dismissed EB-3 Case: Agriculture

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-F-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 4, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a fruit and vegetable farm, seeks to permanently employ the 
Beneficiary as an agricultural manager. It requests classification of the Beneficiary as a skilled 
worker under the third preference immigrant category. See Immigration and Nationality Act (the 
Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). This category allows a U.S. employer to 
sponsor a foreign national with at least 2 years of training· or experience for lawful permanent 
resident status. 
On August 20, 2011, the Director, Nebraska Service Center, denied the petition. The Director 
concluded that the record did not establish the Petitioner's continuing ability to pay the proffered 
wage from the petition's priority date onward. 
The matter is now before us on de novo, appellate rev.iew. 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 
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 ofthe Act, 8 U.S.C. § 1255. 
1 Beginning on February 1, 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. 
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)(II). 
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"). 
B. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must demonstrate its ability to pay a proffered wage from a petition's priority date until 
a beneficiary obtains lawful permanent residence. 8 C.P.R. § 204.5(g)(2). Evidence of ability to pay 
must include copies of annual reports, federal tax returns, or audited financial statements. !d. 
In the instant case, the accompanying labor certification states the proffered wage of the offered 
position of agricultural manager as $21.47 perj hour, or $44,657.60 per year for a 40-hour work 
week. The petition's priority date is May 22, 2008, the date the DOL accepted the accompanying 
labor certification application for processing. See 8 C.P.R. § 204.5(d). . 
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)_2 
In the instant case, the record contains copies of IRS Forms W-2, Wage and Tax Statements, 
indicating the Petitioner's annual payments of $30,000 to the Beneficiary from 2008 through 2010. 
The amount on each Form W-2 does not equal or exceed the annual proffered wage of $44,657.60. 
The record therefore does not demonstrate the Petitioner's ability to pay the proffered wage based on 
the wages it paid the Beneficiary. 
2 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 (1st Cir. 2009); Estrada-Hernandez v. Holder, 108 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. 2014), aff'd, 627 Fed. App'x. 
292 (5th Cir. 2015). 
2 
Matter ofC-F-, Inc. 
But we credit the wages paid to the Beneficiary. The Petitioner therefore need only demonstrate an 
ability to pay the differences between the annual proffered wage and the amounts it paid the 
Beneficiary from 2008 through 2010, or $14,657.60 per year. 
The record before the Director closed on March 29, 2011, with her receipt of the Petitioner's 
response to her request for evidence. The Petitioner's response did not include copies of its annual 
report, federal tax return, or audited financial statements for 2010. 
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 
http://www.irs.gov/publications/p509/ ar02.html (accessed Sept. 13, 2016). The record indicates that 
the Petitioner's fiscal year is a calendar year. Therefore, the Petitioner's 2010 federal income tax 
return was due on March 15; 2011, before the March 29, 2011, RFE response deadline. The record 
on appeal does not contain a copy of the Petitioner's 2010 federal tax return, other acceptable 
evidence of its ability to pay that year, or an explanation of the omission. 
The unexplained absence of required evidence of the Petitioner's ability to pay warrants the appeal's 
dismissal. But even if we excused the omission of required evidence for 2010, the record does not 
establish the Petitioner's ability to pay in 2008 or 2009. 
The Petitioner's tax returns reflect annual net income amounts of -$27,142 in 2008 and -$7766 in 
2009. The annual net income amounts do not equal or exceed the $14,657.60 differences between 
the annual proffered wage and the amounts paid to the Beneficiary in 2008 and 2009. The record 
therefore does not demonstrate the Petitioner's ability to pay the proffered wage based on net 
mcome. 
The Petitioner's tax returns reflect year-end, net current asset amounts of -$4560 in 2008 and $3991 
in 2009. The annual net current asset amounts do not equal or exceed the $14,657.60 differences 
between the annual proffered wage and the amounts paid to the Beneficiary in 2008 and 2009. The 
record therefore does not demonstrate the Petitioner's possession of sufficient net current assets to 
pay the proffered wage. 
Thus, based on examinations of the wages the Petitioner paid the Beneficiary, its net income, and its 
net current assets, the record does not establish its continuing ability to pay the Beneficiary the 
proffered wage from the petition's priority date onward. 
The Petitioner notes that it need only demonstrate an ability to pay the proffered wage from the 
petition's priority date of May 22, 2008. See 8 C.F.R. § 204.5(g)(2). Thus, the Petitioner asserts that it 
need only show an ability to pay the "pro-rated" portion of the 2008 proffered wage that accrued after 
May 22, or $27,283.96. Because a Form W-2 indicates the Petitioner's payment to the Beneficiary in 
2008 of $30,000, the Petitioner asserts that the record demonstrates its ability to pay the Beneficiary the 
proffered wage that year. 
3 
Matter ofC-F-, Inc. 
But we will prorate a proffered wage only if the record contains evidence of net income or wage 
payments occurring after a priority date during a given year. The instant record does not contain 
evidence that, after the May 22 priority date, the Petitioner earned sufficient net income or paid the 
Beneficiary sufficient wages in 2008. Instead, the Petitioner appears to inequitably rely on 12 
months of pay to the Beneficiary, as reflected on the 2008 Form W-2, to demonstrate its ability to 
pay only about 7 months of wages. The Petitioner therefore has not demonstrated its ability to pay 
the prorated proffered wage for 2008. I 
The Petitioner also asserts that its compensation to the Beneficiary includes not only annual wages 
of $30,000, but also room and board on its premises for the Beneficiary and his family. The 
Petitioner "conservatively" estimates the annual value of the Beneficiary's room and board as 
$18,000. Thus, the Petitioner asserts that the Beneficiary actually receives total annual 
compensation of at least $48,000, exceeding the annual proffered wage of $44,657.60. 
The record does not demonstrate the Petitioner's purported provision of room and board to the 
Beneficiary and his family. The Petitioner submitted a copy of a 2011 telephone bill to the 
Beneficiary at the Petitioner's address. But the 2011 bill is insufficient to establish the residence of 
the Beneficiary and his family on the Petitioner's premises in 2008, 2009, or 2010. 
Also, on Forms I-129, Petitions for Nonimmigrant Workers, that the Petitioner filed with USCIS on 
the Beneficiary's behalf in 2009, 2011, and 2013, the company did not declare any "[o]ther 
compensation" provided to the Beneficiary beyond wages. A petitioner bears the burden of 
establishing eligibility for a requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. The instant 
Petitioner must therefore explain its inconsistent statements regarding the Beneficiary's 
compensation. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to 
resolve inconsistencies of record by independent, objective evidence pointing to where the truth 
lies). 
In addition, the record does not indicate that the Petitioner offered residence on its premises to 
potential U.S. applicants for the offered position. See 20 C.F.R. §§ 656.17(£)(4), (7) (requiring labor 
certification advertisements to apprise applicants of the geograph.ic areas where they will likely need 
to reside to work in the offered position and barring ads from containing terms and conditions of 
employment that are less favorable than those offered to a foreign national). 
The record lacks copies of recruitment ads placed for the offered position. But prevailing wage and 
other information on the accompanying labor certification indicate that the offered position's 
compensation does not include room and board. See 20 C.F.R. §§ 656.10(c)(l), (2) (requiring labor 
certification employers to attest that a foreignnational's wages will equal or exceed the prevailing 
wage rate and that the proffered wage is not based on commissions, bonuses, or other incentives, 
unless the employer guarantees a wage paid on a weekly, biweekly, or monthly basis that equals or 
exceeds the prevailing wage); see also Matter of Kids 'R' Us, 90-INA-20, 1991 WL 120095 *4 
(BALCA Jan. 28, 1991) (en bane) (holding that a labor certification employer bears "a heavy 
burden" when it seeks to demonstrate the values of fringe benefits). Therefore, the record does not 
establish: the existence or value of the Petitioner's claimed room-and-board compensation to the 
4 
(b)(6)
Matter ofC-F-, Inc. 
I 
Beneficiary; or that, pursuant to DOL regulations, the Petitioner offered the same on-site residence 
option to U.S. applicants. The record therefore does not establish the Petitioner's provision of 
additional compensation to the Beneficiary in 2008, 2009, or 2010. 
As previously indicated, we may consider a petitioner's ability to pay a proffered wage beyond its net 
income and net current assets. Sonegawa, 12 I&N Dec. at 614-15. As in Sonegawa, we may 
consider evidence of: the number of years a petitioner has conducted business; the growth of its 
business; its number of employees; the occurrence of any uncharacteristic business expenditures or 
losses; its reputation in its industry; whether a beneficiary will replace a current employee or 
outsourced service; or other evidence of its ability to pay the proffered wage. 
In the instant case, the record indicates the Petitioner's continuous business operations since 2007. 
For most of that time, the record indicates the Petitioner's employment of three people. Its federal 
tax returns show a decline in revenues from 2008 to 2009. Thus, the record indicates that the 
Petitioner has not conducted business for as long as the petitioner in Sonegawa, nor has it established 
growth of its business. 
Like the petitioner in Sonegawa, the instant Petitioner asserts that it experienced uncharacteristic 
business losses. But unlike in Sonegawa, the record does not support the instant Petitioner's claims. 
The Petitioner asserts its loss of"a sizeable revenue stream" in 2009 and 201 0 from four customers 
who were forced out of business by "harrowing economic conditions." But the Petitioner submitted 
copies of 2008 payments from these purportedly significant customers that totaled only $8863, a 
small fraction of the $380,245 in revenues it reported on that year's tax return. 
In addition, the Petitioner states that "unforeseeable and severe cold fronts?' in 2009 and 2010 caused 
"voluminous" snowfall that damaged its greenhouses and crops, and "crippled" its operations. The 
Petitioner states that it moved its operations to avoid future weather-related damages.3 The Petitioner 
sul?mits photographs of snow that purportedly fell at its farm and documentary evidence of the 
Petitioner's relocation. 
3 The accompanying labor certification states the area of intended employment as California. The Form 
1-140, Petition for Alien Worker, states that the Beneficiary will work in California:. The record also contains 
copies of bills and a July 18, 2008, lease, indicating the Petitioner's relocation of its farm to after filing the 
labor certification. and are not located within the same Metropolitan Statistical Area (MSA). 
See DOL, Foreign Labor Certification Data Center, at http://www.flcdatacenter.com/ OesWizardStep2.aspx?.stateName 
=California (accessed Sept. 13, 2016); 20 C.F.R. § 656.3(stating that any place within an MSA is deemed to be within 
the same area of intended employment). The record therefore 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 I&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 
Cf(rtification). 
5 
(b)(6)
Matter ofC-F-, Inc. 
The record does not support the Petitioner's claim that it moved to its current address to avoid future 
weather-related damage. A copy of a lease for the new location states an effective date of July 19, 
4008.4 The lease's effective date suggests that the Petitioner relocated before it sustained weather­
related damages in 2009 and 2010. 
In addition, the Petitioner did not date or describe the snow photographs, casting doubt on whether 
they support the Petitioner's assertion of uncharacteristic business losses. The record also does not 
explain how the snow damaged the Petitioner's operations. Thus, the record does not sufficiently 
support the Petitioner's assertion of uncharacteristic business losses in 2009 and 2010. 
Further, unlike the petitioner in Sonegawa, USCIS records indicate that the instant Petitioner filed an 
immigrant visa petition for another beneficiary while the instant petition was pending. 5 Pursuant to 
8 C.F.R. § 204.5(g)(2), a petitioner must demonstrate its continuing ability to pay the proffered wage 
of each petition filed from the petition's priority date. Therefore, the instant Petitioner must establish 
its continuing ability to pay the combined proffered wages of both the instant Beneficiary and the 
beneficiary of the later petition that remained pending after the instant petition's priority date. See Patel 
v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our denial of a petition where a 
petitioner did not demonstrate its ability to pay the proffered wages of multiple pending beneficiaries). 
The record does not document the priority date or proffered wage of the Petitioner's other petition, or 
whether the Petitioner paid wages to the other beneficiary. The record also does not indicate whether 
the other petition was withdrawn, revoked, or denied, or whether the other beneficiary obtained lawful 
permanent residence. The record therefore does not establish the Petitioner's continuing ability to pay 
the combined proffered wages of both the instant Beneficiary and the beneficiary of the other petition: 
Unlike in Sonegawa, the totality of the circumstances in the instant case does not establish the 
Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. 
We will therefore affirm the Director's decision and dismiss the appeal. 
C. The Bona Fides of the 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 
4 The address of the new location on th~ lease and utility bills shares the same street name as the Petitioner's address on 
the Form 1-140. But the Petitioner's address on the Form I-140 contains a different lot or "house" number than the 
addresses on the lease and utility bills. The record does not explain the discrepancy. 
5 USCIS records identify the other petition by the following receipt number: 
6 
Matter ofC-F-, Inc. 
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 Asked Questions & Answers," · "Familial Relationships," at 
http:/ /www.foreignlaborcert.doleta.gov/faqsanswers.cfm (accessed Sept. 13, 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 bonafide job opportunity). 
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). 
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." 
Despite its negative response to Question C.9 on the ETA Form 9089, the appellate record indicates 
a familial relationship between the Beneficiary and the Petitioner's president/sole shareholder.6 In 
6 USCIS records contain copies of the Petitioner's articles of incorporation and a stock certificate. These documents 
indicate that the petitioning corporation is authorized to issue up to I ,000,000 shares of stock and that its president 
(b)(6)
Matter ofC-F-, Inc. 
response to our October 25, 2012, request for evidence (RFE), the Petitioner disclosed that the 
Beneficiary inhe son-in-law of its president/shareholder. The Petitioner submitted copies of family 
census registrations indicating the Beneficiary's marriage to the daughter of the Petitioner's 
president on 2001, more than 6 years before the Petitioner 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 Form 1-140 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, and 2012, indicating 
the Petitioner's typical employment of the following three people during those years: its 
president/shareholder; the Beneficiary; and the Beneficiary's brother-in-law, the spouse of another 
daughter of the Petitioner's president/shareholder. 7 The record therefore identifies the Beneficiary 
as part of a small group of employees. 
The record also indicates the Beneficiary's involvement in the Petitioner's management. The 
accompanying labor certification states the Beneficiary's employment by the Petitioner in the 
offered position of agricultural manager since October 1, 2007, shortly after the Petitioner's 
incorporation in April 2007 and before the filing of the accompanying labor certification application 
in May 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. " 
Also, USCIS records contain a September 24, 2009, letter submitted by the Petitioner in support of 
the extension of the Beneficiary's E-2 nonimmigrant visa status. The letter states the Petitioner's 
employment of the Beneficiary "[i]n a top managerial role." The letter states that he participates in 
quarterly "strategy" meetings with the Petitioner's president, and that he "will make crucial hiring, 
termination, assignment and supervisory decisions." Thus, the record indicates the Beneficiary's 
involvement in the Petitioner's management, including the hiring of its employees. 
In addition, by petitioning for E-2 nonimmigrant visa status for the Beneficiary, the Petitioner 
represented his services as "essential to the efficient operation of the enterprise." 8 C.F.R. §§ 
214.2(e)(13), (18). Thus, the record suggests that the Beneficiary's absence could cause the 
Petitioner to cease operations. See Modular Container, 1991 WL 223955 at *8. 
received 200,000 shares after its incorporation in April2007. The copies ofthe Petitioner's federal tax returns of record 
identify the president as the corporation's sole shareholder . 
7 During parts of 2008 and 2009, USCIS records also indicate that the Petitioner employed the spouse of its 
president/shareholder. In addition, on a Form G-325A, Biographic Information , that she submitted in 2015 with her 
application for adjustment of status, the Beneficiary's spouse stated her employment by the Petitioner as "staff ' since 
June 2014. ~ 
8 
Matter ofC-F-, Inc. 
Thus, the record indicates that the Beneficiary has a familial relationship with the Petitioner's 
president/shareholder; is a part of a small group of employees, is involved in the Petitioner's 
management, and is an essential employee of the company. Therefore, based on DOL guidance and 
the Modular Container factors, the record does not establish the bona fides of the job opportunity. 
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 a blood 'family relationship."' The 
Petitioner asserts that in-laws are ineligible to obtain immigrant visas on the basis of their 
rehitionships 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. As 
previously indicated, the F AQ answer on the DOL website specifies 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." 
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.P.R. § 656.11(b), (stating that the 
persuasive authority of an F AQ answer depends in part on its consistency with earlier or later 
pronouncements). 
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 
9 
Matter ofC-F-, Inc. 
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 ofthe 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"). 
I 
Based on DOL guidance and BALCA case law, the record indicates that the Beneficiary has a 
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 therefore reject the Petitioner's assertion. 
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). As previously discussed, however, application of the 
Modular Container factors to the instant case indicates a non-bona.fide 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. 
In addition to the familial relationship between the Petitioner's principal and the Beneficiary, the 
record identifies the Petitioner as a closely held corporation with a small number of employees. 
The record also indicates that the Beneficiary's brother-in-law is a managerial employee of the 
Petitioner. Further, the record indicates the Beneficiary's management of the Petitioner's day-to-day 
operations, including its hiring of employees, and identifies him as an essential employee. 
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. 
Based on careful consideration of the Modular Container factors and the facts of the instant case, the 
record does not establish the existence of a bonafide job opportunity. We will therefore also dismiss 
the appeal on this basis. 
10 
Matter ojC-F-, Inc. 
We further note that the record does riot establish the Petitioner's intention to employ the 
Beneficiary in the offered position. 
A labor certification remains valid only for the particular job opportunity, the foreign national, and 
the geographical area of intended employment specified on it. 20 C.F.R. § 656.30( c )(2). A petitioner 
must establish its intention to employ a beneficiary pursuant to the terms of an accompanying labor 
certification. Matter of Izdebska, 12 I&N Dec. 54, 54 (Reg'l Comm'r 1966) (affirming a petition denial 
where a petitioner did not intend to employ a beneficiary as a live-in domestic worker as specified on an 
accompanying labor certification). 
In the instant case, the Petitioner seeks to permanently employ the Beneficiary as an agricultural 
manager. As previously indicated, the labor certification states that the job duties of the offered 
position involve managing "the day-to-day activities of the entire operations of the farm." The job 
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." 
The record does not establish the Petitioner's intention to employ the Beneficiary in the offered 
position of agricultural manager. The Petitioner's Form 1-140 and USCIS records contain copies of 
the Petitioner's Forms W-2 and payroll tax records from 2008, 2009, 2010, and 2012. For most of 
these years, the documents indicate the Petitioner's employment of three people: its 
president/shareholder; the Beneficiary; and the Beneficiary's brother-in-law, who like the 
Beneficiary reportedly worked in the offered position of agricultural manager. 
The record identifies the Petitioner's only non-managerial employees as the spouses of its 
president/shareholder and the Beneficiary. The record indicates the Petitioner's employment of the 
spouse of its president/shareholder in in 2008 and 2009, and of the Beneficiary's spouse since June 
2014. 
The job duties of the offered position include hiring, assigning, and supervising workers. But the 
record indicates that the Petitioner has not hired any workers outside of the family of its 
president/shareholder and Beneficiary. The record also indicates that the Petitioner has not 
continually employed non-managerial workers who require assignment and supervision. 
In addition, the record indicates the Petitioner's employment of a president/shareholder and two 
agricultural managers. The record does not indicate that the Petitioner has enough employees or 
business to warrant the employment of three managers. 
For the foregoing reasons, the record does not establish the Petitioner's intention to employ the 
Beneficiary in the offered position specified on the labor certification. 
D. The Beneficiary's Possession of the Required Experience 
Also not discussed by the Director, the record does not establish the Beneficiary's possession of the 
required experience for the offered position of agricultural manager. 
1 1 
(b)(6)
Matter ofC-F- , Inc. 
A petitioner must establish a Beneficiary's possession of all the education, training, and experience 
specified on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 
103.2(b)(l), (12); see also Matter of Wing 's T ea House, 16 I&N Dec. 158, 159 (Acting Reg' l 
Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
In evaluating a beneficiary 's qualifications , we must examine the job offer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position . 
We may neither ignore a term of the labor certification, nor impose additional requirements. See 
K.R.K Irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 
1008, 1012-13 (D.C. Cir. 1983); Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 
1 (1st Cir. 1981). 
In the instant case, the accompanying labor certification states the minimum requirements of the 
offered position of agricultural manager as 24 months of experience in the job offered. As 
previously indicated, 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." 
The Beneficiary attested on the labor certification to about 68 months of full-time qualifYing 
experience. The Beneficiary stated his employment as an agricultural manager by m 
South Korea from January 20, 2000 to September 30, 2005. 
' 
A petitioner must support a beneficiary?s claimed qualifYing experience with a letter from an employer. 
8 C.F.R. § 204.5(1)(3)(ii)(A). A letter must provide the name, address, and title of an employer, and 
describe a beneficiary's experience. !d. 
In support of the Beneficiary's qualifYing experience, the Petitioner submitted copies of four undated 
letters from purported presidents of farming associations. The president of a branch of the 
purportedly signed two of the letters. One letter states that the 
Beneficiary "has been farming specialty plants for 5 years at the The other letter 
states that the Beneficiary "has been a member of the of the 
for 5 years." 
The president of the 
Beneficiary's involvement in farming in 
the Beneficiary's experience as including 
marketing, and supply of "tree fruits." 
purportedly signed another letter stating the 
from 1999 to 2005.8 The letter also describes 
pesticide application, selection, packaging, cooperative 
8 English translation s stating 
Korea. 
apparently refer to a city about 16 miles from South 
12 
(b)(6)
Matter ofC-F- , Inc. 
The president of the purportedly signed the final 
letter, which states the Beneficiary's membership in the association 
from 2001 to 2006. 
Two of the farming association letters identify the Beneficiary as a farmer. But none of the letters 
demonstrate the Beneficiary's experience in the offered position, which involves management duties. 
One letter describes the Beneficiary's experience. But the experience did not include most of the job 
duties of the offered position. Specifically, the letter does not state the Beneficiary's experience in: 
reviewing output goals; determining financial constraints; monitoring production; hiring, assigning and 
supervising workers; determining crop storage; and overseeing maintenance of property and equipment. 
The record therefore does not establish the Beneficiary's claimed qualifying experience in the job 
offered. 
Also, the Beneficiary stated the location of on the labor certification as the city of ' 
in the ' province of South Korea. 'J But two of the farming association letters state 
that the Beneficiary farmed during an overlapping time period in ' The inconsistencies 
in the locations of the Beneficiary's purported farming activities in South Korea cast doubt on his 
claimed qualifying experience for the offered position. See Ho, 19 I&N Dec. at 591 (stating that doubt 
cast on any aspect of a petitioner's proof may lead to reevaluation of the reliability and sufficiency of 
the remaining evidence in support of a petition). 
In a later petition, USCIS records indicate that another petitioner submitted a January 5, 2008, "career 
certificate" from a vice president of on behalf of the Beneficiary. The certificate states 
that the farm employed the Beneficiary as a special crop agricultural manager from January 20, 2000 to 
September 30, 2005 and that his duties included "[m]anag[ing] the day-to-day activities of the entire 
operations of the farm." 
The certificate submitted with the later petition, however, does not establish the Beneficiary's claimed 
qualifying experience. Because the certificate is not on stationery, the record lacks 
evidence of the signatory's affiliation with the farm or his personal knowledge of the Beneficiary's 
experience. Also, neither the certificate nor other evidence supporting the later petition explains the 
inconsistencies of record regarding the location of the Beneficiary's qualifYing experience in South 
Korea. 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the required 
experience for the offered position as specified on accompanying labor certification by the petition ' s 
priority date. 
9 The labor certification's identification of · as the Beneficiary 's former city of employment apparently refers 
to a city located in South Korea. is pronounced similarly to ' · the 
Beneficiary's stated province of prior employment on the labor certification . 
13 
Matter ofC-F-, Inc. 
II. CONCUJSION 
The record does not establish the Petitioner's continuing ability to pay the proffered wage from the 
petition's priority date onward. We will therefore affirm the Director's decision and dismiss the 
appeal. The record also does not establish the Beneficiary's possession of the required experience 
for the offered position, or the bona fides of the job opportunity and the job offer. 
The petition will remain denied for the reasons stated above, with each considered an independent 
and alternate basis of denial. In visa petition proceedings, a petitioner bears the burden of proving 
eligibility for a benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, the instant Petitioner did not meet that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-F-, Inc., ID# 213985 (AAO Nov. 4, 2016) 
14