U.S. Citizenship and Immigration Services

MATTER OF C-A-A-

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 24,2017

CERTIFICATION OF TEXAS SERVICE CENTER DECISION

J APPLICATION: FORM I-485, APPLICATION FOR ADJUSTMENT OF STATUS

The Applicant is the beneficiary of an approved labor certification filed by one employer on March 16, 2001, and the beneficiary of two other approved labor certifications and immigrant visa petitions filed by another employer at later dates. He seeks adjustment of status under section 245(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1255(i). See section 245(i)(l)(B)(ii) of the Act (allowing beneficiaries oflabor certification applications filed on or before April 30, 2001 to adjust their status despite their uninsp-ected entries or lapses of lawful status in the United States).

The Director, Texas Service Center, denied the application. The Director found that the Beneficiary willfully misrepresented his qualifying experience on the initial March 16, 200 I, labor certification application. The Director concluded that the Beneficiary's misrepresentation rendered him ineligible for adjustment of status under section 245(i) of the Act because the labor certification was not "approvable when filed." The Director also found the Applicant inadmissible for the misrepresentation and on public health grounds.

The matter is now before us on certification. See 8 C.F.R. § 1 03.4(a) (authorizing a director to certify to us a case for which there is no appellate procedure when it involves a "novel issue of law or fact"). The Applicant asserts that he did not misrepresent his qualifying experience on the labor certification and requests another opportunity to submit a medical report clearing him of communicable diseases of public health significance. On de novo review, we will affirm the Director's initial decision and deny the application.

I. LAW AND ANALYSIS

A. A Fraudulent Labor Certification Application Does Not "Grandfather" a Foreign National for Adjustment of Status under Section 245(i) of the Act.

Employment-based immigration is generally a three-step process. First, an employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). 1 See section 212(a)(5)(A)(i)

1 The priority date of a petition is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d).

A petitioner must establish the elements for the approval of the petition at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. §§ 204.5(g)(2), I 03.2(b)(l), ( 12); see also

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of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also ce1iified that the employment of a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of the Act. Next, U.S. Citizenship and Immigration Services (USCIS) must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the foreign national must apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255.

Employment-based adjustment applicants generally must have been inspected, entered the United States legally, and maintained lawful status in the country. See sections 245(a), (c), (k) of the Act. Section 245(i) of the Act, however, allows foreign nationals who do not meet those requirements to apply for adjustment if they were physically present in the United States on December 21, 2000, and if they are the beneficiaries of immigrant visa petitions or labor certification applications tiled on or before April 30, 2001. Section 245(i)(1) ofthe Act. Specifically relevant to this case, adjustment is available to the beneficiary of a labor certification application "that was tiled pursuant to the regulations ofthe Secretary of Labor on or before [April30, 2001]." Section 245(i)(l)(B)(ii) of the Act.

A labor certification renders an alien "grandfathered" under section 245(i) of the Act if it was "properly filed" pursuant to DOL regulations and "approvable when filed." 8 C.F.R. § 245.1 0( a)(l )(i)(B). The term "properly filed" means that the application was "properly filed and accepted pursuant to the regulations of the Secretary of Labor." 8 C.F.R. § 245.1 O(a)(2)(ii). The term "approvable when filed" means that, as of its date of tiling, the labor certification application was "properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance)." 8 C.F.R. § 245.1 O(a)(3).

A "properly filed" labor certification application must be submitted and accepted for processing by the appropriate, local employment service office by April 30, 2001. Matter of Butt, 26 l&N Dec. 108, 112 (BIA 2013). An application must also be "complete," meaning that it must contain a statement of qualifications signed by a foreign national and a description of the job opportunity signed by an employer. !d.; see also DeAcosta. v. Holder, 556 F.3d 16, 19-20 (1st Cir. 2009) (finding that a labor certification application was not "properly filed" by April 30, 2001 where it lacked the foreign national's signature).

A labor certification application is presumed to be "meritorious in fact" if it was "properly filed" and "non-frivolous," "so long as a bona tide employer/employee relationship exists where the employer has the apparent ability to hire the sponsored alien and where there is no evidence that the labor certification is based on fraud." Butt, 26 I&N Dec. at 116.

Matter of Wing's Tea House, 16 l&N Dec. 158, 159 (Acting Reg'! Comm'r 1977); Matter of Katigbak. 14 I&N Dec. 45, 49 (Reg'! Comm'r 1971).

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If "approvable when filed," a pre-April 30, 2001, petition or application will preserve a foreign national's grandfathered status even if the filing "was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing." 8 C.F.R. § 245.10(a)(3). The term "circumstances that have arisen after the time of filing" means circumstances similar to the death of a petitioner or beneficiary, the legal termination of a marriage, or the "aging-out" of a child. 8 C.F.R. § 245.10(a)(4) (referring to circumstances stated in 8 C.F.R. §§ 204.5(a)(3)(i), (ii)).

In the instant case, the record establishes that the labor certification on behalf of the Applicant was "properly filed." The record contains a Form ETA 750, Application for Alien Employment Certification (labor certification), that is signed by the Applicant and the employer. The labor certification also reflects its submission and acceptance for processing by the appropriate, local employment service office by April 30, 2001. 2

The record also establishes the "non-frivolous" nature of the labor certification application. The record contains af1idavits from the sole proprietor of the business that sponsored the Applicant and other evidence of the employer's existence and intention to permanently employ the Applicant.

Pursuant to Butt, we presume that this properly filed, non-frivolous application would also be "meritorious in fact." As previously indicated, however, the Director found evidence that the Applicant willfully misrepresented his qualifying experience on the labor certification.

In Butt, the Board of Immigration Appeals (BIA) found a presumption that a "properly tiled" and "non-frivolous" labor certification application is "meritorious in fact." The Board ruled, however, that the presumption applies "so long as a bona fide employer/employee relationship exists where the employer has the apparent ability to hire the sponsored alien and ·where there is no evidence that the labor cert(fication is based on fraud." !d. (emphasis added). Therefore, a fraudulent labor certification is not presumed to be "meritorious in fact" and thus "approvable when filed."

Regulatory history and internal USCIS memoranda also indicate that a fraudulent labor certification application does not "grandfather" a foreign national under section 245(i) of the Act. A 1999 memorandum from an official of the former Immigration and Nationality Service (INS) explains that "[ n ]ot all . . . immigrant visa petitions or labor certification applications will result in grandfathering." Memorandum from Robert L. Bach, Exec. Assoc. Comm 'r, Office of Policy & Programs, HQ 70/23 1-P, HQ 70/8-P, Accepting Applications Under Section 245(i} ol the Immigration and Nationality Act *2 (Apr. 14, 1999), available at, 1999 WL 33435638. The memo states that "filings that are deficient because they were submitted without fee, or because they were .fraudulent or without any basis in law or fact, should not be considered to have grandfathered the alien." !d. (emphasis added).

2 USC IS records indicate that the employer later filed an immigrant visa petition on behalf of the Applicant. But the petition was denied. The Applicant therefore seeks to adjust his status based on a later job offer by another employer.

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A 2001 INS interim rule states that "a visa petition is not approvable when filed ilit is fi·audulent or if the beneficiary did not have, at the time of tiling, the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa." INS Interim Rule for Adjusting Status under Section 245(i), 66 Fed. Reg. 16383, 16385 (Mar. 26, 2001) (emphasis added). An internal 2005 USCIS memo also indicates that a fraudulent labor certification application does not qualify a foreign national for adjustment under section 245(i)" of the Act. See Memorandum from William R. Yates, Assoc. Dir. for Operations, HQOPRD 70/23.1, Clarffication of Certain Eligibility Requirements Pertaining to an Application to Adjust Status under Section 245(i) of the Immigration and Nationality Act, 3 (Mar. 9, 2005), https:/ /www. uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static _Files_ Memoranda/ Archives%2020 1998-2008/2005/245iclaritication030905.pdf (stating that, "[a] bsent evidence <~l

fraud," USCIS will consider a labor certification application accepted by DOL pursuant to its regulations to have been "properly filed" and ' 'approvable when filed") (emphasis added).

The Applicant asserts that the March 16, 2001 , labor certification application filed on his behalf was approvable when filed because it was, in fact, approved by the DOL. However, based on BIA case law, regulatory history, and USCIS policy to address post-certification issues as discussed above, the Director properly found that the application's approval would not preserve the Applicant ' s grandfathered status if it contained a fraudulent or willful misrepresentation.

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B. The Record Contains Substantial Evidence that the Applicant Willfully Misrepresented a Material Fact on the Labor Certification.

A willful misrepresentation of a material fact requires a deliberate and voluntary misrepresentation made with knowledge of its falsity. Toribio-Chavez v. Holder, 611 F.3d 57, 63 (1st Cir. 2010). A misrepresentation is material if it "had a natural tendency to influence" the government's decisions. !d. (citing Kungys v. United States, 485 U.S. 759, 772 (1988)).

Fraud is similar to misrepresentation of a material fact, but consists of two additional elements: an intention to deceive the government; and the government's acceptance and action on the misrepresentation to its disadvantage. Matter of G-G-, 7 I&N Dec. 161, 164 (BIA 1956).

To support a finding of fraud or willful misrepresentation of a material fact, the record must contain evidence that would permit a reasonable person to find that fraud or willful misrepresentation of a material fact was used in an attempt to obtain an immigration benefit. See INS v. Elias-Zacarias, 502 U.S. 4 78, 481 ( 1992); see also Toribio-Chavez, 611 F .3d at 62 (stating that, under the substantial evidence standard, a federal court may overturn ari agency's factual findings only if "any reasonable adjudicator would be compelled to conclude the contrary") (citation omitted).

(

The Applicant attested on the labor certification to his full-time employment as a mechanic from 1991 to 1994 by a purported automotive business in Brazil. He did not state any other qualifying work experience on the labor certification. The labor certification indicates that the offered position of "new-car get-ready mechanic" at a car-detailing business required at least 2 years of experience in the job offered or as a mechanic.

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After the DOL's approval of the labor certification, the employer submitted a Form 1-140, Immigrant Petition for Alien Worker, to USCIS. The petition was accompanied by a January 1, 2001, letter on

stationery, indicating the Applicant's employment by the company from 1991 to 1994. See 8 C.F.R. § 204.5(l)(3)(ii)(A) (requiring a skilled worker petition to be supported by a letter from an employer describing a beneficiary's experience).

The letter, however, states the Applicant's employment not as a mechanic, as indicated on the labor certification, but in "temporary's services, exercising the function of General Manager." The letter does not describe the Applicant's duties at the company or state the title of the letter's signatory.

In an August 25, 2002, request for evidence (RFE), the INS noted the discrepancy between the job titles stated on the labor certification and in the letter. The petitioner, however, did not respond to the RFE's request for additional evidence of the Applicant's claimed qualifying experience as a mechanic.

The record shows that the INS denied the petition as abandoned on February 18, 2003. The INS did not find that the Applicant willfully misrepresented his qualifications on the labor certification, nor did it invalidate the accompanying labor certification. See 20 C.F.R. § 656.30(d) (authorizing USCIS to invalidate a labor certification after its issuance upon a finding of "fraud or willful misrepresentation of a material fact involving the labor certification").

On March 9, 2011, the record indicates that the Applicant told a US CIS officer in a telephone interview that, before coming to the United States, he had worked as a supervisor for

in Brazil for 18 months or 2 years. He provided that company's number to the officer. See Magalhaes v. Napolitano, 941 F. Supp. 2d 150, 151 (D.

Mass. 20 I 3) (finding the to be a catalog of officially registered businesses in Brazil that is maintained by the Brazilian government). In a follow-up conversation on February 9, 2013, the record indicates that the Applicant told a USCIS officer that had changed its name to

In an August 6, 2014, affidavit in response to the Director's notice of intent to deny (NOID) the adjustment application, the Applicant stated that he did not remember his exact statements to the USCIS officers. However, he stated that employed him from 1991 to 1994 as a "general manager, mechanic" and changed its name to after he had stopped working for the company.

The Applicant denied contradictions among the job titles stated on the labor certification, in the letter, and in his representations to USCIS. He stated:

[T]he positions of mechanic, supervisor, and general manager do not contradict one another in an automotive business. General managers often take on supervisory roles, and must also perform repairs when needed. One job title alone is not enough to encompass all the duties expected of a managerial mechanic position at an auto repair

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shop .... I repaired all types of cars while working for while in a supervisory role as the General Manager.

An August 16, 2016, overseas investigation reviewed the

and I did so

of the Brazilian Department of Labor. The indicates that has not paid taxes since 1992. The investigation also found record of only one

former 'Brazilian employer of the Applicant: where the Applicant reportedly worked from January 1, 1994 to January 26, 1994. The Applicant did not explain or address the absence of any record for

The record contains substantial evidence that the Applicant willfully misrepresented his qualifying experience on the labor certification. The letter on stationery states the Applicant' s employment in a position with a different job title than stated on the labor certification. The letter also does not describe the Beneficiary's experience or state the signatory ' s title pursuant to 8 C.F.R. § 204.5(l)(3)(ii)(A). The letter's stationery also identifies the company' s business as industrial maintenance, not "automotive" as stated on the labor certification.

The Applicant's later statements to USCIS officers contain further inconsistencies. The Beneficiary stated that he worked at not as previously represented. The Beneficiary also stated that he may have worked at the company for only 18 to 20 months, less than 2 years, as required by the labor certification. The Beneficiary's statement that he may have worked at the company for only 18 to 20 months also contradicts his attested dates of employment from 1991 to 1994.

In addition, Brazilian labor department records indicate that has not paid taxes since 1992, suggesting that the company has not conducted business since that year. The records also indicate that the Applicant worked for another Brazilian employer in January 1994, suggesting that the Applicant did not work for as he claims.

The discrepancies of record constitute substantial evidence that the Applicant misrepresented his qualifying experience on the labor certification. The Applicant signed the labor certification, declaring under penalty of perjury that the information on it was true and correct. The record therefore contains evidence of the willfulness of his misrepresentation. The misrepresentation is also material, as the job opportunity required at least 2 years of experience as a mechanic, and the Applicant's experience with was the only experience stated on the labor certification.

On certification, the Applicant asserts that he did not willfully misrepresent his qualifying experience. He attributes any discrepancies of record to the length of time ·that lapsed since his qualifying employment and his difficulty in recalling past events. He states:

After almost ten years away from the job in 2002 and nearly twenty years away from the job in 2011 , it is not surprising that [the Applicant] did not recall his formal job

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title, but rather described his position based on his job duties as his job involved both car repairs and supervisory tasks.

In response to our notice of intent to deny (NOID) of September 29, 2016, the Applicant asserts that failure to pay taxes since 1992 does not mean that its business terminated at that

time. The Applicant states that Brazil's records regarding his employment history are "unreliable."

It is not surprising that an overseas investigation conducted over fifteen years after the filing of the initial labor certification, and twenty-two years after [the Applicant's] employment with ended, would not produce correct information. The employment record in Brazil only could confirm that [the Applicant] has worked twenty-six days throughout his entire twenty-five years in Brazil. It appears more plausible that Brazil, as a developing country, is developing in its ability to collect accurate employment information.

We do not find the Applicant's explanations to be convincing. The record lacks independent, objective evidence to support his assertions. The Applicant has not submitted any additional documentation to corroborate his employment and asserted range of job duties at The record also lacks documentary evidence of purported name change to

Despite the asserted name change, the letter submitted in January 2001 was on letterhead. The letter stated the wrong job title. The letter further did not identifY

or contain Brazilian registry number to verify authenticity. Nothing shows that the Applicant was registered and employed with or to verify his employment, and the Applicant did not address this issue. In addition, the Applicant has not established the unreliability of Brazil's employment records.

The record contains evidence that would allow a reasonable person to find the Applicant's willful misrepresentation of his qualifying experience on the labor certification. He and his former employer/petitioner were provided opportunities to rebut or explain the evidence. However, they did not adequately resolve the discrepancies of record regarding the Applicant's purported qualifying experience. See Santana v. Holder, 566 F.3d 237, 241 (1st Cir. 2009) (upholding a ruling that applicants were ineligible for adjustment under section 245(i) of the Act where they did not successfully rebut evidence casting doubt on the validity of a qualifying special immigrant petition); Echevarria v. Keisler, 505 F.3d 16, 19-20 (1st Cir. 2007) (upholding a ruling of an applicant's ineligibility for 245(i) adjustment where evidence cast doubt on the validity of a qualifying marriage petition).

The record indicates that the Applicant willfully misrepresented his qualifying experience on the labor certification and that the labor certification application was not "meritorious in fact" and "approvable when filed." The Director therefore properly found the Applicant ineligible for adjustment of status under section 245(i) of the Act.

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C. The Record Supports the Applicant's Inadmissibility under Section 212(a)(6)(C)(i) of the Act.

Section 212(a)(6)(C)(i) of the Act renders inadmissible any foreign national "who, by fraud or willfully misrepresenting a material fact , seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act." The burden of establishing admissibility rests with an applicant for admission and never shifts to the government. Section 291 of the Act, 8 U.S.C. § 1361; see also Matter of Arthur, 16 I&N Dec. 558, 560 (BIA 1978).

As previously indicated, a willful misrepresentation of a material fact requires a deliberate and voluntary misrepresentation made with knowledge of its falsity. Toribio-Chavez, 611 F.3d at 63. A misrepresentation is material if it "had a natural tendency to influence" the government's decisions. !d. (citing Kungys , 485 U.S. at 772).

As noted above, fraud is similar to misrepresentation of a material fact, but consists of two additional elements: an intention to deceive the government; and the government' s acceptance and action on the misrepresentation to its disadvantage. Maller of G-G-, 7 I&N Dec. at 164.

As previously discussed, the record contains substantial evidence of the Applicant's willful misrepresentation of his qualifying experience on the labor certification. The letter on

stationery states the Applicant's employment in a position with a different job title than stated on the labor certification. The letter also identifies the company' s business as industrial maintenance, not "automotive," as stated on the labor certification. ln addition, Brazilian labor records indicate that has not paid taxes since 1992 and that the Applicant ' s only recorded employment in Brazil occurred in 1994 for another company. No Brazilian labor records evidence the Applicant's claimed employment.

The Applicant was afforded opportunities to rebut the derogatory evidence, but did not adequately explain the discrepancies of record. The record therefore supports the Director's finding of inadmissibility under Section 212(a)(6)(C)(i) of the Act. See Singh v. Gonzales, 413 F.3d 156, 161 (1st Cir. 2005) (affirming an inadmissibility finding under section 212(a)(6)(C)(i) of the Act against an adjustment applicant who mispresented his experience on a labor certification application) .

D. The Director Properly Found the Applicant Inadmissible under Section 212(a)(l) of the Act.

Section 212(a)(1) of the Act renders inadmissible certain foreign nationals who have "communicable disease[s] of public health significance." Foreign nationals must submit to physical and mental examinations before the issuance of immigrant visas. Section 22l(d) of the Act; 8 U.S.C. § 120l(d).

Successful adjustment applicants must be examined by selected civil surgeons, who must endorse reports indicating that an applicant is "free of any defect, disease, or disability listed in section 212(a) of the Act." 8 C.F.R. § 232.2(c).

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In the instant case, the Director's NOID requested an updated examination of the Applicant. In response, the Applicant submitted an incomplete Form I-693, Report of Medical Examination and Vaccination Record. The "Summary of Overall Findings" in Part 2 of the report did not state that the Applicant was clear of conditions that would render him inadmissible under section 201(a)(1) of the Act. Also, the summary contained information that had been "whited out."

Because of the omission and the erasure, the report did not establish the Applicant's admissibility on public health grounds. The Director therefore also properly denied the application on this ground.

On certification, the Applicant requests the issuance of a request for evidence (RFE) to allow him to submit a properly completed Form I-693. The Applicant states that he was unaware of the defects in the prior form because it was submitted in a sealed envelope pursuant to users instructions.

Because we find the Applicant is ineligible for adjustment under section 245(i) of the Act and inadmissible for a willful misrepresentation of a material fact on the 2001 labor certification, however, a properly completed Form I-693 clearing the Applicant of communicable diseases of public health significance would not result in the application's approval. We therefore will not issue an RFE or remand the matter to the Director to allow the Applicant to submit another Form I-693.

II. CONCLUSION

The record contains substantial evidence that the Applicant willfully misrepresented his qualifying experience on the labor certification. The record therefore supports the Director's findings of the Applicant's ineligibility for adjustment of status under section 245(i) of the Act and his inadmissibility under section 212(a)(6)(C)(i) of the Act. The record also supports the Director's finding of inadmissibility under section 201(a)(l) ofthe Act.

We will therefore affirm the Director's initial decision and deny the application.

ORDE~: The initial decision of the Director, Texas Service Center, dated February 11, 2016, is affirmed, and the application is denied.

Cite as Matter ofC-A-A-, ID# 100548 (AAO Mar. 24, 2017)

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