remanded EB-3 Case: Video Game Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re: 19959953 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 20, 2022 
The Petitioner, a describing itself as a video game distribution company, seeks to employ the 
Beneficiary as a salesperson . It requests classification of the Beneficiary as an unskilled worker under 
the third preference immigrant category . Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(iii) , 8 U.S.C. § 1153(b)(3)(A)(iii). 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 less than two years of training or experience. 
The Director of the Texas Service Center denied the petition, indicating the record did not establish 
that the Petitioner made a bona fide job offer to the Beneficiary because of an undisclosed familial 
relationship between the Beneficiary and one of the Petitioner's owners. In addition, the Director 
appeared to determine that the Petitioner willfully misrepresented material facts on the labor 
certification. On appeal, the Petitioner contends, contrary to the Director's determination , that there 
is no familial relationship between the Beneficiary and its owners. Therefore, the Petitioner asserts 
that it made a bona fide job offer to the Beneficiary and did not willfully misrepresent material facts 
on the labor certification . 
We review the questions in this matter de novo. Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 
(AAO 2015) . The Petitioner bears the burden of proof to establish eligibility for the requested benefit 
by a preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawathe , 
25 I&N Dec . 369, 375 (AAO 2010) . Upon de novo review, we will remand this case to the Director 
for further consideration. 
I. EMPLOYMENT-BASED IMMIGRATION 
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) of the 
Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
July 5, 2013. See 8 C.F.R. § 204.5(d). 
that employing a noncitizen in the position will not adversely affect the wages and working conditions 
of domestic workers similarly employed. See id. Second, the employer files an immigrant visa 
petition with U.S. Citizenship and Immigration Services (USCIS) with the certified labor 
certification. See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, the 
noncitizen 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. ANALYSIS 
The Director discussed an undisclosed familial relationship between one of the Petitioner's owners 
and the Beneficiary and indicated that the record did not establish that the Petitioner made a bona fide 
job offer to the Beneficiary or that the job was clearly open to any U.S. worker. 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 banc);2 see 20 C.F.R. § 656.17(1). 3 A relationship 
between a petitioner and a beneficiary triggering concerns about the bona fides 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, at 3 (BALCA 2000); see Matter of Chamdal Food 
Mart, 2000-INA-92 (BALCA 2000). 
On appeal, the Petitioner asserts that there was no familial relationship between it and the Beneficiary. 
Specifically, the Petitioner states that 65% of its shares are owned byl I and the other 
35% byl I neither of whom have a familial relationship with the Beneficiary 
through blood, marriage, or adoption. The Petitioner does acknowledge that the Beneficiary had a 
child with _____ and that they share a residence, but contends that this does not represent 
2 BALCA stands for the DOL's Board of Alien Labor Certification Appeals. 
3 The regulation at 20 C.F.R. § 656.17(1) states in pertinent part: 
(I) Alien influence and control over job opportunity. 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, in corpora tors, 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, and must provide to the 
Certifying Officer, the following supporting documentation: 
(1) A copy of the articles of incorporation, partnership agreement, business license or similar 
documents that establish the business entity; 
(2) A list of all corporate/company officers and shareholders/partners of the 
corporation/firm/business, their titles and positions in the business' structure, and a description of 
the relationships to each other and to the alien beneficiary; 
(3) The financial history of the corporation/company/partnership, including the total investment in 
the business entity and the amount of investment of each officer, incorporator/partner and the alien 
beneficia1y; and 
(4) The name of the business' official with primary responsibility for interviewing and hiring 
applicants for positions within the organization and the name(s) of the business' official(s) having 
control or influence over hiring decisions involving the position for which labor certification is 
sought. 
( 5) If the alien is one of 10 or fewer employees, the employer must document any family relationship 
between the employees and the alien. 
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a familial relationship as defined by DOL guidance. The Petitioner indicates that it did not check 
"yes" to the question at Part C.9 of the labor certification because it legitimately believed that the 
relationship between it and the Beneficiary did not represent a familial relationship required to be 
disclosed. It therefore asserts that the labor certification should not be called into question on this 
basis. 
The DOL requires the disclosure of any familial relationships between the noncitizen and the owners, 
stockholders, partners, corporate officers, and incorporators by marking "yes" to question at Part C.9 
on the labor certification. DOL guidance states that a familial relationship includes any relationship 
established by blood, marriage, or adoption, even if distant. For example, the guidance indicates that 
a familial relationship includes cousins of all degrees, aunts, uncles, grandparents, and grandchildren 
as well as relationships established through marriage, such as in-laws and stepfamilies. DOL, Office 
of Foreign Labor Certification, "OFLC Frequently Asked Questions and Answers," at 
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last visited July 20, 2022). 
In addition, a familial relationship is only one factor to be considered among multiple other factors 
when determining whether the Petitioner made a bona fide job offer. These other factors include, but 
are not limited to, whether a noncitizen: is in a position to control or influence hiring decisions 
regarding the offered position; incorporated or founded the company; has an ownership interest in the 
company; is involved in the management of the company; sits on its board of directors; is one of a 
small group of employees; has qualifications matching specialized or unusual job duties or 
requirements stated in the labor certification; and is so inseparable from the sponsoring employer 
because of his or her pervasive presence that the employer would be unlikely to continue in operation 
without the noncitizen. Modular Container, 1991 WL 223955 at 8-10. The DOL adopted the holding 
in Modular Container at 20 C.F.R. § 656.17(1). 
A petition may be approved only after an investigation of the facts in each case to ensure that the facts 
stated in the petition, which necessarily includes the labor certification, are true. Section 204(b) of the 
Act, 8 U.S.C. § 1154(b). USCIS is responsible for reviewing the Form I-140, and the labor 
certification is incorporated into the Form I-140 by statute and regulation. See section 203(b)(3)(C) 
of the Act, 8 U.S.C. § 1153(b)(3)(C); 8 C.F.R. § 204.5(a)(2); 8 C.F.R. §103.2(b)(i). USCIS is only 
required to approve an employment-based immigrant visa petition when it determines that the facts 
stated in the petition, which incorporates the labor certification, are true, and the foreign worker is 
eligible for the benefit sought. Section 204(b) of the Act, 8 U.S.C. § l 154(b ). 
Here, the Director incorrectly concluded that a familial relationship existed between the Petitioner's 
owners and the Beneficiary. Further, the Director did not consider other factors beyond the claimed 
familial relationship to determine whether the Petitioner made a bona fide job offer. See Modular 
Container, 1991 WL 223955 at 8-10. Therefore, we will withdraw the decision and remand the matter 
for further consideration of whether a bona fide job offer was made by the Petitioner. 
In addition, a finding of willful misrepresentation of material fact against a petitioner or beneficiary 
requires the following elements: 
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• The petitioner or beneficiary procured, or sought to procure, a benefit under U.S. immigration 
laws; 
• The petitioner or beneficiary made a false representation; 
• The false representation was willfully made; 
• The false representation was material; and 
• The false representation was made to a U.S. government official. 
See 8 USCIS Policy Manual J.2(B), https://www.uscis.gov/policymanual. 
A misrepresentation is willful if it is "deliberately made with knowledge of [its] falsity." Matter of S­
and B-C-, 9 I&N Dec. 436, 445 (BIA 1960; A.G. 1961); see also Matter of Kai Hing Hui, 15 I&N 
Dec. 288, 289-90 (BIA 1975) (noting that, unlike fraud, a finding of willfulness does not require an 
"intent to deceive"). 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). 
In the section of the decision addressing willful misrepresentation, the Director again pointed to Part 
C.9 of the labor certification requesting whether there was a familial relationship between the 
Beneficiary and the Petitioner's owners, stockholders, partners, corporate officers, or incorporators. 
The Director concluded that sincd I checked "no" in answering this question, that she 
misrepresented herself. However, the Director did not specifically articulate howl I 
answer to question C.9 represented a willful misrepresentation of a material fact. This is notable, 
considering the DOL instructions do not clearly indicate that the relationship between the Beneficiary 
and l the father of her child, clearly represents a familial relationship. The Director 
only noted certain discrepancies on the record but did not sufficiently analyze how the Petitioner's or 
Beneficiary's actions represented willful misrepresentation of a material fact. 
Further, the Director did not clearly indicate against whom the finding of willful misrepresentation 
was made. The Director also did not put the Petitioner on notice of the discrepancies and issues listed 
in the decision as necessary to give the Petitioner, and Beneficiary, the opportunity to respond. 4 If 
USCIS bases an adverse decision on derogatory information of which the petitioner is unaware, they 
must advise the petitioner and provide it with an opportunity to rebut the information. 8 C.F.R. § 
103.2(b )(l 6)(i). 
For these reasons, we will withdraw the Director's decision and finding of willful misrepresentation 
of material fact, and the matter will be remanded for further consideration of the bonafides of the job 
offer. The Director may request any additional evidence considered pertinent and allow the Petitioner 
4 For instance, in the decision, the Director emphasized that the Beneficiary and ____ shared the same address 
and that this suggested that they "maintain[ ed] a familial cohabitation relationship." Likewise, the Director noted that the 
address provided on the labor certification did not appear to be valid address and further pointed to a letter detailing her 
claimed job experience including misspellings. The Director indicated that this "brings into question the validity of the 
[Petitioner's] existence and the information provided on the labor certification [and] letter of experience." However. the 
Director did not detail these. and other, discrepancies in the RFE or in a notice of intent to deny as necessary to provide 
the Petitioner with a sufficient opportunity to respond to the derogatory information. 
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reasonable time to respond. Upon receipt of all evidence, the Director will review the entire record 
and enter a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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