dismissed EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-1-C-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 27, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a restaurant operator, seeks to employ the Beneficiary as a cook specializing in 
Indian cuisine. It requests his classification under the third-preference immigrant category as a 
skilled worker. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i) , 8 U.S.C. 
§ l 153(b)(3)(A)(i). 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 experience. 
After initially granting the filing, the Director of the Texas Service Center revoked the petition 's 
approval and denied the Petitioner's following motion to reconsider. The Director concluded that 
the Petitioner did not demonstrate : the Beneficiary 's possession of the minimum experience 
required for the offered position ; the company's required ability to pay the position's proffered 
wage; or the bona fides of the job opportunity. 
On appeal, the Petitioner argues that the Director relied on "undisclosed and unsubstantiated" 
evidence regarding the Beneficiary's employment history, disregarded factors establishing the 
company's ability to pay, and erred in finding the job unavailable to U.S. workers. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker 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(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, 
qualified, and available for an offered position, and that 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 labor certification with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. Among other things, USCIS determines whether a beneficiary meets the 
requirements of a DOL-certified position and the requested immigrant classification. If USCIS 
Matter of M-I-C-
grants a 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. 
"[ A ]t 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, the erroneous nature of a petition's approval justifies its 
revocation. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). 
USCIS may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and 
unrebutted record would have warranted the petition's denial. Matter of Estime, 19 I&N Dec. 450, 
451 (BIA 1987). The Agency may revoke a petition if an NOIR response does not overcome the 
stated revocation grounds. Id. at 451-52 
II. THE REQUIRED EXPERIENCE 
A petitioner must demonstrate a beneficiary's possession of all DOL-certified job requirements by a 
petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 
1977). 1 When evaluating a beneficiary's qualifications, USCIS must examine the job-offer portion 
of an accompanying labor certification to determine a position's minimum requirements. USCIS 
may neither ignore a certification term, nor impose additional requirements. See, e.g., Madany v. 
Smith, 696 F.3d 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 certification states the minimum requirements of the offered position of Indian food 
cook as two years of experience in the job offered. The labor certification indicates that the position 
does not require any education or training. The Petitioner also indicated that it would not accept 
experience in a related occupation. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained 
more than two years of full-time, qualifying experience in India. He stated that he worked as a cook 
in a hotel from March 1998 through September 2000. Pursuant to 8 C.F.R. § 204.5(1)(3)(ii)(A), the 
Petitioner submitted a letter from the Beneficiary's former employer in support of the Beneficiary's 
claimed, qualifying experience. 
The Director's NOIR, however, noted that, contrary to 8 C.F.R. § 204.5(1)(3)(ii)(A), the letter lacked 
the name of its signatory. Because the letter did not comply with regulations, it did not establish the 
Beneficiary's claimed, qualifying experience. The Director therefore properly issued the NOIR on 
this ground. 
The NOIR also alleged inconsistencies in the Beneficiary's claimed employment history. The notice 
stated that, although the Beneficiary's 2008 immigrant visa application requested information about 
1 This petition's priority date is August 1, 2002, the date an office in DOL' s employment service system accepted the 
accompanying labor certification application for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a 
petition's priority date). 
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Matter of M-I-C-
his employment during the prior 10 years, the application omitted his claimed, qualifying experience 
at the hotel from 1998 to 2000. The application reportedly stated that the Beneficiary worked "odd 
jobs" from February 2001 to July 2003 in a city more than 1,000 miles from his claimed residence in 
India. The NOIR also stated that, at an interview with a U.S. consular officer in India, the 
Beneficiary "was unable to answer questions regarding his claimed experience as a specialized 
cook." Also, all six people contacted by U.S. officials from the Beneficiary's village reportedly did 
not identify him as a cook, but rather stated that he primarily operated a general store from his home. 
In response to the NOIR, the Petitioner submitted another letter from the hotel, this one identifying 
its signatory in compliance with 8 C.F.R. § 204.5(1)(3)(ii)(A). The Petitioner, however, has not 
explained why the Beneficiary omitted his claimed, qualifying experience from his immigrant visa 
application. See Matter of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies 
of record by independent, objective evidence pointing to where the truth lies). The record therefore 
requires additional, independent, objective evidence - such as tax or contemporaneous business 
records - to corroborate the Beneficiary's purported experience. 
On appeal, the Petitioner argues that USCIS did not provide it with a meaningful opportunity to 
respond to the derogatory evidence from the consulate. The company notes that USCIS neither 
detailed the questions asked of the Beneficiary at the consulate, nor identified the villagers that 
consular officials contacted. The Petitioner also asserts that USCIS did not provide the bases of the 
villagers' knowledge. 
Department of Homeland Security regulations, however, only require USCIS to "advise" a petitioner 
of derogatory information forming the basis of an adverse decision and to provide the petitioner "an 
opportunity to rebut the information ... before the decision is rendered." 8 C.F.R. § 103.2(b)(16)(i). 
Here, the NOIR adequately summarized the Beneficiary's consular interview regarding his claimed, 
qualifying experience in India and afforded the Petitioner an opportunity to explain the Beneficiary's 
responses and provide additional evidence of his experience. See Hassan v. Chertoff, 593 F.3d 785, 
787 (9th Cir. 2010) (holding that applicants or petitioners need only "be aware" of the information 
against them and have opportunities to explain and rebut the information). Although aware that the 
Beneficiary did not convince consular officials of his claimed, qualifying experience, the Petitioner 
chose not to provide his version of the interview, an explanation of his responses, or independent 
evidence to corroborate his claims. See section 291 of the Act, 8 U.S.C. § 1361 (stating that a 
petitioner bears the burden of establishing eligibility for a requested benefit). Records that public 
officials make in the ordinary courses of their duties, generally evince "strong indicia of reliability." 
Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996). The Petitioner has not demonstrated that the 
consulate's report is unreliable. The NOIR also sufficiently indicated that the villagers based their 
statements on their residence near the Beneficiary and their observations of the purported store in his 
home. 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the minimum 
experience required for the offered position. We will therefore affirm the petition's revocation on 
this ground. 
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Matter of M-I-C-
III. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must also 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 C.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally 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 foll 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay a foll 
proffered wage, USCIS considers whether it generated annual amounts of net income or net current 
assets sufficient to fond any difference between the annual proffered wage and the wages paid. If 
net income and net current assets are insufficient, USCIS may consider other factors affecting a 
petitioner's ability to pay. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 
1967).2 
Here, the labor certification states the proffered wage of the offered position of Indian food cook as 
$10 an hour, or $20,800 a year based on a 40-hour work week. As previously noted, the petition's 
priority date is August 1, 2002. USCIS approved the petition in September 2007. The Petitioner 
therefore had to demonstrate its ability to pay the proffered wage from 2002 to 2007. 
The record supports the NOIR's allegation that the Petitioner did not demonstrate its ability to pay 
the proffered wage in 2005. The Petitioner did not submit evidence that it paid the Beneficiary 
wages that year. Also, a copy of its federal income tax return for 2005 reflects net income and net 
current assets below the annual proffered wage of $20,800. 
The record also supports the NOIR's allegation that, after this petition's priority date and before its 
approval, the Petitioner had multiple petitions that were pending or approved. A petitioner must 
demonstrate its ability to pay the proffered wage of each petition it files until a beneficiary obtains 
lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore demonstrate 
its ability to pay the combined proffered wages of this and any other petitions that were pending or 
approved as of August 1, 2002, or filed thereafter, until this petition's approval on September 20, 
2007. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming revocation of a 
petition's approval where, as of the grant, a petitioner did not demonstrate its ability to pay 
combined proffered wages of multiple petitions). 
USCIS records show that, on the same day the Petitioner filed this petition, it filed another that 
remained pending as of this petition's priority date and was ultimately approved. 3 The Petitioner 
must therefore demonstrate its ability to pay the combined proffered wages of both petitions, from 
the priority date of this or the other petition (whichever is later) through 2007. Contrary to the 
NOIR's request, however, the Petitioner did not provide the proffered wage of the other petition. 
Thus, we are unable to calculate the total wage obligation for the time period in question, and the 
2 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., 
River Street Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Four Holes Land & Cattle, LLC v Rodriguez, 
No. 5:15-cv-03858, 2016 WL4708715 *4 (D.S.C. Sept. 9, 20~1~6)_. ____ ~ 
3 USCTS records identify the other petition by receipt number~! -----~ 
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Matter of M-I-C-
record does not establish the Petitioner's continuous ability to pay the proffered wage from the 
petition's priority date onward. 
In its NOIR response, the Petitioner stated that the other petition's beneficiary "became a permanent 
resident in 2012 and is no longer with the company." Nevertheless, because the other beneficiary 
was not granted legal permanent resident status prior to this petition's approval in 2007, the 
Petitioner had to demonstrate its ability to pay the combined proffered wages of this and the other 
petition. As of this petition's approval, the record therefore did not establish the Petitioner's 
continuing ability to pay the relevant proffered wages from the petition's priority date onward. 
On appeal, the Petitioner asserts that the Director disregarded evidence of its ability to pay under 
Sonegawa. As previously indicated, when determining a petitioner's ability to pay, we may consider 
factors other than its wages paid, net income, and net current assets. We may consider: the number 
of years it has conducted business; its number of employees; growth of its business; its incurrence of 
uncharacteristic losses or expenses; its reputation in its industry; a beneficiary's replacement of a 
current employer or outsourced service; or other factors affecting a petitioner's ability to pay. See 
Matter of Sonegawa, 12 I&N Dec. at 614-15. 
Here, the record indicates the Petitioner's continuous business operations since 2002 and its 
employment of five people. Copies of tax returns also indicate that the Petitioner's gross annual 
revenues grew from 2002 to 2007. Unlike the petitioner in Sonegawa, however, the Petitioner here 
did not demonstrate its possession of an outstanding reputation in its industry. Also, the record does 
not indicate that the Beneficiary will replace an employee or outsourced service. In addition, unlike 
the petitioner in Sonegawa, the Petitioner must demonstrate its ability to pay the combined proffered 
wages of multiple petitions. A totality of the circumstances under Sonegawa therefore does not 
establish the Petitioner's ability to pay the proffered wage. 
For the foregoing reasons, the record as of the petition's approval did not establish the Petitioner's 
continuing ability to pay the proffered wage from the petition's priority date onward. We will 
therefore also affirm the petition's revocation on this ground. 
IV. THE BONA FIDES OF THE JOB OPPORTUNITY 
The determinations above resolve the appeal. We will therefore not address the Director's finding 
that the Petitioner did not establish the availability of the offered position to U.S. workers. We 
reserve this issue for any future proceedings in this matter. 
V. CONCLUSION 
The record does not establish the Beneficiary's possession of the minimum experience required for 
the offered position or the Petitioner's ability to pay the proffered wage. We will affirm the 
revocation of the petition's approval for these reasons, with each considered an independent and 
alternate ground of revocation. As in petition proceedings, a petitioner in revocation proceedings 
bears the burden of establishing eligibility for the requested benefit. Matter of Ho, 19 I&N Dec. at 
589. Here, the Petitioner did not meet that burden. 
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Matter of M-I-C-
ORDER: The appeal is dismissed. 
Cite as Matter of M-I-C-, ID# 5236841 (AAO Aug. 27, 2019) 
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