A colleague received a Notice of Intent to Deny an I-140 petition. The DHS states that the underlying labor certification (a pre-PERM case) does not reveal that there may be a family relationship between the employer and the alien.
The NOID states, “Whether position was truly available, because beneficiary is spouse of petitioner’s niece. Alleged willful misrepresentation because relationship not revealed at either L/C or I-140 stage, and such disclosure may have called into question available position, thus leading to L/C denial.”
In support of the NOID, USCIS cited:
a) Matter of Summart, 374, 00-INA – 93 BALCA 5/15/2000. (Relative relationship may invalidate bona fide job offer.)
b) Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986) When potential employee is shareholder, a material fact exists as to whether or not bona fide job offer
c) 20 C.F.R. Sec. 656.30. A Labor Certification is subject to invalidation by fraud or willful misrepresentation of a material fact
d) 20 C.F.R. Sec. 656.31(d). If there is any fraud or willful misrepresentation regarding Labor Certification, the Labor Certification shall be deemed invalidated
e) Burden of proof upon applicant to establish eligibility for benefit
The first problem with this NOID is that neither the Department of Labor nor the USCIS have defined the meaning of Family in this context. The INA does define family members as being immediate family and persons for whom an immigrant visa petition may be denied. This is limited to children, spouses, parents and siblings.
Others have suggested that family might mean persons who live together, persons who may inherit under state intestate plans, and persons for who an Affidavit of Support I-864 must be filed.
Since the issue here involves a niece, it is doubtful that a family relationship exists in the legal sense of the word. However, even assuming the existence of relative relationship, the real issue is not the family itself but whether the beneficiary has influenced the search for U.S. Workers.
When there is no evidence of alien influence and the “family” relationship is attenuated, the case may still be approved. See Paris Bakery Corp., 88-INA-337 (BALCA 1990) (en banc) [owner applied for brother as French baker] and Cleanex House Cleaning Service, Inc., 03-INA-208 (BALCA Sept. 7, 2004) [sister applied for janitorial supervisor]; Japanese Motors International, Inc. [Employer applied for President’s son]; Matter of Altobeli’s Fine Italian Cuisine [Owner applied for his brother as an Italian cook].
The next issue is whether there is a duty to disclose the relationship in a pre-PERM case, first, because the pre-PERM case has no place or question on the form to make such a disclosure, and second, because the I-140 also does not have such a question In Modular Container, citing Rainbow Imports, it is held that “an employer must provide information concerning this relationship if it is requested by the CO.”
Given that government forms have to be approved by OMB and may not attach additional unapproved questions, the Employer appears to fulfill its ethical responsibility by asking all the questions truthfully.
Lastly, USCIS officials do not have the authority to revoke labor certifications in pre-PERM cases but may only refer the labor certification to the Department of Labor. If the government threatens to revoke a pre-PERM application, it can only be done by following the revocation procedure after a finding of fraud (based on clear and probative evidence). The NOID only raises a suspicion that the labor certification may not have been filed in good faith, but under DOL and USCIS standards, there is no demonstrated misrepresentation or international fraud about the family relationship in the documents filed.
The crux of this is that the Employer has to prove the application is bona fide, regardless of the direct or indirect family relationship.