remanded EB-3 Case: Wholesale Costume Jewelry

U.S. Citizenship 
and Immigration 
Services 
In Re: 10572221 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 16, 2021 
The Petitioner, an importer of wholesale costume jewelry, seeks to employ the Beneficiary as a 
marketing specialist. It requests his classification under the third-preference, immigrant category as a 
skilled worker. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status based on a job offer requiring at least two years 
of training or experience. 
After the filing's initial grant, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that the Petitioner did not properly disclose a familial relationship 
between it and the Beneficiary. The Director entered a finding of willful misrepresentation of a 
material fact against the Petitioner. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance ofthe evidence. Section 291 of the Act, 8 U.S.C. § 1361; MatteroJChawathe, 25 I&N 
Dec. 369, 375 (AAO 2010). The Administrative Appeals Office (AAO) reviews the questions in this 
matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 
review , we will withdraw the decision of the Director. The matter is remanded for the entry of a new 
decision consistent with the analysis below. 
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). See section 212(a)(5)(A) 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 that 
employing a foreign national in the position will not adversely affect the wages and working conditions 
of domestic workers similarly employed . See section 212(a)(5)(A) of the Act. Second, the employer 
files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 
204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the foreign national applies 
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. 
At any time before a beneficiary obtains lawful permanent residence, however, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by the record, a petition's erroneous approval may justify its revocation. Matter of Ho, 
19 I&N Dec. 582, 590 (BIA 1988). By regulation this revocation authority is delegated to any USCIS 
officer who is authorized to approve an immigrant visa petition "when the necessity for the revocation 
comes to the attention of [USCIS]." 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 ofrevocation. See 8 C.F.R. § 205.2(b) and ( c ). A notice 
of intent to revoke (NOIR ) "is not properly issued unless there is 'good and sufficient cause ' and the 
notice includes a specific statement not only of the facts underlying the proposed action, but also of 
the supporting evidence." Matter of Es time, 19 l&N Dec. 450, 451 (BIA 1987). Per Matter of Es time , 
"[i]n determining what is 'good and sufficient cause' for the issuance of a notice of intention to revoke, 
we ask whether the evidence of record at the time the notice was issued, if unexplained and unrebutted , 
would have warranted a denial based on the petitioner's failure to meet his or her burden of proof." Id. 
II. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The Petitioner in this matter is a jewelry import business, established in 2015 and employing two 
individuals. The accompanying labor certification was filed on March 24, 2016. 1 The immigrant visa 
petition was initially approved on December 2, 2016. 
The Director issued a NOIR on October 10, 2019, informing the Petitioner that USCIS was in 
possession of adverse information. Specifically, the Director noted that the Petitioner checked "no" 
to question C.9 on the labor certification, "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, corporate officers, incorporators, or partners, and the alien?" 
However, the Director found that information in the record demonstrated that the Beneficiary's sister 
"is either an owner, stockholder, partner, corporate officer, or an incorporator." The Director further 
noted that the Petitioner may have willfully misrepresented its association with the Beneficiary in 
failing to disclose the familial relationship on the labor certification . 
In its response to the Director's NOIR, the Petitioner asserted that it correctly answered "No" to 
question C.9 on the labor certification because the Beneficiary's sister was no longer associated with 
the Petitioner at the time the labor certification was filed, and there was no familial relationship 
between the Beneficiary and any of the Petitioner's owners, stockholders, partners, corporate officers, 
or incorporators. The Petitioner provided the following evidence in support of this assertion: 
• An undated statement from the Beneficiary's sister asserting that she resigned from 
the Petitioner on November 1, 2015, which permanently terminated her relationship 
with the company . 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date. 
2 
• A statement from the Petitioner's accountant stating that the single and sole owner 
of the Petitioner "from the beginning of the business" was I I 
• A shareholder certificate dated October 28, 2015 listing! I as the 
holder of 200 shares. 
• A sworn statement froml I attesting that he is the sole owner of the 
Petitioner, that the Beneficiary's sister "was added as one of the company's 
directors as an administrative procedure" at the time of incorporation, and that the 
Beneficiary's sister "left the company immediately after the company was formed." 
The Director concluded that the evidence that the Petitioner submitted "confirms that [the 
Beneficiary's sister] was an incorporator of the company." The Director found that the Petitioner 
willfully misrepresented a material fact by failing to disclose the existence of a familial relationship 
between the Petitioner and the Beneficiary on the labor certification, and revoked the approval of the 
petition. 
On appeal the Petitioner submits page one of a two-page document titled "Certificate oflnc. (Profit)," 
issued by thd I Department of the Treasury, Division of Revenue and Enterprise Services.2 
The Petitioner asserts that the Beneficiary's sister is not listed as a registered agent, on the board of 
directors, nor an incorporator of the Petitioner on its official incorporation document. 
As outlined by the Board of Immigration Appeals (Board), a material misrepresentation requires that 
the petitioner willfully make a material misstatement to a government official for the purpose of 
obtaining an immigration benefit to which one is not entitled. Matter of Kai Hing Hui, 15 I&N Dec. 
288, 289-90 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished 
from accidentally, in advertently, or in an honest belief that the facts are otherwise. See Matter of 
Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). 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). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa petition 
proceedings, they must determine: 1) that the petitioner or beneficiary made a false representation to 
an authorized official of the United States government; 2) that the misrepresentation was willfully 
made; and, 3) that the fact misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 
1954); Matter ofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter of Kai Hing Hui, 15 I&N Dec. at 288. 
Despite the Director's conclusion, the record here does not demonstrate that the Beneficiary's sister 
was an "incorporator" of the Petitioner. Rather, the statement from the Petitioner's owner 
demonstrates that the Beneficiary's sister was a "director" of the Petitioner at the time of incorporation 
in October 2015, and the statement from the Beneficiary's sister demonstrates that she resigned before 
the filing of the labor certification. Misrepresentations are willful if they are "deliberately made with 
knowledge of their falsity." Matters of Valdez, 27 I&N Dec. 496, 298 (BIA 2018) ( citations omitted). 
2 Page 1 of the ce11ificate shows an effective date of October 27, 2015, and lists the Petitioner's registered agent, first board 
of directors, and incorporators. None of these individuals is the Beneficiary's sister. 
3 
A misrepresentation is material when it has a "natural tendency to influence, or [be] capable of 
influencing, the decision of the decision-making body to which it was addressed." Id. 
Because the Beneficiary's sister asserts that her role as a director terminated before the labor 
certification was filed, we cannot conclude that the representation on the labor certification that no 
familial relationship existed was deliberately false. Therefore, we will withdraw the Director 's finding 
of willful misrepresentation. However, based on inconsistencies in the record, we cannot affirmatively 
say that the Beneficiary did not, in fact, have a familial relationship between any of the Petitioner's 
owners, stockholders, corporate officers, incorporators, or partners at the time of filing the labor 
certification, or that the Beneficiary was eligible for the requested benefit in all other respects. The 
Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing 
to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Therefore, we will 
remand the matter to the Director for further consideration based on the foregoing analysis. 
The Petitioner here provides only unsupported testimonial evidence to establish that the Beneficiary's 
sister was not a director or corporate officer at the time the labor certification was filed. A petitioner 
may submit a letter or affidavit that contains hearsay or biased information, but such factors will affect 
the weight to be accorded the evidence in an administrative proceeding. See Matter of D-R-, 25 I&N 
Dec. 445,461 (BIA 2011) (citations omitted). Probative evidence beyond a letter or affidavit may be 
considered when submitted to resolve inconsistencies or discrepancies in the record. See Matter of 
Ho, 19 I&N Dec. at 591-92. Ultimately, to determine whether a petitioner has established eligibility 
for a requested benefit by a preponderance of the evidence, USCIS must examine each piece of 
evidence - both individually and within the context of the entire record - for relevance, probative value, 
and credibility. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
As noted above, the Petitioner submitted the first page of a Certificate of Incorporation issued by the 
state ofl I The Certificate of Incorporation does not include a list of corporate officers or 
directors, and the second page is not provided. Although the record includes the Petitioner's 2015 
Form 1120, U.S. Corporation Income Tax Return, the Form 1125E listing compensation of officers is 
not included. 
The undated statement from the Beneficiary's sister asserts that she resigned from the Petitioner on 
November 1, 2015, resulting in permanent termination of her relationship with the Petitioner on that 
effective date. However, the record includes the Petitioner's 2017 Quarterly Wage Reports listing the 
Beneficiary's sister as one of three employees in each quarter, two years after she claims to have 
resigned and terminated her relationship with the Petitioner. Unresolved material inconsistencies may 
lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Matter of Ho, 19 I&N Dec. at 591-92. 
Because these inconsistencies are unresolved, we will remand the matter to the Director. On remand, 
the Director may wish to issue a new NOIR outlining the deficiencies above, requesting additional 
independent objective evidence in support, and allowing the Petitioner an opportunity to respond. 
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III. THE BENEFICIARY'S QUALIFICATIONS 
The accompanying labor certification in this case states that the offered position of marketing specialist 
requires a bachelor's degree, or foreign educational equivalent, in marketing and 24 months of 
experience in the job offered. In the alternative, the Petitioner will accept 48 months of experience in 
consumer marketing and sales in the fashion jewelry industry, with no education required. On the 
labor certification the Beneficiary claimed to have no education and experience with two companies 
~esident: d , I from May 1, 2005 to May 30, 2013; and 2)1 I 
l_Jfrom June 10, 2013 to June 30, 2015. 
The initial evidence submitted with the petition included a letter from the general manager of 
I I stating that the Beneficiary worked as president from May 1, 2005 to May 30, 
2013. However, th.is information is inconsistent with a nonimmigrant visa application that the 
Beneficiary submitted in 2013. In his prior nonimmigrant visa application, the Beneficiary listed his 
current employer in May 2013 asl I The Beneficiary also listed his two previous 
employers ad I from May 1, 2009 to February 28, 2013; and I , I from 
October 1, 2005 to March 30, 2009. The inconsistencies in the Beneficiary's employment history cast 
doubt as to his possession of the required 48 months of experience for the offered position. The 
Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing 
to where the truth lies. Id. 
Because we cannot affirmatively find that the Beneficiary possesses the experience required for the 
offered position, we will remand the matter to the Director for further consideration. On remand, the 
Director may wish to issue a new NOIR outlining the deficiencies above, requesting additional 
independent objective evidence in support, and allowing the Petitioner an opportunity to respond. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The regulation at 8 C.F.R. § 204.5(g)(2) requires that "[ e ]vidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited financial statements." The record does 
not contain regulatory-required evidence of the Petitioner's ability to pay the proffered wage of 
$61,589 per year, from the priority date on March 24, 2016, and continuing until the beneficiary 
obtains lawful permanent residence . 
Specifically, the record does not contain regulatory-prescribed evidence of the Petitioner's ability to 
pay for 2016, the year of the priority date. Without this regulatory-required evidence, we cannot 
affirmatively find that the Petitioner has the continuing ability to pay the proffered wage from the 
priority date. 
Therefore, we will remand the matter to the Director to request additional evidence, if deemed 
appropriate, and analyze the record and determine whether the Petitioner has established its continuing 
ability to pay the proffered wage to the Beneficiary. On remand, the Director should request such 
regulatory-required evidence and allow the Petitioner reasonable time to respond. 
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V. CONCLUSION 
Considering the above discussed deficiencies, we are withdrawing the Director 's decision finding of 
a willful misrepresentation of a material fact. However, the record does not demonstrate affirmatively 
that the Petitioner is eligible for the benefit sought, including whether the Petitioner has the ability to 
pay the proffered wage to the Beneficiary as required by 8 C.F.R. § 204.5(g)(2), and whether the 
Beneficiary meets the experience requirement as stated on the labor certification . Therefore, we will 
remand this case to the Director for further consideration of the Petitioner's eligibility for the requested 
benefit. 
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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