
Petitioner regarding the Beneficiary's employment. The Petitioner asserts that the Director failed to 
consider the evidence submitted in response to the NOIR indicating that the Beneficiary's experience 
with I lwas gained on a volunteer basis without a salary or work contract and, therefore, the 
experience was not legally required to be listed on hisl I It also asserts that it 
provided sufficient documentation establishing the Beneficiary's legal authority to hold two foll-time 
positions from 2000 to 2005 - one paid and one voluntary. 
In his NOR, the Director did not analyze whether the claims of volunteer work were legitimate and 
sufficiently documented, and if so, whether volunteer experience can qualify the Beneficiary for the 
offered job. Unpaid work can constitute qualifying experience. Matter of B&B Residential Facility, 
Ol-INA-146 *4 (BALCA July 16, 2002). 2 Thus, we will remand the matter to the Director to review 
the Petitioner's claim that the Beneficiary qualifies for the offered job based on volunteer experience. 
2 Decisions of the Board of Alien Labor Certification Appeals, a part ofDOL, do not bind us. See 8 C.F.R. §§ 103.lO(b), 
(e) (stating that all Department of Homeland Security employees must follow precedent decisions of the Board of 
Immigration Appeals and the Attorney General in proceedings involving the same or similar issues). As previously 
indicated, however, Congress directed DOL to determine the availability of qualified U.S. workers for positions offered to 
4 
The Director noted the Beneficiary's alleged unauthorized employment with the Petitioner in his NOR. 
However, while the Beneficiary's unauthorized employment may result in his inadmissibility to the 
United States, his unauthorized employment does not support revocation of the petition's approval 
and findings of willful misrepresentation of material facts. See Matter of 0-, 8 I&N Dec. 295, 296 
(BIA 1959) (holding that visa petition proceedings are not the appropriate forum for determining a 
beneficiary's admissibility). The Petitioner seeks to qualify the Beneficiary as a professional, and the 
position of public relations specialist requires a bachelor's degree and 24 months of experience in the 
job offered. The Petitioner does not claim that the Beneficiary gained qualifying experience with it. 
Rather, to support the Beneficiary's claimed experience, the Petitioner submitted letters related to his 
employment with a different employer. See 8 C.F.R. § 204.5(1)(3). Thus, the nature of the Petitioner's 
employment of the Beneficiary does not affect his qualifications for the offered position and the 
requested classification. Because the Beneficiary's prior role with the Petitioner is immaterial to his 
qualifications for the offered position, his alleged unauthorized employment does not support the 
Director's revocation of the petition's approval and his findings of willful misrepresentation of 
material facts. 
In sum, we will remand the matter to the Director to review the P~ner's claim that the Beneficiary 
qualifies for the offered job based on volunteer experience with L_J 
IV. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The Director also entered findings of willful misrepresentation of material facts against the Petitioner 
and the Beneficiary. A finding of willful misrepresentation of material fact against a petitioner or 
beneficiary requires the following elements: 
• The petitioner or beneficiary procured, or sought to procure, a benefit under U.S. immigration 
laws· 3 
' • The petitioner or beneficiary made a false representation; 4 
• The false representation was willfully made; 5 
• The false representation was material; 6 and 
• The false representation was made to a U.S. government official. 7 
qualifying immigrants. See section 212(a)(5)(A) of the Act. We therefore defer to DOL's reasonable determinations 
regarding position qualifications. See Martin v. Occupational Safety & Health Review Comm 'n, 499 U.S. 144. 157-59 
(1991) (requiring one agency to defer to a reasonable regulatory interpretation of another charged with promulgating and 
enforcing a statute). 
3 See 8 USC1S Policy Manual, supra, at J.3(B). 
4 A misrepresentation is an assertion or manifestation that is not in accordance with the true facts. A false 
representation may be made in oral interviews, written applications, or by submitting evidence containing false 
information. See 8 users Policy Manual. supra, at J.3(C); see also Legacy INS Genco Op. No. 91-39, 1991 WL 1185150 
(April 30, 1991 ). 
5 See 8 users Policy Manual, supra, at J.3(D). The term "willfully" means knowing and intentionally, as distinguished 
from accidentally, inadveitently, or in an honest belief that the facts are otherwise. See Matter of Healy and Goodchild, 
17 T&N Dec. 22, 28 (BIA (1979). 
6 A material misrepresentation is a false representation concerning a fact that is relevant to the petitioner's or beneficiary's 
eligibility for an immigration benefit. See 8 USC1S Policy Manual, supra, at J.3(E). A material misrepresentation is one 
that "tends to shut off a line of inquiry relevant to" eligibility. Matter of Ng, 17 l&N Dec. 536, 537 (BIA 1980). 
7 See 8 USC1S Policy Manual, supra, at J.3(F); see also Matter of Y-G-, 20 l&N Dec. 794, 796 (BIA 1994). 
5 
See 8 USCIS Policy Manual J.2(B), https://www.uscis.gov/policymanual; see also Matter of M-, 
6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). 
As detailed above, the Director did not analyze whether the claims of volunteer work were legitimate 
and sufficiently documented, and if so, whether volunteer experience can qualify the Beneficiary for 
the offered job. Further, as noted above, the Beneficiary's alleged unauthorized employment by the 
Petitioner does not support the Director's findings ofwillfol misrepresentation of material facts. Thus, 
we will withdraw the Director's findings of willful misrepresentation of material facts against the 
Petitioner and the Beneficiary related to the Beneficiary's prior experience listed on the labor 
certification. However, on remand, if the Director determines that the claims of volunteer work are 
false and otherwise meet the elements of willful misrepresentation of material facts, the Director may 
reinstate the findings of willful misrepresentation against one or both parties. 
V. INVALIDATION OF THE LABOR CERTIFICATION 
The regulation at 20 C.F.R. § 656.30( d) provides, in pertinent part: 
( d) Invalidation of labor certifications. After issuance, a labor certification may be 
revoked by ETA using the procedures described in Sec. 656.32. Additionally, after 
issuance, a labor certification is subject to invalidation by the DHS or by a Consul of 
the Department of State upon a determination, made in accordance with those agencies' 
procedures or by a court, of fraud or willful misrepresentation of a material fact 
involving the labor certification application. 
Based on our withdrawal of the findings of willful misrepresentation of material facts against the 
Petitioner and the Beneficiary involving the labor certification application, we will withdraw the 
Director's invalidation of the labor certification and reinstate it. 
VI. ABILITY TO PAY THE PROFFERED WAGE 
The Petitioner must establish its continuing ability to pay from the priority date in 2010. 8 The 
regulation at 8 C.F.R. § 204.5(g)(2) requires that "[e]vidence of this ability shall be either in the form 
of copies of annual reports, federal tax returns, or audited financial statements." The regulation forth er 
provides that if a petitioner employs 100 or more workers, we may accept a statement from a financial 
officer of the petitioner which establishes its ability to pay the proffered wage. Id. 
The record does not contain the Petitioner's annual reports, federal tax returns, or audited financial 
statements from the priority date in 2010 onward. Instead, it contains a letter dated March 25, 2011, 
from the Petitioner's owner stating that the Petitioner has the ability to pay the proffered wage. The 
Petitioner asserts that it employs over 200 employees and that it had gross income for 2009 of $20 
million. However, given the Petitioner's history of filing petitions detailed below, on remand, the 
Director should request additional evidence of the Petitioner's continuing ability to pay. 
8 The proffered wage is $16.95 per hour. 
6 
Where a petitioner has filed Form I-140 petitions for multiple beneficiaries, it must demonstrate that its 
job offer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to each 
beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 
2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to pay multiple 
beneficiaries). USCIS records show that the Petitioner has filed multiple Form I-140 petitions for other 
beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of the other Form I-140 petitions that were pending or approved as o±: or filed after, the 
priority date of the current petition. 9 We do not consider the other beneficiaries for any year that the 
Petitioner has paid the Beneficiary a salary equal to or greater than the proffered wage. 
The Petitioner must document the receipt numbers, names of beneficiaries, priority dates, and 
proffered wages of these other petitions, and indicate the status of each petition and the date of any 
status change (i.e., pending, approved, withdrawn, revoked, denied, on appeal or motion, beneficiary 
obtained lawful permanent residence). To offset the total wage burden, the Petitioner may submit 
documentation showing that it paid wages to other beneficiaries. To demonstrate that it has the ability 
to pay the Beneficiary and the other beneficiaries, the Petitioner must, for each year at issue (a) 
calculate any shortfall between the proffered wages and any actual wages paid to the primary 
Beneficiary and its other beneficiaries, (b) add these amounts together to calculate the total wage 
deficiency, and ( c) demonstrate that its net income or net current assets exceed the total wage 
deficiency. 10 Without this information, we cannot determine the Petitioner's ability to pay the combined 
proffered wages of all of its applicable beneficiaries. 
We cannot affirmatively find that the Petitioner has the continuing ability to pay the combined 
proffered wages of all of its applicable beneficiaries from the priority date in 2010. On remand, the 
Director should request additional evidence of the Petitioner's ability to pay and allow the Petitioner 
reasonable time to respond. 
VII. CONCLUSION 
In conclusion, we will remand the matter to the Director to review the Petitioner's claim that the 
Beneficiary qualifies for the offered job based on his volunteer experience withLJ On remand, 
the Director should also request additional evidence of the Petitioner's ability to pay and allow the 
Petitioner reasonable time to respond. Additionally, we withdraw the Director's findings of willful 
misrepresentation of material facts against the Petitioner and the Beneficiary involving the labor 
certification application, and we withdraw the Director's invalidation of the labor certification and 
reinstate it. 
9 The Petitioner's ability to pay the proffered wage of one of the other T-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a pending 
appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
10 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
7 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
FURTHER ORDER: The ETA Form 9089, case number._l _____ _.l is reinstated. 
8