sustained EB-3 Case: Chef

U.S. Citizenship 
and Immigration 
Services 
In Re : 112 712 72 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 13, 2022 
The Petitioner seeks to employ the Beneficiary as a chef, Chinese food. It requests classification of 
the Beneficiary 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 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 petition's initial grant, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that, because the Petitioner and the Beneficiary had a personal 
relationship , the Petitioner's job offer was not a bona fide because it did not desire and intend to hire 
the Beneficiary in the offered position. The Director also made a finding of fraud or willful 
misrepresentation of a material fact and invalidated the labor certification. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361 ;MatterofChawathe, 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. 53 7,537 n.2 (AAO 2015). Upon de nova 
review, we will sustain the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker , a prospective employer must first obtain certification from 
the U.S. DepartrnentofLabor(DOL). Seesection212(aX5)oftheAct,8U .S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs . Id. 
If DOL approves a position, an employer must next submit the certified labor application 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 considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a foreign national may finally 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. 
Section 205 of the Act, 8 U .S.C. § 1155 , provides that the Secretary of Homeland Security may "for 
good and sufficient cause, revoke the approval of any petition." 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 of revocation. 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 I&N Dec. 450, 451 
(BIA 1987) . Per Matter of Estime, "[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. ANALYSIS 
Pursuant to the statutory framework for the granting of immigrant status, any United States employer 
desiring and intending to employ an alien entitled to immigrant classification under the Act may file 
a petition for classification. Section 204(a)(l )(F) of the Act, 8 U.S.C. § l 154(a)(l )(F); see 8 C.F.R § 
204.5(c) . Such petitions must be accompanied by a labor certification from the DOL. See section 
2 l 2(a)(5) of the Act, 8 U.S.C. § I I 82(a)(5); see also 8 C.F.R. § 204.5(1)(3)(i). The Petitioner must 
intend to employ a beneficiary under the terms and conditions of an accompanying labor certification. 
See Matter of Izdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming denial where, contrary 
to an accompanying labor certification, a petitioner did not intend to employ a beneficiary under the 
terms of the labor certification); see also Matter of Sunoco Energy Dev. Co., 17 I&N Dec. 283,284 
(Reg'l Comm'r 1979)(affirming a petition's denial under 20 C.F.R. § 656.30(c)(2) where the labor 
certification did not remain valid for the intended geographic area of employment). Because the filing 
of a labor certification establishes a priority date for any immigrant petition later based on the labor 
certification, the petitioner must establish that the job offer was realistic as of the priority date and that 
the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. See Matter of Great Wall, 16 I&N Dec. 142 (ActingReg'l Comm'r 1977). 
Further, the Act requires USCIS to determine eligibility for the visa classification requested. See 
section 204(a)(l )(F) of the Act, 8 U.S.C. § l l 54(a)(l )(F). Certain classifications require a labor 
certification to establish eligibility. 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. § 204.5(1)(3)(i). Section 204(b) of the Act allows a petition's approval 
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 . 
§ l l 54(b ). Thus, the labor certification is not conclusive evidence of eligibility. Instead, it is a pre­
condition to being eligible to file a Form I-140. 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. 
§ I 03 .2(b )(i). USCIS is required to approve an employment-based immigrant visa petition only where 
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it is determined 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 l 54(b ). 
In this case, the accompanying labor certification was filed on March 31, 2014. 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?" 
The Director found that the Petitioner did not disclose a prior non-familial relationship to the DOL, 
and that the relationship calls into question whether the Petitioner's job offer was bonafide. However, 
the Petitioner notes that the labor certification was audited by the DOL and includes a copy of the 
audit notice. 1 The DOL reviewed the Petitioner's response to the audit notification and certified the 
labor certification. 
The Petitioner must prove eligibility by a preponderance of evidence, such that the applicant's claim 
is "probably true" based on the factual circumstances of each individual case. Matter of Chawathe; 
Matter of E-M-. We find that the Petitioner has met that burden with respect to the nature of the 
existing relationship between the Petitioner and the Beneficiary and its disclosure, if required, to the 
DOL in the labor certification process. Accordingly, we will withdraw the Director's decision and the 
finding of willful misrepresentation. 
Upon review of the entire record, including evidence submitted on appeal, we conclude that the 
Petitioner has established by a preponderance of the evidence that the job offer to the Beneficiary was 
bona fide and the Beneficiary is eligible for the benefit sought. Accordingly, the appeal is sustained, 
and the petition's approval is reinstated under section 203(b)(3)(A)(i) of the Act, 8 U.S.C. § 
l 153(b )(3 )(A)(i). 
ORDER: The appeal is sustained. 
1 The DOL's audit notification included four specific audit requests for the Petitioner: 1) provide the resumes and 
applications forall U.S. workers who applied forthejobopportunity, with a report that lists informationforeachrejected 
U.S. worker; 2) provide declarations from the employer and the foreign worker stating whether the employer received 
payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor 
certification; 3) provide business necessity for all levels of education, experience, training, skills and qualifications for the 
job oppo1iunity, and; 4) provide documentation explaining why U.S. applicants deemed not qualified for the job 
opportunity could not have attained the necessary skills to perform the duties during a reasonable period of on-the-job 
training. 
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