sustained EB-3 Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 10182946 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 30, 2020 
The Petitioner seeks to employ the Beneficiary as a marketing analyst. It requests classification of the 
Beneficiary as a professional under the third preference immigrant classification. Immigration and 
Nationality Act (the Act), section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment­
based immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate 
degree for lawful permanent resident status. 
The Director of the Texas Service Center revoked the approval of the petition based on "improper 
commerce" in payments relating to the labor certification, including payment of the employer's 
attorney's fees. He also found that the Petitioner did not demonstrate that the position being offered 
is a bona fide job opportunity. He entered a finding of willful misrepresentation of material fact against 
the Petitioner, determining that the Petitioner accepted the Beneficiary into the offered position before 
beginning its labor certification recruitment and that the job was not open to U.S. workers. The 
Director also invalidated the labor certification. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will sustain the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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 that 
employing a foreign national 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). 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
December 2, 2015. See 8 C.F.R. § 204.5(d). 
II. REVOCATION OF A PETITION'S APPROVAL 
After granting a petition, USCIS may revoke the petition's approval "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record, a director's 
realization that a petition was erroneously approved may justify revocation. Matter of Ho, 19 l&N 
Dec. 582, 590 (BIA 1988). 
Good and sufficient cause exists to issue a notice of intent to revoke (NOIR) where the record at the 
time of the notice's issuance, if unexplained or unrebutted, would have warranted the petition's denial. 
Matter of Estime, 19 l&N Dec. 450, 451 (BIA 1987). Similarly, revocation is proper if the record at 
the time of the decision, including any explanation or rebuttal evidence provided by a petitioner, 
warranted a petition's denial. Id. at 452. 
Ill. IMPROPER COMMERCE 
The Director issued the NOIR on April 29, 2019. He stated that during a consular interview in South 
Korea in 2017, the Beneficiary acknowledged to having paid $7,000 to a U.S. based attorney to help 
her obtain a visa, including the visa fees. The Director further stated that the Beneficiary and the 
Petitioner had the same attorney; that USCIS records show that payment of the Form 1-140 fees was 
made by that attorney; and that "the evidence suggests that the beneficiary paid for the Form 1-140, 
labor certification, and visa to be filed on her behalf." He cited the regulation at 20 C.F.R. § 656.12(b), 
which states: 
An employer must not seek or receive payment of any kind for any activity related to 
obtaining permanent labor certification, including payment of the employer's 
attorneys' fees, whether as an incentive or inducement to filing, or as a reimbursement 
for costs incurred in preparing or filing a permanent labor certification application, 
except when work to be performed by the alien in connection with the job opportunity 
would benefit or accrue to the person or entity making the payment, based on that 
person's or entity's established business relationship with the employer. An alien may 
pay his or her own costs in connection with a labor certification, including attorneys' 
fees for representation of the alien, except that where the same attorney represents both 
the alien and the employer, such costs shall be borne by the employer. For purposes of 
this paragraph (b), payment includes, but is not limited to, monetary payments; wage 
concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, 
or tributes; in kind payments; and free labor. 2 
2 The regulation at 20 CFR § 656.12(c) further states: 
Evidence that an employer has sought or received payment from any source in connection with an 
application for permanent labor certification or an approved labor certification, except for a third party 
to whose benefit work to be performed in connection with the job opportunity would accrue, based on 
that person's or entity's established business relationship with the employer, shall be grounds for 
investigation under this part or any appropriate Government agency's procedures, and may be grounds 
for denial under§ 656.32, revocation under § 656.32, debarment under§ 656.31(t), or any combination 
thereof. 
2 
The Petitioner, through counsel, timely responded to the NOIR with significant evidence to rebut the 
ground of revocation, including the Petitioner's immigration visa service contract with its counsel; a 
"Summary of Billing" from counsel showing that it received $3,000 from the Petitioner for the "Initial 
Contract Fee" and $1,500 for the labor certification advertisement fee on June 15, 2015, as well as 
additional sums paid on behalf of the Beneficiary by her cousin in 2016 to cover costs and fees 
associated with the preparation and filing of the Form 1-140; copies of two checks written by the 
Petitioner to counsel in June 2015; copy of a check written by the Beneficiary's cousin to counsel in 
May 2016; counsel's bank statement from May 2016; a letter from the Petitioner; and copies of the 
Petitioner's recruitment for the offered job, including its recruitment report. 
The Director issued a notice of revocation (NOR) on July 1, 2019, based, in part, on "improper 
commerce" in payments relating to the labor certification, including payment of the Petitioner's 
attorney's fees. The Director stated that the "Immigration Visa Petition specifically regarding [the 
Beneficiary] is dated June 4, 2019, a month before the advertisements in conjunction with the 
recruitment efforts were undertaken and approximately a month before she states she was selected for 
the position."3 The Director noted that the Beneficiary did not sign the contract or agree to pay any 
amount by contract. Thus, the Director stated that the evidence does not reasonably suggest that the 
Beneficiary was obligated to pay any fee for any part of the immigration process. The Director also 
stated that the record does not show that either of the individuals listed on the checks are the 
Beneficiary's cousin, nor does the record show why the Beneficiary's cousin was paying fees on her 
behalf. The Director also noted that the Petitioner paid only $4,500 in fees, while the Beneficiary paid 
approximately $6,500, for these immigration proceedings. He determined the based on the evidence, 
the Petitioner "has not established that the beneficiary paid for the labor certification's filing, in light 
of the fact that she, herself, said she did."4 
On appeal, the Petitioner's counsel asserts that it represents both the Petitioner and the Beneficiary, 
and that the Petitioner paid for the costs of preparing and filing the labor certification. The Petitioner's 
President also states on appeal that it "paid for al I permanent labor certification processes" and that it 
did not receive payment from the Beneficiary for the costs of preparing and filing the labor 
certification. The Petitioner's counsel states that under current law, the Form 1-140 filing fee may be 
paid either the Petitioner or the Beneficiary, and the Petitioner's President confirmed that the 
Beneficiary "paid for the costs of the 1-140 Petition and the individual visa application for herself." 
Here, the NOIR states that the Beneficiary admitted in her consular interview to paying "$7000USD 
to a U.S. based attorney to help her obtain a visa, including the visa fees." However, the record is not 
clear that she specifically admitted to paying $7,000 to file the associated labor certification. As 
evidenced by the record, approximately $6,500 was paid on her behalf to cover the fees and costs 
associated with the filing of the Form 1-140 and visa application in this case. The Petitioner is correct 
that the costs and fees associated with filing the Form 1-140 and visa application may be paid either 
by the Petitioner or the Beneficiary. Whether she or her cousin wrote the checks is irrelevant to this 
proceeding. Here, the Petitioner's immigration visa service contract with its counsel, the "Summary 
3 It appears that the Director was referring to the Petitioner's immigration visa service contract with its counsel dated June 
4, 2015. 
4 It appears that the Director chose incorrect wording here, as his finding was based on the Beneficiary's purported payment 
of the costs and fees associated with the filing of the labor certification. 
3 
of Billing" from counsel and copies of the checks written by the Petitioner to counsel are relevant, 
probative, and credible evidence of the Petitioner's payment of the fees and costs associated with the 
filing of the labor certification in this case. See Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 
2010). The Petitioner has established by a preponderance of the evidence that that the labor 
certification was not the subject of improper commerce. Therefore, we will withdraw the Director's 
decision on the issue of improper commerce. 
IV. BONA FIDE JOB OPPORTUNITY 
In the NOIR, the Director notified the Petitioner that the Beneficiary indicated in a 2017 consular 
interview that she interviewed with the Petitioner for the offered position and was selected for it before 
the Petitioner began its recruitment for the job. He stated that "[s]electing a candidate before the date 
of the advertisement means that the job was not made available to U.S. workers, and that the petitioner 
created the offer for the sole intention of hiring the beneficiary." In response, the Petitioner submitted 
an affidavit stating that the job offer was "reconfirmed" to the Beneficiary in June 2015. The Director 
indicated in his NOR "that the position was filled before the petitioner began to advertise the position" 
and that "it is impossible for the position to have been open to U.S. workers if the alien was already 
selected." The Director determined that the Petitioner did not demonstrate that the position being 
offered is a bona fide job opportunity.5 On appeal, the Petitioner asserts that the Beneficiary's 
interview for the offered job was not a guarantee for the position. It asserts that she "was not accepted 
or selected for the position" at that time and that the "reconfirmation pertained to the terms of the job 
offer (title, duties, etc.), and also to check whether Beneficiary still intended to work at the terms and 
conditions and wanted to continue the immigration process." 
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 prior to 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 indicates that the Petitioner followed DOL regulations in following PERM6 protocol after 
identifying a foreign national for the position. See, e.g., 20 C.F.R. § 656.17. Thus, the Director erred 
in revoking the approval of the petition for lack of a bona fide job opportunity solely due to the 
Petitioner's identification of the Beneficiary as an applicant prior to the commencement of the labor 
certification recruitment process. The Petitioner has established by a preponderance of the evidence 
that the job opportunity is bona fide. We will therefore withdraw the Director's decision on the issue 
of bona fide job opportunity. 
V. MISREPRESENTATION 
The Director also entered a finding of willful misrepresentation of material fact against the Petitioner, 
determining that its attestation on the labor certification that the "job opportunity has been and is 
clearly open to any U.S. worker" was a willful, material and false representation because it had 
5 Citing Matter of Amger Corp., 87-INA-545 (BALCA 1987) and 8 U.S.C. § 1361, the Director stated that the Petitioner 
has the burden of establishing that a bona fide job opportunity exists when asked to show that a valid employment 
relationship is available to U.S. workers. 
6 The regulatory scheme governing the labor certification process is referred to by the acronym PERM, for Program 
Electronic Review Management. 
4 
accepted the Beneficiary for the offered position before beginning its labor certification recruitment. 
The Director found that the Petitioner cannot attest to the availability of a position to U.S. workers if 
its has already been filled. See 20 C.F.R. § 656.10(c)(8). 
A finding of willful misrepresentation of material fact against a petitioner requires the following 
elements: 
I The petitioner procured, or sought to procure, a benefit under U.S. immigration laws; 7 
I The petitioner made a false representation;8 
I The false representation was willfully made;9 
I The false representation was material; 10 and 
I The false representation was made to a U.S. government official. 11 
See 8 USCIS Policy Manual J.2(B), https://www.uscis.gov/policymanual; see also Matter of M-, 
6 l&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 l&N Dec. 288 (BIA 1975). 
As detailed above, the Petitioner's identification of the Beneficiary prior to the required recruitment 
does not indicate that the job is not open to U.S. workers. Thus, the Director erred in revoking the 
approval of the petition and entering a finding of willful misrepresentation of material fact against the 
Petitioner due to the Petitioner's identification of the Beneficiary as an applicant prior to the 
commencement of the labor certification recruitment process. We will therefore withdraw the 
Director's finding of willful misrepresentation of material fact against the Petitioner. 
VI. INVALIDATION OF THE LABOR CERTIFICATION 
The regulation at 20 C.F.R. § 656.30(d) provides, in pertinent part: 
(d) Invalidation of labor certifications. After issuance, a labor certification may be 
revoked by ET A using the procedures described in Sec. 656.32. Additionally, after 
issuance, a labor certification is subject to invalidation by the OHS or by a Consul of 
the Department of State upon a determination, made in accordance with those agencies' 
procedures or by a court, of fraud or willful misrepresentation of a material fact 
involving the labor certification application. 
7 See 8 USCIS Policy Manual, supra, at J.3(B). 
8 A misrepresentation is an assertion or manifestation that is not in accordance with the true facts. A false 
representation may be made in oral interviews, written applications, or by submitting evidence containing false 
information. See 8 USCIS Policy Manual, supra, at J.3(C); see also Legacy I NS Genco Op. No. 91-39, 1991 WL 1185150 
(April 30, 1991). 
9 See 8 USCIS Policy Manual, supra, at J.3(D). The term "willfully" means knowing and intentionally, as distinguished 
from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy and Goodchild, 
17 l&N Dec. 22, 28 (BIA (1979). 
10 A material misrepresentation is a false representation concerning a fact that is relevant to the petitioner's eligibility for 
an immigration benefit. See 8 USCIS Policy Manual, supra, at J.3(E). A material misrepresentation is one that "tends to 
shut off a line of inquiry relevant to" eligibility. Matter of Ng, 17 l&N Dec. 536,537 (BIA 1980). 
11 See 8 USCIS Policy Manual, supra, at J.3(F); see also Matter of Y-G-, 20 l&N Dec. 794, 796 (BIA 1994). 
5 
Based on our withdrawal of the Director's finding of willful misrepresentation of material fact against 
the Petitioner, we will also withdraw the Director's invalidation of the labor certification and reinstate 
it. 
ORDER: The appeal is sustained. 
FURTHER ORDER: The ETA Form 9089, case numberl~----~I is reinstated. 
6