dismissed EB-3 Case: Food Service Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 1, 2024 In Re: 33556460 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, the operator of a gelato and coffee bar franchise, seeks to permanently employ the 
Beneficiary as a store manager. The company requests his classification under the third-preference 
immigrant visa category for "skilled workers." See Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). This category allows a prospective U.S. employer to 
sponsor a noncitizen for lawful permanent residence to work in a position requiring at least two years 
of training or experience. Id. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
demonstrate its required ability to pay the offered position's proffered wage and that it willfully 
misrepresented the Beneficiary's alleged ownership interest in the company. We dismissed a 
subsequent appeal, withdrawing the Director's finding of willful misrepresentation of a material fact. 
The matter is now before us on a combined motion to reopen and motion to reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
combined motion. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
We incorporate by reference our prior analysis in the appeal decision. By way of summation, the 
Director concluded that the Petitioner willfully misrepresented the Beneficiary's alleged ownership 
interest in the company; however, we withdrew that finding because the record does not establish that 
the Beneficiary has an ownership interest in the company. The Director further concluded that the 
record does not establish the Petitioner has paid or has the ability to pay the Petitioner the proffered 
wage. 
In our decision, we noted that the labor certification establishes a priority date of September 20, 2021, 
with a proffered annual wage of$69,000. We observed that the Petitioner had not paid the Beneficiary 
any wages and that neither the Petitioner's net income of $5,476 nor its net current assets of $6,754, 
as reported on the Petitioner's 2021 federal income tax return, establish its ability to pay the 
Beneficiary an annual wage of $69,000. We also noted that a profit and loss statement for the period 
ofJanuary through June 2022, listing a profit of $55,604, also does not establish the Petitioner's ability 
to pay the Beneficiary the proffered wage. We further declined to accept a profit and loss statement 
for 2021, submitted for the first time on appeal, because the Director's request for evidence (RFE) 
provided the Petitioner with sufficient notice and opportunity to submit the 2021 statement before the 
Director denied the petition, citing Matter ofSoriano, 19 I&N Dec. 764, 766 (BIA 1988) (refusing to 
consider evidence on appeal where a petitioner received notice of the required evidence and a 
reasonable opportunity to provide it before a petition's denial). We also observed that neither the 2021 
statement nor a similar 2022 statement "expressly state[s] an opinion on whether the financial 
statements are presented fairly, in all material aspects," as required by the Statements on Standards for 
Accounting and Audit Services issued by the American Institute of Certified Public Accountants. 
Therefore, we concluded that neither the 2021 nor the 2022 statement are "audited," meeting the 
regulatory requirement at 8 C.F.R. § 204.5(g)(2) (listing "audited" financial statements as acceptable 
evidence of ability to pay). 
We acknowledged that the Petitioner has had continuous business operations since 2015, it employed 
eight workers, and its revenues nearly doubled from 2020 to 2021; however, we also observed that the 
record does not demonstrate the Petitioner possesses an outstanding business reputation in its industry 
or that it incurred uncharacteristic expenses or losses that would have prevented its ability to pay the 
proffered wage in 2021, as contemplated by Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 
Comm'r 1967). 
On motion, the Petitioner submits correspondence from an accountant who indicates the 2021 and 
2022 profit and loss statements are audited. The Petitioner also asserts on motion that it has been in 
business at the same location since 2016, employing at least five workers continuously in that time 
period, it has "shown consistent growth in sales and profitability," it "has been the number 1 franchisor 
in its class of frozen gelato & coffe' (Italian ice cream) with over 45 locations in the USA," and that 
"the Pandemic in 2020 and the effects after that about consistent lock downs created an environment 
where the malls were closed and people hesitated to dine out," to address the Sonegawa factors. 
We need not address whether the 2021 profit and loss statement is audited because, as we explained 
in our prior decision, the Director's RFE provided the Petitioner with sufficient notice and opportunity 
to submit its 2021 audited financial statements before the Director denied the petition; however, the 
Petitioner did not do so, and we therefore continue to decline to accept it here. See Matter ofSoriano, 
19 I&N Dec. at 766; see also INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are 
not required to make "purely advisory findings" on issues that are unnecessary to the ultimate 
decision); Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative 
issues on appeal where an applicant is otherwise ineligible). Moreover, we need not address whether 
the 2022 profit and loss statement is audited because it cannot establish the Petitioner had the ability 
to pay the Beneficiary the proffered wage in 2021, the priority date year. See Bagamasbad, 429 U.S. 
at 25; Matter ofL-A-C-, 26 I&N Dec. at 526 n.7; 8 C.F.R. § 204.5(g)(2) (requiring evidence of ability 
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to pay at the time the priority date is established). 1 The Petitioner does not establish on motion how 
we may have erred in concluding the Petitioner neglected to submit such evidence before the Director 
denied the petition. 
In tum, the Petitioner does not submit a new, material fact regarding the Sonegawa factors we 
addressed in our prior decision. Specifically, we acknowledged the Petitioner's length of business 
operations and the number of employees-although the Petitioner asserts on motion that it has been 
in business one fewer year, with fewer workers, neither of which present more favorable factors-and 
that its revenues increased notably from 2020 to 2021. Supporting its assertion of its reputation, the 
Petitioner submits gray copies of photographs of its franchise location. The photographs vaguely 
depict the franchise location's physical characteristics; they do not establish it "has been the number 
1 franchisor it its class" or any other notoriety. The Petitioner's remarks regarding generalized 
habits does not present a new fact regarding the COVID-19 pandemic's effects specifically in 
Texas, where the Petitioner is located, particularly after pandemic restrictions had ended and the 
Petitioner's profits had already increased, as we addressed. Therefore, the record does not support the 
Petitioner's assertion that prior dining restrictions caused uncharacteristic expenses or losses in 2021. 
Because the Petitioner has not provided a new, material, probative fact to establish that we erred in 
dismissing the appeal, the motion to reopen will be dismissed. See 8 C.F.R. § 103.5(a)(2), (4). 
Next, a motion to reconsider must establish that our prior decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). Our review on motion is limited to 
reviewing our latest decision. 8 C.F.R. § 103.S(a)(l)(ii). We may grant motions that satisfy these 
requirements and demonstrate eligibility for the requested benefit. 
On motion, the Petitioner contests the correctness of our prior decision. However, beyond referencing 
the name of the case that provides a totality of circumstances test we addressed in our prior decision, 
Sonegawa, the Petitioner does not identify a law or policy we may have applied incorrectly at the time 
we issued that decision. On the contrary, the Petitioner generally repeats our analysis of three of the 
Sonegawa factors, adding unsubstantiated assertions regarding two additional factors, noted above, 
without addressing how our analysis of the record at the time of the decision may have been in error. 
Moreover, the newly submitted photographs of the franchise location's physical characteristics cannot 
establish eligibility through a motion to reconsider because such a motion must be based on evidence 
in the record of proceedings at the time of the decision to be reconsidered. 8 C.F.R. § 103.5(a)(3). 
Because the Petitioner has not established that our previous decision was based on an incorrect 
application of law or policy at the time we issued our decision, the motion to reconsider will be 
dismissed. 8 C.F.R. § 103.5(a)(3)-(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
1 We note that the 2022 profit and loss statement covers a period of less than one year; thus, it may not accurately reflect 
the Petitioner's net income in 2022. 
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