remanded EB-3 Case: Wholesale Trade

U.S. Citizenship 
and Immigration 
Services 
In Re: 22341469 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 28, 2022 
The Petitioner, a nondurable goods wholesale trader, seeks to employ the Beneficiary as a purchasing 
agent. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant category. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This category allows a U.S. business to sponsor a foreign national with at least 
two years of training or experience for lawful permanent resident status. 
The Nebraska Service Center Director revoked the Form 1-140, Immigrant Petition for Alien Workers, 
concluding that there was no bona fide job available at the time the labor certification was submitted 
and that recruitment for the position improperly occurred prior to the filing of the ETA Form 9089 
(labor certification). 
We review the questions in this matter de nova. Matter of Christo 's Inc., 26 l&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 of Chawathe, 
25 l&N Dec. 369, 375 (AAO 2010). Upon de nova review, we will remand this case to the Director 
for further consideration of this issue, and any other issue the Director may deem relevant. 
I. LAW 
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) 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)(i)(l)-(11) 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 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 
In this case, the accompanying labor certification was filed on May 25, 2017. The labor certification 
states that the offered position requires twenty-four months of experience as a purchasing agent. After 
reviewing the initial submission, the Director approved the petition. Subsequently, a consular officer 
at the U.S. Embassy in Seoul, South Korea interviewed the Beneficiary and obtained a sworn statement 
from him. The statement asserted that the Petitioner first offered the Beneficiary the purchasing agent 
job in 2013 and repeatedly offered him the job until he accepted it in 2015. The Director further 
determined that based on the Beneficiary 's statement, this position was specifically created for the 
Beneficiary and the Petitioner's representative specifically recruited him from his current company. 
The Director then issued a notice of intent to revoke (NOIR) the petition, explaining that because the 
Beneficiary was specifically recruited and hired years prior to the Petitioner's advertising efforts and 
the filing of the labor certification, it appeared as though no position was available at the time the 
Petitioner filed the labor certification. Additionally, the Director noted that it appeared as though the 
position was specifically created for the Beneficiary and had never been available to U.S. workers.1 
The Petitioner responded to the NOIR with a sworn declaration from the Petitioner 's president denying 
that the position had first been offered to the Beneficiary in 2013, that it was repeatedly offered to him 
until 2015, and that the position was created for him. In addition, the Petitioner asserted that it would 
be lawful for a petitioner to offer a position prior to the recruitment process if a petitioner properly 
performed the recruitment process. Accordingly, the Petitioner surmised that the central issue was 
whether the Petitioner conducted its recruitment efforts properly. To support a finding of proper 
recruitment, the Petitioner submitted copies of the packet it provided in response to DOL's audit 
notice. The response packet included a recruitment report, samples of advertisements, and a 
declaration from the Petitioner that no U.S. workers submitted applications in response to the job 
opening. After reviewing the NOIR response, the Director revoked the petition, determining that the 
Petitioner 's sworn declaration did not overcome the statements the Beneficiary made during his 
consular interview. 
On appeal, the Petitioner argues that as the labor certification process requires a named individual, 
nothing in the law prohibits an employer from seeking out and offering employment to a specific 
person. The Petitioner further states that the process does not prohibit petitioners from creating new 
positions and that the Form 1-140 specifically requests petitioners to indicate if a position is new. The 
Petitioner notes that nothing prevents a noncitizen from accepting a job offer conditioned upon the 
approval of DOL. To illustrate, the Petitioner offers the example that many 1-140 petitions involve 
noncitizens who already work for a petitioner. 
Upon review of the record, we hereby withdraw the Director 's decision. 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. § 626.lO(c)(S). While the labor certification process requires a test of the labor market, the 
DOL regulations do not require an employer to establish how it selected the foreign national for the 
job opportunity. Rather, the employer must show that there "are not sufficient U.S. workers able, 
willing, qualified and available to accept the job opportunity in the area of intended employment and 
1 The petitioner has the burden of establishing that a bona fide job opportunity exists when it is asked to show that the job 
is clearly open to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987); see also 8 U.S.C. § 1361; 20 
C.F.R. § 656.17(1). 
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that employment of the foreign worker will not adversely affect the wages and working conditions of 
similarly employed U.S. workers." See https://www.dol.gov/agencies/eta/foreign­
labor/programs/permanent. See also 20 C.F.R. § 656.l(a) . 
Because of the design of the labor certification process, every petitioner who files a labor certification 
has already identified a foreign national that they wish to hire prior to the required recruitment. The 
Petitioner's identification of the Beneficiary outside of the required recruitment, or even its 
employment of the Beneficiary in the offered job, does not indicate that the job is not open to U.S. 
workers. Rather, it may indicate that the Petitioner followed DOL regulations in advertising for the 
job opportunity after identifying a foreign national for the position. See, e.g., 20 C.F.R. § 656.17. Thus, 
the Director erred in revoking the petition for lack of a bona fide job opportunity solely due to the 
Petitioner's identification of the Beneficiary as an applicant by recruitment methods outside of those 
conducted for the labor certification recruitment process. We therefore withdraw the Director's 
decision on the issue concerning a bona fide job opportunity and the Petitioner's recruitment efforts 
for the position. 
Ill. CONCLUSION 
The Director may issue a request for any evidence that may be deemed relevant to this issue or any 
other issue. After the Petitioner's response is received, or the response period expires, the Director 
may issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further proceedings 
consistent with the foregoing analysis and for the entry of a new decision. 
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