dismissed EB-3 Case: Cooking

U.S. Citizenship 
and Immigration 
Services 
In Re : 4296264 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 1, 2020 
The Petitioner seeks to employ the Beneficiary as a North Indian dessert cook. It requests classification 
of the Beneficiary as a skilled worker under the third preference immigrant category. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(B)(3)(A)(i) . This employment-based 
immigrant classification allows a U.S. employer to sponsor a foreign national for lawful permanent 
resident status to work in a position that requires at least two years of training or experience. 
The Director of the Texas Service Center revoked the approval of the petition, concluding that the 
record did not establish that the Petitioner had the continuing ability to pay the combined proffered 
wages of the instant Beneficiary and the beneficiaries of its other relevant petitions . The Director also 
concluded that the record did not demonstrate that the Beneficiary possessed the experience required 
by the labor certification as of the priority date. The Director entered findings of willful 
misrepresentation of a material fact against the Petitioner and the Beneficiary, and he invalidated the 
labor certification based on those findings. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process . First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). 1 See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that 
employing a foreign national in the position will not adversely affect the wages and working conditions 
of domestic workers similarly employed. See id. Second, the employer files an immigrant visa petition 
with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. 
§ 1154. Third, if USCIS approves the petition, the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
March 5, 2002. See 8 C.F.R. § 204.5(d). 
II. REVOCATION OF A PETITION'S APPROVAL 
After granting a petition, USCIS may revoke the petition's approval "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record, a director's 
realization that a petition was erroneously approved may justify revocation. Matter of Ho, 19 I&N 
Dec. 582, 590 (BIA 1988). 
Good and sufficient cause exists to issue a notice of intent to revoke (NOIR) where the record at the 
time of the notice's issuance, if unexplained or unrebutted, would have warranted the petition's denial. 
Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). Similarly, revocation is proper if the record at 
the time of the decision, including any explanation or rebuttal evidence provided by a petitioner, 
warranted a petition's denial. Id. at 452. 
III. ABILITY TO PAY THE PROFFERED WAGE 
The Director concluded that the record did not establish the Petitioner's continuing ability to pay the 
combined proffered wages of the instant Beneficiary and the beneficiaries of its other relevant 
petitions. The proffered wage in this case is $38,000 per year. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the foll 
proffered wage each year from a petition's priority date. Here, the record does not demonstrate that 
the Petitioner has paid the Beneficiary any wages from the priority date onward. Thus, we next 
examine whether it had sufficient annual amounts of net income or net current assets to pay the 
proffered wage. If a petitioner's net income or net current assets are insufficient, we may also consider 
other evidence of its ability to pay the proffered wage. 2 
The record indicates that the Petitioner is a general partnership. From the priority date to the date of 
the petition's initial approval, the Petitioner's federal tax returns state net income 3 amounts as follows: 
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 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rizvi v. 
Dep'tofHomeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
3 For a partnership, where the partnership's income is exclusively from a trade or business, USCTS considers net income to 
be the figure shown on Line 22 of page one of the Petitioner's IRS Form I 065, U.S. Return of Partnership 
2 
• $97,592 in 2002; 
• $148,761 in 2003; 
• $55,460 in 2004; 
• $114,950 in 2005; and 
• $140,251 in 2006. 
Therefore, for the years 2002 to 2006, the Petitioner would have had sufficient net income to pay the 
proffered wage; however, where a petitioner has filed Form 1-140 petitions for multiple beneficiaries, it 
must demonstrate that its job offer to each beneficiary is realistic, and that it has the continuing ability to 
pay the proffered wage to each beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson, 2 F. 
Supp. 3d 108, 124 (D. Mass. 2014) (upholding our denial of a petition where a petitioner did not 
demonstrate its ability to pay multiple beneficiaries). USCIS records show that the Petitioner filed at least 
two other Form 1-140 petitions for other beneficiaries. Thus, the Petitioner must establish its ability to 
pay this Beneficiary as well as the beneficiaries of the other Form 1-140 petitions that were pending or 
approved as of, or filed after, the priority date of the current petition. 4 We do not consider the other 
beneficiaries for any year that the Petitioner has paid the Beneficiary a salary equal to or greater than 
the proffered wage. 
The Petitioner must document the receipt numbers, names of beneficiaries, priority dates, and 
proffered wages of these other petitions, and indicate the status of each petition and the date of any 
status change (i.e., pending, approved, withdrawn, revoked, denied, on appeal or motion, beneficiary 
obtained lawful permanent residence). To offset the total wage burden, the Petitioner may submit 
documentation showing that it paid wages to other beneficiaries. To demonstrate that it has the ability 
to pay the Beneficiary and the other beneficiaries, the Petitioner must, for each year at issue (a) 
calculate any shortfall between the proffered wages and any actual wages paid to the primary 
Beneficiary and its other beneficiaries, (b) add these amounts together to calculate the total wage 
deficiency, and ( c) demonstrate that its net income or net current assets exceed the total wage 
deficiency. 5 The NOIR indicated that the Petitioner must demonstrate its ability to pay the combined 
proffered wages of all of its applicable beneficiaries and specifically requested the information detailed 
above. However, in its response to the NOIR, the Petitioner did not submit evidence regarding any of its 
Income. However, where the Petitioner has income, credits, deductions, or other adjustments from sources other than a trade 
or business, net income is found on page 4 ofIRS Form 1065 at line 1 of the Analysis of Net Income (Loss) of Schedule K for 
years before 2008. See Internal Revenue Serv., Instructions for Form 1065, https://www.irs.gov/pub/irs-pdf/il065.pdf(last 
visited Aug. 17, 2020). The record contains several individual federal income tax returns for one of the Petitioner's general 
partners. The Director indicated that he would consider certain figures from that partner's IRS Fonn 1040, Schedule E, as 
evidence of the Petitioner's ability to pay the proffered wage. However, the Director erred in considering the partner's 
share of nonpassive income from the partnership reflected on the Forms I 040, Schedule E. That income was already 
considered as part of the Petitioner's net income in the ability to pay determination. 
4 The Petitioner's ability to pay the proffered wage of one of the other T-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a pending 
appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
5 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
3 
other relevant petitions. Failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). As noted by the Director in the 
notice of revocation (NOR), we cannot determine the Petitioner's ability to pay the combined proffered 
wages of all of its applicable beneficiaries without this information. 
On appeal, the Petitioner does not provide any additional information regarding its other relevant 
petitions. Instead, it asserts that it has complied with USCIS law and policy in establishing its ability to 
pay the instant beneficiary the proffered wage during the relevant years at issue. It states that neither the 
statute at 8 C.F.R. § 204.5(g)(2) nor relevant USCIS policy require the Petitioner to establish its 
continuing ability to pay the combined proffered wages of all of its applicable beneficiaries. See 
Memorandum from William R. Yates, Associate Director for Operations, USCIS, HQOPRD 90/16.45, 
Determination of Ability to Pay under 8 CFR 204.5(g)(2) 2 (May 4, 2004), 
http://www.uscis.gov/laws/policy-memoranda. By its own terms, the Yates memo is not intended to 
create any right or benefit or constitute a legally binding precedent within 8 C.F.R. § 103.3(c) and 8 
C.F.R. § 103.9(a), but was merely offered as guidance. USCIS policy memoranda are not legally 
binding. See Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000) (stating that an agency's 
internal guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon 
which [they] may rely."). Even if the policy memo was binding, it does not specifically address a 
petitioner, like the instant Petitioner, that is obliged to pay combined proffered wages of multiple 
beneficiaries. 
A petitioner must demonstrate its ability to pay a proffered wage to establish a "realistic" job offer. 
See Matter of Great Wall, 16 I&N Dec. 142, 145 (Acting Reg'l Comm'r 1977)(stating that "the Service 
must consider the merits of the petitioner's job offer, so that a determination can be made whether the 
job offer is realistic and whether the wage offer can be met."). Although Matter of Great Wall and 
the regulation at 8 C.F.R. § 204.5(g)(2) do not specifically address a petitioner with multiple 
beneficiaries, a petitioner's wage obligations, like other liabilities, must be considered when 
determining whether it can realistically pay a proffered wage. To establish a realistic job offer, the 
Petitioner must demonstrate its ability to pay the combined proffered wages of the instant Beneficiary 
and the beneficiaries of its other relevant petitions. It has not done so here. 
Finally, on appeal, the Petitioner asserts that we should consider the personal tax returns of one of its 
general partners, together with the partnership's tax returns, as evidence of its ability to pay. Although 
a general partner's personal assets may be utilized to show the Petitioner's ability to pay the proffered 
wage, that partner's personal liabilities must also be examined in order to make a determination that 
his or her assets are available to pay the proffered wage. The record of proceeding does not contain 
sufficient information regarding either of the general partners' personal assets and liabilities. Thus, 
the Petitioner has not demonstrated that the assets of the general partner may be utilized to pay the 
proffered wage. The Petitioner has not established its ability to pay the combined proffered wages of 
the instant Beneficiary and the beneficiaries of its other relevant petitions. The Director properly 
revoked the approval of the petition on this basis. 
IV. BENEFICIARY'S QUALIFICATIONS 
The Director also concluded that the record did not demonstrate that the Beneficiary possessed the 
experience required by the labor certification as of the priority date. A beneficiary must meet all of 
4 
the requirements of the offered position set forth on the labor certification by the priority date of the 
petition. 8 C.F.R. § 103.2(b)(l), (12); Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting 
Reg'l Comm'r 1977). In this case, the labor certification requires two years of experience in the job 
offered of North Indian dessert cook. The labor certification states that the Beneficiary qualifies for 
the offered position based on experience as a North Indian dessert cook/confectioner withl I I lin India from June 1994 to the date the labor certification was filed in March 2002. 
Evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer, and a specific description of the 
duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). The record contains an employment 
certification froml I manager and owner ofl I stating that it employed the 
Beneficiary as a desserts cook/confectioner from June 1994 to the date of the letter on January 27, 
2006. The description of the job duties on the employment certification matches the description of 
the job duties on the labor certification almost exactly. 
The Director noted in the NOIR that the Beneficiary was unable to describe his duties as a chef: or his 
work history as a chef: during an interview at the U.S. Embassy in New Delhi, India, in March 2011. 
Following that interview, the consular officer spoke with the Beneficiary over the phone and the 
Beneficiary stated that he worked in a sweet shop from 1994 to 1997 but has worked intermittently 
since then because he owns a farm. These dates contradict the dates represented on the labor 
certification and in the support letter froml I Additionally, the consular officer contacted 
five individuals living in the same village as the Beneficiary in India, and they all claimed to know the 
Beneficiary well. Each individual stated that the Beneficiary owns a large and prosperous farm, that 
he is wealthy, and that he has never had a need to work as a cook or chef in a restaurant. 
The Petitioner submitted several affidavits in 2011 in res=onse to the findings of the consular officer. 
An affidavit dated September 6, 2011, from I I manager and owner of1 I 
details his phone call with the U.S. Embassy. He stated in the affidavit that the Beneficiary was 
employed as a sweetmaker from June 1994 to January 2006, but that he couldn't immediately confirm 
this information when the consular officer called him. Further, an affidavit dated September 6, 2011, 
from the Beneficiary details his contact with the U.S. Embassy in 2011. He states that he told the 
officer that he was currently working in agriculture, but he did not mention his employment with 
I I Next, an affidavit dated September 6, 2011, from.__ ____ ___. a friend of the 
Beneficiary, details his phone call with the U.S. Embassy. He stated that he told the officer that the 
Beneficiary "earlier. .. was doing the job of Sweetmaking, but I do not know about these days." He 
also indicated that he told the officer that the Beneficia1 was doing other agricultural work. Finally, 
an affidavit dated September 6, 2011, from~ ____ ___. a friend of the Beneficiary, details his phone 
call with the U.S. Embassy. He stated that he told the officer that the Beneficiary was doing the job 
of sweetmaker a "long time ago." 
In a second interview at the U.S. Embassy in May 2012, the Beneficiary indicated that he was currently 
working as a farmer and, in a follow-up call, the Beneficiary stated that he could not recall the dates 
that he worked as a cook. In a third interview at the U.S. Embassy in September 2017, the Beneficiary 
stated that he worked forl I from 1996 to 2004 6 and that although there were four other 
6 These dates contradict the dates represented in the support letter from ._I ___ ___. 
5 
employees working there at that time, he could not recall the names of any of them. He stated that he 
was currently working as a farmer and he could not explain how to make basic Indian desserts when 
asked by the officer. The consular officer also noted that the Beneficiary's son was coaching him on 
the answers to the officer's questions during the interview. 
The Petitioner must resolve inconsistencies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the petition. Id. In the NOIR, the Director noted the inconsistencies in the evidence 
detailed above and requested independent, objective evidence to resolve the inconsistencies in the 
record regarding the Beneficiary's employment history. In response to the NOIR, the Petitioner 
provided a declaration of the Beneficiary dated October 18, 2018. He indicated that during his 2017 
consular interview, he properly explained to the officer how to make several dishes, including gulab 
jamun and rasugulla. However, this contradicts the consular officer's notes regarding the interview. 
The Petitioner did not provide any new independent and objective evidence to resolve the 
inconsistencies in its response to the NOIR. Thus, in the NOR, the Director concluded that the record 
did not demonstrate that the Beneficiary possessed the experience required by the labor certification 
as of the priority date. 
On appeal, the Petitioner states that the previously submitted evidence, including the statements of the 
Beneficiary and his friends, is independent, objective evidence resolving the inconsistencies in the 
Beneficiary's employment history and that "there can be no other evidence to resolve the discrepancy" 
related to his prior employment. See id. We disagree. The record contains no payroll records, 
paystubs, tax records, or other employment records establishing the Beneficiary's prior employment 
with I I The Petitioner has not resolved the inconsistencies in the record with 
independent, objective evidence establishing that the Beneficiary possessed the experience required 
by the labor certification as of the priority date. The Director properly revoked the approval of the 
petition on this basis. 
V. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The Director found that the Beneficiary and the Petitioner willfully misrepresented the Beneficiary's 
employment withl I A finding of willful misrepresentation of material fact against a 
beneficiary or petitioner requires the following elements: 
• The beneficiary or petitioner procured, or sought to procure, a benefit under U.S. immigration 
laws· 7 
' • The beneficiary or petitioner made a false representation; 8 
• The false representation was willfully made; 9 
7 See 8 USC1S Policy Manual, supra, at J.3(B). 
8 A misrepresentation is an assertion or manifestation that is not in accordance with the true facts. A false 
representation may be made in oral interviews, written applications, or by submitting evidence containing false 
information. See 8 users Policy Manual. supra, at J.3(C); see also Legacy INS Genco Op. No. 91-39, 1991 WL 1185150 
(April 30, 1991 ). 
9 See 8 users Policy Manual, supra, at J.3(D). The term "willfully" means knowing and intentionally, as distinguished 
6 
• The false representation was material; 10 and 
• The false representation was made to a U.S. government official. 11 
See 8 USCIS Policy Manual J.2(B), https://www.uscis.gov/policymanual; see also Matter of M-, 
6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). 
A. The Beneficiary 
The Beneficiary indicated on the labor certification that he worked as a North Indian dessert 
cook/confectioner withl I in India from June 1994 to the date the labor certification was 
filed in March 2002. In light of the contradictory information presented and lack of independent, 
objective evidence regarding the Beneficiary's prior work experience as detailed above, the entry at 
Item 15 of Part B of the Form ETA 750 was not correct and constitutes a false representation. Because 
the Beneficiary did not have the represented experience as a North Indian dessert cook, the 
Beneficiary's false attestation on the labor certification constitutes a false representation on the face 
of a written petition. 
Second, the Beneficiary willfully misrepresented material facts regarding his previous employment 
withl I The Beneficiary signed the labor certification attesting to the veracity of the 
claims on the labor certification. In this way, the Beneficiary directly participated in the preparation 
and submission of documents that convey the false impression that he had the qualifying experience 
as required on the labor certification. In light of the unresolved contradictory evidence in the record 
regarding the Beneficiary's experience, we conclude that the Beneficiary's misrepresentations were 
willful. 
Third, the evidence is material to the Beneficiary's eligibility. Here, the Beneficiary's experience with 
.__ ____ ____.lis material to the whether he meets the minimum requirements of the offered position. 
The labor certification requires two years of experience in the job offered. The misrepresentation 
regarding the Beneficiary's experience on the labor certification cut off a potential line of inquiry 
regarding his claimed experience. See id. 
On appeal, the Petitioner asserts that there is no contradiction in the evidence. It notes the March 2011 
phone conversation between the Beneficiary and the consular officer, during which the Beneficiary 
indicated that he worked in a sweet shop from 1994 to 1997 but has worked intermittently since then 
because he owns a farm. It asserts that the "statement at most indicates that the beneficiary worked 
on and off' and that it "does not mean that the beneficiary has quit or stopped workin~." 12 However, 
the Beneficiary indicated on the labor certification that he worked 48 hours per week at. I 
from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy and Goodchild, 
17 I&N Dec. 22, 28 (BIA (1979). 
10 A material misrepresentation is a false representation concerning a fact that is relevant to the petitioner's eligibility for 
an immigration benefit. See 8 USCIS Policy Manual, supra, at J.3(E). A material misrepresentation is one that "tends to 
shut off a line of inquiry relevant to" eligibility. Matter of Ng, 17 I&N Dec. 536,537 (BIA 1980). 
11 See 8 USCIS Policy Manual, supra, at J.3(F); see also Matter ofY-G-, 20 I&N Dec. 794, 796 (BIA 1994). 
12 USCIS may reject an assertion of fact in a petition ifUSCIS is not persuaded that the assertion is true. See, e.g., section 
214(c)(l) of the Act 8 U.S.C. § 1184(c)(l); cf Systronics Co1p. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001); Lu-Ann 
Bake1y Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988). 
7 
from June 1994 to the date the labor certification was filed in March 2002. There is no indication on 
the labor certification that he "worked on and off'' at any point during that period of time. 
On appeal, the Petitioner also points to the "long time gap" between the Beneficiary's call with the 
consular officer in 2012 and the end of his employment wit~ I in 2006 as the reason for 
his inability to recall his dates of employment. It also points to the "long time gar' between the 
Beneficiary's September 2017 consular interview and the end of his employment with I 
in 2006 as the reason for his inability to recall the correct dates of his employment. However, this 
explanation does resolve the inconsistencies in the evidence relating to the Beneficiary's prior 
employment. A few errors or minor discrepancies are not reason to question the credibility of a foreign 
national or an employer seeking immigration benefits. See Spencer Enters. Inc. v. US., 345 F.3d 683, 
694 (9th Cir. 2003). However, anytime a petition includes numerous errors and discrepancies, and a 
petitioner fails to resolve those errors and discrepancies after USCIS provides an opportunity to do so, 
those inconsistencies will raise serious concerns about the veracity of a petitioner's assertions. Doubt 
cast on any aspect of a petitioner's proof may undermine the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. In this 
case, the discrepancies and errors catalogued above lead us to conclude that the evidence of the 
Beneficiary's work history is not credible. We agree with the Director's determination that the 
Beneficiary made a willful misrepresentation of material fact on the labor certification. This finding 
of willful material misrepresentation shall be considered in any future proceeding where the 
Beneficiary's admissibility is an issue. 13 
B. The Petitioner 
Here, the Director's analysis of the record related to the Beneficiary's willful misrepresentation of 
material facts related to his prior work experience, yet the Director also entered a formal finding of 
willful misrepresentation of a material fact against the Petitioner. The Director did not analyze the 
Petitioner's willful misrepresentation of a material fact. We will therefore withdraw the Director's 
finding of willful misrepresentation of a material fact against the Petitioner. 
VI. INVALIDATION OF THE LABOR CERTIFICATION 
The regulation at 20 C.F.R. § 656.30(d) provides, in pertinent part: 
( d) Invalidation of labor certifications. After issuance, a labor certification may be 
revoked by ETA using the procedures described in Sec. 656.32. Additionally, after 
issuance, a labor certification is subject to invalidation by the DHS or by a Consul of 
the Department of State upon a determination, made in accordance with those agencies' 
procedures or by a court, of fraud or willful misrepresentation of a material fact 
involving the labor certification application. 
We will withdraw the Director's invalidation of the labor certification and reinstate it. 
13 Any foreign person who, by fraud or willfully misrepresenting a material fact, seeks to procure ( or has sought to procure 
or has procured) a visa, other documentation, or admission into the United States or other benefit provided under the Act 
is inadmissible. See section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). 
8 
VII. SUCCESSOR-IN-INTEREST 
The labor certification application and petition were filed b At the time of filing, 
according to the tax returns in the record,~-----~ was the assumed name for a general 
partnership,! 
0 
I In response to the NOIR, the Petitioner indicated that "an 
entity namedl I has taken over all the operations of [the Petitioner]," but the date 
and details of the purported successorship were not provided. The record contains a statement dated 
October 18, 2017j from I l one of the Petitioner's eneral artners, indicating that 
I . will employ the Beneficiary. It appears that is using the same 
assumed name as the Petitioner, and that its President i .__ ____ __, The record also contains the 
Articles of Incorporation for I l The Petitioner asserted in its NOIR response that 
the job offered by the successor employer is the same as originally offered on the labor certification 
and that the successor meets all of the requirements of a successor-in-interest. The Director did not 
address this issue in his NOR, and the appeal was filed under the Petitioner's assumed name and was 
signed b~ I 
A petitioner may establish a valid successor relationship for immigration purposes if it satisfies three 
conditions. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986); see also 
Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, HQ 
70/6.2, Successor-in-Interest Determinations in Adjudication of Form 1-140 Petitions; Adjudicators 
Field Manual (AFM) Update to Chapter 22.2(b)(5) (AD09-37) (August 6, 2009), 
http://www.uscis.gov/legal-resources/policy-memoranda. First, the successor must folly describe and 
document the transaction transferring ownership of all, or a relevant part of: the predecessor employer. 
Second, the successor must demonstrate that the job opportunity is the same as originally offered on 
the labor certification. Third, the petitioning successor must prove by a preponderance of the evidence 
that it is eligible for the immigrant visa in all respects. In any future filings, the Petitioner must addre~s 
and establish, if applicable, its purported successor-in-interest relationship with._l ______ ~l 
VIII. CONCLUSION 
In sum, we will dismiss the appeal. The record does not establish that the Petitioner had the continuing 
ability to pay the combined proffered wages of the instant Beneficiary and the beneficiaries of its other 
relevant petitions, nor does it demonstrate that the Beneficiary possessed the experience required by 
the labor certification as of the priority date. Further, although we agree with the Director's 
determination that the Beneficiary made a willful misrepresentation of material fact on the labor 
certification, we will withdraw the Director's finding of willful misrepresentation of a material fact 
against the Petitioner. We will also withdraw the Director's invalidation of the labor certification, and 
we will reinstate it. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The Form ETA 750, case numbe~._ _____ _,l is reinstated. 
9