dismissed EB-3 Case: Jewelry

MATTER OF K-E-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 14,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a jewelry store, seeks to employ the Beneficiary as a jewelry store manager. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant classification. 
See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
This employment-based immigrant classification allows a U.S. employer to sponsor a foreign 
national for lawful permanent resident status to work in a position that requires at least 2 years of 
training or experience. 
The Director of the Texas Service Center initially approved the petition. Subsequently, the Director 
issued a notice of intent to revoke the approval of the petition, and ultimately, the Director revoked 
the approval of the petition. The Director determined that the position offered did not constitute a 
bonafide job offer. 
The matter is now before us on appeal. The Petitioner states that the Director erred in revoking the 
approval of the petition and that the position offered is a bonafide job offer. The Petitioner submits 
additional documentation that will be discussed below to support its claim. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
A. The Employment-Based Immigrant Petition Process 
A U.S. employer may sponsor a foreign national for lawful permanent residence, which is a three­
part process. First, the employer must obtain a labor certification from the U.S. Department of 
Labor (DOL) for certification that "there are not sufficient [U.S.] workers who are able, willing, 
qualified, and available" to perform the position offered where the beneficiary will be employed, and 
that the employment of the beneficiary will not "adversely affect the wages and working conditions 
of workers in the United States similarly employed." Section 212(a)(5)(A)(i) of the Act. The date 
the labor certification is accepted for processing by the DOL establishes the priority date, which 
determines when a visa is available for the beneficiary to adjust to lawful permanent status. See 
8 C.F.R. § 204.5(d). 
(b)(6)
Matter of K-E-, Inc. 
Second, the U.S. employer files a Form I-140, Immigrant Petition for Alien Worker, with the 
approved labor certification, to U.S. Citizenship and Immigration Services (USCIS). To 
demonstrate eligibility for the petition, the petitioner must establish that it has the ability to pay 
the 
proffered wage to the beneficiary under 8 C .F.R. § 204.5(g)(2), that the position offered and the 
beneficiary meet the minimum requirements for the classification requested (see 8 C.F .R. 
§ 204.5(1)(3) , and that the beneficiary meets the terms of the labor certification (See Matter of 
Wing 's Tea House , 16 I&N Dec. 158, 159 (Acting Reg'! Comm'r 1977)) . 
Third, if USCIS approves the Form I-140 and a visa is available based upon the priority date , the 
beneficiary may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United 
States. 
B. Revocation of an Approved Immigrant Petition 
Section 205 ofthe Immigration and Nationalit y Act (the Act) , 8 U.S .C. § 1155, provides that " [t]he 
Attorney General [now Secretary , Department of Homeland Security] , may, at any time , for what he 
deems to be good and sufficient cause , revoke the approval of any petition approved by him under 
section 204." The realization by the director that the petition was approved in error may be good 
and sufficient cause for revoking the approval. Matter ofHo. 19 l&N Dec. 582, 590 (BlA 1988). 
II. ANALYSIS 
A. Bona Fide Job Offer 
The record contains a Form ETA 750, Application for Alien Employment Certification (labor 
certification). The priority date of the petition is April 30, 200 I, which is the date the labor 
certification was accepted for processing by DOL . See 8 C.F.R. § 204.5(d) . 
The Director revoked the approval of the petition because the Petitioner did not establish that a valid 
employment relationship exists and that a bonafide job opportunity was available to U.S. workers . 
In support of these conclusions , the Director cited documents from the Dep artment of Justice (DOJ) 
indicating that the Beneficiary ' s brother , was interviewed and indicated that he was 
the Petitioner 's owner and that he placed this and one other business under 
while paying $1000 per month for allowing him to use his name on these 
businesses. The Director also found that the Beneficiary owns and controls his own business , 
casting doubt on his intent to work for the Petitioner. First, we find that based on the evidence of 
record, the Director had good and sufficient cause to revoke the petition's approval and that the 
Petitioner was given sufficient notice of the grounds of revocation. For the reasons discussed below, 
we agree with the Director that the record does not establish the existence of a bonafide job offer. 
Under 20 C.F.R. §§ 656.10(c)(8) and 656.3, the petitioner must demonstrate that a valid employment 
relationship exists and that a bona fide job opportunity is available to U.S. workers. See also 
20 C.F.R. § 656.17(1); Matter of Amger Corp., 87-INA-545 (BALCA 1987). 
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Matter of K-E-, Inc. 
Based on the interview with the Beneficiary's brother, the Director found that the record did not 
demonstrate the bona fide nature of the job. On appeal, the Petitioner continues to deny that there is 
a family relationship between the shareholders, officers, and incorporators of the Petitioner and the 
Beneficiary. 
A relationship invalidating a bona fide job offer may arise where the beneficiary is related to the 
petitioner by "blood" or it may "be financial, by marriage, or through friendship." Matter of 
Sunmart 374, 00-INA-93 (BALCA May 15, 2000); see also Keyjoy Trading Co., 1987-INA-592 
(BALCA Dec. 15, 1987) (en bane). In assessing whether there is a bonafide job offer in the totality 
of the circumstances, we may consider whether the beneficiary: (1) is in a position to control or 
influence hiring decisions regarding the job for which labor certification is sought; (2) is related to 
corporate directors, otlicers, or employees; (3) was an incorporator or founder of the company; ( 4) 
has an ownership interest in the company; (5) is involved in the management of the company; (6) is 
on the board of directors; (7) is one of a small number of employees; (8) has qualifications for the 
job that are identical to specialized or unusual job duties and requirements stated in the application; 
and (9) is so inseparable from the sponsoring employer because of his or her pervasive presence and 
personal attributes that the employer would be unlikely to continue in operation without the foreign 
national. See Modular Container Systems, Inc., 1989-INA-228 (BALCA Jul. 16, 1991) (en bane). 
The same standard in Modular Container has been incorporated into regulations at 20 C.F.R. 
§ 656.17(1).1 
1 The regulation at 20 C.F.R. § 656.17 states in pertinent part: 
(I) Alien influence and control over job opportunity. If the employer is a closely held corporation or 
partnership in which the alien has an ownership interest, or if there is a familial relationship between the 
stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small 
number of employees, the employer in the event of an audit must be able to demonstrate the existence of a 
bona fide job opportunity, i.e., the job is available to all U.S. workers and must provide to the CertifYing 
Officer, the following supporting documentation: 
(1) A copy of the articles of incorporation, partnership agreement, business license or similar 
documents that establish the business entity; 
(2) A list of all corporate/company officers and shareholders/partners of the corporation/finn/business, 
their titles and positions in the business' structure, and a description of the relationships to each other 
and to the alien beneficiary; 
(3) The financial history of the corporation/company/partnership, including the total investment in the 
business entity and the amount of investment of each officer, incorporator/partner and the alien 
beneficiary; and 
(4) The name of the business' official with primary responsibility for interviewing and hiring 
applicants for positions within the organization and the name(s) of the business' official(s) having 
control or influence over hiring decisions involving the position for which labor ce11ification is sought. 
(5) If the alien is one of I 0 or fewer employees, the employer must document any family relationship 
between the employees and the alien. 
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(b)(6)
Matter of K-E- , Inc. 
After reviewing the record on appeal, we issued the Petitioner a notice of intent to dismiss and 
request for evidence (NOID/RFE) to provide an opportunity to establish the existence of a bonafide 
job offer. In our NOID/RFE, we referenced a Jw1e 3, 2008, sworn declaration from an agent of the 
Federal Bureau of Investigation (FBii regarding the summary of an interview the FBI agent had 
with the Beneficiary's brother, on September 21, 2005. In that interview, 
admitted that he owned and under the Petitioner's corporate name of 
the Petitioner, but that he placed these businesses under the name of 
because is a U.S. Citizen. stated that he paid 
allowing him to use name on and 
is the Petitioner's "doing business as" (DBA) name. 
$1000 per month for 
We note that 
Accordingly, we noted in our NOID/RFE that the evidence in the record shows that the Beneficiary 
may be related to corporate directors, officers , or employees; that such a familial relationship may 
have put him in a position to control or influence hiring decisions regarding the job for which labor 
certification was sought; that he is one of a small number of employees ; and that he may be so 
inseparable from the Petitioner because of the alleged familial relationship to one of the Petitioner 's 
owners or due to his pervasive presence and personal attributes that the Petitioner would be unlikely 
to continue in operation without him. 
In our NOID/RFE, we requested that the Petitioner provide the following documentation to establish 
the bonafides of the job otTer: 
• A list of all corporate officers, directors, shareholders, and employees of the corporation from 
April 9, 2001, to the present , their titles and positions in the business' structure , and a 
description of the relationships to each other and to the Beneficiary (family or otherwise); 
• Stock certificates, stock ledgers, and other 
documentation establishing ownership of the 
Petitioner's organization from its incorporation on April 9, 2001 , to the date of transfer of the 
Petitioner's organization's shares from to on 
December 26, 2005; 3 
• The total investment in the business entity of each officer , director, shareholder, and 
employee from April 9, 200 I, to the present; 
• A copy of the signed recruitment report required by 20 C.F.R. § 656.17(g) , together with copies 
of the prevailing wage determination , all recruitment conducted for the position, the posted 
notice of the filing of the labor certification, and all reswnes received in response to the 
recruitment efforts; and 
• The name of the official with primary responsibility for interviewing and hiring applicants 
for positions within the Petitioner's organization and the name(s) of the business' official(s) 
2 The Director referred to this as evidence from the Department of Justice. 
1 
The record contains evidence of a stock transfer dated December 26 , 2005 , from to a 
stock transfer dated January I, 2007 , from to and a stock transfer dated September I, 20 I 0, 
from to 
4 
(b)(6)
Matter of K-E-, Inc. 
having control or influence over hiring decisions involving the prot1ered position for which 
labor certification was sought. 
In response to our NOID/RFE, the Petitioner submitted an affidavit from the Beneficiary, dated 
December 20, 2016, stating that his brother, is not part of the Petitioner and that the 
Beneficiary does not have a familial relationship with any of the Petitioner's current or previous 
shareholders. The Beneficiary states that while being employed for the Petitioner he has reported to 
four dit1erent individuals. The Petitioner has also submitted a list of the Petitioner's owners and 
corporate officers from 2001 to the present time, indicating that the listed corporate ot1icers, 
directors, shareholders have no relationship to the Beneficiary (familial or otherwise). The 
Petitioner submitted the articles of incorporation and other corporate filings for its organization as 
well as additional documentation that was previously submitted and is part of the record. 
The Petitioner references an affidavit from dated August 7, 2015, in which he states that 
he is not related to the Beneficiary in any way and that he did not receive any payment of any kind 
from the Beneficiary's brother. He states that he was the Petitioner's President from 2001 to 2003 
and that neither the Beneficiary nor his brother has owned any interest in the Petitioner or in 
In our NOID/RFE, we noted that this statement conflicts with the statements given by 
to the FBI in which he stated that he owns two businesses under the corporate name of the 
Petitioner and that he pays $1000 per month for allowing him to use name 
on and 
The Petitioner states that it does not have a copy of the FBI statement noted above and that there has 
been no explanation given as to why the sworn declaration was prepared. The Petitioner states that 
the FBI agent's sworn declaration was prepared two years after the interview was completed and that 
this is not a valid basis upon ~hich to find that the job offered does not constitute a bona fide job 
offer. We disagree and find that there are sufficient indicia of reliability to the FBI agent's 
statements and that the totality of the circumstances corroborates the statements by the Beneficiary's 
brother to the FBI agent. 
The FBI agent's sworn declaration was prepared as part of the removal proceedings against the 
Beneficiary as the Petitioner acknowledges. In the FBI agent's sworn affidavit, dated June 3, 2008, 
he states that he interviewed on September 2, 2005, and again on 
September 
21, 2005, that he prepared a summary of each interview shortly after these voluntary 
interviews, and that these documents are an accurate reflection of what was discussed. In the last 
paragraph of the summary of the first interview, admitted to lying during the interview and 
agreed to meet again in the near future to provide the entire truth regarding his financial and business 
transactions. On September 21, 2005, voluntarily returned to meet with the FBI agent and 
indicated that he had not been completely truthful in the first interview and that he desired to be 
truthful about his financial dealings during that subsequent interview. then proceeded to 
indicate that he owned the Petitioner's business and placed it under the name of We 
find that the voluntariness of the interviews, the forthcoming nature of the statements made by the 
Beneficiary's brother at the end of the first interview, and his willingness to return to correct the 
false statements he gave during the first interview indicate that this evidence is relevant and credible. 
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(b)(6)
Matter of K-E- . Inc. 
The Petitioner states that the FBI's statements are hearsay and tliat we should not base our entire line 
of inquiry regarding the bona fide job offer issue based on the FBI agent's written account of these 
interviews. When determining whether or not a petitioner has met his or her burden of proof: US CIS 
shall consider any relevant, credible evidence. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
2010). We conclude that the FBI agent's sworn declaration and summary of the Beneficiary's 
statements during the two interviews noted above constitute relevant , credible evidence , and we will 
balance this evidence with the other evidence in the record and consider the to~ality of the 
circumstances regarding the existence of a bonafide job oiler. 
We note that public records also indicate that the Beneficiary's brother, has a financial 
interest in the Petitioner's business. Public records indicate that a financing statement was issued on 
June 27, 2007, which names both the Petitioner 
and the Beneficiary's brother, as debtors to a 
secured party. This tends to corroborate the testimony that gave to the FBI that he owned the 
· Petitioner. In addition , we noted in our NOID/RFE that the record contains Texas Franchise Tax 
Public Information Reports for the years 2003 and 2004 that each list as 
President and Director of the Petitioner at Texas. The 
same report for 2005 identifies as the owner of the Petitioner. This corresponds with the 
timeframe of the FBI agent ' s interview with the Beneficiary's brother in September 2005, at which 
time it 
was stated that he paid $1000 to put the Petitioner in his name. In response to our 
NOID/RFE, the Petitioner submitted the minutes from an organizational meeting, dated 
'December 26, 2005, with its director and shareholders in which resigned as the 
Petitioner's Director and President and was elected as Director and President. 
When viewed together, the Beneficiar y' s brother ' s statement to the FBI regarding his ownership of 
the business while placing it under name, signature on the labor 
certification, dated April 1, 2004, and the filing statement naming the Beneficiary ' s brother as a 
debtor in 2007 indicate that the Beneficiary 's brother owned the Petitioner , and took steps to place 
this business in the name of at least one other individual. Moreover , when looking at the Modular 
Container factors, the record contains the Form 941, Employer's Quarterly Federal Tax Return, for 
2010 which states that the Petitioner employed one individual, which is a factor to consider 
regarding the bona fides of a job offer. See 20 C.P.R. § 656.17(1)(5) (stating that "[i]f the 
[beneficiary] is one of 10 or fewer employees , the employer must document any family relationship 
between the employees and the [beneficiary]. "). The Form I-140 also states that the Petitioner 
employs one person. Because the facts indicate that the Beneficiary ' s brother has an 
ownership /financial interest in the Petitioner ' s business , that there is only one employee , and that 
this one employee has a familial relationship to the owner of the business, as discussed above , the 
record reflects in the totality of the circumstances that the position offered is not a bona fide J. ob 4 . 
offer. 
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The Director also found that the Beneficiary owns and controls his own business, casting doubt on his intent to work 
for the Petitioner. After reviewing the evidence submitted on appeal and in response to our NOID/RFE, we find that the 
Petitioner has resolved this issue on appeal. 
6 
Matter of K-E-, Inc. 
B. Ability to Pay the Proffered Wage 
Apart from the decision reached by the Director, we find that the Petitioner has not established its 
ability to pay the proffered wage from the priority date onward. As such, even if the Petitioner were 
to overcome the Director's grounds for revocation, the petition would not be approvable. The 
regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petitiOn filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
Thus, the Petitioner must demonstrate its continuing ability to pay the proffered wage of $36,046 
beginning on the priority date of April 30, 2001. 
In determining a petitioner's ability to pay the proffered wage during a given period, USCIS will 
first examine whether the petitioner employed and paid the beneficiary during that period. If the 
petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal 
to the proffered wage during that period, USCIS will next examine the net income figure reflected 
on the petitioner's federal income tax return. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 
(1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), affd, No. 
10-1517 (6th Cir. filed Nov. 10, 2011 ). If the net income the petitioner demonstrates it had available 
during that period, if any, added to the wages paid to the beneficiary during the period, if any, do not 
equal the amount of the proffered wage or more, USCIS will review the petitioner's net current 
assets. Net current assets are the ditierence between the petitioner's current assets and current 
liabilities. 5 
5 According to Barron's Dictionary of Accounting Terms 117 (3d ed. 2000), "current assets" consist of items having (in 
most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and 
accrued expenses (such as taxes and salaries). !d. at 118. 
Matter of K-E-, Inc. 
USCIS may also consider the overall magnitude of the petitioner's business activities in its 
determination of the petitioner's ability to pay the proffered wage. See Matter o(Sonegawa. 12 I&N 
Dec. 612 (Reg'l Comm'r 1967). USCIS may, at its discretion, consider evidence relevant to the 
petitioner's financial ability that falls outside of a petitioner's net income and net current assets. 
USCIS may consider such factors as the number of years the petitioner has been doing business, the 
established historical growth of the petitioner's business, the overall number of employees, the 
occurrence of any uncharacteristic business expenditures or losses, the petitioner's reputation within 
its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any 
other evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
We noted in our NOID/RFE that the Petitioner has not established its ability to pay the proffered 
wage in 2004, 2014, and 2015. In response to our NOID/RFE, the Petitioner submitted its federal 
tax return for 2014 and 2015. In 2014 and 2015, the Petitioner paid the Beneficiary $30,000 and 
$36,000, respectively, which is less than the proffered wage for each year. The Petitioner's tax 
returns for 2014 and 2015 state suf1icient net current assets to pay the difference between the 
proffered wage and the wages paid, establishing the Petitioner's ability to pay in those years. 
However, in 2004, the Petitioner did not submit any wage records for the Beneficiary and its federal 
tax return stated net income of $23,934 and net current assets of $26,292 that year, which is 
insufficient to pay the proffered wage of $36,046 that year. As such, the Petitioner has not provided 
evidence to establish its ability to pay the proffered wage in 2004. The record also does not indicate 
the existence of any unexpected business expenses in that year or other relevant evidence under 
Sonegawa, 12 I&N Dec. at 612. Therefore, the Petitioner has not established its ability to pay the 
proffered wage for 2004 or in the totality of the circumstances. 
III. CONCLUSION 
In summary, we conclude that the Director properly revoked the petition's approval as the Petitioner 
has not established that the job offered constitutes a bona fide job offer. Further, we tind that the 
Petitioner has not demonstrated its ability to pay the proffered wage from the priority date onward. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-E-, Inc., ID# 82672 (AAO Mar. 14, 2017) 
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