dismissed EB-3 Case: Child Monitor/Housekeeper

U.S. Department of Ilomeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
identieing data deleted to 
!.yevent clearly unwarranted 
i~lvasion of personal privacy 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
a; 
"6 $i>* 
FILE: Office: CALIFORNIA SERVICE CENTER Date: HAY 0 2 2001;' 
WAC-95-094-52085 
PETITION: Petition for Alien Worker as an Other Worker Pursuant to Section 203(b)(3) of the 
Immigration and Nationality Act, 8 U.S.C. 
 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The employment-based preference visa petition was initially approved by the Director, 
California Service Center. In connection with the beneficiary's Form 1-485 Application to Register Permanent 
Resident or Adjust Status, the director served the petitioner with notice of intent to revoke the approval of the 
petition (ITR). In a Notice of Revocation, the director ultimately revoked the approval of the Form 1-140 
Immigrant Petition for Alien Worker. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
Section 205 of the Act, 8 U.S.C. $ 11 55, provides that "[tlhe Attorney General [now Secretary, Department of 
Homeland Security], may, at any time, for what he deems to be good and sufficient cause, revoke the 
approval of any petition approved by him under section 204." The realization by the director that the petition 
was approved in error may be good and sufficient cause for revoking the approval. Matter of Ho, 19 I&N 
Dec. 582,590 (BIA 1988). 
The petitioner is a private individual. He seeks to employ the beneficiary permanently in the United States as 
a child monitor/housekeeper. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification approved by the Department of Labor, accompanied the petition. The director determined 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 director also determined that the evidence did not 
establish that the petitioner had the intention to engage the beneficiary in accordance with the terms of the job 
offer. The director accordingly revoked the petition. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1 153(b)(3)(A)(iii), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal 
nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 3 204.5(g)(2) states: 
Ability ofprospective employer to pay wage. Any petition 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. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profit/loss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which is the date the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. $ 204.5(d). The priority date in the instant 
petition is June 17, 1993. The proffered wage as stated on the Form ETA 750 is $7.35 per hour, which 
amounts to $15,288.00 annually. On the Form ETA 750B, signed by the beneficiary on May 19, 1993, the 
beneficiary did not claim to have worked for the petitioner. The ETA 750 was certified by the Department of 
Labor on September 28, 1994. 
The 1-140 petition was submitted on February 17, 1995. 
 With the petition, the petitioner submitted 
supporting evidence. 
The petition was approved on March 8, 1995. 
The beneficiary submitted a Form 1-485 Application to Register Permanent Residence or to Adjust Status on 
August 29,2000, based on the approved 1-140 petition. 
In a request for evidence (RFE) dated May 11, 2001 to the 1-485 applicant, the director requested additional 
evidence. In response to the RFE, the applicant submitted additional evidence. The applicant's submissions 
in response to the RFE were received by the director on August 13,2001. 
The director issued a second RFE to the 1-485 applicant, dated December 3, 2001. In response to the second 
RFE, the applicant submitted a letter from counsel. The applicant's submission in response to the second 
RFE was received by the director on February 22,2002. 
In a notice of intent to revoke (ITR) dated July 7, 2004 the director notified the 1-140 petitioner of his 
intention to revoke the approved 1-140 petition. The director accorded the petitioner a period of thirty days to 
offer evidence in support of the petition and in opposition to the proposed revocation. 
In response to the ITR, the petitioner submitted additional evidence. The petitioner's response to the ITR was 
received by the director on August 9,2004. 
In a decision dated September 27,2004, the director determined that the evidence did not establish the petitioner's 
ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence. The director also determined that the evidence did not establish that the petitioner had the 
intention to engage the beneficiary in accordance with the terms of the job offer. The director accordingly 
revoked the petition. 
On appeal, counsel submits a brief and additional evidence. Counsel states on appeal that a new employer has 
substituted for the petitioner as allowed by the American Competitiveness in the 21" Century Act (AC21). 
Counsel states that the beneficiary's 1-485 application has remained unadjudicated for 180 days or more and 
that the beneficiary's new position is in the same or similar occupational classification as the job for which 
the certification was initially made. 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are 
incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
The instant appeal raises the issue of the relationships among the portability provisions of AC21, the regulation at 
8 C.F.R. 9 204.5(g)(2) concerning the petitioner's ability to pay the proffered wage to the beneficiary and the 
provisions of INA 5 205 and 8 C.F.R. fj 205.2 governing revocations of previously approved petitions. 
The American Competitiveness in the 21" Century Act (AC21), Pub.L.No. 106-3 13, became law on October 
17,2000. AC2 1 5 106(c) added a new subsection 6) to section 204 of the INA, which states: 
Job Flexibility for Long Delayed Applicants for Adjustment of Status to Permanent 
Residence - A petition under subsection (a)(l)(D)for an individual who08se application for 
adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 
180 days or more shall remain valid with respect to a new job if the individual changes jobs 
or employers if the new job is in the same or a similar occupational classification as the job 
for which the petition was filed. 
INA 5 204Q) (added by The American Competitiveness in the 21"' Century Act (AC21), Pub.L.No. 106-3 13, 
106(c), 114 Stat. 1251 (2000)). 
AC21 also provides that where an 1-140 petition and a new job offer satisfy the requirements of INA 5 204(j), 
the underlying labor certification also remains valid. American Competitiveness in the 21"' Century Act, 
Pub.L.No. 106-3 13, 5 106(~)(2). 
A memorandum to CIS Service Center Directors and Regional Directors dated August 4, 2003 by William R. 
Yates, Acting Associate Director for Operations, discusses effect of AC21 on 1-140 petitions. 
 The 
memorandum is not binding on the AAO, but it presents a reasonable interpretation of the statute. The 
memorandum states in pertinent part as follows: 
B. Provisions in Cases of Revocation of the Approved Form 1-140. 
As discussed above, if an alien is the beneficiary of an approved Form 1-140 and is also the 
beneficiary of a Form 1-485 that has been pending 180 days or longer, then the approved 
Form 1-140 remains valid with respect to a new offer of employment under the flexibility 
provisions of 5 106(c) of AC 21. 
Accordingly, if the employer withdraws the approved Form 1-140 on or after the date that the 
Form 1-485 has been pending 180 days, the approved Form 1-140 shall remain valid under the 
provisions of 5 106(c) of AC2 1. 
Memo. from William R. Yates, Acting Associate Director for Operations, to Service Center Directors, BCIS 
and Regional Directors, BCIS, Continuing Validity of Form 1-140 Petition in accordance with Section 106(c) 
of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (AD03-16) at 2-3 
(August 4, 2003) (available at http://uscis.gov/graphics/index.htm; path Immigration Laws, Regulations and 
Guides; Immigration Handbooks, Manuals and Policy Guidance; Immigration Policy and Procedure 
Memoranda; topic category American Competitiveness in the Twenty-First Century Act of 2000 (AC21)). 
Although the title of Section B of the Yates memorandum refers to revocation of an approved 1-140, the text 
of that section mainly discusses withdrawals of petitions, and it does not explicitly state the effect of a 
revocation which occurs on or after the date that a Form 1-485 has been pending 180 days. Nonetheless, it 
appears that the Yates memorandum considers AC21 to have the same effect on revocations as on 
withdrawals of petitions. 
The Yates memorandum does make several explicit references to revocations. The memorandum states, "If 
approval of the Form 1-140 is revoked or the Form 1-1 40 is withdrawn before the alien's Form 1-485 has been 
pending 180 days, the approved Form 1-140 is no longer valid with respect to a new offer of employment and 
the Form 1-485 may be denied." Id. at 3. According to the memorandum, if a revocation of an 1-140 petition 
is based on fraud, the portability provisions of AC21 do not apply, even if the revocation occurs after a 
beneficiary's 1-485 application has been pending for more than 180 days. Id. at 3. 
Concerning the offer of employment from the original employer, the memorandum states the following: 
In all cases an offer of employment must have been bona fide, and the employer must have 
had the intent, at the time the Form 1-140 was approved, to employ the beneficiary upon 
adjustment. It should be noted that there is no requirement in statute or regulations that a 
beneficiary of a Form 1-140 actually be in the underlying employment until permanent 
residence is authorized. Therefore, it is possible for an alien to qualifL for the provisions of 
$ 106(c) of AC21 even if he or she has never been employed by the prior petitioning 
employer or the subsequent employer under section 204(j) of the Act. 
Id. at 3. 
In the instant case, the 1-140 petition was approved on March 8, 1995. The 1-485 application was filed on August 
29, 2000. The date 180 days after the filing date was February 25, 2001. As of February 25, 2001, the 1-485 
application was still pending. Therefore by operation of INA $ 204(i), the 1-140 petition became valid with 
respect to any new job for the beneficiary in the same or a similar job occupational classification. 
The director's actions to revoke the approved 1-140 petition were based on evidence received from the 
beneficiary in response to the RFE7s to the beneficiary concerning her 1-485 application. 
In the RFE dated May 11, 2001 the director requested additional evidence. The director requested a copy of 
the Form W-2's for the last four years of the applicant (the beneficiary of the 1-140 petition). The director 
also requested any other evidence indicating that the applicant was employed by the petitioner and requested 
copies of pay stubs or cancelled checks for the last four pay periods. 
In response to the RFE the applicant submitted copies of her Form W-2 Wage and Tax Statements for the years 
1997, 1998, 1999 and 2000. None of those Form W-2's showed any compensation from the 1-140 petitioner. 
The applicant's submissions in response to the RFE were received by the director on August 13, 2001. On a 
Form G-325A Biographical Information dated August 15, 2000 which had been submitted with the 1-485 
application, the applicant had similarly stated no employment by the 1-1 40 petitioner. 
The director issued a second RFE to the 1-485 applicant, dated December 3, 2001. 
 The director made 
requests in the second RFE which are identical to those made in the first RFE. In response to the second 
RFE, counsel submitted a letter dated February 7, 2002 stating that the applicant is not yet working for the 
1-140 petitioner, but that she will do so once obtaining her permanent residency. Counsel noted that the Form 
W-2's were consistent with the applicant's Form G-325A, since the Form W-2's do not show any 
employment by the 1-140 petitioner and since the applicant's Form G-325A similarly shows no employment 
by the petitioner. The applicant's submission in response to the second RFE was received by the director on 
February 22,2002. 
The director's next action related not to the 1-485 application, but to the 1-140 petition. The director issued the 
ITR to the petitioner on July 7,2004. In the ITR, the director summarizes the general legal principles requiring a 
petitioner to establish its ability to pay the proffered wage as of the priority date and continuing until the 
beneficiary obtains legal permanent residence. The director then states as follows: 
Page 6 
The record does not contain evidence of the compensation has ever been provided for. There 
is no explanation why the beneficiary does not receive the benefit. Absent evidentiary 
documentation, the record does not support that the petitioner has offered a valid job offer to 
the beneficiary for classification as a skilled worker. 
(Notice of Intent to Revoke (ITR), July 7,2004, at 2 (grammatical errors in the original)). 
In the ITR, the director requests various financial documents of the petitioner, including the petitioner's complete 
tax documents from 1993 to the present. The director summarizes thew-2 forms of the beneficiary for the years 
1999 through 200 1, which show that the beneficiary worked for a total of four employers during that period, one 
of which she worked for in all three years and which provided her with the more than two-thirds of her income in 
each of those years. None of the beneficiary's employers during those years was the 1-140 petitioner. 
In the ITR, the director then states as follows: "The beneficiary is dependent on supplemental employment or 
solicitation of funds for support. The records failed to establish that the beneficiary fully intended to work as 
permanent and full time position for the petitioner." (ITR, July 7,2004, at 3). 
The ITR appears to have been based on the director's assumption that the beneficiary was under an obligation to 
begin working for the petitioner prior to the approval of the beneficiary's 1-485 Application to Register 
Permanent Residence or Adjust Status. But neither the Act nor the regulations require a beneficiary to begin 
working for an 1-140 petitioner prior to the grant of permanent resident status to the beneficiary pursuant to an 
approved I- 140 petition. See Memo. from William R. Yates, at 3. 
In response to the ITR, the petitioner submitted a letter dated July 28, 2004 from 
 a new 
potential employer of the beneficiary. The letter confirms a job offer to the beneficiary at $7.50 per hour in the 
position of Child MonitorMousekeeper. The letter describes job duties which are very 
offered position as described in block 13 of the ETA 750 
signature on the letter is the title "Nurse Practitioner." (Letter from 
letter, the petitioner submitted copies of Form 1040 U.S. Individual Income Tax Returns of 
and 2003. Those returns show 
 filing status as head of household, and 
household size of three 
 gross income on the Form 1040 for 2002 is $13 1,396.00, and the 
adjusted gross income on the Form 1040 for 2003 is $1 10,66 1 .OO 
The petitioner's submissions in response to the ITR were received by the director on August 9,2004. 
In a decision dated September 27, 2004 the director repeated verbatim most of the language in the ITR. The 
director then stated that the evidence submitted in response to the ITR did not overcome the grounds for denial. 
The director therefore revoked the petition as of the date of its approval. 
With regard to AC21, since the beneficiary's 1-485 application was pending for more than 180 days, by operation 
of INA 9 204(j), the 1-140 petition became valid with respect to any new job for the beneficiary in the same or a 
similar job occupational classification. The later revocation of the 1-140 petition by the director was based on the 
failure of the evidence to establish the petitioner's ability to pay the proffered wage and on the failure of the 
evidence to establish the petitioner's intent to engage the beneficiary in accordance with the terms of the job offer. 
The revocation was not based on fraud. Moreover, nothing in the director's decision nor in the evidence in the 
record indicates any lack of good faith on the part of the petitioner in making the original job offer. Therefore the 
revocation of the 1-140 petition had no effect on the validity of that 1-140 petition with regard to an offer of 
employment by another employer. See Memo. from William R. Yates, at 3; INA 8 204Q). 
For the foregoing reasons, even if the director's decision to revoke the instant 1-140 petition was correct, the 
- - 
1-140 petition appears 
 of section 106(c) to remain valid with regard to the job offer 
to the beneficiary from 
The decision of the director to deny the beneficiary's 1-485 application is not now before the AAO on appeal, and 
in any event, barring certification, the AAO would lack jurisdiction for any administrative appeal of the director's 
decision of the beneficiary's 1-485 application. The AAO's jurisdiction is limited to the authority specifically 
granted to it by the Secretary of the United States Department of Homeland Security. See DHS Delegation 
No. 0150.1 (effective March 1, 2003); see also 8 C.F.R. 8 2.1 (2005 ed.). Pursuant to that delegation, the 
AAO's jurisdiction is limited to those matters described at 8 C.F.R. $ 103.l(f)(3)(iii) (as in effect on February 
28,2003). See DHS Delegation Number 0150.1(U) supra; 8 C.F.R. 5 103.3(a)(iv) (2005 ed.). 
continuing validity of the 1-140 petition with regard to a job offer to the beneficiary from 
, it is still necessary to evaluate the director's revocation decision, since the statutory 
provision in INA 5 2046) applies only to a job offer from a new employer, not to the job offer by the 
The record does not indicate whether the beneficiary has accepted the job 
offer from 
 . But even if the beneficiary has accepted that job offer, she may prefer to 
the petitioner. The beneficiary could seek permanent residence based on the 
petitioner's job offer only if the instant petition is reinstated on appeal. 
As noted above, the director's revocation decision was based in part on a finding that the evidence failed to 
establish the petitioner's ability to pay the beneficiary the proffered wage. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. The 
petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. 
See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. 8 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate financial resources sufficient 
to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning 
business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 
612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on May 19, 1993, the beneficiary did not claim to 
have worked for the petitioner and no other evidence indicates that the beneficiary has worked for the petitioner. 
1 
 The determination regarding any job offer from a new employer is made by the director, in the course of the 1-485 
adjudication. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
without consideration of depreciation or other expenses. Reliance on federal income tax returns as a basis for 
determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraji Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), am, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc., the court held that the Immigration 
and Naturalization Service, now CIS, had properly relied on the petitioner's net income figure, as stated on the 
petitioner's corporate income tax returns, rather than the petitioner's gross income. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a private individual. The record contains copies of the Form 1040 
U.S. Individual Income Tax Returns of the petitioner and his wife for 1993 and 1999. 
The record before the director closed on August 9, 2004 with the receipt by the director of the petitioner's 
submissions in response to the ITR. As of that date, the federal tax return of the petitioner for 2003 should have 
been available, as well his returns for prior years. However, the only returns of the petitioner submitted in 
evidence were those for 1993 and 1999:  he petitioner's submissions ;n res onse to the ITR included a letter 
from counsel dated August 6, 2004 in which counsel refers to s the "substitute sponsor" for 
the oetitioner on the 1-1 40 petition. Counsel also submitted cooies of the Form 1040 federal income tax returns of 
However, neither the statute nor the regulations permit the substitution of one petitioner for another 
on an 1-140 petition. Counsel evidently misunderstood the effect of AC21, apparently believing that AC21 
authorizes a substitution of petitioners. But AC21 does not make any changes concerning the adjudication of 
1-140 petitions. Rather, AC21 affects 1-485 applications which are based on 1-140 petitions. AC21 allows a 
beneficiary to seek employment from a new employer without jeopardizing his or her right to receive an approval 
of his or her 1-485 application to adjust status to that of permanent residence, provided that the 1-485 application 
has remained unadjudicated for 180 days or more. 
In any event, whether counsel misunderstood AC21 or not, tax returns for the petitioner were submitted only for 
the years 1993 and 1999, even though each of the years from 1993 through 2003 is at issue in the instant petition. 
A private individual's income and personal obligations are considered as part of the petitioner's ability to pay. 
Private individuals report income on the Form 1040 U.S. Individual Income Tax Return. A private individual 
must show sufficient resources for his or her own support and for that of any dependents as well as to pay the 
proffered wage. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. 111. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
In Ubeda, 539 F. Supp. at 650, the court concluded that it was highly unlikely that a petitioning entity 
structured as a sole proprietorship could support the owner, his spouse and five dependents on a gross income 
of slightly more than $20,000.00 where the beneficiary's proposed salary was $6,000.00, a figure which was 
approximately thirty percent (30%) of the petitioner's gross income. 
In the instant petition, the tax returns of the petitioner are joint returns of the owner and his wife. Those 
returns show three dependents. Therefore the household size of the petitioner is five persons. No statements 
of monthly or annual household expenses of the petitioner were submitted in evidence. 
Page 9 
For a private individual, CIS considers net income to be the figure shown on line 33, Adjusted Gross Income, 
of the petitioner's Form 1040 U.S. Individual Income Tax Return. The petitioner's tax returns state amounts 
for adjusted gross income as shown in the following table. 
Tax Adjusted Household Wage increase needed Surplus or 
year gross income expenses to pay the proffered wage deficit 
$47,87 1 .OO 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
$37,545.00 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
not submitted 
$32,583.00 
no information 
no information 
no information 
no information 
no information 
$22,257.00 
no information 
no information 
no information 
no information 
* The full proffered wage, since the record contains no evidence of any wage payments 
made by the petitioner to the beneficiary. 
The above information is sufficient to establish the petitioner's ability to pay the proffered wage in 1993. For 
the year 1999, absent any statement of annual household expenses, the information fails to establish the 
petitioner's ability to pay the petitioner's reasonable household expenses for a five-person household and also 
to pay the beneficiary the proffered wage. For the years 1994 through 1998 and 2000 through 2001 no copies 
of tax returns of the petitioner were submitted. Therefore the above information also fails to establish the 
petitioner's ability to pay the proffered wage in those years. 
The record contains no other evidence relevant to the financial situation of the petitioner during the years at issue. 
The evidence therefore fails to establish the petitioner's ability to pay the proffered wage as of the priority date 
and continuing until the beneficiary obtains lawful permanent residence. 
In his decision, the director apparently assumed that the fact that the beneficiary was not yet working for the 
petitioner prior to obtaining legal permanent resident status indicated that the petitioner lacked the ability to pay 
the proffered wage. The director also found that fact to be evidence that the petitioner failed to establish the intent 
to engage the beneficiary in accordance with the job offer. 
With regard to the petitioner's ability to pay the proffered wage, although the director's analysis was incorrect, 
the director's decision was correct in finding that the evidence failed to establish the petitioner's ability to pay the 
proffered wage during the relevant period. 
With regard to the intention of the petitioner to hire the beneficiary, the regulation at 8 C.F.R. 8 204.5(c) is 
relevant. The regulation at 8 C.F.R. tj 204.5(c) states in pertinent part, "Any United States employer desiring and 
intending to employ an alien may file a petition for classification of the alien under section 203(b)(l)(B), 
203(b)(l)(C), 203(b)(2), or 203(b)(3) of the Act." The instant petition has been filed under section 203(b)(3) of 
the Act. 
Page 10 
The only evidence relevant to the petitioner's intention to hire the beneficiary in the record concerns the intention 
of another potential employer, - to hire the beneficiary. However, that evidence is not 
sufficient to establish that the petitioner lacks the required intention to hire the beneficiary. Therefore the record 
lacks a basis for the director's finding that good and sufficient cause exists to revoke the petition on that ground. 
See Matter ofHo, 19 I&N Dec. 582, 590 (BIA 1988). 
For the foregoing reasons, the portion of the director's decision pertaining to the intention of the petitioner to hire 
the beneficiary will be withdrawn. Nonetheless, as discussed above, the director's finding that the evidence fails 
to establish the petitioner's ability to pay the proffered wage was correct. Therefore, the decision of the director 
to revoke the petition was correct. The assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not met that burden. 
The file will be returned to the director to consider whether the petition satisfies section 106(c) of AC 21 with 
respect to the beneficiary's 1-485 application. 
ORDER: 
 The portion of the director's decision pertaining to the intention of the petitioner to hire the 
beneficiary is withdrawn. 
 The appeal is dismissed. The file is returned to the director for 
further actions in accordance with this decision.