dismissed EB-3 Case: Janitorial Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 7403630 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 13, 2020 
The Petitioner seeks to employ the Beneficiary as a janitor under the third-preference, immigrant 
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 ability to pay the combined proffered wages of this and 
other Form I-140 petitions , or the bonafides of the job offer. The Director also found that, contrary 
to the position's job requirements, the Petitioner did not establish the Beneficiary's successful 
completion of a drug screen and criminal background check. 
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. 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, or available for an offered 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 labor certification document 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. 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 e.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must include copies of annual reports, federal tax returns, 
or audited financial statements. Id. For a petitioner who employs at least 100 people, however, as in 
this case, users may also accept a statement from a financial officer establishing the company's 
ability to pay the proffered wage. Id. 
In determining ability to pay, users 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, users examines whether the business generated annual 
amounts of net income or net current assets sufficient to pay any difference between the proffered 
wage and the actual wages paid. If net income and net current assets are insufficient, users may 
consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967).1 
Here, the accompanying labor certification states the proffered wage of the offered position of 
janitor as $9.00 an hour, or, based on a standard 40-hour work week, $18,720 a year. The petition's 
priority date is June 1, 2018, the date DOL accepted the labor certification application for 
processing. See 8 e.F.R. § 204.5(d) (explaining how to determine a petition's priority date). As of 
the appeal's filing, required evidence of the Petitioner's ability to pay the proffered wage in 2019 
was not yet available. We will therefore consider the Petitioner's ability to pay only in 2018, the 
year of the petition's priority date. 2 
As initial evidence of its ability to pay, the Petitioner submitted a letter from its operations manager 
stating the company's employment of more than 300 people and its receipt of more than $9 million 
in gross revenues in 2017. The Director did not abuse his discretion, however, in rejecting the letter 
alone as sufficient proof of the Petitioner's ability to pay the proffered wage. The letter does not cite 
financial figures for 2018, the year of the petition's priority date. Also, contrary to 8 e.F.R. 
§ 204.5(g)(2), the record does not establish the operations manager as a "financial officer" of the 
Petitioner. In addition, users records indicate the Petitioner's filing of several Form I-140 
petitions for other beneficiaries. A petitioner must demonstrate its ability to pay a proffered wage 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.F.R. 
§ 204.5(g)(2). The Petitioner here must therefore demonstrate its ability to pay the combined 
proffered wages of this and other petitions that were pending or approved as of this petition's 
priority date of June 1, 2018, or filed thereafter. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. 
Mass. 2014) (affirming our revocation of a petition's approval where, as of the filing's grant, the 
petitioner did not demonstrate its ability to pay the combined proffered wages of multiple petitions). 
1 Federal courts have upheld USCIS' 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); Four Holes Land & Cattle, LLC v Rodriguez. 
No. 5: l 5-cv-03858-JMC, 2016 WL 4708715 **4-5 (D.S.C. Sept. 9, 2016). 
2 In any future filings in this matter, the Petitioner must submit evidence of its ability to pay the proffered wage in 2019, 
if available. 
2 
On appeal, the Petitioner provides a copy of a 2019 payroll record indicating the company's payment 
of wages to the Beneficiary. As previously indicated, the record lacks required evidence of the 
Petitioner's ability to pay in 2019 as set forth in 8 C.F.R. §204.5(g)(2). We are therefore considering 
the Petitioner's ability to pay only in 2018. The Petitioner did not submit evidence that it paid the 
Beneficiary that year. Thus, based solely on wages paid, the record does not establish the 
Petitioner's ability to pay the proffered wage. 
Also on appeal, the Petitioner submits a copy of its federal income tax return for 2018. 3 The return 
reflects net income of $59,293 4 and net current assets of $576,565. Both of these amounts would 
exceed the annual proffered wage of $18,720, but this is before consideration of all of the 
Petitioner's sponsored workers. As previously indicated, USCIS records indicate the Petitioner's 
filing of multiple Form I-140 petitions. The Petitioner therefore must demonstrate its ability to pay 
the combined proffered wages of this and other petitions that were pending or approved as of June 1, 
2018, or filed thereafter. See Patel, 2 F.Supp.3d at 124. In response to the Director's written request 
for evidence (RFE), the Petitioner provided a list of 33 of its other petitions with 2018 priority dates 
that were pending or approved as of June 1, 2018, or filed thereafter. USCIS records indicate that 
the Agency rejected one of these other petitions. 5 A petitioner need not demonstrate its ability to 
pay the proffered wage of a rejected petition. 6 The Petitioner therefore need only demonstrate its 
ability to pay the proffered wages of 33 petitions, including this one. 
Contrary to the RFE, however, the Petitioner did not provide the proffered wages of its other 32 
petitions. The absence of the other proffered wages precludes a material line of inquiry. A proffered 
wage must equal or exceed a prevailing wage of an offered occupation. 20 C.F.R. § 656.l0(c)(l). 
If: as the Director calculated, the Petitioner offered all of its beneficiaries the same amount the 
company pledged to the Beneficiary, the combined proffered wages would total $617,760. Because 
that amount exceeds both the net income and net current asset amounts of the Petitioner in 2018, the 
record would not establish the company's ability to pay the proffered wage. Because the Petitioner 
omitted the requested proffered wages of its other petitions and does not submit this information on 
appeal, it has not demonstrated its ability to pay the combined proffered wages. See 8 C.F.R. § 
103 .2(b )( 14) ( authorizing USCIS to deny a petition where a petitioner omits "requested evidence 
which precludes a material line of inquiry"). Therefore, based on examinations of wages the 
Petitioner paid the Beneficiary, its net income, and its net current assets, the record does not 
demonstrate the company's ability to pay the proffered wage in 2018. 
3 The Director determined the Petitioner's ability to pay based on information in its federal income tax return for 2017. 
4 For federal income tax purposes in 2018, the Petitioner chose to be treated as an S corporation. S corporations list 
additional income, deductions, and credits from sources outside of their trades or businesses on Schedules K to IRS 
Forms l 120S. U.S. Income Tax Returns for S Corporations. See U.S. Internal Revenue Serv. (IRS), "Instructions to 
Form l 120S" 22, https://www.irs.gov/pub/irs-pdf/i1120s.pdf (last visited Jan. 14, 2020) (describing Schedule K as "a 
summary schedule of all shareholders' shares of the corporation's income, deductions, credits, etc."). We therefore 
consider line 18 of Schedule K, "Income/loss reconciliation," of the Petitioner's IRS Form l 120S to most accurately 
reflect its net income. 
5 USCIS records identify the rejected petition by the receipt number~-----~ 
6 A petitioner also need not demonstrate its ability to pay proffered wages of petitions it withdrew or that USCIS denied 
or revoked. In addition, a petitioner need not demonstrate its ability to pay proffered wages before the corresponding 
priority dates of their petitions, or after their corresponding beneficiaries have obtained lawful permanent residence. 
3 
On appeal, the Petitioner asserts that its 2018 federal income tax return demonstrates its ability to 
pay that year. In addition to the potentially sufficient amount of net current assets listed on the 
return, the company cites its amounts of total assets and liabilities. The Petitioner appears to argue 
that its net assets amount (total assets minus total liabilities) demonstrates its ability to pay. 
Schedule L of the 2018 tax return indicates that the Petitioner's net assets exceeded the combined 
proffered wages. But net assets do not meaningfully demonstrate a business's ability to pay a 
proffered wage. Total assets include both "current assets," items having a life of one year or less 
such as cash, inventory, and pre-paid expenses, and "long-lived" or "long-term assets," items whose 
future benefits are expected for years, such as buildings, equipment, and intangibles. Joel G. Siegel 
& Jae K. Shim, Barron's Dictionary of Accounting Terms, 117, 264 (3d. ed. 2000). Current assets 
better measure ability to pay a proffered wage because a business can quickly liquidate these items. 
As previously discussed, however, we analyzed the Petitioner's net current assets ( current assets 
minus current liabilities) and found them insufficient to demonstrate the Petitioner's ability to pay 
the combined proffered wages in 2018. The Petitioner's net assets therefore do not establish its 
ability to pay the proffered wage. 
Nevertheless, we may consider factors beyond net current assets, net income, and wages paid in 
determining the Petitioner's ability to pay. Under Sonegawa, we may consider: the number of years 
the company has conducted business; its number of employees; growth of its business; 
uncharacteristic losses or expenses incurred; its reputation in its industry; the Beneficiary's 
replacement of a current employee or outsourced service; or other factors affecting its ability to pay 
the proffered wage. See Matter of Sonegawa, 12 I&N Dec. at 614-15. 
Here, the record indicates the Petitioner's continuous business operations since 1978 and its current 
stated employment of more than 300 people. The company's tax returns, however, indicate that, 
from 2017 to 2018, its annual revenues decreased. Also, unlike the petitioner in Sonegawa, the 
Petitioner here did not demonstrate its incurrence of uncharacteristic losses or expenses, or its 
possession of an outstanding reputation in its industry. In addition, the record does not indicate that 
the Beneficiary would replace a current employee or outsourced service. Further, unlike the 
petitioner in Sonegawa, the Petitioner here must establish its ability to pay the combined proffered 
wages of multiple beneficiaries. Thus, a totality of circumstances under Sonegawa does not 
demonstrate the Petitioner's ability to pay the combined proffered wages. 
The Petitioner has not demonstrated its ability to pay the combined proffered wages of this and other 
Form I-140 petitions. We will therefore affirm the petition's denial. 
III. THE BONA FIDES OF THE JOB OFFER 
A business may file a petition if it is "desiring and intending to employ [a foreign national] 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 specified in an accompanying labor certification. Matter 
of Izdeska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, contrary 
to the terms of the accompanying labor certification, the petitioner did not intend to employ the 
beneficiary as a domestic worker on a foll-time, live-in basis). For labor certification purposes, the 
term "employment" means "[p ]ermanent, foll-time work." 20 C.F.R. § 656.3. 
4 
Here, the Petitioner attested on the petition and the accompanying labor certification to an intention 
to permanently employ the Beneficiary in the foll-time position of janitor. After reviewing the 
Petitioner's website, however, the Director found that the company operated a personnel staffing 
business that employed workers on a temporary basis. The Director found that, contrary to the RFE, 
the Petitioner did not submit requested contracts and did not demonstrate its intention to employ the 
Beneficiary on a permanent foll-time, year-round basis. 
On appeal, the Petitioner submits copies of its contract with the client at whose site the Beneficiary 
would work and documentation indicating that its sister company provides staffing services. The 
Petitioner therefore argues that it, rather than its sister company, intends to employ the Beneficiary 
in the offered position. 
A preponderance of evidence supports the Petitioner's argument. Corporate documentation 
identifies the staffing service as the Petitioner's sister company. An online review indicates that the 
Petitioner shares its website with its sister company. The record therefore indicates that the Director 
mistakenly confused the Petitioner with its sister company as an employer of temporary workers. 
Further, the Petitioner's contract with its client and the documentation of its employment of the 
Beneficiary in 2019 support its intention to employ her in the offered position. 
The Petitioner has established its intention to employ the Beneficiary in the offered position. We 
will therefore withdraw the Director's contrary finding. 
IV. THE JOB REQUIREMENTS 
A petitioner must also 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).7 In evaluating a beneficiary's qualifications, USCIS must 
examine the job-offer portion of an accompanying labor certification to determine the minimum 
requirements of an offered position. 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). 
Here, the job-offer portion of the accompanying labor certification states that the offered position of 
janitor requires neither training, education, nor experience. Part H.14 of the labor certification also 
does not list any "Specific skills or other requirements." 
The Director's RFE, however, noted the statement in part K.9 of the labor certification regarding 
"Alien Work Experience." Part K.9 states: "The alien is willing to submit to and pass any 
employer-required drug screen and any employer-required criminal background check." The RFE 
alleged that the Petitioner's website also indicated the company's testing of job candidates for illegal 
7 As previously indicated, this petition's priority date is June 1, 2018. 
5 
drug use and criminal records. The Director interpreted the record to identify the completion of a 
drug screen and criminal background check as a job requirement of the offered position. The RFE 
asked the Petitioner to provide evidence that the Beneficiary met this requirement by the petition's 
priority date. 
In response to the RFE, however, the Petitioner omitted proof that the Beneficiary underwent drug 
and background tests. Rather, the Petitioner asserted that USCIS misconstrued the completion of 
such tests as a position requirement. In a letter, the Petitioner's operations manager stated: 
We . . . do not require candidates to undergo a drug screening or national criminal 
background check as a condition of an offer of employment. Our position merely 
requires a willingness to relocate ... to perform the position. 
Any drug screenings or national background checks occur once candidates begin 
working with our company[,] to keep costs at a minimum and [to] maximize the 
safety of all individuals on or around the premises of the buildings and facilities[] we 
serve. 
Despite the Petitioner's response, the Director found completion of a drug screen and criminal 
background check to constitute "an unenumerated requirement for the position." Referring to the 
drug and background tests mentioned in part K.9 of the labor certification, the decision states: "The 
language was included on the labor certification, and was therefore[] part of the job offer." The 
Director also reasoned that acceptance of the Petitioner's argument would allow a beneficiary to 
obtain lawful permanent residence based on an offer of permanent employment that a petitioner 
could "immediately rescind" if the beneficiary failed a drug or background test. The decision states: 
"Since the drug screening and criminal background check represent a barrier to the permanency of 
the beneficiary's employment, these screenings, therefore, represent an actual minimum requirement 
to be eligible for a position as a Janitor." 
The Petitioner asserts that, while the labor certification application omits requirements for a drug 
screen and background check, the application's job duties include them. The Petitioner argues that 
the application therefore "indicates that drug screening and national criminal background 
investigations will occur once the Beneficiary has begun employment with the Petitioner and is part 
of the normal course of employment." 
Contrary to the Petitioner's argument, the job duties on the labor certification application do not 
mention a drug screen or background check. As the Petitioner contends, however, when evaluating a 
beneficiary's qualifications for an offered position, USCIS may not look beyond the job-offer 
portion of an accompanying labor certification. Madany, 696 F.2d at 1015; see also Rosedale & 
Linden Park Co. v. Smith, 595 F.Supp. 829, 833 (D.D.C. 1984) (stating that the immigration service 
"must examine the certified job offer exactly as it is completed by the prospective employer"). The 
job-offer portion of the labor certification does not list completion of a drug test or background 
check as a job requirement. The Beneficiary therefore meets the minimum requirements of the 
offered position as stated on the certification. 
The Petitioner has demonstrated the Beneficiary's qualifications for the offered position. We will 
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therefore withdraw the Director's contrary finding. 
V. VALIDITY OF THE LABOR CERTIFICATION 
Although unaddressed by the Director, the record does not establish the validity of the 
accompanying labor certification. Unless accompanied by an application for Schedule A 
designation or documentation of a beneficiary's qualifications for a shortage occupation, a petition 
for an unskilled worker must include a valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). 
USCIS may invalidate a certification after its issuance upon a finding of "fraud or willful 
misrepresentation of a material fact involving the labor certification application." 20 C.F.R. 
§ 656.30( d). 
Misrepresentations are willful if they are "deliberately made with knowledge of their falsity." 
Matters of Valdez, 27 I&N Dec. 496, 498 (BIA 2018) (citations omitted). A misrepresentation is 
material when it has a "natural tendency to influence, or [be] capable of influencing, the decision of 
the decision-making body to which it was addressed." Id. ( citation omitted). 
An employer's job requirements on a labor certification application "must represent the employer's 
actual minimum requirements for the job opportunity." 20 C.F.R. § 656.17(i)(l ). Here, the 
Petitioner did not list any job requirements for the offered position of janitor in the job-offer portion 
of the labor application. But part K.9 of the application, which lists the Beneficiary's qualifications 
for the offered position, states: "The alien is willing to submit to and pass any employer-required 
drug screen and any employer-required criminal background check." 
The listing of a qualification of the Beneficiary on the labor certification application appears to 
indicate that the offered position has a corresponding job requirement. Specifically, part K.9 of the 
application indicates that the job requires a willingness "to submit to and pass any employment­
required drug screen and any employer-required criminal background check." The Petitioner 
omitted this apparent requirement from the job-offer portion of the application. The record does not 
establish whether the Petitioner's recruitment materials for the offered position notified U.S. workers 
of the apparent requirement. 
By omitting a willingness to pass a drug screen and background check from the job-offer portion of 
the labor certification application, the Petitioner appears to have misrepresented the job requirements 
of the offered position. See 20 C.F.R. § 656.17(i)(l) (requiring an employer to list "the actual 
minimum requirements for the job opportunity"). Facing similar facts, the Board of Alien Labor 
Certification Appeals (BALCA) found that inclusion of "willing[ ness] to undergo criminal 
background check and drug test" in advertisements for an offered position constituted an additional 
job requirement. Matter of Yiannis Electric, Inc., 2011-PER-00112, slip op. at *5 (BALCA Feb. 15, 
2012). 
The Petitioner attested on the labor certification that it had read the application and that the 
document's information was true and correct. The misrepresentation therefore appears to be willful. 
Because 20 C.F.R. § 656.17(i)(l) required the Petitioner to list the actual minimum requirements of 
the offered position on the application, the misrepresentation also appears to be material. See 
20 C.F.R. § 656.24(b)(l) (authorizing DOL to deny a labor certification application that violates the 
7 
agency's regulations). Thus, the petition does not appear to include a valid labor certification. 
In any future filings in this matter, the Petitioner must submit additional evidence demonstrating that 
it did not willfully misrepresent a material fact on the labor certification application by omitting a 
willingness to undergo a drug screen and background test from the application's job-offer section. 
Evidence must include copies of the Petitioner's recruitment documentation from the labor 
certification process, including: the prevailing wage request; notice of filing; job order; newspaper 
advertisements; recruitment report; applications or resumes received from U.S. workers; and any 
correspondence with DOL. 
VI. CONCLUSION 
Contrary to the Director's decision, the record establishes the bonafides of the Petitioner's job offer 
and the Beneficiary's qualifications for the offered position as stated on the labor certification. 
The Petitioner, however, has not demonstrated its ability to pay the combined proffered wages of 
this and other Form I-140 petitions. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
8