dismissed EB-3 Case: Food Delivery Service

U.S. Citizenship 
and Immigration 
Services 
In Re: 11934434 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 7, 2021 
The Petitioner describes itself as an operator of a food-delivery service and seeks to employ the 
Beneficiary as a "driver-food delivery." The company requests his classification under the third­
preference, immigrant visa category for "other workers." See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required intention to employ the Beneficiary in the offered position. 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 of 
the Act, 8 U.S.C. § 1361. Upon de novo review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an unskilled 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) of the Act, 8 U.S.C. § 1182(aX5). 
DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a 
position. Id. Labor certification also signifies 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 certified labor application 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 considers whether a beneficiary meets the job 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
a petition, a designated noncitizen may finally apply for an immigrant visa abroad or, if eligible, 
"adjustment of status"in the United States. See section245 of the Act, 8 U.S.C. § 1255. 
II. BONA FIDES OF THE JOB OFFER 
A business may file an immigrant visa petition if it is "desiring and intending to employ [a noncitizen] 
within the United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a 
beneficiary under the terms and conditions of an accompanying labor certification. See Matter of 
lzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, contraty to 
an accompanying labor certification, a petitioner did not intend to employ a beneficiary as a domestic 
worker on a full-time, live-in basis). 
The petition and accompanying labor ce1iification state the Petitioner's intention to permanently 
employ the Beneficiary full-time as a "[d]river-food delivery." In a written request for additional 
evidence (RFE), the Director questioned the bona jides of the job offer, noting that the position's job 
requirements listed on the labor certification do not include a driver's license. 
The omission of a driver's license from the job requirements of a food-delivery "driver" is odd. But 
the omission alone does not demonstrate the Petitioner's lack of intent to employ the Beneficiary in 
the offered position. The position's job duties do not expressly require use of a motor vehicle to 
deliver food. The Petitioner also stated that its deliverers need not use motor vehicles if the workers 
can otherwise make timely deliveries. In addition, the omission of the driver's license requirement 
would be more significant if the Beneficiary lacked such a license. But the Petitioner submitted 
evidence of his licensure. 
The Director also suggested thatthe position would illegally require the Beneficiary to make deliveries 
without a driver's license. Citing an adopted decision of ours, the Director found that "USCIS cannot 
approve a visa petition that is based on an illegal or otherwise invalid employment agreement." See 
Matter off- Corp., Adopted Decision 2017-02 (AAO Apr. 12, 2017). In/- Corp., we held that "[w]e 
are unable to approve an employment-based visa petition where the record indicates that a petitioner 
will not pay its beneficiary the minimum wage required by applicable labor law." Id. at 2. The petition 
in I-Corp. stated a proffered wage rate below federal minimum-wage standards. Id. 
Unlike in/- Corp, this petition does not contain illegal job requirements. The position's title includes 
the word "driver," and U.S. states require licensure of motorists using public roads. As previously 
discussed, however, the record does not establish that the position requires use of a motor vehicle. 
Thus, the omission of a driver's license requirement does not support the Petitioner's alleged lack of 
intention to employ the Beneficiary in the offered position or otherwise warrant the petition's denial. 
On appeal, the Petitioner argues that the Director improperly imposed a driver's license requirement 
on the offered position. 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). 
But the Director also noted that the petition and accompanying labor certification state the Petitioner's 
employment of only one person. The Petitioner's minimal staff casts doubt on its ability to operate 
the claimed, food-delivery service, and its ability and intention to permanently employ the Beneficiaty 
in the full-time, offered position. 
In its RFE response, the Petitioner provided a "transaction list," containing dates and names of 
restaurants for which it purportedly made deliveries in 2018and2019. The list also contains the names 
of purported deliverers. The Petitioner states that it treated its deliverers as independent contractors, 
rather than as employees. Because of difficulties in retaining and attracting deliverers on a contracted 
basis, the company states that it decided to offer the Beneficiary employment. 
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The transaction list, however, is unreliable. The record lacks documentary evidence corroborating the 
purported deliveries or the Petitioner's payments to the claimed, contracted deliverers. A copy of the 
Petitioner's federal income tax return for 2018 does not indicate the company's payment of"[s]alaries 
and wages" or list its "[ c Jost oflabor." The return lists "[ o ]ther deductions" of $98,225, referring to 
an "attached" statement. But the submitted copies of the tax return do not include the statement. The 
tax return therefore does not demonstrate the Petitioner's payment of contracted food deliverers. The 
record also lacks verification letters from restaurants whose food the Petitioner purportedly delivered. 
Also, the Director's most recent RFE asked the Petitioner to submit documentary evidence of the 
company's payments to food deliverers, their work schedules, and their hours worked. The Petitioner 
did not provide the requested materials. "Failure to submit requested evidence which precludes a 
material line of inquiry shall be grounds for denying the benefit request." 8 C.F.R. § 103 .2(b)(l 4). 
The 2018 tax return also casts doubt on the Petitioner's claimed operation of a food-delivery service. 
The return does not list any "[g]ross receipts or sales." The return states that the company earned 
$247,313 in"[ o ]ther income," referring to an "attached" statement. But the submitted copies of the 
return also lack this statement. Thus, the tax return ofrecord does not indicate the source(s) of the 
Petitioner's 2018 income. As previously indicated, the tax return also does not indicate the Petitioner's 
payments to any employees or contractors. The return therefore does not demonstrate the company's 
payment of its claimed, sole employee. These omissions cast further doubt on the Petitioner's claimed 
operation of a food-delivery service and its intention to permanently employ the Beneficiary in the 
full-time, offered position. 
In addition, online government records identify the Petitioner's business status as "inactive." See Va. 
State Corp. Comm 'n, "Clerk's Information System," https://cis.scc.virginia.gov/ (last visited Mar. 10, 
2021 ). The records indicate that state authorities canceled the existence of the petitioning limited 
liability company on July 31, 2019, less than two weeks after the petition's filing. The online status 
suggests that the Petitioner no longer does business. Thus, in any future filings in this matter, the 
Petitioner must submit independent, objective evidence of its continuing business operations. 
For the foregoing reasons, the Petitioner has not demonstrated its intention to employ the Beneficiaiy 
in the offered position of food-delivery driver. We will therefore affirm the petition's denial. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record also does establish the Petitioner's ability to pay the 
proffered wage. A petitioner must demonstrate its continuing ability to pay a proffered wage, from a 
petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must generally include copies of annual reports, federal tax returns, or 
audited financial statements. Id. 
The accompanying labor certification states the proffered wage of the offered position of food-delivety 
driver as $18,866 a year. The petition's priority date is May 7, 2019, the date DOL accepted the 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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At the time the Director issued his most recent RFE, regulatory required evidence of the Petitioner's 
ability to pay the proffered wage in 2019, the year of the petition's priority date, or thereafter was not yet 
available. Thus, contrary to 8 C.F.R. § 204.5 (g)(2), the record does not establish the Petitioner's ability 
to pay the proffered wage from the petition's priority date onward. 
In any future filings in this matter, the Petitioner must provide copies of annual rep01is, federal tax 
returns, or audited financial statements for 2019 and, if available, 2020. The Petitioner may also 
submit additional evidence of its ability to pay the proffered wage in those years, including proof of 
any wages it paid the Beneficiary or materials supporting the factors stated in Matter of Sonegawa, 12 
I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
IV. CONCLUSION 
The Petitioner has not demonstrated its required intention to employ the Beneficiary in the offered 
position. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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