dismissed EB-3 Case: Agriculture

MATTER OF C-F-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 10,2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner is an operator of a fruit and vegetable farm that seeks to employ the Beneficiary in the 
United States as an agricultural manager. It requests classification of the Beneficiary as a skilled 
worker under the third preference immigrant classification. See Immigration and Nationality Act (the 
Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant 
classification allows a U.S. employer to sponsor a foreign national for lawful permanent resident 
status to work in a position that requires at least 2 years of trairtirig or experience. 
The Director, Nebraska Service Center, denied the petition, concluding that the Petitioner had not 
established that it had the continuing ability to pay the Beneficiary the proffered wage beginning on 
the priority date of the visa petition. 
The matter is now before us on appeal. The Petitioner states that its bank account balances and the 
wages it paid to the Beneficiary for 2008, 2009 and 2010 establish its ability to pay the required 
proffered wage. Also, the Petitioner states that the economic conditions and unexpected severe 
weather conditions from 2008 through 2010 should be considered in the analysis of its ability to pay 
the proffered wage. On appeal, the Petitioner submitted photographs of its damaged greenhouses 
and documentation regarding the bankruptcy and dissolution of major businesses it supplies. 
The matter is now before us on de novo, appellate review. Because the appellate record does not 
demonstrate the Petitioner's continuing ability to pay the proffered wage, we will dismiss the appeal. 
The record also does not establish the Beneficiary's possession of the experience required for the 
offered position, or the bona fides of the job opportunity and the job offer.1 
1 Beginning on February I, 2013, we held these proceedings in abeyance while we consulted with the U.S. Department, 
of Labor (DOL) regarding the validity of the accompanying ETA Form 9089, Application for Permanent Employment 
Certification (labor certification). See section 204(b) of the Act, 8 U.S.C. § 1154(b) (requiring U.S. Citizenship and 
Immigration Service (USCIS) to consult DOL when adjudicating immigrant petitions); see also 8 C.F.R. § 103.2(b)(l8) 
(authorizing USCIS to withhold adjudication of a petition pending an investigation regarding eligibility for a requested 
benefit). Our decision in this matter does not preclude further action on the labor certification by the DOL. 
Matter ofC-F-, Inc. 
I. LAW AND ANALYSIS 
A. USCIS' Role in the Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First,. an employer must obtain an 
approved labor certification from the DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 
1182(a)(5)(A)(i). Next, USCIS must approve an immigrant visa petition. See section 204 of the Act. 
Finally, a foreign national must 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. ' 
By approving the accompanying labor certification in the instant case, the DOL certified that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position of 
agricultural manager. See section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified that the 
employment of a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(Il). 
In these proceedings, we must decide whether the Beneficiary meets the requirements of the offered 
position certified by the DOL. We must also determine whether the Petitioner and Beneficiary 
otherwise qualify for the requested classification. See, e.g., Tongatapu Woodcraft Haw., Ltd. v 
Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984) (holding that the immigration service "makes its own 
determination of the alien's entitlement to [the requested] preference status"). 
At issue on appeal is whether the Petitioner has the ability to pay the proffered wage stated on the 
labor certification from the priority date onward. The other remaining issues apart from the 
Director's decision include whether the position offered constitutes a bona fide job offer and whether 
the Beneficiary meets the experience requirements. On October 25, 2012, we submitted a request 
for evidence (RFE) to the Petitioner and requested that it indicate the relationship between its 
president and the Beneficiary. In response to the RFE, the Petitioner submitted a family census 
registry and indicated that the Beneficiary is the son-in-law to the Petitioner's president.2 We have 
reviewed all the evidence in the record, which together with the points discussed by the Petitioner on 
appeal and in response to our RFE, will be discussed further below. 
B. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must establish that its job offer to the beneficiary is a realistic one. The petitioner's ability 
to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See 
MatterofGreat Wall, 16 I&NDec. 142 (Acting Reg'l Comm'r 1977). 
2 
After receiving the Petitioner's response to our RFE, we held these proceedings in abeyance, as of February 1, 2013, 
while we notified DOL of the issues raised by the Beneficiary's relationship to the Petitioner's president and shareholder. 
See section 204(b) of the Act, 8 U.S.C. § 1154(b) (stating that USCIS may consult with DOL when adjudicating 
immigrant petitions for alien workers); see also 8 C.F.R. § 103.2(b)(l8) (authorizing USCIS to withhold adjudication of 
a petition pending an investigation regarding eligibility for the requested benefit). DOL has since indicated that it will 
not be taking any action on the labor certification due to the significant time that has passed since it was certified. 
2 
Matter ofC-F-, Inc. 
The regulation 8 C.P.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
As required by statute, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification);' approved by DOL. Here, the labor 
certification was accepted on May 23, 2008, the priority date. The proffered wage as stated on the 
labor certification is $21.47 per hour ($44,657.60 per year). 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay the full proffered 
wage each year, we next examine whether it generated sufficient annual amounts of net income or 
net current assets to pay any difference between the wages paid and the proffered wage. If net 
income and net current asset amounts are insufficient, we may also consider the totality of the 
circumstances of a petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 
(Reg'l Comm'r 1967)? 
In this case, the Petitioner has not established that it employed and paid the Beneficiary the full 
proffered wage from the priority date onward. The record contains Forms W-2 for 2008, 2009 and 
2010, which state that the Petitioner paid wages to the Beneficiary of $17,500 in 2008, $30,000 in 
2009, and $30,000 in 2010. Therefore, the Petitioner would need to establish that it had the ability to 
pay the difference between the proffered wage and wages paid, which would be $27,156.60 for 
2008, $14,657.60 for 2009, and $14,657.60 for 2010. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal 
to the proffered wage during that period, USCIS will next examine the net income figure reflected 
on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. River Street Donuts, 558 F.3d 111; Taco Especial, 696 F. Supp. 2d 873 (E.D. Mich. 
2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). 
For a C corporation, USCIS considers net income to be the figure shown on Line 28 of the IRS Form 
1120, U.S. Corporation Income Tax Return. The record before the Director closed on July 25, 2011, 
3 
Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Estrada-Hernandez v. Holder, I 08 F. Supp. 3d 936, 942-43 
(S.D. Cal. 2015). Rivzi v. Dep 't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 20 14), aff'd, 627 Fed. App'x. 
292 (5th Cir. 2015). 
3 
.J 
Matter ofC-F-, Inc. 
with the receipt by the Director of the Petitioner's submissions in response to the Director's request 
for evidence. As of that date, the Petitioner's 2011 federal income tax return was not yet due. 
Therefore, the Petitioner's income tax return for 2010 would have been the most recent return 
available. 4 
On June 4, 2011, the Director issued the Petitioner an RFE and requested that it provide, among 
other things, its federal tax returns for 2008, 2009 and 2010. However, the Petitioner did not submit 
its 2008 or 2010 tax returns in response to the Director's RFE. The Petitioner's 2009 tax return 
states net income of -$7766. Therefore, for 2009, the Petitioner did not have sufficient net income to 
pay the difference between the proffered wage and the wages paid to the Beneficiary. On appeal, the 
Petitioner did not submit regulatory evidence regarding its ability to pay the proffered wage for 2008 
and 2010. Thus, the Petitioner has not demonstrated that it had sufficient net income to pay the 
difference between the proffered wage and the wages paid for 2008,2009, and 2010. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the 
wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered 
wage or more, USCIS will review the petitioner's net current assets. Net current assets are the 
difference between the petitioner's current assets and current liabilities.5 A corporation's year-end 
current assets are shown on Schedule L, lines 1 through 6 and include cash-on-hand. Its year-end 
current liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-year net 
current assets and the wages paid to the beneficiary (if any) are equal to or greater than the proffered 
wage, the petitioner is expected to be able to pay the proffered wage using those net current assets. 
The Petitioner's 2009 tax return states end-of-year net current assets of $3991, which is insufficient 
to pay the difference between the proffered wage and the wages paid. As stated above, the Petitioner 
did not submit its tax returns for 2008 and 2010. Thus, the Petitioner has not demonstrated that it 
had the ability to pay the difference between the proffered wage and the wages paid to the 
Beneficiary for 2008, 2009, and 2010 . 
Therefore, from the date the labor certification was accepted for processing by DOL, the Petitioner 
has not established that it had the continuing ability to pay the Beneficiary the proffered wage as of 
the priority date through an examination of wages paid to the Beneficiary, or its net income or net 
current assets. 
On appeal, counsel states that the Petitioner's checking account statements from 2008 through 2010 
should be considered toward establishing its ability to pay the proffered wage. Counsel's reliance on 
4 
A corporation must file a federal income tax return by the 15th day of the third month after the end of its fiscal year. 
See Internal Revenue Serv., Publication 509 Tax Calendars, at https://www.irs.gov/pub/irs-prior/p509--201l.pdf 
(accessed November 7, 2016). Therefore, the Petitioner's 2010 tax return was due to be filed on March 15,2011, before 
the July i6, 20 II, RFE response deadline. 
5 
According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items having (in 
most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and 
accrued expenses (such as taxes and salaries). /d. at 118. 
4 
Matter ofC-F-, Inc. 
the balances in the Petitioner's bank account is misplaced. First, bank statements are not among the 
three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's 
ability to pay a proffered wage. While this regulation allows addjtional material "in appropriate 
cases," the Petitioner in this case has not demonstrated why the documentation specified at 8 C.F .R. 
§ 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the Petitioner's 
financial outlook. Second, bank statements show the amount in an account on a given date, and 
cannot show the sustainable ability to pay a proffered wage. Third, no evidence was submitted to 
demonstrate that the funds reported on the Petitioner's bank statements somehow reflect additional 
available funds that were not reflected on its 2009 tax return, such as the Petitioner's taxable income 
\ 
(income minus deductions) or the cash specified on Schedule L in determining the petitioner's net 
current assets, as discussed above. The Petitioner has not provided copies of its 2008 and 201 0 tax 
returns or other documentation to establish whether the Petitioner's bank statements reflect 
additional funds not reported on its tax returns. Further, the bank statements in the record are 
December monthly statements for 2008, 2009, and 2010, which state low average balances and low 
ending balances that do not support the Petitioner's assertions that it had the ability to pay the 
difference between the proffered wage and the wages paid to the Beneficiary. 
USCIS may consider the overall magnitude of the petitioner's business activities in its determination 
of the petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 
(Reg'l Comm'r 1967). The petitioning entity in Sonegawa had been in business for over 11 years 
and routinely earned a gross annual income of about $100,000. During the year in which the petition 
was filed in that case, the petitioner changed business locations and paid rent on both the old and 
new locations for five months. There were large moving costs and also a period of time when the 
petitioner was unable to do regular business. The Regional Commissioner determined that the 
petitioner's prospects for a resumption of successful business operations were well established. As 
in Sonegawa, USCIS may, at its discretion, consider evidence relevant to the petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. USCIS may consider 
such factors as the number of years the petitioner has been doing business, the established historical 
growth of the petitioner's business, the overall number of employees, the occurrence of any 
uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, 
whether the beneficiary is replacing a former employee or ari outsourced service, or any other 
evidence that USC IS deems relevant to the petitioner's ability to pay the proffered wage. 
In this case, the Form 1-140 states that the Petitioner has been in business since 2007 and that it 
employs three workers. As stated above, the Petitioner has not provided its tax returns for 2008 and 
2010, preventing us from analyzing its ability to pay the proffered wage in those years. The 
Petitioner's 2009 tax return states net income of -$7,766.00 and net current assets of $3,991.00. The 
Petitioner has not provided evidence of its historical growth in its business. The Petitioner has not 
provided its tax returns for 2008 and 2010 to demonstrate its net income, net current assets or any 
business losses in these years. 
The Petitioner asserts that the bankruptcy of four retail supermarkets negatively impacted its 
business as a result of losing the "sizeable revenue" they brought to the Petitioner. The Petitioner 
has not demonstrated what percentage of its revenue came from these supermarkets for any of the 
5 
(b)(6)
Matter ofC-F-, Inc. 
years at issue in order to characterize the extent of this loss in revenue on its business. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
ofproofin these proceedings. Matter ofSofjici, 22 I&N Dec. 158, 165 (Comm'r 1998). 
The Petitioner states that unexpected weather conditions in 2008, 2009 and 2010 had an adverse 
impact on its ability to pay the Beneficiary's proffered wage. The Petitioner states that it 
experienced unforeseeable and severe cold fronts from 2008 to 2010 which brought unexpected 
snowfall that damaged many of the Petitioner's greenhouses. The Petitioner provided photographs 
of its greenhouses to demonstrate the damage, but it is unclear what damage was done and the 
photographs do not indicate what date they were taken. Further, the fact that the weather conditions 
affected the Petitioner's business for three consecutive years demonstrates that this is not an 
unexpected occurrence. The Petitioner states that it has moved its agricultural farming facilities to a 
new location at California and states that this region "sparsely 
encounters snowfall, even in its coldest seasons." An internet search of this location indicates that it 
is 15.1 miles north of the worksite stated on the labor certification at 
California.6 The proximity between these locations tends to cast doubt on the 
assertion that the weather in the new location is vastly different from the original location. 
In addition, the Petitioner highlights the fact that in Sonegawa the petitioner changed business 
locations and incurred temporary unexpected business expenses as a result. The Petitioner states that 
it similarly incurred temporary costs from having to move locations due to the adverse weather 
conditions of 2008, 2009 and 2010. Counsel for the Petitioner states, "In light of the difficulties 
posed by the unseasonably cold weather, to prevent similar environmental challenges, Petitioner has 
moved its agricultural farming facilities to a new locale at California." 
This tends to indicate that the Petitioner moved to the new location in due to the adverse 
weather of 2008 through 2010. However, the record contains a Farm Land Lease Contract for this 
property which states a lease period from July 19, 2008 to July 18, 2013, which includes the period 
of the alleged adverse weather in 2008, 2009 and 2010. This demonstrates that the Petitioner 
planned to move to this location before the adverse weather conditions occurred and that the 
Petitioner relocated before it sustained weather-related damages in 2009 and 2010. Therefore, 
unlike the petitioner in Sonegawa, the Petitioner has not demonstrated the existence of 
uncharacteristic business expenses or other pertinent factors to establish its ability to pay the 
proffered wage in the totality of the circumstances. 
6 
We note that the labor certification indicates that the primary worksite is located in California, but the 
Form 1-140 states that the Beneficiary will work in California. A labor certification for a specific job offer is 
valid only for the particular job opportunity and for the area of intended employment stated on the labor certification. 
20 C.F.R. § 656.30(C)(2). The record does not establish that and are in the same area of 
intended employment. In any future filings in this matter, the Petitioner must submit additional evidence that the labor 
certification remains valid for the geographic area of intended employment. See Matter of Sunoco Energy Dev. Co., 17 
l&N Dec.' 283, 284 (Reg'! Comm'r 1979) (affirming a petition's denial where a petitioner did not intend to employ a 
beneficiary at the geographical area of intended employment stated on an accompanying labor certification). 
6 
Matter ofC-F-, Inc. 
Further, the Form I-140 states that the Petitioner has three workers and USCIS ~ecords indicate that 
the Petitioner has sponsored another worker. A petitioner must demonstrate its continuing ability to 
pay the proffered wage of each spo~sored beneficiary. Therefore, the Petitioner must establish its 
continuing ability to pay the combined proffered wages of both the instant Beneficiary and the 
beneficiary of the other pending petition from the instant petition's priority date onward. See Matter 
of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977). The record does not document the 
priority date or proffered wage of the Petitioner's other petition or provide any evidence of wages paid 
to this other beneficiary. Thus, assessing the totality of the circumstances in this case, we conclude 
that the Petitioner has not established that it had the continuing ability to pay the proffered wage. 
C. The Bona Fides ofthe Job Opportunity and the Job Offer 
Although not mentioned by the Director, the record also does not demonstrate the bona fides of the 
Petitioner's job opportunity. 
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. § 656.10(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 of 
Modular 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)). 
We may deny a petition accompanied by a labor certification that violates DOL regulations. See 
Sunoco Energy, 17 I&N Dec. at 284 (affirming a petition's denial where the accompanying labor 
certification was invalid for the geographical area of intended employment). 
To provide an "opportunity to evaluate whether the job opportunity has been and is clearly open to 
qualified U.S. workers, an employer must disclose any familial relationship(s) between the foreign 
worker and the owners, stockholders, partners, corporate officers, and incorporators by marking 
'yes' to Question C.9 on the ETA Form 9089." DOL, Office of Foreign Labor Certification, "OFLC 
Frequently 
1 
Asked Questions & Answers," "Familial Relationships," at 
http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (accessed Sept. 13, 
1
20 16). "A familial 
relationship includes any relationship established by blood, marriage, or adoption, even if distant. 
It also includes relationships established through marriage, such as in-laws and step-families." !d. 
In determining the bona fides of a job opportunity, adjudicators must consider multiple factors, 
including but not limited to, whether a foreign national: is in a position to control or influence hiring 
decisions regarding the offered position; is related to corporate directors, officers, or employees; 
incorporated or founded the company; has an ownership interest in it; is involved in the management 
of the company; sits on its board of directors; is one of a small group of employees; and has 
qualifications matching specialized or unusual job duties or requirements stated in the labor 
certification. Modular Container, 1991 WL 223955 at *8; 20 C.F.R. § 656.17(1) (describing the 
documents required to establish the existence of a bona fide job opportunity). 
7 
Matter ofC-F-, Inc. 
Adjudicators must also consider whether a foreign national's pervasive presence and personal 
attributes would likely cause a petitioner to cease operations in the foreign national's absence and 
whether the employer complied with regulations and otherwise acted in good faith. !d. A 
beneficiary's familial relationship or employment within a small group of employees is an important 
factor in determining the bona .fides of a job opportunity. See 20 C.F.R. § 656.17(1)(5). 
1. The Beneficiary's Involvement in the Management ofthe Petitioner's Business 
The labor certification states the Petitioner employed the Beneficiary in the offered position of 
agricultural manager since May 19, 2008, shortly before the filing of the accompanying labor 
certification application on May 23, 2008. The job duties of the offered position involve managing 
"the day-to-day activities of the entire operations of the farm." The duties include: "[r]eview[ing] 
output goals, determin[ing] financial constraints, monitor[ing] production and. marketing, hir[ing], 
assign[ing] and supervis[ing] workers, determin[ing] crop storage and distribution requirements and 
oversee[ing] maintenance of property and equipment." 
USCIS records indicate that the Petitioner previously filed for the Beneficiary to fill the position of 
agricultural manager as an E-2 nonimmigrant under 8 C.F.R. 214.2(e)(3) before filing a Form 1-140 on 
his behalf. This regulation states that the beneficiary "may be classified as E-2 ... if the employee is in 
or is coming to the United States to engage in duties of an executive or supervisory character, or, if 
employed in a lesser capacity, the employee has special qualifications that make the alien's services 
essential to the efficient operation of the enterprise." As part of the petition to extend- the 
Beneficiary's E-2 status, the Petitioner submitted a letter, dated October 5, 2009, which states that 
theBeneficiary "will be responsible [for] hiring and training a U.S. worker to replace his position." 
A similar letter, dated March 21, 2012, states that the Beneficiary "will make crucial hiring, 
termination, assignment and supervisory decisions." These letters demonstrate that the Beneficiary 
is involved in the management ·of the company and the hiring of other workers, which demonstrates 
that he has control and influence over the recruitment process in the instant case. Further, the fact that 
the October 5, 2009, letter states that the Beneficiary will be responsible for hiring a U.S. ~orker to 
replace him calls into question whether the instant position offered is available to U.S. workers. The 
Beneficiary would not have any incentive to hire a U.S. worker to replace him when a Form 1-140 
petition has been filed on his behalf. Therefore, the Beneficiary's management position is one that 
influences hiring decisions within the Petitioner's business, which calls into question whether the 
position offered is a bona fide job offer. 
2. The Beneficiary Relationship to the Petitioner's President 
In the instant case, the Petitioner attested on the accompanying labor certification that "[t]he job 
opportunity has been and is clearly open to any qualified United States worker." Question C.9 on 
the ETA Form 9089 also asked: "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, incorporators, and the alien?" The 
Petitioner responded: "No." 
8 
(b)(6)
Matter ofC-F-, Inc. 
As noted above, the Beneficiary in this case is the son-in-law of the Petitioner's president and sole 
shareholder. The Petitioner submitted copies of family census registrations indicating the 
Beneficiary's marriage to the daughter of the Petitioner's president on 1997, more than 
11 years before the Pctiti~ner filed the accompanying labor certification application. At the time of 
the petition's priority date, the record therefore establishes a familial relationship between the 
Beneficiary and the Petitioner's president/shareholder. · 
The Petitioner asserts that the Beneficiary's son-in-law relationship to the Petitioner's 
president/shareholder does not constitute a "familial relationship." The Petitioner states that USCIS 
has "historically" treated in-laws differently than blood relatives, demonstrating that an in-law 
relationship "clearly holds less gravity and intimacy than that of ablood 'family relationship."' The 
Petitioner asserts that in-laws are ineligible to obtain immigrant visas on the basis of their 
relationships to U.S. citizens or lawful permanent residents. See sections 201(b)(2)(A)(i), 203(a) of 
the Act, 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a) (allotting immigrant visas to '"immediate relatives" 
and other relatives of U.S. citizens and lawful permanent residents based on family relationships). 
Contrary to the Petitioner's assertion, immigration laws do not always treat relationships based on 
marriage differently than blood relationships. The term "immediate relatives" includes spouses, who 
are related by marriage to U.S. citizens, as well as the children and parents of U.S. citizens. Section 
201(b)(2)(A)(i) of the Act. We also note that spouses of beneficiaries in the employment-based 
immigration process are eligible to apply for derivative immigrant visas. See section 203(d) of the 
Act. 
Moreover, the statutes cited by the Petitioner relate to the family-based immigrant visa preference 
system and do not define the term "familial relationship" for employment-based purposes. The DOL 
website has an F AQ answer specifying that a familial relationship means "any relationship 
established by blood, marriage, or adoption, even if distant" and that the term "includes relationships 
established through marriage, such as in-laws and step-families." See PERM Program, Familial 
Relationships, https:/ /www .foreignlaborcert.doleta. gov /faq sanswers.cfm#Perm _Program (accessed 
N"ovember 7, 2016). 
The DOL website indicates that the agency did not publish the F AQ answer on familial relationships 
until July 28, 2014, after the filing of this appeal. But we must apply the law as it exists at the time 
of adjudication. See, e.g., Matter of Alarcon , 20 I&N Dec. 557, 562 (BIA 1992) (citing Ziffrin, Inc. 
v. United States , 318 U.S. 73, 78 (1943)) (holding that a federal agency must follow a change in law 
during its proceedings because it cannot issue decisions contrary to existing legislation). 
The F AQ answer is not a statute or regulation. But we find it persuasive authority because it is 
consistent with earlier decisions of the Board of Alien Labor Certification Appeals (BALCA). See 
Matter of HealthAmerica, 2006-PER-000001, 2006 WL 5040202 **8-9 (BALCA July 18, 2006) (en 
bane), superseded by regulation on other grounds at 20 C.F.R. § 656.ll(b) , (stating that the 
persuasive authority of an F AQ answer depends in part on its consist~ncy with earlier or later 
pronouncements). 
9 
Matter ofC-F-, Inc. 
In several decisions, most of which predate this petition's priority date, BALCA has 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 
Marie Jean Fabroa, 2010-PER-01071, 2011 WL 5375174 *3 (BALCA Nov. 3, 2011) (finding a 
"familial relationship" between an employer and his sister-in-law indicated a non-bona fide job 
opportunity); Matter ofSunmart 374, 2000-INA-93, 2000 WL 707942 *3 (BALCA May 15, 2000) 
(stating that a suspect relationship between an employer and a foreign national "is not only of the 
blood; it may also be financial, by marriage, or through friendship"); Matter ofTopco 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 of Altobelli'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 sister-in-law, the 
employer's corporate secretary, constituted a "family relationship"). 
Based on DOL guidance and BALCA case law, the record indicates that the Beneficiary has ~ 
familial relationship with the Petitioner's president/shareholder, as well as with the Petitioner's other 
regular full-time employee. The Petitioner's assertions that an in-law relationship "lacks the 
intimacy of a blood familial relationship" and that the "instant bond [between the Beneficiary and 
the Petitioner's president/shareholder] should/not qualify as a familial relationship" do not overcome 
current DOL policy and case law. We conclude that the Beneficiary's in-law relationship constitutes 
a family relationship to be considered toward whether there is a bonafide job offer. 
3. The Beneficiary is Part of a Small Group of Employees 
The Form I-140 states that the Petitioner employs "[a]ppr[oximately]" three people. USCIS records 
contain copies of Forms W-2 and payroll tax records from 2008, 2009, 2010, 2012, and 2013 
indicating the Petitioner's typical employment of the 2 to 4 people during those years. The record 
therefore identifies the Beneficiary as part of a small group of employees. 
Accordingly, the record reflects that the Beneficiary is in a managerial role with control over hiring 
decisions within the Petitioner's business, there is a familial relationship between the Petitioner's 
principal and the Beneficiary, and the Petitioner as a closely held corporation with a small number of 
employees. Therefore, after careful consideration of the Modular Container factors and the facts of 
this case, the record does not establish the existence of a bona fide job opportunity that was available 
to U.S. workers. Accordingly, the petition must also be denied for this reason. 
The Petitioner notes that a familial relationship between an employer and a foreign national does not 
preclude a bona fide job opportunity. See, e.g., Matter of Paris Bakery Corp., 88-INA-337, 1990 
WL 1232931, *3 (BALCA Jan. 4, 1990). However, application ofthe Modular Container factors to 
the instant case indicates anon-bonafide job opportunity. Besides the familial relationship, we have 
considered multiple factors that, taken as a whole, indicate that the job opportunity was not clearly 
open to U.S. workers. 
10 
(b)(6)
Matter ofC-F-, Inc. 
In response to our RFE, counsel asserts that no U.S. workers applied for the offered position during 
the labor certification process. But counsel's assertion does not constitute evidence. See INS v. 
Phinpathya, 464 U.S. 183, 188 n.6 (1984) (noting that counsel's unsupported assertions do not 
establish facts of record). Unlike in Paris Bakery, the record does not include documentation 
supporting the Petitioner's claim that no U.S. workers applied for the job opportunity. See Paris 
Bakery, 1990 WL 1232931 at **1-2. 
D. The Beneficiary's Qualifications 
In addition to the decision reached by the Director, the Petitioner has also not established that the 
Beneficiary is qualified for the offered position. A petitioner must establish that the beneficiary 
possessed all the education, training, and experience specified on the labor certification as of the 
priority date. See Matter ofWing's Tea House, 16 I&l'f Dec. 158, 159 (Acting Reg'l Comm'r 1977); 
see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In evaluating the 
beneficiary's qualifications, USCIS must look to the job offer portion of the labor certification to 
determine the required qualifications for the position. 
In this case, the labor certification states that the offered position requires 24 months of experience 
in the position offered as an agricultural manager. On the labor certification, the Beneficiary claims to 
qualifY for the offered position based on experience in the following positions: 
• As an agricultural manager for the Petitioner beginning on May 19, 2008. 
• As an agricultural manager for m South Korea from March 1, 1995 
until January 31,2007. 
The Beneficiary's claimed qualifYing experience must be supported by letters from employers giving 
the name, address, and title of the employer, and a description of the beneficiary's experience. See 
8 C.F.R. § 204.5(1)(3)(ii)(A). 
The record contains two letters from the president of of 
South Korea, one of which states that the Beneficiary worked at a special 
crop growing facility from March 1999 until May 2007 and the other states that he has been 
a registered 
member of the organic growers association since March 2000. However these letters do not provide a 
description of the Beneficiary's job duties and do not reflect that he gained any experience as an 
agricultural manager. These letters also do not indicate the name of the farm where the Beneficiary 
worked. The labor certification states that the Beneficiary worked as an agricultural manager for 
from March 1, 1995 until January 31, 2007, which appears to be a different empfoyer than the 
farm referenced in these letters.· Therefore, these letters do not establish the Beneficiary's experience 
7 
English translations stating · 
Korea. 
apparently refer to 
11 
a city about 16 miles from South 
(b)(6)
Matter ofC-F- , Inc. 
because they are not from an employer and do not provide a description of the beneficiary's experience 
as required by 8 C.F.R. § 204.5(1)(3)(ii)(A). 
The record also contains the following letters: 
• A letter from the president of the in 
South Korea, which states that the Beneficiary has been working in the development 
of special crops since 2000. 
• A letter from the CEO of the of m 
South Korea, which states that the Beneficiary has been a registered member of the 
organic growers association since March 2000. 
• A letter from the president of the in 
South Korea, stating that the Beneficiary was a member of this organization 
from 2002 until May 2007. 
These letters are not from the Beneficiary's employers and do not explain how these individuals have 
direct, personal knowledge of the Beneficiary's experience. These letters also do not provide a 
description ofhis employment experience or state what his membership in these organizations entails to 
meet the requirements of 8 C.F.R. § 204.5(1)(3)(ii)(A). None of these letters indicate that he gained 
experience as an agricultural manager. The record does not contain an experience letter from 
in South Korea, which the labor certification states is one of the Beneficiary's former 
employers. The labor certification only lists and the Petitioner as former employers in Part 
K of the labor certification regarding relevant employment experience. Therefore, the Petitioner has not 
met the regulatory requirements of submitting an experience letter from the Beneficiary's former 
employers. 
The evidence in the record does not establish that the Beneficiary possessed the required experience 
set forth on the labor certification by the priority date. Therefore, the Petitioner has not established 
that the Beneficiary is qualified for the offered position. 
III. CONCLUSION 
In summary, the record does not establish that the Petitioner had the continuing ability to pay the 
Beneficiary's proffered wage, and the Director's decision is affirmed. Apart from the Director's 
decision, we also conclude that the Petitioner has not established that a bona fide job offer exists and 
that the Beneficiary meets the qualifications of the instant petition. 
The petition will be denied for the reasons stated above. In visa petition proceedings, the petitioner 
bears the burden of proving eligibility for the benefit sought. Section 291 of the Act, '8 U.S.C. 
§ 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
12 
Matter ofC-F-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-F-, Inc., ID# 213996 (AAO Nov. 10, 2016) 
13