sustained EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 23092369 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 27, 2023 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, describing itself as a home health agency, seeks to employ the Beneficiary as a 
registered nurse . It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant classification . Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(i), 8 U.S.C. § l 153(b )(3)(A)(i). 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 at least two years of training or experience. 
The Director of the Texas Service Center initially approved the Form 1-140, Immigrant Petition for 
Alien Workers, but subsequently revoked the approval on notice concluding there was no bona fide 
job offer open to U.S. workers. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review , 
we will withdraw the Director's decision and sustain the appeal. 
I. LAW 
This petition is for a Schedule A occupation. A Schedule A occupation is one codified at 20 C.F .R. § 
656.5(a) for which the Department of Labor (DOL) has determined that there are not sufficient U.S . 
workers who are able, willing, qualified and available and that the wages and working conditions of 
similarly employed U.S. workers will not be adversely affected by the employment of noncitizens in 
such occupations . The current list of Schedule A occupations includes professional nurses. Id. 
Petitions for Schedule A occupations do not require a petitioner to test the labor market and obtain a 
certified ETA Form 9089, Application for Permanent Employment Certification, from the DOL prior 
to filing the petition with U.S . Citizenship and Immigration Services (USCIS). Instead, the petition is 
filed directly with USCIS with an uncertified ETA 9089. See 8 C.F.R. § 204.5(a)(2); see also 20 
C.F.R. § 656.15. lfUSCIS approves the petition, the noncitizen 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. 
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). 
The Board oflmmigration Appeals has determined that"[ a] notice of intention to revoke a visa petition 
is properly issued for "good and sufficient cause" where the evidence of record at the time the notice 
is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the 
petitioner's failure to meet his burden of proof" Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) 
( citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). By itself, the director's realization that a 
petition was incorrectly approved is good and sufficient cause for the issuance of a notice of intent to 
revoke an immigrant petition. Id. 
II. ANALYSIS 
The Director initially denied the petition in June 2019, but later approved the petition in December 
2019 after the Petitioner filed a motion to reopen and reconsider. Thereafter, the Director revoked the 
approval of the petition in December 2021 following the issuance of a notice of intent to revoke 
(NOIR). The Director concluded the Petitioner did not establish that the position was "open to the 
public 1" and that there was a bona fide job offer. At issue here is whether the Director properly 
revoked the approval of the petition based on the stated grounds. For the reasons discussed below, we 
will withdraw the Director's decision and sustain the appeal. 
In the revocation decision, the Director emphasized that there was an undisclosed familial relationship 
between the owner of the Petitioner and the Beneficiary that left uncertainty as to whether the job offer 
was bona fide. To assess whether a bona fide job offer may be at issue, section C.9 of the labor 
certification asks, "Is the employer a closely held corporation ... in which the alien has an ownership 
interest, or is there a familial relationship between the owners, stockholders, partners, corporate 
officers, incorporators, and the alien?" The Petitioner checked "No" in response to this question, 
attesting that the Beneficiary has no ownership interest in the company and that there was no familial 
relationship between her and its owners, stockholders, partners, corporate officers, or incorporators. 
In the notice of intent to revoke (NOIR), the Director stated that "it was found that there is an existing 
familial relationship that was not disclosed between the beneficiary and the petitioner." The Director 
pointed to evidence indicating that the owner of the Petitioner and the Beneficiary's spouse were both 
members of the board of directors of a church, as reflected in records from the Texas Secretary of 
State. In response to the NOIR, the Petitioner maintained that, although her husband and the owner 
of the Petitioner used to attend the same church, she had no familial relationship with the owner of the 
Petitioner and contended her husband and the owner of the Petitioner had never met. 
1 As noted above, the current petition is for a Schedule A occupation not requiring the Petitioner to test the labor market. 
Instead, the petition was filed directly with USCIS with an uncertified ETA 9089. See 8 C.F.R. § 204.5(a)(2); see also 20 
C.F.R. § 656.15. 
2 
The Director revoked the approval of the pet1t10n, emphasizing that the Beneficiary's husband 
indicated in a non-immigrant visa application that he was a minister at the church for which he also 
acted as a member of the board of directors, along with the owner of the Petitioner. The Director 
concluded that this contradicted the Beneficiary's assertion that her husband and the owner of the 
Petitioner had never met. The Director determined that the provided evidence was insufficient to 
establish that there was no familial relationship between the owner of the Petitioner and the 
Beneficiary, and that therefore, "it is not evident that the position in question was open to the public 
and that a bona fide job offer existed." The Director further stated that the record was insufficient to 
establish that the position was posted for others to apply. 
On appeal, the Petitioner asserts that the Director erred in determining that there was a familial 
relationship between the Beneficiary and the Petitioner's owner and maintains that she has no 
ownership interest in the company. 
The record does not support the Director's determination that the Petitioner's owner had a familial 
relationship with the Beneficiary that would require a "Yes" response at section C.9 of the labor 
certification. 2 While the record indicates that the Petitioner's owner and the Beneficiary may have 
been acquainted prior to the filing of the labor certification, the Director did not provide an appropriate 
basis for concluding that they had a familial relationship that required disclosure at section C.9 of the 
Form ETA 9089. 3 Further, the Director's assertions that the position was not "open to the public" that 
the position was not "posted for others to apply" are erroneous given that this is a petition for a 
Schedule A occupation that does not require a test of the labor market. We conclude, therefore, that 
there was no "good and sufficient cause" to revoke the approval of the petition, as required by section 
205 of the Act. 
For these reasons, we will withdraw the decision of the Director and reinstate the approval of the 
petition. The Petitioner has established eligibility for the benefit sought. 
ORDER: The appeal is sustained. 
2 The record also does not indicate that the Beneficiary has any ownership interest in the Petitioner. 
3 Published DOL guidance on this issue 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. See DOL, Office of Foreign Labor Certification, "OFLC Frequently Asked Questions and 
Answers," athttps://www.foreignlaborcert.doleta.gov/faqsanswers.cfm. 
3