remanded EB-3 Case: Software Solutions

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 05, 2023 In Re: 28804738 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a software solutions provider, seeks to employ the Beneficiary as an AWS cloud 
solutions architect. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant classification. See 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 noncitizen 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 initially approved the petition on October 31, 2019. After 
issuing a notice of intent to revoke (NOIR), the Director revoked the approval of the petition, 
concluding that the record did not establish that the Petitioner made a bona fide job offer that was open 
to the public. They also concluded that the Petitioner misrepresented a material fact by not disclosing 
an existing relationship between the Petitioner's owner and the Beneficiary. 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 ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the matter for entry of a new decision consistent with the following analysis. 
I. LAW 
The Secretary of Homeland Security "may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition .... " Section 205 of the Act, 8 U.S.C. § 1155. By regulation 
this revocation authority is delegated to any U.S. Citizenship and Immigration Services (USCIS) 
officer who is authorized to approve an immigrant visa petition. 8 C.F.R. § 205.2(a). USCIS must 
give the petitioner notice of its intent to revoke the prior approval of the petition and the opportunity 
to submit evidence in opposition thereto, before proceeding with written notice of revocation (NOR). 
See 8 C.F.R. § 205.2(b) and (c). The Board of Immigration Appeals (the Board) has discussed 
revocations on notice as follows: 
[A] notice of intention to revoke a visa petition is properly issued for "good and 
sufficient cause" where the evidence of record at the time the notice is issued, if 
unexplained and unrebutted, would warrant a denial of the visa petition based upon the 
petitioner's failure to meet his burden of proof. The decision to revoke will be sustained 
where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention 
to revoke, would warrant such denial. 1 
Immigration as a skilled worker usually follows a three-step process. First, the prospective employer 
must obtain a labor certification approval from the U.S. Department of Labor (DOL) to demonstrate 
that there are not sufficient U.S. workers who are able, willing, qualified, and available for the offered 
position. Section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, the employer must submit the approved labor certification with an immigrant visa petition to 
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 visa category, and that the employer has the ability to pay the 
proffered wage. See 8 C.F.R. § 204.5. 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 I&N Dec. 
158, 159 (Acting Reg'l 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. 8 C.F.R. § 
204.5( d). In this matter, the priority date is July 18, 2019. 
Finally, ifUSCIS 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. 
TT. ANALYSTS 
At issue is whether the Director properly revoked the approval of the petition. For the reasons 
discussed below, we will remand the matter. 
A. Bona Fide Job Offer 
The first issue on appeal is whether, based upon an existing business relationship between the 
Beneficiary and one of the Petitioner's owners, the Director properly revoked the approval of the 
petition for lack of a bona fide job offer. In the NOTR, the Director noted that the Petitioner's signatory 
was interviewed after approval of the petition due to concerns over the validity of the offered position 
and provided details about the nature of the business relationship. 
1 Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). Upon the 
proper issuance of a NOIR for good and sufficient cause, the petitioner bears the burden of proving eligibility for the 
requested immigration benefit. Id. at 589. However, a notice ofrevocation NOR is not valid unless it is based on evidence 
contained in the record of proceedings. Matter ofEstime, 19 l&N Dec. at 451-52. 
2 
Part C.9 of ETA Form 9089, Application for Permanent Employment Certification, asks the following: 
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 Petitioner responded "no" to this question. After reviewing the response to the NOIR, the Director 
determined that the Petitioner should have responded "yes," and had thus misstated a fact bearing on 
a labor certification requirement. However, the question posed in Part C.9 does not ask about the type 
of business relationship presented in this case, so the Petitioner responded correctly. 
Based upon their determination regarding the Petitioner's response to Part C.9, the Director further 
concluded that the Petitioner did not make a bona fide job offer that was open and available to U.S. 
workers. USCIS, however, lacks authority to determine the bona fides of a job opportunity. Congress 
authorized DOL - not USCIS - to determine the availability of an offered position to U.S. workers. 
See section 212(a)(5)(A)(i)(I) of the Act. "[D]eterminations vested by statute with one agency are not 
normally subject to horizontal review by a sister entity, absent congressional authorization to that 
effect." Madany v. Smith, 696 F.2d 1008, 1012 (D.C. Cir. 1983). Thus, DOL - not USCIS - must 
determine the bona fides of the Petitioner's job opportunity. The Director's conclusions and the 
Petitioner's arguments regarding the bona fides of the job opportunity exceed the scope of these 
proceedings. If the Petitioner seeks a determination of the offered position's availability to U.S. 
workers on the true facts, the company must contact DOL. See Matter of Gen. Elec. Co., 2011-PER-
01818, *3 (BALCA Apr. 15, 2014) (stating that DOL has discretion to retroactively amend the 
contents of an approved labor certification application to allow an error's correction) 
( citation omitted). 
For the above reasons, we withdraw the Director's conclusion on this issue. 
B. Willful Misrepresentation of a Material Fact 
USCIS will deny a visa petition if the petitioner submits evidence which contains false information. 
See section 204(b) of the Act. A petition includes its supporting evidence - including a labor certification. 
8 C.F.R. § 103.2(b)(l). Further, misrepresentation of a material fact may lead to multiple consequences 
in immigration proceedings. Any noncitizen who, by fraud or willfully misrepresenting a material 
fact, seeks to procure ( or has sought to procure or has procured) a visa, other documentation, or 
admission into the United States or other benefit provided under this Act is inadmissible. Section 
212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). 
A finding of material misrepresentation requires the following elements: the petitioner procured or 
sought to procure a benefit under U.S. immigration laws; they made a false representation; and the 
false representation was willfully made, material to the benefit sought, and made to a U.S. government 
official. Id.; see generally 8 USCIS Policy Manual J.2(B), https://www.uscis.gov/policymanual. 
Under Board precedent, a material misrepresentation is one which "tends to shut off a line of inquiry 
which is relevant to the [noncitizen's] eligibility and which might well have resulted in a proper 
3 
determination that he be excluded." 2 A willful misrepresentation requires that the individual 
knowingly make a material misstatement to a government official for the purpose of obtaining an 
immigration benefit to which one is not entitled. 3 Material misrepresentation requires only a false 
statement that is material and willfully made. The term "willfully" means knowing and intentionally, 
as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. 4 
The Director stated in the NOIR that since the Petitioner had not disclosed a "familiar" relationship 
between its owner and the Beneficiary, it had made a willful misrepresentation of material fact. 
However, as explained above, the Petitioner's response to Part C.9 of the labor certification was, in 
fact, accurate. We therefore withdraw the Director's determination that the Petitioner willfully 
misrepresented a material fact. 
C. Ability to Pay 
A petitioner must establish its ability to pay the proffered wage from the priority date of the petition 
until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability 
to pay must generally include annual reports, federal tax returns, or audited financial statements. Id. 
If a petitioner employs 100 or more workers, USCIS may accept a statement from a financial officer 
attesting to the petitioner's ability to pay the proffered wage. Id. In appropriate cases, additional 
evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted 
by the petitioner or requested by USCIS. Id. 
In determining ability to pay, USCIS first determines whether the petitioner paid the beneficiary the 
full proffered wage each year from the priority date. If the petitioner did not pay the proffered wage 
in any given year, USCIS next determines whether the petitioner had sufficient net income or net 
current assets to pay the proffered wage (reduced by any wages paid to the beneficiary). 5 
If net income and net current assets are insufficient, USCIS may consider other relevant factors, such 
as the number of years the petitioner has been in business, the size of its operations, the growth of its 
business over time, its number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, its reputation within its industry, or whether a beneficiary will replace a current 
employee or outsourced service. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 
1967). 
2 Matter ofS- and B-C-, 9 I&N Dec. 436,447 (BIA 1961). 
3 Sergueeva v. Holder, 324 Fed. Appx. 76 (2d Cir. 2009) ( citing Matter ofKai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 
1975). 
4 See Matter ofHealy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). 
5 If a petitioner has filed immigrant visa petitions on behalf of multiple beneficiaries, the petitioner must establish that it 
has had the ability to pay the proffered wage to each beneficiary. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 
2014) (affirming our revocation of a petition approval where the petitioner did not demonstrate its ability to pay the 
combined proffered wages of multiple beneficiaries). Petitions filed on behalf of other beneficiaries are considered from 
the priority date of each petition (not including any year prior to the priority date of the petition being reviewed on appeal) 
until the present or until the other beneficimy obtains lawful pe1manent residence. Petitions that have been withdrawn or 
denied are not considered in this analysis. 
4 
In this case, the proffered wage is $84,573 and the priority date is July 18, 2019. On the petition, the 
Petitioner claims to have been established in 2016, employ a single worker, and have a gross annual 
income of $373,041. The Petitioner does not claim to have employed the Beneficiary. 
The record contains the Petitioner's 2018 Internal Revenue Service (IRS) Form 1065, U.S. Return of 
Partnership Income, showing that it earned a net income of $37,174 and had net current assets of 
$96,160 in that year. At the time of filing, the Petitioner's 2019 tax returns were not yet available. 
The Petitioner also submitted its checking account statements for the period from January 2019 
through August 2019. 
The Director did not address the Petitioner's ability to pay the wage offered to the Beneficiary in their 
NOIR or revocation decision. On remand, the Petitioner must establish its continuing ability to pay 
the offered wage from the priority date onward. 
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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