The Petitioner seeks to employ the Beneficiary as a websphere administrator/systems analyst under the second-preference, immigrant classification for members ofthe professions with advanced degrees or their equivalents. Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b )(2)(A).
After initially approving the petition, Service Center Operations (SCOPS) revoked the petition's approval. SCOPS concluded that the Petitioner did not establish that the petition was supported by a valid labor certification. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance ofthe 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 decision and remand the matter for entry of a new decision consistent with the following analysis.
Employment-Based Immigration
Employment-based immigration generally follows a three-step process. First, an employer obtains an approved labor certification (ETA Form 9089) 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 worker in the position will not adversely affect the wages and working conditions ofdomestic 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 ofthe Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, the alien 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.
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. § 1155. If p. 2 supported by the record, a petition's erroneous approval may justify its revocation. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988).
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 ofEstime, 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.
Analysis
A. Procedural History
The Petitioner is a software consulting and development business, established in 2007, with 45 employees at the time the labor certification was filed on April 19, 2013. The labor certification was certified on December 10, 2013 and the instant petition was filed with USCIS on February 18, 2014. The petition was approved on July 24, 2014. However, on February 16, 2024, SCOPS issued a NOIR. SCOPS noted that the Petitioner answered "No" to the compound question at Part C.9 of the labor certification, which reads:
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, partners, corporate officers, or incorporators and the alien?
SCOPS stated that this answer was incorrect, as it had become aware that the Beneficiary was the brother-in-law of the Petitioner's president and signatory of the labor certification and the petition. 1 SCOPS also stated that the Petitioner had not established its continuing ability to pay the proffered wage to the Beneficiary.
The Petitioner submitted a response to the February 2024 NOIR asserting that there was no familial relationship between the Beneficiary's spouse and the Petitioner's president. However, SCOPS issued a second NOIR on April 3, 2024. In the second NOIR, SCOPS stated that it made an error in the earlier NOIR and sought to clarify the familial relationship between the Beneficiary and the Petitioner's president. In the April 2024 NOIR, SCOPS again stated that the Beneficiary is brotherin-law to the Petitioner's president but clarified that the Beneficiary's sister, I I is the spouse of the Petitioner's president.
Afterreviewing the Petitioner's response to both the February and April 2024 NOIRs, SCOPS revoked the petition's approval. Although SCOPS concluded that the Petitioner had established its continuing 1 In the February 2024 NOIR, SCOPS stated that the Beneficiary's spouse was the sister of the Petitioner's president. p. 3 ability to pay the proffered wage, it dete1mined that the Petitioner failed to disclose a familial relationship between its president and the Beneficiary. SCOPS stated that, because it appeared that the labor certification was not "properly prepared for immigration purposes, the record lacks a valid labor certification."
B. Validity of the Labor Certification
Under 8 C.F.R. § 205.2, USCIS may revoke the approval of an employment-based intmigrant petition on notice where the petition is not supported by a valid labor certification. See 8 C.F.R. § 204.5(1)(3)(i) (stating that every petition under section 203(b )(3) of the Act "must be accompanied by an individual labor certification from the [DOL ], by an application for Schedule A designation, or by documentation to establish that the alien qualifies for one of the shortage occupations in the [DO L's] Labor Market Information Pilot Program.").
Here, SCOPS did not make a finding of fraud or willful misrepresentation of a material fact against either the Petitioner or the Beneficiaiy. Therefore, we conclude that the labor certification in support of the instant petition currently remains valid and SCOPS' decision is withdrawn. However, because SCOPS did not address whether the Petitioner, the Beneficiary or both willfully misrepresented a fact that is material to eligibility for the immigration benefit sought, we will remand the matter for further consideration of this issue and the ent1y of a new decision.
C. Bona Fide Job Opportunity
A labor certification is evidence of an individual foreign worker's admissibility under section 212(a)(5)(A)(i) of the Act, which provides:
In general.-Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-(I) there are not sufficient workers who are able, willing, qualified ( or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perfmm such skilled or unskilled labor, and
(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
The INA requires USCIS to determine eligibility for the visa classification requested. See INA § 204(a)(l)(F). Under sections 204(b) and 212(a)(5)(A)(i) of the Act, USCIS ensures that the facts of the labor ce1tification are true - that there are insufficient workers able, willing, qualified and available whose employment will not adversely affect the wages and working conditions of similarly employed U.S. workers. The labor certification regulations at 20 C.F.R. § 626.20(c)(8) and §656.3 reflect that the petitioner has the burden when asked to show that a valid employment relationship exists, that a bona fide job opportunity is available to U.S. workers. See Matter ofAmger Corp., 87-INA-545 (BALCA 1987), citing Pasadena Typewriter and Adding Machine Co., Inc. v. Department ofLabor, p. 4 Case No. CV-83-5516-AAH(T), Slip op. (C.D.Cal. March 26, 1984); Bulk Farms, Inc. v. Martin (9th Cir. 1992) 963 F.2d 1286 citing INA Legislative History, H.R.Rep. No. 1365 Cong., 2d Sess. P1ior to approving a visa petition, USCIS must investigate the facts of each case to ensure the facts stated in the petition, which necessarily includes the labor certification, are true. See INA § 203(b)(3)(C); § 204(b); 8 CFR §§ 204.5(a)(2), 204.5(k)(4)(i) and (1)(3)(i). For those petitions requiring a labor certification, USCIS' investigation into the facts must include consultation with DOL. See id. Accordingly, when USCIS receives an I-140 petition accompanied by a labor certification, the labor certification serves as the consultation with DOL along with any additional information USCIS may on a case-by-case basis obtain from DOL to verify that the facts in that labor certification and the petition are true p1ior to approving the petition. Thus, the labor ce1iification is not conclusive evidence of eligibility. Instead, it is a pre-condition to being eligible to file an I-140 petition. USCIS is only required to approve those petitions where it is determined the facts stated in the petition and labor certification are true. See INA§ 203(b )(3)(C); § 204(b); 8 C.F.R. §§ 204.5(a)(2), 204.5(k)(4)(i) and (1)(3)(i).
The labor certification is incorporated into the I-140 petition pursuant to 8 C.F .R. § I03 .2(b)(1) which states that "[ a ]ny evidence submitted in connection with a benefit request is incorporated into and considered part of the request." On the labor certification, employers must attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." 20 C.F.R. § 656.I0(c)(8). "This provision infuses the recruitment process with the requirement of a bona fide job opportunity: not merely a test of the job market." Matter ofModular Container Sys .. Inc., 89-INA-228, 1991 WL 223955, *7 (BALCA July 16, 1991) (en bane) (referring to the former, identical regulation at 20 C.F.R. § 656.20(c)(8)).
In this case, the labor certification was submitted along with the Form I-140 as supporting evidence and thus is incorporated into the I-140 submission before USCIS. The petitioner signed Part 8 of the Form I-140 petition, which states in part that "I certify that [ a ]11 of the responses and information were complete, true, correct."
As such, the petitioner certified that the Form I-140 and its underlying evidence, including the required labor certification, were true and correct. Additionally, the labor certification provides employer certifications about compliance with the labor ce1iification program and job opportunity attestations, namely that the job opportunity was and is open to U.S. workers, that U.S. worker applicants were rejected for lawful reasons, and that the job is a permanent, full-time position. Section 212(a)(6)(C) of the INA, regarding misrepresentation, states that "(i) in general - any alien, who by fraud or willfully misrepresenting a material fact, seeks ( or has sought to procure, or who has procured) a visa, other documentation, or admission to the United States or other benefit provided under the Act is inadmissible." A willful misrepresentation of a material fact is 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." MatterofS- and B-C-, 9 I&N Dec. 436,447 (BIA l96l);Matter of Ng, 17 I&N Dec. 536,537 (BIA 1980).
Under20 C.F.R. §§ 656.10(c)(8) and 656.3, the petitioner has the burden, when asked, to show that a valid employment relationship exists, and that a bona fide job opportunity is available to U.S. workers. See Matter ofAmger Corp., 87-INA-545 (BALCA 1987). 20 C.F.R. § 656.3 specifically provides that p. 5 an investor may not be considered an employee for the purposes of labor ce1tification employment. Moreover, a relationship invalidating a bona fide job offer may arise where the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or through friendship." See Matter ofSunmart374, 00-INA-93 (BALCA May 15, 2000). In Matter ofSilver Dragon Chinese Restaurant, 19 I&N Dec. 401 (Comm. 1986), the commissioner noted that while it is not an automatic disqualification for an alien beneficiary to have an interest in a petitioning business, if the alien beneficiary's true relationship to the petitioning business is not apparent in the labor certification proceedings, it causes the certifying officer to fail to examine more carefully whether the position was clearly open to qualified U.S. workers and whether U.S. workers were rejected solely for lawful jobrelated reasons.
In order to assess whether a bona fide job opportunity may be at issue, the DOL requires the disclosure of any familial relationships between the noncitizen and the owners, stockholders, partners, corporate officers, and incorporators by marking "yes" to question at Part C.9 on the labor ce1tification. The DOL guidance 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," at https://wayback.archiveit.org/23696/2025081319284 7 /https:/foreignlaborce1t.doleta.gov/ (last visited September 24, 2025).
Here, the record demonstrates that a familial relationship exists between the Beneficiary and the Petitioner's owners and corporate officers. The record includes the Petitioner's 2012 Internal Revenue Service (IRS) Form l 120S U.S. Income Tax Return for an S Corporation. Schedule K-1 of the 2012 tax return states that the Beneficiary's sister, is a 51 % shareholder of the Petitioner. As SCOPS stated in the NOIR,.__ ______.is also the spouse of the Petitioner's president and signatory of the labor certification and petition.
On appeal, the Petitioner asserts that, at the time of the labor certification's filing in Ap1il 2013, the DOL had not provided a definition of familial relationship, as this was only addressed in July 2013 in response to a frequently asked question (FAQ) on its website. The Petitioner asserted that an "in-law" relationship would not have required an affirmative answer to Part C.9 at the time it filed the labor certification in April 2013.
Although the FAQ clearly states that a familial relationship includes in-law relationships, we disagree that this relationship was not contemplated in the definition at the time of filing. Several decisions from the Board of Alien Labor Certification Appeals (BALCA) issued prior to the filing of this labor certification in April 2013 have indicated that in-law relationships between foreign nationals and their prospective employers constitute familial relationships that trigger concerns about the bona fides of the job opportunities. See, e.g., Matter of Sunmart 374, 2000 WL 707942, at *3; Matter of Topco USA, Inc., 93-INA-00516, 1996 WL 86214 *4 (BALCA Feb. 23, 1996) (upholding a certification denial based solely on a "family relationship ... between a foreign national and his sister-in-law, an officer and director of the employer"); Matter ofAltobelli's Fine Italian Cuisine, 90-INA-130, 1991 WL 239636 *3-4 (BALCA Oct. 16, 1991) (finding that a foreign national's relationship to his sisterin-law, the employer's corporate secretary, constituted a "family relationship'"). The Petitioner should have responded "Yes" to the question at Part C .9, as it was clearly applicable to the in-law relationship p. 6 between the Petitioner's president and the Beneficiary, and to the sibling relationship between the Petitioner's majority shareholder and the Beneficiary.
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. Section204(b) of the Act, 8 U.S.C. § 1154(b). USCIS is responsible forreviewing 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. § l 153(b)(3)(C); 8 C.F.R. § 204.5(a)(2); 8 C.F.R. § 103.2(b )(i). USCIS is required to approve an employment-based immigrant visa petition only where 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) ofthe Act, 8 U.S.C. § l 154(b ). Here, the facts of the labor certification are not true because the Petitioner did not correctly answer the question at Part C.9 of the labor certification.
On appeal, the Petitioner cites a BALCA decision and states that a familial relationship on its face does not invalidate a bona fide job opportunity. Matter ofModular Container Sys .. Inc., 89-INA-228, * 7. The DOL adopted the holding in Modular Container at 20 C.F .R. § 656.17 (1). The regulation at 20 C.F.R. § 656.17(1) states in pertinent part:
(1) Alien influence and control over job opportunity. If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers, and must provide to the Certifying Officer, the following supporting documentation:
(1) A copy of the articles of incorporation, partnership agreement, business license or similar documents that establish the business entity;
(2) A list of all corporate/company officers and shareholders/partners of the corporation/firm/business, their titles and positions in the business' structure, and a description of the relationships to each other and to the alien beneficiary;
(3) The financial history of the corporation/company/partnership, including the total investment in the business entity and the amount of investment of each officer, incorporator/partner and the alien beneficiary; and (4) The name of the business' official with primary responsibility for interviewing and hiring applicants for positions within the organization and the name(s) of the business' official(s) having control or influence over hiring decisions involving the position for which labor certification is sought.
(5) If the alien is one of 10 or fewer employees, the employer must document any family relationship between the employees and the alien.
While we acknowledge the Petitioner's appellate arguments, we decline to consider the factors set forth in the DOL regulations at 20 C.F .R. § 656.17(1). The Petitioner's failure to disclose the familial relationship between the Beneficiary and its shareholders and officers precluded the DOL from further inquiring as to the Beneficiary's influence and control over the job opportunity. The Petitioner has p. 7 not submitted evidence that the DOL was cognizant of the familial relationship when it certified the labor certification so that it could apply the factors set forth at 20 C.F.R. § 656.17(1). The Petitioner cannot establish the offered position as a bona fide job opportunity based solely on its stated intent to employ the Beneficiary in the offered position once he obtains lawful permanent resident status. It must provide evidence establishing the existence of a valid job offer as of the petition's priority date, i.e., it must prove that, at the time it filed the labor certification, the job opportunity was open to U.S. workers. As the Petitioner failed to reveal its relationship to the Beneficiary on the labor certification, the DOL had no reason to make further inquiries. There is no evidence in the record that the Petitioner provided the documentation specified at 20 C.F.R. § 656.17(1). "In ... visa petition proceedings the Service must consider the merits of the petitioner's job offer, so that a determination can be made whether the job offer is realistic ... " Matter ofGreat Wall, 16 I&N Dec. at 145. Here, the untrue facts of the labor certification cut off a material line of inquiry for the DOLas to the bona fidesofthejob opportunity. Therefore, we cannot conclude that the instant job offer is realistic.
SCOPS did not address in the NOIR or the NOR whether a finding of willful material misrepresentation was made and to whom it pertains. A misrepresentation is an assertion or manifestation that is not in accord with the true facts. For an immigration officer to find a willful and material misrepresentation of fact, he or she must determine that (1) the petitioner or beneficiary made a false representation to an authorized official of the U.S. government, (2) the misrepresentation was willfully made, and (3) the fact misrepresented was material. See Matter ofM-, 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N Dec. 288, 289 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter ofHealy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). A "material" misrepresentation is one that "tends to shut off a line of inquiry relevant to the alien's eligibility." Matter ofNg, 17 I&NDec. 536,537 (BIA 1980). Any alien who seeks an immigration benefit by fraud or willfully misrepresenting a material fact is ineligible for a visa or admission to the United States. See section 212(a)(6)(C)(i) of the Act.
In the notice of revocation (NOR), SCOPS stated, "Laws, regulations, case law, and policies related to fraud and misrepresentation under grounds for inadmissibility are not considered when establishing your eligibility and the beneficiary's eligibility for the classification sought." We agree that these I-140 petition proceedings are not the appropriate forum to determine the Beneficiary's admissibility. See Matter ofO-
, 8 I&N Dec. 295, 296-98 (BIA 1959). However, USCIS will deny a visa petition if the petitioner submits evidence which contains false information. See section 204(b) of the Act. A petition includes its supporting evidence - including a labor certification. 8 C.F.R. § 103.2(b)(l). Therefore, the issue of whether the Petitioner willfully misrepresented the familial relationship is separate from the Beneficiary's admissibility, but any misrepresentation finding can be considered later where relevant.
On remand, SCOPS may wish to issue a new NOIR outlining any misrepresented facts, the perceived willfulness of the misrepresentation, and the materiality of the facts, consistent with the analysis above. SCOPS must state how the record fails to demonstrate eligibility for the classification sought under the pertinent regulatory scheme. If SCOPS makes a finding of willful material misrepresentation against either the Petitioner, the Beneficiary, or both, it must articulate the finding(s), against who the p. 8 findings are made, as well as the basis for the finding(s), in accordance with the above-referenced case law.
Conclusion
For the reasons discussed above, we will remand this case to SCOPS for further consideration. If SCOPS issues a new NOIR, the content of that notice and the consideration ofany evidence submitted by the Petitioner should comply with the requirements of 8 C .F.R. § 205 .2(b) and ( c) and Matter of Estime. SCOPS shall then issue a new decision.
ORDER: The decision is withdrawn. The matter is remanded for the ently of a new decision consistent with the foregoing analysis.