dismissed EB-3 Case: Industrial Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 9164250 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 31, 2021 
The Petitioner seeks to employ the Beneficiary as an industrial sales engineer under the third­
preference, immigrant classification as a member of the professions . See Immigration and Nationality 
Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii) . 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that the Petitioner did not demonstrate the bona jides of the job 
opportunity or the company's required ability to pay the proffered wage of the offered position. 
In these revocation proceedings, the Petitioner bears the burden of establishing eligibility for the 
requested benefit. Matter of Ho, 19 l&N Dec. 582, 589 (BIA 1988). Upon de nova review, we will 
dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional 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) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for an offered 
position. Id. Labor certification also indicates 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 determines whether a beneficiary meets the 
requirements of a DOL-certified position and a requested visa classification. If USCIS 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. 
II. THE NOTICE OF INTENT TO REVOKE 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, 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 a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition's approval if the unexplained 
and unrebutted record as of the NOIR's issuance would have warranted the filing's denial. Matter of 
Estime, 19 I&N Dec. 450, 451 (BIA 1987). If a petitioner's NOIR response does not overcome the 
stated revocation grounds, USCIS properly revokes a petition's approval. Id. at 451-52. 
Here, the NOIR alleges that the Petitioner did not demonstrate its ability to pay the proffered wage of 
the offered position or the bona fides of the job opportunity. The NOIR asserts that USCIS erred in 
accepting a letter from the Petitioner's president to establish the company's ability to pay. The 
Director "may" accept a statement from a financial officer to demonstrate ability to pay "[i]n a case 
where the prospective United States employer employs 100 or more workers." 8 C.F.R. § 204.5(g)(2). 
The letter from the Petitioner's president states that "the organization hires over 100 employees." But 
the NOIR notes that the Form I-140 and the accompanying labor certification respectively list the 
Petitioner's number of employees as "12" and "2." The petition, which was filed in August 2018, also 
included a copy of a page from the Petitioner's U.S. income tax return for 2017. The incomplete 
return, however, does not meet regulatory requirements. Also, the page reflects a negative amount of 
net current assets, insufficient to demonstrate the Petitioner's ability to pay the proffered wage that 
year. 
USCIS properly issued the NOIR for insufficient evidence of the Petitioner's ability to pay the 
proffered wage of the offered position. At the time of the NOIR's issuance, evidentiary discrepancies 
cast significant doubt on the Petitioner's claimed employment of at least 100 workers. A petitioner 
must resolve inconsistencies ofrecord by independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. at 591. Thus, the record did not support USCIS' acceptance of the 
president's letter. Lacking required evidence of the Petitioner's ability to pay the proffered wage, the 
record would have warranted the petition's denial. 
In questioning the bonafides of the job opportunity, the NOIR cites the Beneficiary's application for 
a U.S. nonimmigrant visa in 2015. On the application, the Beneficiary stated that the comrny he 
owns represents several manufacturers in the oil and gas industry in and aroundl Texas, 
including makers of "down hole equipment." 1 The notice also notes that the Petitioner makes its 
headquarters within 50 miles o±1 I and described itself on the Form I-140 as a "Manufacturer" 
of "Down Hole Oil Tools." Thus, the record indicated that the Petitioner and the Beneficiary's 
company might have conducted business together before the filing of the labor certification application 
in 2017. Noting a possible pre-existing, business relationship between the Beneficiary and the 
Petitioner, the NOIR alleges that the company did not demonstrate the availability of the offered 
position to U.S. workers. 
1 In the oil industry, the term "downhole" describes equipment or processes inside a well. Collins English Dictionary, 
https://www.collinsdictionary.com/us/dictionary/english/downhole (last visited Jan. 29, 2021 ). 
2 
The Petitioner's NOIR response conceded the company's prior business relationship with the 
Beneficiary's firm and included a copy of a 2015 sales representation agreement between the two 
entities. However, in considering the NOIR, the stated revocation grounds, and the Petitioner's 
response, we find the basis for revocation regarding the bona fides of the job opportunity to be 
insufficient. See Matter of Estime, 19 I&N Dec. at 452. "Conclusory" and "speculative" observations 
do not support initiation of revocation proceedings. Matter of Arias, 19 I&N Dec. 568, 570 (BIA 
1988). We will therefore withdraw revocation of the petition's approval on that ground. We will next 
review the petition's revocation on the remaining ground. 
III. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). Unless a petitioner employs at least 100 workers, evidence of ability to pay must 
include copies of annual reports, federal tax returns, or audited financial statements. Id. 
In determining ability to pay, USCIS considers 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 beneficiary the 
foll proffered wage or did not employ him or her at all, USCIS examines whether it generated annual 
amounts of net income or net current assets sufficient to pay any differences between an annual 
proffered wage and wages paid. If net income and net current assets are insufficient, USCIS may 
consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter ofSonegawa, 
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 industrial sales 
engineer as $62,816 a year. The petition's priority date is December 20, 2017, the date DOL accepted 
the labor application for processing. See 8 C.F .R. § 204.5( d) ( explaining how to determine a petition's 
priority date). 
USCIS initially approved the petition in April 2019. As of the appeal's filing, required evidence of 
the Petitioner's ability to pay the proffered wage in 2019 was not yet available. For purposes of this 
decision, we will therefore consider the Petitioner's ability to pay only in 2018 and 2017, the year of 
the petition's priority date. 3 
The Petitioner's NOIR response indicates its employment ofless than 100 workers. Copies of federal 
quarterly payroll tax returns show that, from 201 7 through the first half of 2019, the Petitioner 
employed, at most, 24 workers. Thus, under 8 C.F.R. § 204.5(g)(2), the Director could not accept the 
letter from the Petitioner's president as a demonstration of the company's ability to pay the proffered 
wage. The Petitioner documented that the married couple who indirectly own it also own another U.S. 
company that employs more than 100 workers. Based on the companies' common ownership, the 
Petitioner argued for its qualification as an employer of more than 100 employees. The record, 
2 Federal courts have upheld USCTS' 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); Rivzi v. Dep 't of Homeland Sec., 37 F.Supp.3d 870, 
883-84 (S.D. Tex. 2014), af('d, 627 Fed. App'x. 292 (5th Cir. 2015). 
3 In any future filings in this matter, the Petitioner must submit copies of an annual report, federal tax return, or audited 
financial statements for 2019, if available. 
3 
however, indicates that both companies are Texas limited partnerships. They are therefore legal 
entities separate from each other and their partners. Tex. Bus. Orgs. Code § 152.056. Moreover, 
Department of Homeland Security regulations require "evidence that the prospective United States 
employer has the ability to pay the proffered wage." 8 C.F.R. § 204.5(g)(2) (emphasis added). For 
labor certification purposes, employers must have valid, individual federal employer identification 
numbers (FEINs). 20 C.F.R. § 656.3 (defining the term "employer"). Here, both the Form 1-140 and 
the labor certification identify the Petitioner by name and FEIN as the Beneficiary's prospective 
employer. "[N]othing in the governing regulation, 8 C.F.R. § 204.5, permits the [immigration service] 
to consider the financial resources of individuals or entities who have no legal obligation to pay the 
wage." Sitar Rest. v. Ashcroft, No. Civ. A.02-30197-MAP, 2003 WL 22203713 *2 (D. Mass. Sept. 
18, 2003). Thus, we will not treat the Petitioner as an employer of at least 100 workers. The letter 
from the Petitioner's president alone therefore does not demonstrate the company's ability to pay the 
proffered wage. 
The record lacks evidence that the Petitioner paid wages to the Beneficiary in 2017 or 2018. The 
Petitioner submitted copies ofIRS Forms 1099-MISC, Miscellaneous Income, for those years that it 
issued to the Beneficiary's company. The record, however, indicates that the Beneficiary's company 
is a corporation. The company therefore is a separate legal entity from the Beneficiary. See, e.g., 
Matter o_f Aphrodite Invs. Ltd., 17 I&N Dec. 530,531 (Comm'r 1980). Thus, the Forms 1099 indicate 
the Petitioner's payments to the Beneficiary's company, not to him. Based on wages paid, the record 
therefore does not demonstrate the Petitioner's ability to pay. 
The Petitioner submitted copies of its complete federal income tax returns for 2017 and 2018. The tax 
return for 2018 reflects net income of $105,907, which exceeds the annual proffered wage of $62,816. 
Thus, based on net income, the Petitioner has demonstrated its ability to pay the proffered wage in 
2018. The tax return for 2017, however, reflects negative amounts of both net income and net current 
assets. Thus, based on examinations of wages paid, net income, and net current assets, the record does 
not establish the Petitioner's ability to pay in 2017. 
On appeal, the Petitioner asserts that its payments to the Beneficiary's company demonstrate its ability 
to pay the proffered wage in 2017. The Petitioner indicates that, had it received authorization to 
employ the Beneficiary that year, it would not have needed to pay his company for his services. A 
copy of an IRS Form 1099 indicates that the Petitioner paid the Beneficiary's company $9,107 in 
2017. That amount falls short of the annual proffered wage of $62,816. But the Petitioner argues that 
it need only demonstrate its ability to pay the portion of the 201 7 proffered wage incurred after the 
petition's priority date of December 20. The Petitioner calculates this prorated proffered wage as 
$2,065, less than the amount the Petitioner paid the Beneficiary's company in 2017. 
The record, however, does not demonstrate the Petitioner's ability to pay the prorated proffered wage 
in 2017. The Petitioner submitted copies of checks indicating that its 201 7 payments to the 
Beneficiary's company occurred before November. The payments therefore do not demonstrate the 
Petitioner's ability to pay the proffered wage after the petition's priority date of December 20, 2017. 
Additionally, as noted above, the Petitioner's tax return reflects negative amounts of net income and 
net current assets for 201 7 and does not demonstrate the ability to pay either the proffered or prorated 
wage. Thus, even on a prorated basis, the Petitioner's payments to the Beneficiary's company do not 
demonstrate its ability to pay the proffered wage. 
4 
The Petitioner also asserts that its 2017 tax return understates its net current assets. The Petitioner 
submitted a letter from an accountant claiming that the tax return misclassified "a five-year note" as a 
current liability. 4 The accountant asserts that, after correction of the misclassification, the Petitioner 
generated $337,259 in net current assets that year, more than enough to pay the annual proffered wage. 
Contrary to the accountant's assertion, however, a statement accompanying the Petitioner's 2017 tax 
return does not appear to list a five-year note among the company's current liabilities. The Petitioner 
does not provide any other documentary evidence of the note or its misclassification. The record 
therefore does not support the Petitioner's restated amount of net current assets in 2017. 
As previously indicated, in determining the Petitioner's ability to pay the proffered wage, we may 
consider factors beyond its wages paid, net income, and net current assets. Under Sonegawa, we may 
consider: how long the Petitioner has conducted business; its number of employees; growth of its 
business; its incurrence of uncharacteristic losses or expenses; and its reputation in its industry. 
Here, the record indicates the Petitioner's continuous business operations since 1992 and, as of the 
second quarter of 2019, its employment of 20 workers. Copies of the Petitioner's tax returns also 
indicate consistent growth of its annual revenues from 2016 through 2018. 
The Petitioner asserts that it incurred uncharacteristic business expenses in 201 7. The accountant 
states that part of the Petitioner's inventory became obsolete and that the company sold the old 
materials for $895,000 less than their cost. The Petitioner, however, has not documented or described 
the inventory sold or explained its obsolescence. Thus, the record does not indicate that, but for 
obsolete inventory, the company would have been able to pay the proffered wage in 2017. Also, unlike 
the petitioner in Sonegawa, the Petitioner here has not demonstrated its possession of an outstanding 
reputation in its industry. Thus, a totality of circumstances under Sonegawa does not establish the 
Petitioner's ability to pay the proffered wage. 
IV. THE REQUIRED EXPERIENCE 
The record also does not demonstrate the Beneficiary's qualifying experience for the offered position. 
The NOIR questioned the Beneficiary's experience. But the Director did not revoke the petition's 
approval on that ground. A petitioner must demonstrate a beneficiary's possession of all DOL­
certified 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 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.2d 1008, 1015 (D.C. Cir. 1983) 
(holding that "DOL bears the authority for setting the content of the labor certification") ( emphasis in 
original). 
4 Current liabilities are obligations due within one year, such as accounts payable. Joel G. Siegel & Jae K. Shim, Barron's 
Dictiona1y of Accounting Terms 117 (3d ed. 2000). Similarly, current assets are cash or holdings that can be converted 
into cash within one year, such as accounts receivable or inventory. Id. Current assets minus current liabilities equal net 
current assets. Id. 
5 
Here, the labor certification states the minimum job requirements of the offered position of industrial 
sales engineer as a U.S. bachelor's degree, or a foreign equivalent degree, in industrial engineering 
and two years of experience in the job offered or a "related" occupation. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he obtained a 
U.S. bachelor's degree in industrial and operations engineering, and more than 19 years of foll-time, 
qualifying experience. He stated the following experience: 
• Almost three years as chief executive officer (CEO) of the U.S. company he owns, from 
January 2015 to December 2017; 
• About two years as chief operating officer of a carton and paper company in Saudi Arabia, 
from November 2012 to November 2014; and 
• About 14 and a half years as director of a steel and precision machine company in Pakistan, 
from August 1997 through January 2012. 
To support claimed, qualifying experience, a petitioner must submit letters from a beneficiary's prior 
employers. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must contain the names, addresses, and titles of 
the employers, and describe a beneficiary's experience. Id. 
The NOIR notes that descriptions of the Beneficiary's experience in two letters from his U.S. company 
do not establish his requisite experience in the job offered or a related occupation. In response, the 
Petitioner submitted additional letters in support of the Beneficiary's claimed experience. A letter 
from the Beneficiary's purported former employer in Pakistan states that, from January 2003 through 
August 2010, he worked as the company's director of marketing and finance, and, from September 
2010 through February 2012, as its CEO. Another letter states that a related company also employed 
him as CEO from January 2003 through June 2008. The signatories of these letters, however, share 
the same family name as the Beneficiary. Thus, the letters appear to be from family members who 
may be biased in the Beneficiary's favor. A petitioner may submit letters or affidavits that contain 
biased information, but the bias will affect the weight to be accorded the evidence. See Matter of D­
R-, 25 I&N Dec. 445,461 (BIA 2011). Without independent, objective evidence to support them, the 
letters are not sufficiently reliable to demonstrate the Beneficiary's claimed experience with the 
Pakistani company. 
The Petitioner also submitted a letter from the Saudi carton and paper company that purportedly 
employed the Beneficiary. The signatory's name on the letter, however, is illegible. Thus, contrary 
to 8 C.F.R. § 204.5(1)(3)(ii)(A), the letter does not show the employer's name and therefore does not 
establish the Beneficiary's qualifying experience in Saudi Arabia. 
In addition, the Petitioner submitted letters from a U.S. Department of Commerce official and a 
purported customer regarding the Beneficiary's work with his U.S. company. These letters, however, 
do not sufficiently detail the Beneficiary's U.S. duties to establish his requisite experience in the job 
offered or a related occupation. 
For the foregoing reasons, the record does not establish the Beneficiary's qualifying experience for 
the offered position. In any future filings in this matter, the Petitioner must submit independent, 
objective evidence demonstrating the Beneficiary's claimed, qualifying experience. 
6 
V. CONCLUSION 
The record would not have warranted the petition's denial for lack of a bona fide job opportunity. The 
Petitioner, however, did not demonstrate its ability to pay the proffered wage of the offered position. 
We will therefore affirm revocation of the petition's approval. 
ORDER: The appeal is dismissed. 
7