dismissed EB-3 Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF BHC-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 9, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a construction company, seeks to employ the Beneficiary as a segmental paver. It 
requests his classification 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)(l). 
This employment-based, "EB-3" category allows a U.S. business to sponsor a foreign national for 
lawful permanent resident status to work in a job requiring at least two years of training or 
expenence. 
After initially granting the filing, the Director of the Texas Service revoked the petition's approval. 
The Director concluded that the Petitioner did not demonstrate: its required ability to pay the 
position's proffered wage; the Beneficiary's qualifying experience for the offered position; and the 
bonafides of the job offer or the job opportunity. 
On appeal, the Petitioner asserts that the revocation was arbitrary, capricious, and an abuse of the 
Director's discretion. The Petitioner contends that the Director demanded excessive evidence and 
re-examined previously approved issues without "good cause." 
Upon de novo review, we will dismiss the appeal. 1 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, to permanently fill a 
position in the United States with a foreign worker, a prospective employer must obtain certification 
from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). DOL approval signifies that the United States lacks sufficient able, willing, 
qualified, and available workers for the offered position and that employment of a foreign national in 
the job will not harm the wages or working conditions of U.S. workers similarly employed. Id. 
1 The Form I-290B, Notice of Appeal, states that, within 30 days of the appeal's filing, the Petitioner would submit a 
written brief, additional evidence, or both. As of this decision's date, however, more than two years after the appellate 
filing, we have not received any additional submissions in this matter. 
Matter of BHC-, Inc. 
If DOL approves a position, an employer must next submit the labor certification with an immigrant 
visa petition to users. Section 204 of the Act, 8 U.S.e. § 1154. Among other things, users 
determines whether a foreign national meets the requirements of the DOL-certified position and the 
requested immigrant classification. If users grants a petition, a foreign national may finally apply 
abroad for an immigrant visa or, if eligible, for adjustment of status in the United States. See section 
245 of the Act, 8 U.S.C. § 1255. 
"[ A ]t any time" before a beneficiary obtains lawful pe1manent residence, however, users may 
revoke a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.e. 
§ 1155. users may issue an NOIR if the unexplained and unrebutted record as of the notice's 
issuance would have warranted the petition's denial. Matter ofEstime, 19 I&N Dec. 450, 451 (BIA 
1987). Revocation lies if a petitioner's NOIR response does not demonstrate the petition's 
approvability on the alleged revocation grounds. Id. at 451-52. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay a position's proffered wage, from a 
petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.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, users examines whether a petitioner paid a beneficiary the full 
proffered wage each year from a petition's priority date onward. If a petitioner did not annually pay 
the full proffered wage, users next considers whether it generated annual amounts of net income or 
net current assets sufficient to pay any difference between the proffered wage and wages paid. If net 
income and net current assets are insufficient, users may consider other factors affecting a 
petitioner's ability to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l 
eomm'r 1967). 2 
Here, the accompanying labor certification states the proffered wage of the offered position of 
segmental paver as $32,198 a year. The petition's priority date is December 22, 2010, the date the 
DOL accepted the labor certification application for processing. See 8 e.F.R. § 204.5( d) ( explaining 
how to determine a petition's priority date). 
As of the petition's approval in March 2014, the record contained copies of the Petitioner's federal 
income tax returns for 2010, 2011, and 2012. The returns reflect annual net income amounts 
exceeding the proffered wage for each year. The returns therefore demonstrate the Petitioner's 
ability to pay the proffered wage in 2010, 2011, and 2012. 
2 Federal courts have upheld USC IS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., 
River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Just Bagels Mfg., Inc. v. Mayorkas, 900 F. Supp. 
2d 363, 373-76 (S.D.N.Y. 2012). 
2 
Matter of BHC-, Inc. 
The record, however, lacked copies of the Petitioner's annual reports, federal tax returns, or audited 
financial statements for 2013 and 2014. Without required evidence of the Petitioner's continuing 
ability to pay as of the petition's approval in 2014, the record would have warranted the petition's 
denial. See Matter of Estime, 19 I&N Dec. at 451 (requiring an NOIR to allege revocation grounds 
that "would have warranted a denial"). The Director therefore properly issued the NOIR pointing 
out this deficiency and properly revoked the petition's approval on this ground after the Petitioner 
failed to submit the evidence required. 
On appeal, the Petitioner recites evidence submitted with the original petition but does not respond 
to or provide evidence to overcome the deficiencies noted in the NOIR and revocation in regard to 
its ability to pay the proffered wage in 2013 and 2014. Rather, the Petitioner argues that the NOIR's 
issuance was arbitrary, capricious, and an abuse of the Director's discretion. The Petitioner asserts 
that the NOIR "needlessly re-examin[ ed] issues which had been sufficiently proved to the 
satisfaction of the original adjudicator." Noting that the Petitioner filed a prior court action in this 
matter against USCIS, the company contends that the notice was: 
punitive in its impossibly high standard of proof, deciding that evidence which had 
previously been sufficient was no longer adequate, and demanding additional 
documents to an extent that went way beyond the usual practice for approval of third­
preference skilled worker visa petitions. 
The erroneous nature of a petition's approval, however, provides good and sufficient cause for the 
filing's revocation. See Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). Here, contrary to 
8 C.F.R. § 204.5(g)(2), the petition lacked required evidence of the Petitioner's continuing ability to 
pay the proffered wage as of the filing's approval. Thus, USCIS erred in approving the petition, and 
the Director properly issued the NOIR. The NOIR therefore was neither needless, arbitrary, nor 
capricious. Also, the Petitioner does not cite any evidence of USCIS's alleged "punitive" issuance 
of the NOIR. In addition, the NOIR stated the correct standard of proof in revocation proceedings: 
preponderance of the evidence. See section 291 of the Act, 8 U.S.C. § 1361. 
For the foregoing reasons, chiefly the lack of required evidence regarding 2013 and 2014, the record 
does not demonstrate the Petitioner's continuing ability to pay the proffered wage. We will therefore 
affirm the revocation on this ground. 
III. THE EXPERIENCE REQUIRED FOR THE OFFERED POSITION 
A petitioner must establish a beneficiary's possession of all DOL-ce1iified job requirements of an 
offered position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). In evaluating a beneficiary's qualifications, USCIS must examine the 
job-offer pmiion of an accompanying labor ce1iification to determine a position's minimum 
requirements. USCIS may neither ignore a certification term, nor impose additional requirements. 
3 
Matter of BHC-, Inc. 
See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the 
authority for setting the content of the labor certification") ( emphasis in original). 
Here, the labor ce1iification states the minimum requirements of the offered position of segmental 
paver as two years of experience in the job offered. The labor certification states that the position 
does not require any training or education. 
On the labor certification, the Beneficiary attested that, by the petition's priority date and before his 
start date in the offered position with the Petitioner, he gained more than four years of full-time, 
qualifying experience with another U.S. construction company. He stated that he worked for his 
former employer from February 2005 to June 2009. 
To support a beneficiary's claimed, qualifying experience, a petitioner must submit a letter from a 
former employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must provide the employer's name, 
address, and title, and describe the beneficiary's experience. Id. The NOIR notes that the record 
includes three letters from the Beneficiary's claimed former employer indicating the Beneficiary's 
employment in the offered position. As the NOIR indicates, however, none of the letters meet the 
regulation's requirements. Two of the letters do not describe the Beneficiary's experience. Also, the 
Petitioner has not demonstrated that the third letter is from the Beneficiary's former employer. The 
letter is printed on the personal stationery of the employer's purported former owner, and the record 
lacks sufficient evidence of the owner's claimed relationship to the petitioner. If a letter from a 
former employer is unavailable, a petitioner may submit "other documentation relating to the alien's 
experience." 8 C.F.R. § 204.5(g)(l). But the Petitioner here has not claimed or demonstrated the 
unavailability of the required letter. As of the NOIR's issuance, the record therefore would have not 
have established the Beneficiary's qualifying experience for the offered position. 3 
Thus, contrary to 8 C.F.R. § 204.5(1)(3)(ii)(A), the record did not establish the Beneficiary's 
possession of the minimum experience required for the offered position. On appeal, the Petitioner 
again recites the evidence submitted with the original petition but does not respond to or provide 
evidence to overcome the deficiencies in the evidence regarding the Beneficiary's experience. We 
will therefore also affirm the petition's revocation on this ground. 
3 As additional evidence of the Beneficiary's claimed, qualifying experience, the Petitioner submitted copies of his 
purported IRS Forms W-2, Wage and Tax Statements, from 2006 through 2009. The Forms W-2 indicate their issuance 
by the Beneficiary's claimed former employer. But the forms for 2006, 2007, and 2008 list a different U.S. Social 
Security number for the Beneficiary than stated on the other Form W-2 and on the Form I-140, Immigrant Petition for 
Alien Worker. The discrepancy in the Beneficiary's Social Security number, which the NOIR did not cite, casts doubt 
on the authenticity of the Forms W-2. 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 any future 
filings in this matter, the Petitioner must explain the discrepancy in the Beneficiary's Social Security number and 
demonstrate the Beneficiary's claimed qualifying experience for the offered position. 
4 
Matter of BHC-, Inc. 
IV. RESERVED ISSUES 
The Director's decision also expressed concerns about the bona fide nature of the job offer and the 
job opportunity. However, because the issues previously reviewed are dispositive and the Petitioner 
has not shown eligibility for the benefit sought, we decline to reach the Director's additional 
concerns and as such reserve them. 
V. CONCLUSION 
The Petitioner did not demonstrate its ability to pay the proffered wage or the Beneficiary's 
qualifying experience for the offered position. The record therefore supports the revocation of the 
petition's approval. We will dismiss the appeal for the reasons stated above, with each considered 
an independent and alternate basis for revocation. The burden of proof to establish eligibility for the 
benefit sought remains with the petitioner in revocation proceedings. Section 291 of the Act, 8 
U.S.C. § 1361; Matter of Cheung, 12 I&N Dec. 715 (BIA 1968); and Matter of Estime, 19 I&N Dec. 
450, 452, n.1 (BIA 1987). The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of BHC-, Inc., ID# 3353001 (AAO May 9, 2019) 
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