remanded EB-3 Case: Semiconductor Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 22679425 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 23, 2023 
The Petitioner, an automated semiconductor device and systems monitoring business, seeks to employ 
the Beneficiary as a director of engineering. It requests classification of the Beneficiary as an "other 
worker" under the third preference immigrant classification. Immigration and Nationality Act (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 a foreign national for lawful permanent resident status 
to work in a position 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, concluding that Petitioner did not reveal 
on the labor certification that the Beneficiary is its corporate officer, and the Petitioner failed to provide 
sufficient evidence that a bona fide job opportunity existed for U.S. workers. The matter is now before 
us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 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. 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 Director denied the petition finding the Petitioner did not establish a bona fide job opportunity 
open to U.S. workers. The Director pointed to inconsistencies in the record which call into question 
the bona fides of the job opportunity. Specifically, the Petitioner's CEO/President's statements and 
its tax returns indicate the Beneficiary is an officer of the Petitioner, while the Petitioner did not 
disclose this relationship in the labor certification. 
The Petitioner's assertions on appeal are persuasive. For the reasons discussed below, we will 
withdraw the Director's decision and remand the matter for further consideration and entry of a new 
decision. 
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. § 656.10(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, at 7 (BALCA 1991) (en bane); see also 20 C.F.R. 
§ 656.17(1). 
To assess whether a bona fide job offer may be at issue, section 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, attesting that the Beneficiary 
has no ownership interest in the company and there is no familial relationship between the Beneficiary 
and its owners, stockholders, partners, corporate officers, or incorporators. 
The Director acknowledged that the record demonstrates the Beneficiary does not have an ownership 
interest in the Petitioner. However, the Director found that the Petitioner's submitted tax documents 
indicate the Beneficiary held an officer position and this relationship should have disclosed at section 
C.9 of the labor certification. The question at C.9 specifically relates to ownership interests and 
familial relations, and thus the Beneficiary's role as an officer of the Petitioner appears to be beyond 
the scope of the question. Therefore, the Petitioner answering "No" to question C.9 is correct based 
on the record. Moreover, we note the Petitioner disclosed on the labor certification that it has one 
employee, the Beneficiary, detailing the Beneficiary's current position and job duties, which appears 
to have provided the DOL sufficient evidence to audit the recruitment process prior to certifying the 
labor certification. 
For these reasons, we will withdraw the Director's finding on this issue. 
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 September 10, 2018. 
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The Director also found that a bona fide job offer does not exist since the Petitioner has one employee, 
the Beneficiary, and it is unclear how the Beneficiary was recruited to the position when the 
Petitioner's CEO/President supervises from abroad. The Director acknowledged the record shows the 
Beneficiary does not have an ownership interest in the Petitioner, however, found the Petitioner did 
not address "whether the [B]eneficiary exercised influence and control over the job opportunity." The 
Director stated the Petitioner failed to submit copies of its recruitment documents "or any other 
evidence to show that the job was truly available to U.S. workers." 
The Petitioner disputes the Director's reliance on, and the relevance of, the Petitioner's recruitment 
efforts by a CEO/President who supervises from abroad. The Petitioner contends that the way the 
Beneficiary was recruited is irrelevant to determining whether a bona fide job opportunity exists, and, 
if it is relevant, the Director did not specifically request evidence of whether the Beneficiary exercised 
influence and control over the job opportunity, or the recruitment information. Instead, the request for 
evidence (RFE) notice requested evidence of whether the Petitioner made a bona fide job offer to the 
Beneficiary, with a list of suggested documents including the recruitment documents. With the RFE 
reply, the Petitioner submitted another suggested document, a statement from its CEO/President 
explaining his and the Beneficiary's roles with the Petitioner, and that he is solely responsible for 
hiring and supervising the Petitioner's employees. The Petitioner argues this statement demonstrates 
the Beneficiary did not exercise influence and control over the job opportunity, as indicated by the 
Director. In support of the appeal, the Petitioner submits documentation related to its recruitment 
efforts. 
We withdraw the Director's finding on the bona fides of the job offer and remand for the Director's 
consideration of the submitted recruitment materials with the evidence in the record. On remand, the 
Director may wish to issue a new RFE and allow the Petitioner an opportunity to respond. 
Also, a petitioner must demonstrate its continuing ability to pay the proffered wage of an offered 
position, from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 
C.F.R. § 204.5(g)(2). In this case, the proffered wage is $88,795 per year and the priority date is 
September 10, 2018. The Petitioner submitted the Beneficiary's IRS Forms W-2, Wage and Tax 
Statements, for 2018 and 2019 as evidence of its ability to pay the proffered wage. The statements 
indicate the Petitioner paid the Beneficiary a wage of $90,000 for both years, which is more than the 
proffered wage. Therefore, the Petitioner has established its ability to pay the proffered wage for the 
years 2018 and 2019. However, the record does not contain evidence of the Petitioner's ability to pay 
the proffered wage for 2020 onward. 
Therefore, we will also 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 Petitioner's ability 
to pay the proffered wage for 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. 
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Ill. CONCLUSION 
For the reasons discussed above, we are withdrawing the Director's decision. We will remand this 
case for further consideration of whether the Petitioner meets all eligibility requirements 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. 
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