Non-Precedent Decision of the Administrative Appeals Office DATE: DEC. 31, 2018. r
APPEAL OF NEBRASKA SERVICE CENTER DECISION PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petition·er, a church, seeks to employ the Beneficiary as a pastor. It requests his classification under the second-preference, immigrant category as a member of the professions holding an advanced degree. Immigration and Nationality Act (the Act) section 203{b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). This employment-based, "EB-2" category allows a U.S. organization to sponsor a foreign national for lawful permanent resident status to work in a position requiring at least a master's degree, or a bachelor's.degree followed by five years of experience.
After the tiling's initial grant, the Acting Director of the Nebraska Service Center revoked the petition's approval and denied the Petitioner's following motion to reconsider. The Director concluded that the Petitioner did not demonstrate that an authorized person signed the petition and the.accompanying certification from the U.S. Department of Labor (DOL) on the church's behalf Finding that the Petitioner willfully misrepresented the signatures' validity, the Director invalidated .the labor certification. The Director also found that the Petitioner should have disclosed a prior relationship between the signatory and a church _otlicial.
On appeal, the Petitioner submits additional evidence and e;tsserts that the Director misunderstood facts and reached erroneous conclusions.
Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis.
Employment-Based Immigration
Immigration as an advanced degree professional 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 DOL certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § Il82(a)(5)(A)(i).. DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and available for an offered position, and that employment o f a foreign national will not harm wages and working conditions ofU.S. workers with similarjobs. Id [f the DOL approves an offered position, an employer must. next submit the labor certification with an immigrant visa ·petition to U.S. Citizenship and Immigration Services (USC[S). See section 204 p. 2 Matter ofl-A-1-M-C- o f the Act, 8 U.S.C. § I I 54. Among other things, USCIS determines whether a beneficiary meets the DOL-certified, job requirements of a position. If USCIS grants a petition, a foreign national may finally apply for an immigrant visa abroad or, if eligible, adjustmen~ 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. § l I 55. If supported by the record, the erroneous nature ofan approval may justify revocation. Matter ofHo, I9 l&N Dec. 582, 590 (BIA I988).
USCIS may issue a notice of intent to revoke (NOIR) if the unexplained and unrebutted record would have warranted a petition's denial. Matter ofEstime, 19 l&N Dec. 450, 451 (BIA 1987). USCIS may revoke a petition's approval if a petitioner's response does not resolve the revocation grounds stated in the NOIR. Id at 451-52.
Signatures on the Petition and Labor Certification
A petitioner must sign its petition, certifying under penalty of perjury that the filing and all supporting evidence are true and correct. 8 C.F.R. § l03.2(a)(2). For a corporation like the Petitioner, an executive officer or a professional human resources employee may sign on its behalf. USCIS Policy Memorandum PM,,.602-0134.1, Signatures on Paper Applications, Petitions. Requests, and Olher Documents Filed wilh U.S. Citizenship and Immigration Services 5 (Feb. 15, 2018), https://www.uscis.gov/legal-resources/policy-memoranda (last visited Dec. 14, 2018). Another employee may also sign if he or she "has the authority to legally bind and commit the corporation" to the relevant terms and attestations. Id. Similarly, an "authorized representative" of a corporation may sign a labor certification application on its behalf. The term "authorized representative" means "an employee of the employer whose position or legal status authorizes the employee to act for the employer in labor certification matters." 20 C.F.R. § 656.3.
Here, copies of the Petitioner's federal tax return for 2015 identify its thief executive officer The Petitioner's appellate evidence, however, establishes its authorization of the signatory. The record indicates that, from the filing of the labor certification application in December 2015 until the petition's submission in July 2016, the CEO/senior pastor frequently left the United States to care for (CEO)/senior pastor as its sole employee. indicate that a different pastor signed the documents. As of the NOIR's issuance, the record did not establish the· filings' signatory as an authorized representative of the Petitioner. The Director therefore properly questioned the Petitioner's signatures on the petition and labor certification.
The Form 1-140 and labor certification, however, The Petitioner, a nonprofit religious corporation, is exempt from paying federal income taxes. It has, however, filed annual information returns. See U.S. Internal Revenue Serv. (IRS}. ''Annual Exempt Organization Return: Who Must File," https://www.irs.gov/chari~ies-non-profits/annual-exempt-organization-return-who-must-file (last visited Dec. 14, 2018).
Matter 4 L-A-1-M-C- his spouse, who was battling a serious illness. Pursuant to the church's constitution, he appointed the signatory to fulfill the CEO/senior pastor's duties in his absence. The Petitioner submitted a statement from the CEO/senior pastor, along with copies of his spouse's medical records and the church constitution. See_ USCIS Policy Memorandum PM-602-0134.1, supra, at 6 (stating that evidence such as bylaws and a letter from a corporate otlicer may demonstrate an employee's authorization to legally bind a petitioning corporation with his or her signature). The record therefore establishes the validity of the Petitioner's signatures on the petition and labor certification..
Ill. INVALIDATION OF THE LABOR CERTIFICATION · Unless accompanied by an application for Schedule A designation or documentation of a beneficiary's qualifications for a shortage occupation, a petition for an advanced degree professional must include a valid, individual labor certification. 8 C.F.R. § 204.5(k)(4)(i). USCIS may invalidate a labor certification afl:er its issuance upon a finding of "fraud or willful misrepresentation of a material fact involving the labor certification application." 20 C.F.R. § ~56.30(d).
As outlined by the Board of lmmigration Appeals, a material misrepresentation requires that one willfully makes a material misstatement to a government official for the purpose of obtaining an immigration be~efit to which one is not entitled. Maller r?fKai Hing Hui, 15 l&N Dec. 288, 289-90 (BIA 1975). The term "willfully" means knowing and intentionally, as distingl!ished from ai;cidentally, inadvertently, or in an honest b~lief that the facts are otherwise. See Mauer <?f T(jam, 22 l&N Dec. 408, 425 (BIA I998); Maller <?f Healy and Gof!dchild, 17 l&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 ,~fNg_, 17 l&N Dec. 536, 537 (BIA 1980).
Here,. the Director found that the Petitioner willfully misrepresented its authorization of the signatory on the labor certification. The Director also found that the Petitioner knowingly concealed a prior relationship between its CEO/senior pastor and the signatory. The Director noted that, in petition proceedings, the Petitioner identified the signatory as a long-tjme church member and that the CEO/senior pastor signed a prior Form 1-140 petition for him on behalf of a university where the CEO/senior pastor serves as president.
The record, however, does not support the alleged misrepresentations on the labor certification. As discussed in section II, the Petitioner demonstrated th_at it authorized the signatory to serve as its pastor and to sign the _labor certification application on its behalf. The application therefore does not misrepresent the signatory'.s title or authorization. There is also no bar 'on the authorized signatory having a prior,relationship with the Petitioner. On the contrary, an authorized signatory must have a relationship with the Petitioner in order to serve as the signatory on the labor certification and that prior relationship does not affect the validity of the Petitioner's job offer to the Beneficiary.
The record does not support the Petitioner's misrepresentation of a material fact invol~ing the labor certification application. . We will therefore withdraw the Director's finding of willful misrepresentation of a material fact and reinstate the labor certification.
Matter ofL-A-1-M-C-
Intention to Employ in the Offered Position
The Petitioner has overcome the stated revocation grounds. As of the petition's approval, however, the record did not establish the Petitioner's required intention to employ the Beneficiary in the offered position. · A petitioner must be "desiring and intending to. employ [a foreign national] within the United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a beneficiary under the terms of an accompanying labor certification. Maller ,?f·lzdebska, 12 l&N Dec. 54, 55 (Reg'l Comm'r 1966) (atlirming a denial where, contrary to the terms ·of an accompanying labor certification, a petitioner did not demonstrate its intentjon to employ a beneficiary as a domestic worker on a full-time, live-in basis). For labor certification purposes, the term "employment" means "[p]ermanent, full-time work." 20 C.F.R. § 656.3.
Here, the labor certification states the Petitioner's intention to employ the Beneficiary in the full- time, offered position of pastor. The position's job duties include: "[p]ray[ing] and promot[ing] spirituality;" "[p]repar[ing] and deliver[ing] sermons or other talks;" and "[o]rganiz[ing] and lead[ing] regular religious services and education programs."
The record, however, does not indicate that the Petitioner requires a full-tirrie pastor. The church's 2015 tax return states that its CEO/senior pastor - its sole employee at the time - spent only 75 percent of his time on pastoral activities. Also, in response to the NOIR, the CEO/senior pastor stated that the signatory who performed the senior pastor's duties from December 2015 to July 2016 worked only on weekends. In addition, the Form 1-140 describes the offered position as a "new" position. Thus, the Beneficiary would presumably work with the CEO/senior pastor, not replace him. The record does not establish the Petitioner's need for one full-time pastor. It therefore also does not establish its need for two.
The Petitioner did not receive an opportunity to respond to our doubts about its intention to employ the Beneficiary as a full-time pastor. We will therefore remand the matter. On remand, the Director should inform the church of the evidentiary shortcomings and afford it a reasonable opportunity to respond. Upon receipt of a timely response, the Director should review the entire record and enter a new decision.
Conclusion
The record on appeal establishes that an authorized representative signed the petition and accompanying labor certification on the Petitioner's behalf. The record also does not support the labor certification's invalidation based on the church's willful misrepresentation of a material fact. The Petitioner, however, did not demonstrate its intention to employ the Beneficiary in the offered position on a full-time basis.
Maller <?fl-A-1-M-C-
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new decision consistent with the foregoing analysis.
FURTHER ORDER: The ETA Form 9089, case number A-15342-49897, is reinstated. Cite as Ma1ter ofL-A-1-M-C-, ID# 2033111 (AAO Dec. 31, 2018)