dismissed EB-3 Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 11198696 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 12, 2022 
The Petitioner seeks to employ the Beneficiary as a store manager. It requests classification of the 
Beneficiary under the third-preference, immigrant category as a skilled worker. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U .S.C. § 1153(b)(3)(A)(i) . This employment­
based category allows a U.S. business to sponsor a foreign national for lawful permanent resident 
status based on a job offer requiring at least two years of training or experience. 
After initially approving the petition, the Director of the Texas Service Center revoked the approval. 
The Director found that the Petitioner did not establish that it had the continuing ability to pay the 
proffered wage in accordance with the requirements in 8 C.F.R. § 204 .5(g)(2), that the Beneficiary 
possessed the required two years of experience for the offered position, and that the job offer was bona 
fide. The Director dismissed two subsequent motions to reopen and reconsider filed by the Beneficiary. 
At the time the appeal was filed the Petitioner no longer existed as a legal entity with standing to file 
an appeal. See 8 C.F.R . § 103 .3(a)(l)(iii)(B). The matter is now before us on the Beneficiary 's appeal. 
In these proceedings, it is the Appellant's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361 ;MatterofChawathe, 25 I&N 
Dec. 369,375 (AAO 2010) . The Administrative Appeals Office (AAO) reviews the questions in this 
matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537n .2 (AAO 2015). Upon de nova 
review, we will dismiss the appeal. 
I. BENEFICIARY AS AN AFFECTED PARTY 
Beneficiaries generally cannot file appeals or motions in visa petition proceedings. See 8 C.F.R. § 
103 .3(a)(l )(iii)(B)( excluding a beneficiary of a visa petition as an "affected party"). U. S. Citizenship 
and Immigration Services (USCIS), however, treats beneficiaries as affected parties if they are eligible 
to "port"undersection 204(j) of the Act, 8 U.S.C. § 1154(j), and properly request to do so. See Matter 
of V-S-G- Inc ., Adopted Decision 2017-06, * 14 (AAO Nov. 11, 2017). "A beneficiary's request to 
port is 'proper' when USCIS has evaluated the request and determined that the beneficiary is indeed 
eligible to port prior to the issuance of a NOIR [notice of intent to revoke] or NOR [notice of 
revocation]." USCIS Policy Memorandum PM 602-0152, Guidance on Notice to, and Standing for, 
AC 21 Beneficiaries about 1-140 Approvals Being Revoked After Matter of V-S-G- Inc. 5 (Nov. 11, 
2017), https://www.uscis.gov /legal-resources /policy-memoranda. Thus, a beneficiary becomes an 
"affected party" with legal standing in a revocation proceeding when USCIS makes a favorable 
determination that the beneficiary is eligible to port. Id. 
II. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker , a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(aX5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position , an employer must next submit the certified labor application with an 
immigrant visa petition to USCIS. See section 204 of the Act, 8 U.S.C. § 1154. Among other things,  
USCIS considers whether a beneficiary meets the requirements of a certified position and a requested 
immigrant visa classification. If USCIS approves the petition, a foreign national may finally apply for 
an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of 
the Act, 8 U.S.C. § 1255. 
At any time before a beneficiary obtains lawful permanent residence, however , USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by the record, a petition's erroneous approval may justify its revocation. Matter of Ho, 
19 I&NDec . 582,590 (BIA 1988). 
USCIS must give the petitioner notice of its intent to revoke the prior approval of the petition and the 
opportunity to submit evidence in opposition thereto, before proceeding with written notice of 
revocation. 1 See 8 C.F.R. § 205.2(b) and (c). A NOIR "is not properly issued unless there is 'good 
and sufficient cause' and the notice includes a specific statement not only of the facts underlying the 
proposed action, but also of the supporting evidence ." Matter ofEstime, 19 I&N Dec . 450,451 (BIA 
1987). Per Matter ofEstime, "[i]n determining what is 'good and sufficient cause' for the issuance of 
a notice of intention to revoke, we ask whether the evidence ofrecord at the time the notice was issued, 
if unexplained and unrebutted, would have warranted a denial based on the petitioner's failure to meet 
his or her burden of proof." Id. 
In this case, the accompanying labor certification was filed on January 16, 2006. 2 The petition was 
initially filed on March 27, 2006, and approved on March 31 , 2006. The Beneficiary filed Form 1-
485 , Application to Register Permanent Residence or Adjust Status, on August 24, 2007. The record 
demonstrates that the Beneficiary was employed with the Petitioner until the end of 2007, and that the 
Petitioner's business was terminated on July 24, 2009. The Beneficiary filed Form I-
1 USeIS will also send a NOIR or NOR to the beneficiary of a petition if: (A) the beneficiary has filed a Form r-485 with 
users that has been pending for 180 days or more; and (B) the beneficiary is otherwise eligible to port and has properly 
requested to port. users Policy Memorandum PM 602-0152,supra , at 5. 
2 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 e .F.R . 
§ 204 .5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date . 
2 
485 Supplement J, Request for Job Portability Under INA Section 204(j), which was approved on July 
31, 2018. 3 The Form 1-485 Supplement J stated that the Beneficiary requested job portability to a new 
employer in the position of store manager. 4 
The Director's NOIR is dated July 29, 2019 and was mailed to the Petitioner and to counsel. Although 
the Petitioner's business was terminated on July 24, 2009, the Beneficiary appears to have received 
notice of the revocation proceedings through their mutual counsel and only the Beneficiary, through 
counsel , provided a response to the NOIR. While the Beneficiary has filed the two motions and the 
appeal, it appears that representatives of the former Petitioner have actively assisted the Beneficiary 
and his counsel in obtaining some of the requested evidence, including the Petitioner's tax returns, tax 
transcripts and the Petitioner's owner's personal tax return s. Therefore, in these proceedings we will 
continue to treat the Beneficiary as an affected party . 
III. ABILITYTOPAYTHEPROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's priority 
date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of 
ability to pay must include copies of annual reports, federal tax returns, or audited financial statements. 
Id. 
In determining ability to pay , USCIS examines whether a petitioner paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay the full 
proffered wage, USCIS next examines whether it generated sufficient annual amounts of net income 
or net current assets to pay any difference between the proffered wage and wages paid. If net income 
and net current assets are insufficient, USCIS may consider other factors affecting a petitioner's ability 
to pay a proffered wage. See Matter ofSonegawa , 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967).5 
As noted above, the priority date of the accompanying labor certification is January 16, 2006. The 
proffered wage of the offered position of store manager as $45,344 per year. 
3 The instructions to Fonn I-485 Supplement} statethatthis fonn is used to : 
1. Confinn that the job offered to you in Form 1-140 remains a bona fide job offer that you intend to accept 
once we approve yourFonnl 485 is approved ; or 
2. Request job portability under INA section 204(j)to a new , full-time ,permanentjob offer that you intend to 
accept once your Fonn 1-485 is approved . This new job offer must be in the same ora sim ilar occupational 
classificationas the job offered to you in Fonn I-140thatis the basis ofyourFonn 1-485. 
See I-485 J, Confi rmation of Bona Fid e Job Offer or Requ est for Job Portabili ty Under INA Section 2040) , 
https: //www.uscis.gov/sites/defau1t/files/document/forms /i-485supjinstr-pc.pdf. 
4 The instructions for Fonn I-485 Supplement J also state" ... the adjudication of Supplement J, for applicants requesting 
job portability under INA section 204(j), is primarily limited to a determination of whether you have a bona fide job offer 
from a U.S. employer that is in the same or a similaroccupationalclassification as the position for which the underlying 
Form I-140was filed and approved ." Id . 
5 Federal courts have upheld ourmethodof determining a petitioner's ability to pay a proffered wage. See, e.g., Riv er St. 
Donu ts, LLC v. Napolitano , 558 F.3d 111, 118 (1st Cir. 2009) ; Estrada-Hemandezv. Holder, 108F . Supp. 3d936, 94243 
(S.D. Cal. 2015); Rizvi 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). 
3 
The Director issued the NOIR for good and sufficient cause. Contrary to 8 C.F.R. § 204.5(g)(2), the 
record as of the petition's approval in 2006 lacked required copies of the Petitioner's annual report, 
federal income tax returns, or audited financial statements from the petition's 2006 priority date 
onward. As of the NOIR's issuance, the record therefore did not establish the Petitioner's ability to 
pay the proffered wage and would have warranted its denial. 
The record reflects that the Petitioner operated its business from 2000 until 2009. The Beneficiary's 
counsel asserts that the Petitioner paid taxes until 2007 and the business ceased to exist due to tax 
forfeiture on July 24, 2009. 
Copies oflnternal Revenue Service (IRS) Forms W-2, Wage and Tax Statements, indicate that the 
Petitioner paid the Beneficiary $28,000 in 2006, and $19,600 in 2007, which is less than the proffered 
wage of $45,344 in both years. Therefore, the Petitioner has not established its continuing ability to 
pay the proffered wage from the priority date of January 16, 2006 based on wages paid to the 
Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or audited 
financial statements(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the beneficiary 
in a given year, the petitioner would ordinarily be considered able to pay the proffered wage that year. 
The record includes the Petitioner's IRS issued account transcripts for 2006 and 2007. 6 In this case, 
the Petitioner reported net taxable income below the proffered wage in 2006 and fairly minimal net 
tax ab le income in 2007, with no tax credits in either year. 7 The tax transcripts do not list net current 
assets and the Petitioner has not provided evidence of its net current assets in either year. Accordingly, 
the Petitioner has not established that it had sufficient net income or net current assets to pay the 
difference between proffered wage of $45,344 and wages already paid to the Beneficiary in 2006 or 
2007. 
On appeal, the Beneficiary submits copies of the Petitioner's shareholders' personal income tax 
returns. Because the Petitioner filed income taxes as an S corporation, the Beneficiary's counsel 
asserts that USCIS may consider the personal income of its shareholders in determining its ability to 
pay. S corporations allow shareholders to report company incomes on their individual tax returns, 
thereby avoiding "double taxation" on profits. 26 U.S.C. § 1366. But, unlike sole proprietors, S 
corporations remain separate entities from their shareholders. Matter of Aphrodite Invs., Ltd., 17 I&N 
Dec. 530,531 (Comm'r 1980). Thus, shareholders ofS corporations have no personal obligations to 
pay proffered wages of the companies they own. See Sitar Rest. v. Ashcrofi, No. Civ.A.02-30197-
MAP, 2003 WL 22203713, *2 (D. Mass. Sept. 18, 2003) (holding that "nothing in the governing 
regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of individuals or 
6 If an S corporation, like the Petitioner, has income exclusively from a trade or business, USCIS considers its net taxable 
income (orloss). However, if there are relevant entries for additional tax credits, thesewill also be considered. 
7 Disclosures of a petitioner's non-public financial information, including specific figures on a petitioner's fedeml tax 
return, may be a violation of law and should not be disclosed to a beneficiary. USC IS Policy Memorandum PM 602-
0152,supra, at7. 
4 
entities who have no legal ob ligation to pay the wage"). We therefore will not consider the personal 
income of the Petitioner's sole shareholders in determining its ability to pay. 
USCIS may also consider the totality of the Petitioner's circumstances, including the overall 
magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). USCIS may, at its discretion, 
consider evidence relevant to the petitioner's financial ability that falls outside of its net income and 
net current assets. We 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 petitioner's reputation 
within its industry, the overall number of employees, whether the beneficiary is replacing a former 
employee or an outsourced service, the amount of compensation paid to officers, the occurrence of 
any uncharacteristic business expenditures or losses, and any other evidence that USCIS deems 
relevant to the petitioner's ability to pay the proffered wage. 
Here, the record indicates that, as of the petition's approval, the Petitioner had conducted business for 
about six years and employed four people. Unlike the petitioner in Sonegawa, however, the record 
does not indicate the Petitioner's incurrence of uncharacteristic expenses or losses, or its possession 
of an outstanding reputation in its industry. The record also does not indicate the Beneficiary's 
replacement of an existing employee or outsourced service. Thus, under Sonegawa, a totality of the 
circumstances does not establish the Petitioner's ability to pay. 
In accord with the foregoing analysis, we concludethatthe Petitioner has not established its continuing 
ability to pay the proffered wage of $45,344 per year from the priority date of January 16, 2006 and 
we will dismiss the appeal. 
IV. THE BENEFICIARY'S EXPERIENCE 
The accompanying labor certification states that the offered position requires a high school, or foreign 
equivalent, degree and 24 months of experience in the offered job of store manager. Experience in an 
alternate occupation is not accepted. The labor certification also states that the position requires 
knowledge and experience in bookkeeping and accounting. On the labor certification, the Petitioner 
asserts that the Beneficiary earned a bachelor's degree in India in 1993, and that he gained experience 
as a store manager from May 1999 to July 2002 with I in India, and from October 
1995 to December 1998 withl lin India. 
The initial evidence submitted with the petition included a letter from the owner of ______ 
indicating that the Beneficia!}'.: was employed as a store manager from 
May 1999 to July 2002, and a letter from the owner of I indicating that the Beneficiary 
was employed as a store manager from October 1995 to December 1998. Both letters state that the 
Beneficiary had knowledge of bookkeeping and accounting, but neither letter listed the Beneficiary's 
job duties as store manager. 
In the NOIR, the Director noted this deficiency in the experience letters, as well as an inconsistency 
regarding the Beneficiary's claimed employment. The Director found that the record included the 
Beneficiary's Form G-325A, Biographic Infonnation, which did not list any infonnation for the 
Beneficiary's last occupation abroad. 
5 
In response to the NOIR, the Beneficiary submitted a second letter from the owner of 
I II listing the Beneficiary's job duties as store manager. The 
Beneficiary's counsel also states that it did not list the Beneficiary's last occupation abroad on the 
Form G-325A, as this employment was more than five years prior to filing the form. 
The Director concluded that the Beneficiary did not submit independent objective evidence to resolve 
the inconsistency in the claimed em lo ent and the Form G-325A. The Director also found that the 
signature on the second letter fro was vastl different from the signature 
on the original experience letter signed by ___________ and declined to accept the 
letter as credible evidence of the Beneficiary's experience. 
With bis motion to reopen and reconsider, the Beneficiary submitted a statement from I I I _ asserting that he modified his signature over time. He attests to the authenticity of his 
signature on the second experience letter, which matches the signature on the biographic page of his 
passport. 
On appeal, the Beneficiary asserts thatthe Director's dismissal of statement regarding his 
signature, combined with a copy of his signature from his passport for comparison, is an abuse of 
discretion. We disagree_ 
The regulation at 8 C.F.R. § 204.5(1)(3) provides: 
(ii) Other documentation-
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and 
a description of the training received or the experience of the alien. 
Probative evidence beyond a letter or affidavit may be considered when submitted to resolve 
inconsistencies or discrepancies in the record. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Ultimately, to determine whether a petitioner has established eligibility for a requested benefit 
by a preponderance of the evidence, USCIS must examine each piece of evidence - both individually 
and within the context of the entire record - for relevance, probative value, and credibility_ Matter of 
Chawathe, 25 I&NDec. 369, 3 76(AAO 2010). A document maybe found fraudulent without forensic 
analysis where the document contains obvious defects or identifiable indicators of fraud, and an 
opportunity to explain the defects has been provided. See Matter O-M-0, 28 I&N Dec. 191 (BIA 
2021 ). 
Here, the Beneficiary relies only on testimonial evidence from his former employer to establish his 
claimed employment experience, without providing independent, objective evidence in support of this 
testimony. Based on inconsistencies in the Beneficiary's Form G-325A, and discrepant signatures on 
the experience letters, further independent evidence is required. The record does not include the 
Beneficiary's income tax or payroll records to corroborate his claimed employment. Nor does the 
Beneficiary assert that these records are unavailable for any reason. The Beneficiary must resolve 
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inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate 
the reliability and sufficiency of other evidence submitted in support of the requested immigration 
benefit. Id. 
As the inconsistencies in the record have not been resolved, the Beneficiary has not established with 
independent, objective evidence that he possesses the required 24 months of experience in the offered 
position, as required by the labor certification. The Beneficiary has not overcome this basis of the 
Director's revocation. 
On appeal, the Beneficiary also asserts that he meets the 24 months of experience required by the labor 
certification based on his relevant post-secondary education. Citing to 8 C.F.R. § 204.5(1)(2), the 
Beneficiary states that "while post-secondary education is not required in order to qualify under the EB3 
category as a 'skilled worker,' evidence of such education may be counted, so long as it is relevant, toward 
meeting the '2 years training or experience requirement. "'8 
In defining a skilled worker, the regulation at 8 C.F.R. § 204.5(1X2) states, "Relevant post-secondaty 
education may be considered as training for the purposes of this provision." Contrary to the Beneficiaty's 
assertion, while the regulation allows the consideration of education as training, the regulation does not 
allow a substitution of education for experience. 
The Beneficiary has not established that he meets the requirements of the offered position as stated on 
the labor certification. When determining whether a beneficiary is eligible for a preference immigrant 
visa, USCIS may not ignore a term of the labor certification, nor may it impose additional 
requirements. SeeMadanyv. Smith, 696F.2d 1008, 1015 (D.C. Cir. 1983). 
On the accompanying labor certification, the Petitioner checked "no" to question H.5, "Is training 
required in the job opportunity?" The Petitioner also checked "no" to question H.8, "Is there an alternate 
combination of education and experience that is acceptable?" USCIS must examine "the language of 
the labor certification job requirements" in order to determine what the job requires. Id. The only 
rational manner by which USCIS can be expected to interpret the meaning of terms used to describe 
the requirements of a job in a labor certification is to examine the certified job off er exactly as it is 
completed by the prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 
829,833 (D.D.C. 1984) (emphasis added). USCIS may not ignore a term of the labor certification, 
nor may it impose additional requirements. See Matter a/Silver Dragon Chinese Restaurant, 19 I&N 
Dec.401, 406 (Comm'r 1986). We cannot read or interpret the labor certification other than how it 
was certified. Here, the Petitioner could have allowed for training in lieu of experience, or for an 
alternate combination of education and experience to satisfy the experiencerequirementforthe offered 
position, but it did not do so. Further, the labor certification states that experience in an occupation 
8 The record includes the Beneficiazy's Bachelor of Commerce degree and certificate of marks issued by the University of 
I in 1993, and an evaluation of the Beneficiazy's academic qualifications and experience from Morningside 
Evaluations. The evaluation concludes thatthe Beneficiary has attained the equivalent ofat least a BachelorofBusiness 
Administration degree from an accredited institution ofhighereducation in the United States, based upon his completion 
of three years o fa cademic coursework and more than three years of professional experience "as rep resented in letters from 
employers and a curriculum vitae." The record do es not include copies of the letters from employers and curriculum vitae 
upon which theevaluatorrelied. 
7 
other than store manager is not accepted. The Beneficiary has not established that the labor 
certification would allow his Bachelor of Commerce degree to be equated to experience as a store 
manager . 
A preponderance of evidence does not demonstrate the Beneficiary's possession of 24 months of 
experience required for the offered position as required by the labor certification and for the requested 
skilled worker classificatio n. We will therefore dismiss the appeal on this basis. 
V. BONA FIDE JOB OFFER 
In the NOIR, the Director found that because the Beneficiary terminated his employment with the 
Petitioner in 2007 (before its official closure in 2009) , and because the Beneficiary created and 
registered three different businesses from November 2006 to April 2012 , it appeared that a bona fide 
job off er did not exist and the Beneficiary intended to pursue other employment opportunitie s. In his 
decision revoking the petition's approval , the Director concluded that the Petitioner did not establish 
that the Beneficiary intended to accept the offered position of store manager. 
Because we have found that the Petitioner does not qualify for the requested benefit, we conclude that 
the petition, as filed, cannot be approved and we reserve on the issue of whet her a bona fide job offer 
exists. 
VI. CONCLUSION 
For the reasons discussed above , as of the petition's approval, the record did not establish the 
Petitioner 's continuing ability to pay the proffered wage from the petition's priority date onward , or 
the Beneficiary 's possession of the minimum experience for the offered position as required by the 
labor certification . The record establishes the petition's erroneous approval and we will therefore 
affirm the Director's decision to revok e its approval. 
ORDER: The appeal is dismissed. 
8