remanded EB-3 Case: Tailoring

U.S. Citizenship 
and Immigration 
Services 
In Re: 9502551 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 23, 2020 
The Petitioner, a dry cleaning and alterations business, seeks to employ the Beneficiary as an 
alterations tailor. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant classification. 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 record did not 
establish that there was a bona fide job opportunity available to U.S. workers. The Director also 
invalidated the accompanying labor certification based on a finding that the Petitioner willfully 
misrepresented a material fact. 
The Petitioner bears the burden of establishing eligibility for the requested immigration benefit. See 
section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's 
decision and remand the appeal for the issuance of a new decision. 
I. EMPLOYMENT-BASED IMMIGRATION 
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 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). 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 
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 July 30, 2015. 
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. BONA FIDE JOB OPPORTUNITY 
The Director's decision concludes that there was a pre-existing relationship between the Petitioner and 
the Beneficiary such that the offered position was not a bona fide job opportunity. 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. § 656.10(c)(8). Accordingly, a bona fide job opportunity is a position that is clearly 
open to able, willing, qualified, and available U.S. workers: 
Where the alien for whom labor certification is sought is in a position to control hiring 
decisions or where the alien has such a dominant role in, or close personal relationship 
with, the sponsoring employer's business that it would be unlikely that the alien would 
be replaced by a qualified U.S. applicant, the question arises whether the employer has 
a bona fide job opportunity . 
Matter of Modular Container Sys., Inc., 89-INA-228, 1991 WL 223955, *7 (BALCA July 16, 1991) 
(en bane). Under Matter of Modular Container, determining whether a job is clearly open to U.S. 
workers depends on an assessment of the totality of the circumstances. Examples of factors that may 
be examined include whether the beneficiary of the petition is in the position to control or influence 
hiring decisions regarding the job for which labor certification is sought; related to the corporate 
directors, officers, or employees; has an ownership interest in the company; or is involved in the 
management of the company. 
In this case, the Petitioner is an Scar oration, incorporated in Florida on July 2, 2004. On the Articles 
of Incorporation, Mr. L..- ____ __,_.JJ.><. .................. """"'t' the company's incorporator, relisterbd agent, and 
president. Mr.Dis married to Ms . ..___ __ ___, The company does business as Alterations. 
The Petitioner claims that the company is named after Ms.c]because the business is based on her 
alteration skills. On the petition, the Petitioner claims to have three employees and gross revenues of 
approximately $273,000. 
The record contains the Petitioner's tax returns from 2014-2018, filed on IRS Form 1120S, U.S. 
Income Tax Return for an S Corporation. MsOis listed as the president of the Petitioner on the 
2014 and 2015 tax returns. The subsequent tax returns in the record do not have a name for the 
signatory. Schedule K-1 of the Petitioner's tax returns for 2014-2107 state that Ms.Dand Mr.D 
each owned 50% of the company. The 2018 tax return states that Ms. Downed approximately 70% 
of the company and Mr.Downed approximately 30%. On July 25, 2018, the Petitioner filed 
Articles of Amendment listing MsD as the company's president and registered agent and changing 
Mr. c=Js title to vice president. 3 
2 USCIS may deny a petition accompanied by a labor certification that violates DOL regulations. See Matter of Sunoco 
Energy Dev. Co., 17 l&N Dec. 283, 284 (Reg'I Comm'r 1979) (affirming a petition's denial under 20 C.F.R. 656.30(c)(2) 
where the accompanying certification was invalid for the qeographic area of intended employment). 
3 The Director's decision questions whether M~ ]the individual who signed the labor certification and immigrant 
visa petition for the Petitioner, was eligible to do so because she was not listed as an officer in the corporate filings with 
2 
The Beneficiary was admitted into the U.S. in E-2 nonimmiarant status as a Treaty Investor sr,e 
incorporated! I in 2007.4 Her daughter,! lwas listed onl 's 
Articles of Incorporation as the company's vice president. The Petitioner previously filed an 
immigrant visa petition on behalf of the Beneficiary's daughter, which USCIS denied. 
The Director's decision states that the offered position was not a bona fide job opportunity because 
the Beneficiary and the Petitioner had an undisclosed relationship. It is not clear from the Director's 
decision what facts support the conclusion that there was a pre-existing relationship between the 
Petitioner and the Beneficiary such that the offered position was not a bona fide job opportunity. The 
decision notes that the Petitioner previously filed an immigrant visa petition on behalf of the 
Beneficiary's daughter but does not explain how this means that the offered position was not clearly 
open to U.S. workers. 
On appeal, the Petitioner claims that neither Mc=]or Mr.D have a familial relationship with the 
Beneficiary or her daughter. In support of this claim, the appeal contains sworn declarations of the 
Beneficiary and Mrc=] and a translated copy of the Beneficiary's Korean Family Census Register. 
Because the Director's decision does not sufficiently articulate the lack of a bona fide job opportunity, 
we withdraw the Director's finding on this issue. 
Ill. WILLFUL MISREPRESENTATION 
The Director's decision also concluded that the Petitioner willfully misrepresented a material fact by 
not disclosing its relationship with the Beneficiary on the labor certification. Section C.9 of the labor 
certification application asks: "Is the employer is 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." Section N.8 of the labor certification application also required the Petitioner to 
certify that the "job opportunity has been and is clearly open to any U.S. worker." 
A willful misrepresentation of a material fact must be deliberate and voluntary, made with knowledge 
of its falsity. Witter v. INS, 113 F.3d 549,554 (5th Cir. 1997) (citations omitted). A misrepresentation 
is material if it tends to shut off a line of relevant inquiry that would have predictably disclosed other 
relevant facts. Matter of D-R-, 27 l&N Dec. 105, 113 (BIA 2017) (citing Kungys v. United States, 485 
U.S. 759, 774 (1988)). 
the state of Florida. Individuals may be authorized to sign documents on behalf of a company even if they are not identified 
as officers in state corporate filings. See USCIS Policy Memorandum PM-602-0134.1, Signatures on Paper Applications, 
Petitions, Requests, and Other Documents Filed with U.S. Citizenship and Immigration Services 3 (Feb. 15, 2018), 
http://www.uscis.gov/legal-resources/policy-memoranda. As a co-owner of the Petitioner, we consider MsO to be an 
eligible signatory for immigration documents filed by the Petitioner with USCIS. Further, on appeal, the Petitioner 
confirmed that Ms.Dwas authorized to sign the labor certification and the petition for the Petitioner. 
4 Section K.a of the labor certification requires the Beneficiary to list her employment experience for the last three years. 
The labor certification in this case does not mention the Beneficiary's employment a~~----~l 
3 
The Director concluded that by answering "No" to section C.9 of the labor certification, the Petitioner 
engaged in the willful misrepresentation of a material fact. The decision states that the Beneficiary 
concealed a familial relationship with an owner or officer of the Petitioner but does not explain what 
the claimed familial relationship is. Citing to Matter of Silver Dragon Chinese Restaurant, 19 l&N 
Dec. 401, 406 (Comm'r 1986), the Director's decision also states that a "shareholder's concealment, 
in labor certification proceedings, of his or her interest in the petitioning corporation constitutes willful 
misrepresentation of a material fact." But the decision does not discuss evidence establishing that the 
Beneficiary is a shareholder of the Petitioner. 
Again, other that noting that the Petitioner previously filed an immigrant visa petition on behalf of the 
Beneficiary's daughter, the decision does not explain why the Petitioner's "No" response at section 
C.9 or attestation at section N.8 of the labor certification constitutes the willful misrepresentation of a 
material fact. 
Because the Director's decision does not sufficiently articulate a basis for concluding that the 
Petitioner engaged in the willful misrepresentation of a material fact, we withdraw the Director's 
finding of willful misrepresentation in the labor certification proceedings and reinstate the approval of 
the labor certification. 
IV. QUALIFYING EXPERIENCE 
The Beneficiary must satisfy the minimum requirements of the offered position set forth on the labor 
certification by the July 30, 2015 priority date. 8 C.F.R. § 103.2(b)(I), (12). See Matter of Wing's Tea 
House, 16 l&N Dec. 158, 159 (Act. Reg'I Comm'r 1977); see also Matter of Katigbak, 14 l&N Dec. 
45, 49 (Reg'I Comm'r 1971). In this case, the labor certification states that offered position requires 
two years of experience in the job offered. No other education, training, or skills are required. 
Section K of the labor certification is for listing the Beneficiary's work experience. The instructions 
state that the Beneficiary must list all jobs held in the previous three years as well as any other 
experience that qualifies the Beneficiary for the job opportunity. 
The labor certification states that the Beneficiary was an alterations tailor fo~ 
inl I South Korea from January 1, 2001 until June 30, 2004. There is n._o_o-th_e_r_e_x-pe-r-ie-n-ce-li-st-ed ..... 
to account for the time period after June 30, 2004 until the date of filing the labor certification on Jul 
30, 2015. The record contains a translated certificate of emplo ment ur ortedl from 
I I dated September 2004. The certificate states that,___ ______ __.employed the 
Beneficiary as a seamstress/tailor from January 10, 2001 until June 30, 2004. The start dates on the 
labor certification and on the certificate of employment are not consistent. See Matter of Ho, 19 l&N 
Dec. 582, 591 (BIA 1988) (requiring petitioners to resolve inconsistencies of record with independent, 
objective evidence). In addition, the certificate is not sufficient evidence to establish the Beneficiary's 
employment experience because it does not describe the duties she performed, it does not state whether 
the position was full-time or part-time, and it does not have the author's contact information. See 
8 C.F.R. § 204.5(g)(1). 
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Therefore, we are remanding the decision to the Director to request additional evidence of the 
Beneficiary's employment experience, including: an explanation of the discrepancy in the start dates 
au I whether the employment was full-time or part-time; an employment letter 
that satisfies the requirements of 8 C.F.R. § 204.5(g)(1); and a certificate from an independent source 
such as the National Tax Service of South Korea and/or the National Pension Service of South Korea 
as evidence of the claimed employment. The Director should also solicit an explanation from the 
Petitioner as to why the Beneficiary's employment au lwas not included on the labor 
certification as required by section K.a. 
V. ABILITY TO PAY 
Petitioners must demonstrate their ability to pay the proffered wage from the priority date until the 
beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). In order to establish 
ability to pay, a petitioner must submit its annual reports, federal tax returns, or audited financial 
statements for each year from the priority date. Id. 
The record of proceeding contains copies of the Petitioner's federal income tax returns for 2014-2018 
and selected Form 941 quarterly federal tax returns for 2017-2019. On remand, the Director should 
request the Petitioner's 2019 tax return, or other evidence that satisfies 8 C.F.R. § 204.5(g)(2), as 
evidence of the Petitioner's continuing ability to pay the proffered wage. 
Further, according to USCIS records, the Petitioner has filed petitions on behalf of other beneficiaries. 
Where a petitioner has filed multiple petitions for multiple beneficiaries which have been pending 
simultaneously, the petitioner must establish that it has had the ability to pay the proffered wage to the 
beneficiary of each immigrant visa petition unless that petition has been withdrawn or denied. When 
calculating ability to pay for multiple immigrant visa petitions, a petition filed on behalf of another 
beneficiary is considered from the priority date of each petition (but not for any year prior to the 
priority date of the petition being reviewed on appeal) until the present (or until the other beneficiary 
obtains lawful permanent residence, if applicable). 
According to USCIS records, it appears that the Petitioner has filed five immigrant visa petitions, only 
one of which meets the requirements stated in the preceding paragraph.5 That petition.I I 
I I filed on behalf of Msl I has a priority date of October 26, 2015. MsOwas granted 
lawful permanent residence on November 1, 2017. Therefore, the Petitioner must also demonstrate 
its ability to pay the proffered wage to the Beneficiary and Ms0from October 26, 2015 until 
November 1, 2017. On remand, the Director should request the following for the petition filed on 
behalf of Msr=J 
I The proffered wage listed on the labor certification submitted with the petition. 
I The salary paid to Ms~from the October 26, 2015 priority date until she obtained lawful 
permanent residence on November 1, 2017. 
I The IRS Form W-2, Wage and Tax Statement, issued to Ms~ from 2015 to the present, if 
any. 
5 On the petition, the Petitioner claims to have three employees. The Petitioner filed four immigrant visa petitions from 
2016 to 2017. 
5 
VI. CONCLUSION 
We are remanding the appeal. On remand, the Director should allow the Petitioner a reasonable period to 
provide evidence relating to the Beneficiary's employment history and the Petitioner's ability to pay the 
proffered wage. Upon receipt of the Petitioner's timely response, the Director should review the entire 
record and enter a new decision. The Director may also request any evidence relating to the willful 
misrepresentation of a material fact or other grounds as determined and address all issues in the new 
decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
FURTHER ORDER: The ETA Form 9089, case number~! ____ ~I. is reinstated. 
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