remanded EB-3 Case: Travel

U.S. Citizenship 
and Immigration 
Services 
In Re : 8205707 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 17, 2022 
The Petitioner arranges tours of the I area for Japanese visitors and seeks to employ 
the Beneficiary as a travel agent. The company requests her classification under the third-preference, 
immigrant visa category for skilled workers. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
The Director of the Texas Service Center denied the petition. The Director concluded that, contrary 
to the Act and regulations, the Petitioner did not demonstrate the availability of the offered position to 
U.S. workers or the company's intent to employ the Beneficiary on a permanent basis. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 ( discussing the burden of proof); see also 
Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010 (discussing the standard of proof). 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. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: ( 1) there are insufficient U.S. 
workers ab le, willing, qualified, and available foran offered position; and (2) employment ofa non citizen 
in the position will not harm wages and working conditions ofU. S. workers with similar jobs. See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit a labor certification with an immigrant visa petition to U.S. 
Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Among 
other things, USCIS determines whether a noncitizen beneficiary meets the requirements of a DOL­
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, if USCIS approves a petition, a beneficiary may apply 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. 
II. THE DENIAL GROUNDS 
The Director concluded that the Petitioner did not demonstrate the bonajides of its "job offer" to the 
Beneficiary. The decision, however, indicates that the Director conflated two separate potential 
grounds of denial: 1) the bona fl des of the job offer; and 2) the bona fl des of the job opportunity. To 
avoid confusion, we will discuss the grounds separately. 
A. The Bona Fides of the Job Opportunity 
An employer must attest on a labor certification application 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). 
If the employer is a closely held corporation or partnership in which the alien has an 
ownership interest, or if there is a familial relationship between the stockholders, 
corporate officers, incorporators, or partners, and the alien, or if the alien is one of a 
small number of employees, the employer in the event of an audit must be able to 
demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all 
U.S. workers. 
20 C.F.R. § 656.17(1). On the Form I-140 and accompanying labor certification, the Petitioner stated 
its employment of three people. That figure indicates a "small number of employees," and thus, under 
20 C.F.R. § 656.17(1), the business had to be ready to demonstrate the bona Jides of the job 
opportunity. 
In a written request for evidence (RFE) to the Petitioner, the Director noted the company's 
employment of the Beneficiary in another position before the filing of the labor certification 
application. Also before the application's filing, the Director noted that a U.S. college issued Forms 
I-20, Certificates of Eligibility for Nonimmigrant Student Status, to the Beneficiary. See 8 C.F.R 
§ 214.2(f)(l)(A) (discussing procedures for the admission of foreign students into the United States). 
The forms indicate that the Petitioner's owner/chief executive officer (CEO) paid $28,000 towards the 
Beneficiary's continuing U.S. studies. Based on this pre-existing, financial relationship between the 
Beneficiary and the Petitioner's principal, the Director questioned the availability of the offered 
position to U.S. workers. 
USCIS must examine a job opportunity to evaluate the merits of a petition by an employer "desiring 
and intending to employ" a foreign worker. See section 204(a)( 1 )(F) of the Act. USCIS must ensure 
that the facts of the labor certification are true - that there are insufficient workers able, willing, 
qualified, and available whose employment will not adversely affect the wages and working conditions 
of similarly employed U.S. workers. See sections 204(b ), 212( a)( 5)(A)(i) of the Act. Additionally, 
DO L's labor certification regulations at 20 C.F.R. § § 656.3, 656.10( c )(8) require an employer, when 
asked, to show that a bona fide job opportunity is available to U.S. workers. See also Matter of Amger 
Corp., 87-INA-545, slip op. at *2 (BALCA 1987) (en bane) (citing Pasadena Typewriter & Adding 
Mach. Co.,Inc. v. Dep'tofLabor,CaseNo.CV-83-5516-AAH(T)(C.D.Cal. Mar. 26, 1984);Bulk 
Farms, Inc. v. Martin, 963 F.2d 1286, 1288 (9th Cir. 1992) (citing INA, Legislative History, H.R. Rep. 
No. 1365 Cong., 2d Sess.). 
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The Petitioner's RFE response contained documentation of the company's U.S. recruitment efforts for 
the offered position during the labor certification process, including a recruitment report stating that 
no applicants applied for the job. In his decision, the Director noted that the Petitioner offered the 
position to the Beneficiary in November 2017, before the company began labor certification 
recruitment for the job in 2018. Thus, the Director found the position unavailable to U.S. workers. 
He stated that "the petitioner already planned to employ the beneficiary [in the offered job] and did 
not make a good-faith recruitment effort to hire a U.S. worker before the position was adve1iised." 
But DOL regulations do not require labor certification employers to wait until completions of U.S. 
recruitment efforts before offering permanent positions to noncitizens. See 20 C.F.R. § 656.17. If 
qualified, willing, able, and available U.S. workers apply for offered positions, noncitizens may not 
fill those jobs. But nothing prevents employers from offering permanent positions to noncitizens 
before testing the U.S. labor market for labor certification purposes. Also, despite the Petitioner's pre­
recruitment job offer to the Beneficiary, the company's recruitment results indicate the absence of 
qualified, willing, able, and available U.S. workers for the offered position. Noting that the position 
requires the ability to speak Japanese, the Petitioner's owner/CEO stated that "it is almost impossible 
to locate a qualified domestic worker with Japanese language skills." Thus, we do not find the timing 
of the Petitioner's job off er to the Beneficiary, alone, sufficient to support the alleged unavailability 
of the position to U.S. workers. We will therefore withdraw the Director's finding regarding the bona 
fides of the job opportunity. 1 
B. The Bona Fi des of the Job Off er 
As previously indicated, a business may file an immigrant petition if it is "desiring and intending to 
employ [a non citizen] within the United States." Section 204(a)(l )(F) of the Act. A petitioner must 
intend to employ a beneficiary under the terms and conditions of an accompanying labor certification. 
SeeMatteroflzdebska, 12 I&NDec. 54, 55 (Reg'lComm'r 1966) (affirming a petition's denial where, 
contrary to the terms of the accompanying labor certification, the petitioner did not intend to employ 
the beneficiary as a domestic worker on a full-time, live-in basis). 
A labor certification application must represent an offer of "[p]]e1manent, full-time work." 20 C.F.R 
§ 656.3 ( defining the term "employment"). Similarly, the requested immigrant visa classification of 
skilled worker requires the performance of "skilled labor (requiring at least 2 years training or 
experience), not of a temporary or seasonal nature." Section 203(b )(3)(A)(i) of the Act (emphasis 
added). Thus, consistent with the Act and the accompanying labor certification, the Petitioner must 
intend to employ the Beneficiary in the offered position of travel agent on a full-time, pe1manent basis. 
Responding to the Director's RFE, the Petitioner's owner/CEO disclosed that, after the company's 
temporary employment of the Beneficiary in another position before the filing of the labor certification 
application, the owner/CEO entered into an oral agreement with the Beneficiary. He stated that he 
agreed to fund her continuing U.S. studies in exchange for her promise to work for the company in the 
1 A labor certification employer generally cannot rely on a noncitizen 'straining or education if the employer funded it. 
20 C.F.R. § 656. l 7(i)(4). The offered position requires an associate degree. See8 C.F.R. § 204.5(1)(2)(definingthe term 
"skilled worker" to allow relevant, post-secondary education to serve as training). Evidence, however, shows that the 
Beneficiary obtained the requisite degree before the Petitioner's CEO/owner began paying her educational expenses. The 
record therefore does not establish the Petitioner's funding of the Beneficiary's qualifying education. 
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offered position if she obtains USCIS permission. The CEO/owner stated that, if the Beneficiary does 
not work in the position or terminates her employment in the position within three years of her start 
date, she agreed to reimburse the owner/CEO for the educational funding. 
An off er of permanent employment on a labor certification application must propose "indefinite 
employment of a lasting and continuous nature." Matter of Albert Einstein Med. Ctr., 2009-PER-
00379, slip op. at *72 (BALCA Nov. 21, 2011) (en bane). "[A]n employer that has no intention to 
continue the employment beyond a setterm of years cannot have the requisite intent." Id. The Director 
found that the agreement between the Beneficiary and the Petitioner's owner/CEO capped the term of 
the offered position at three years. The Director therefore concluded that the company did not 
demonstrate its intent to employ the Beneficiary on the requisite, permanent basis. The Director's 
decision states: "A job offer with a limited te1m of employment may not be a permanent, bona fide 
job opp01iunity." 
The immigration service may deny an immigrant visa petition offering mere, temporary employment. 
See Black Constr. Corp. v INS, 746 F.2 503,504 (9th Cir. 1984) (holding that the immigration service 
properly found jobs offered in immigrant visa petitions to be impermanent). The record, however, 
does not support the Director's finding that the Beneficiary would stop working for the Petitioner in 
the offered position after three years. The Petitioner's owner/CEO indicated thatthe Beneficiary could 
work in the position indefinitely. He stated: "I arranged[] financial support for [the Beneficiary's] 
schooling in return [for] her commitment of future employment for at least three (3)years." (emphasis 
added). Thus, the statements of the owner/CEO indicate that the agreement does not terminate the 
Beneficiary's employment in the offered position after three years. Rather, his statements indicate 
that the pact encourages her to work for the Petitioner for at least that long. 
Based solely on the oral agreement's description by the Petitioner's CEO/owner, the record indicates 
that the offered position includes an indefinite term of employment. But the record lacks evidence of 
the Beneficiary's interpretation of the pact. If she believes that she promised to work for the Petitioner 
in the offered position for only three years, or if she intends to work in the position for only that period, 
then the record would not demonstrate the required, permanent nature of the job offer. We will 
therefore remand the matter. 
On remand, the Director should ask the Petitioner to submit additional proof of the offered position's 
term of employment, including evidence of the Beneficiary's interpretation ofher purported agreement 
with the Petitioner's CEO/owner. 
If supported by the record, the Director may inform the Petitioner of any additional, potential grounds 
of denial. The Director, however, must afford the company a reasonable opportunity to respond to all 
issues raised on remand. Upon receipt of a timely response, the Director should review the entire 
record and enter a new decision. 
III. CONCLUSION 
The record does not support the petition's denial based on the alleged unavailability of the offered 
position to U.S. workers. To establish the permanent nature of the offered position, however, the 
Petitioner must submit additional evidence of the job's term of employment. 
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ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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