remanded EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 5802858 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV. 27, 2019 
The Petitioner seeks to employ the Beneficiary as a retail manager. It requests classification of the 
Beneficiary as a skilled worker under the third preference immigrant category. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(B)(3)(A)(i). This employment -based 
immigrant classification allows a U.S. employer to sponsor a foreign national for lawful permanent 
resident status to work in a position that requires at least two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
properly disclose a familial relationship between it and the Beneficiary. The Director entered a finding 
of willful misrepresentation of a material fact against the Petitioner , and he invalidated the labor 
certification . 
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 withdraw the Director's 
decision and remand the matter for further proceedings consistent with our opinion and for the 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)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i) . By approving the labor ce1iification, 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 section 212(a)(5)(A)(i)(I) -(II) of the 
Act. 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 USC IS 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 
March 2, 2018. See 8 C.F.R. § 204.S(d). 
II. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The Petitioner indicated on the labor certification that the Beneficiary did not have a familial 
relationship to the Petitioner. Part C.9. of the labor certification asks, "Is the employer a closely held 
corporation ... in which the alien has an ownership interest, or is there a familial relationship between 
the owners, stockholders, partners, corporate officers, incorporators, and the alien?" The Petitioner 
checked 'No' in response to this question, indicating that there is no relationship between the 
Beneficiary and the owners, stockholders, partners, corporate officers, or incorporators of the 
Petitioner. However, the record establishes that the Beneficiary is the niece of the Petitioner's 
President and 50% shareholder! I The Director determined that the Petitioner willfully made 
a material misrepresentation on the labor certification, and he invalidated the labor certification. The 
Director noted DO L's audit of the labor certification and stated that the "audit conducted establishes 
that there is a bona fide job offer;" however, he indicated that the Petitioner did not disclose the 
relationship to DOL during the audit. 2 
As outlined by the Board of Immigration Appeals (Board), a material misrepresentation requires that 
the petitioner willfully make a material misstatement to a government official for the purpose of 
obtaining an immigration benefit to which one is not entitled. Matter of Kai Hing Hui, 15 I&N Dec. 
288, 289-90 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished 
from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of 
Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). To be considered material, the 
misrepresentation must be one which "tends to shut off a line of inquiry which is relevant to the alien's 
eligibility, and which might well have resulted in a proper determination that he be excluded." Matter 
of Ng, 17 I&N Dec. 536, 537 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa petition 
proceedings, they must determine: 1) that the petitioner or beneficiary made a false representation to 
an authorized official of the United States government; 2) that the misrepresentation was willfully 
made; and, 3) that the fact misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 
1954); Matter ofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter of Kai Hing Hui, 15 I&N Dec. at 288. 
Here, the Petitioner has established that it disclosed the relevant familial relationship to DOL during 
an audit of the labor certification. 3 The Petitioner's audit response to DOL included an affidavit from 
!stating that the Beneficiary "is related to my wife through marriage to her sister." Thus, 
~a-lt-ho_u_g_h~the Petitioner's representation at Part C.9. of the labor certification was false4 and was 
2 A labor certification employer must attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." 
20 C.F.R. § 656.1 0(c)(8). This attestation "infuses the recruitment process with the requirement of a bona fide job 
opportunity: not merely a test of the job market." Matter of Modular Container Sys., Inc., 89-INA-228, 1991 WL 223955, 
*7 (BALCA Jul. 16, 1991) (en bane); see 20 C.F.R. § 656.17(1). A relationship between a petitioner and a beneficiary 
triggering concerns about the bonafides of a job opportunity "is not only of the blood; it may also be financial, by marriage, 
or through friendship." Matter of Sunmart 374, 2000-INA-93, 2000 WL 707942, *3 (BALCA May 15, 2000). If a 
petitioner knowingly misrepresented the bona fides of a job opportunity, USCIS may invalidate a labor certification after 
its issuance. See 20 C.F.R. § 656.30(d) (authorizing USCIS invalidation upon a finding of "fraud or willful 
misrepresentation of a material fact involving the labor certification"). 
3 The Petitioner also submitted the audit materials to USCTS in response to the Director's notice of intent to deny. 
4 The Petitioner does not dispute the existence of the familial relationship on appeal. Because the Petitioner's answer at 
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willfully made, 5 it was not material to the bona fides of the job opportunity due to the Petitioner's 
disclosure of the familial relationship to the DOL during the labor certification audit. The Petitioner 
did not shut off a line of inquiry which is relevant to the Beneficiary's eligibility for the requested visa 
classification. See Matter of Ng, 17 I&N Dec. at 537. The DOL determined after the audit that, despite 
the familial relationship between the Petitioner and the Beneficiary, the position of retail manager was 
a bona fide job opportunity open to U.S. workers. Accordingly, the Petitioner has overcome the 
Director's finding that the Petitioner willfully misrepresented a material fact involving the labor 
certification process. Therefore, we will withdraw the Director's finding of material misrepresentation 
against the Petitioner. 
However, as further detailed below, the Director's decision did not clarify whether the Beneficiary has 
the experience required for the offered job or whether the Petitioner has the continuing ability to pay 
the proffered wage from the priority date. Thus, we will remand the matter to the Director for further 
consideration. 
III. 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 finding of willful misrepresentation of a material fact against the 
Petitioner involving the labor certification application, we will reinstate the validity of the labor 
certification. 
However, as further detailed below, the Director's decision did not clarify whether the Beneficiary has 
the experience required for the offered job or whether the Petitioner has the continuing ability to pay 
the proffered wage from the priority date. Thus, we will remand the matter to the Director for further 
consideration. 
Part C.9. on the ET A Form 9089, Application for Permanent Employment Certification, was not correct, it constitutes a 
false representation. 
5 The labor certification clearly and specifically asks whether there is a familial relationship between the Petitioner and 
the Beneficiary. The Petitioner answered "no" on the ET A 9089, andl I signed the labor certification in his capacity 
as President of the Petitioner certifying that he assented to the answer. Thus, the Petitioner willfully made a 
misrepresentation in this case. 
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IV. BENEFICIARY'S QUALIFICATIONS 
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 of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
Section H of the labor certification states that the offered position of retail manager requires a 24 
months of experience in the job offered or in management. The labor certification states that the 
Beneficiary worked as a construction manager with I I Hospital in Pakistan from January 1, 
1995, to June 19, 2017. However, the letter submitted relating to the Beneficiary's experience does 
not confirm the Beneficiary's qualifying two years of experience. 6 Instead, the letter fromll 
I !University confirms the Beneficiary's employment from January 1, 1995, to June 19, 10TT,aiicI 
states that "at the time of resignation," the Beneficiary "was holding the position of Manager, 
Construction." Thus, the letter does not indicate that the Beneficiary served in the managerial ro~­
construction manager for a minimum of 24 months. Further, the employer listed on the letter is 
I rndUniversity, but the Beneficiary indicated on the labor certification that he worked fo 
I Hospital. Thus, the employers appear to be different. The Petitioner must resolve this 
inconsistency 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). 
Thus, based on the deficiencies in the letter described above, we cannot affirmatively find that the 
Beneficiary possessed the minimum experience required by the labor certification as of the priority 
date. On remand, the Director should request additional evidence of the Beneficiary's qualifications 
and allow the Petitioner reasonable time to respond. 
V. ABILITY TO PAY 
The record does not contain regulatory required evidence of the Petitioner's ability to pay the proffered 
wage from the priority date on March 2, 2018, and continuing until the beneficiary obtains lawful 
permanent residence. 7 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 Petitioner submitted regulatory-prescribed evidence of its ability to pay the proffered wage in 
2017. However, the record does not contain regulatory-prescribed evidence of its ability to pay for 
2018. Without this regulatory-required evidence, we cannot affirmatively find that the Petitioner has 
the continuing ability to pay the proffered wage from the priority date. On remand, the Director should 
request such regulatory-required evidence and allow the Petitioner reasonable time to respond. 
6 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. 8 
C.F.R. § 204.5(1)(3). 
7 The annual proffered wage is $52,478. 
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VI. CONCLUSION 
The Director's decision did not clarify whether the Beneficiary has the experience required for the 
offered job or whether the Petitioner has the continuing ability to pay the proffered wage from the 
priority date. Thus, we will remand the matter to the Director for further consideration. 
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 j~----~I, is reinstated. 
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