dismissed EB-3 Case: Mortgage Brokerage

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF S-F-S-, INC. DATE: JUNE 19, 2019 
APPEAL OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, 1 which claims to be a mortgage brokerage business, 2 seeks to employ the Beneficiary 
as a loan officer. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant category. 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 two years of training or experience. 
The petition was initially approved. The Director of the Texas Service Center subsequently revoked 
the approval on the grounds that the Petitioner did not establish its continuing ability to pay the 
proffered wage from the priority date of the petition 3 and did not establish that there is a bona fide 
job available to the Beneficiary. 
On appeal the Petitioner asserts that the evidence of record establishes its continuing ability to pay 
the proffered wage and that there is a bona fide job as a loan officer available to the Beneficiary . 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor 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). By approving the labor certification, the 
1 The record indicates that the Petitioner was incorporated under the name! 
2011 the Petitioner amended its articles of incorporation to change its name tol 
I in 20or In 
, The 
name change was filed with the Illinois Secretary of State on April 27, 2011. The company's federal employer 
identification number (FEIN) remained the same. 
2 It is not clear if the Petitioner is actually operational. During a 2012 site visit by U.S. Citizenship and Immigration 
Services (USCIS), the Petitioner's president informed USCIS that the Petitioner has not had any employees since 2009-
2010. 
3 The priority date of the petition is the date the under lying labor certification was filed with the Department of Labor 
(DOL). See 8 C.F.R. § 204.S(d). In this case the priority date is July 11 , 2006. 
Matter of S-F-S-, Inc. 
DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available 
for the offered position and that employing a foreign national in the position will not adversely affect 
the wages and working conditions of domestic workers similarly employed. See section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services. See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS 
approves the petition, the foreign national may 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. 
Section 205 of the Act. 8 U.S.C. § 1155, provides that the Secretary of Homeland Security may "for 
good and sufficient cause, revoke the approval of any petition." By regulation this revocation 
authority is delegated to any USCIS officer who is authorized to approve an immigrant visa petition 
"when the necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). 
USCIS must give the petitioner notice of its intent to revoke the prior approval of the petition and the 
opportunity to submit evidence in opposition thereto, before proceeding with written notice of 
revocation. See 8 C.F.R. § 205.2(b) and (c). 
II. ANALYSIS 
The issues in this case are whether the Petitioner has established its continuing ability to pay the 
proffered wage from the priority date of July 11, 2006, onward and whether it is offering a bona fide 
job opportunity to the Beneficiary. 
A. Ability to Pay the Proffered Wage 
The regulation at 8 C.F.R. § 204.5(g)(2) provides, in pertinent part, as follows: 
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. . . . . In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by [USCIS]. 
As stated in the labor certification, the proffered wage for the proffered position of loan officer is 
$32,000 per year. In determining a petitioner's ability to pay the proffered wage, USCIS first 
examines whether the beneficiary was employed and paid by the petitioner during the period 
following the priority date. A petitioner's submission of documentary evidence that it employed the 
beneficiary at a salary equal to or greater than the proffered wage for the time period in question, 
when accompanied by a form of evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may 
be considered proof of the petitioner's ability to pay the proffered wage. In this case, the Petitioner 
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Matter of S-F-S-, Inc. 
has not employed the Beneficiary at any time since the priority date. Accordingly, the Petitioner 
cannot establish its continuing ability to pay the proffered wage based on wages paid to the 
Beneficiary from the priority date onward. 
If a petitioner has not employed the beneficiary and paid her ( or him) a salary equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or audited 
financial statements(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, the petitioner would be considered able to pay the proffered wage during 
that year. 
In this case, the Petitioner submitted copies of its federal income tax returns, Forms 1120S, for the 
years 2005 (before the priority date) and 2006 as initial evidence in support of the petition. The 
2006 return shows that the Petitioner's net income of $32,158 and its net current assets of $53,531 
both exceeded the proffered wage of $32,000. Based on its tax return, therefore, the Petitioner 
established its ability to pay the proffered wage in 2006. 
In the notice of intent to revoke (NOIR), issued in September 2016, the Director noted that the 
record contained copies of the Petitioner's federal income tax returns for the years 2005 and 2006, 
showing its ability to pay in 2006, but that contrary to 8 C.F.R. § 204.5(g)(2), the petition lacked 
required evidence of the Petitioner's continuing ability to pay the proffered wage as of the filing's 
approval in 2007. Thus the Director properly issued the NOIR requesting evidence of the 
Petitioner's ability to pay in that year. 4 
In its response to the NOIR the Petitioner did not submit any of the requested evidence. Instead, the 
Petitioner submitted an unaudited financial statement with a compilation report and balance sheet, 
dated September 29, 2016, and I !Bank account statements from September 2016, December 
2016, and February 2017. This evidence was supplemented on appeal with another unaudited 
financial statement with a compilation report and balance sheet, dated December 31, 2016, I I 
Bank account statements from October 2016 through August 201 7, and an audited financial 
statement for 201 7. 
Despite the Director's request in the NOIR for regulatory required evidence from 2007 (which could 
be in the form of a federal tax return, or an annual report, or an audited financial statement) and the 
Petitioner's further opportunity to submit such evidence on appeal, the Petitioner has not submitted 
any such documentation. Given the absence of regulatory required documentation for 2007 the 
record does not establish that the Petitioner had net income or net current assets equaling or 
exceeding the proffered wage in 2007. 
4 As noted in Matter of Estime, "with respect to a decision to revoke, we ask whether the evidence of record at the time 
the decision was issued ... warranted such a denial." 19 l&N Dec. at 452 ( emphasis added). 
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Matter of S-F-S-, Inc. 
users may also consider the totality of the Petitioner's circumstances, including the overall 
magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Sonegawa, 12 I&N Dec. 612. users may, at its discretion, consider evidence 
relevant to the petitioner's financial ability that falls outside of its net income and net current assets. 
We 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 petitioner's reputation within its 
industry, the overall number of employees, whether the beneficiary is replacing a former employee 
or an outsourced service, the amount of compensation paid to officers, the occurrence of any 
uncharacteristic business expenditures or losses, and any other evidence that users deems relevant 
to the petitioner's ability to pay the proffered wage. 
However, the absence the required forms of evidence identified in 8 e.F.R. § 204.5(g)(2) for 2007 
greatly restricts our ability to consider the totality of the Petitioner's circumstances. The financial 
documentation in the record does not establish a historical pattern of growth for the Petitioner. The 
Petitioner does not make arguments or provide evidence of its reputation, employee replacement, 
outsourcing services or uncharacteristic expenses. In short, the evidence of record is insufficient to 
support a finding that the totality of the Petitioner's circumstances establishes its continuing ability 
to pay the proffered wage from the priority date onward. 
For all of the reasons discussed above, the Petitioner has not established its ability to pay the 
proffered wage, and we therefore affirm the Director's revocation. 
B. Bona Fides of the Job Offer 
The regulation at 8 e.F.R. § 204.5(c) provides that "[a]ny United States employer desiring and 
intending to employ an alien may file a petition for classification of the alien under section 
203(b)(l)(B), 203(b)(l)(e), 203(b)(2), or 203(b)(3) of the Act." It must intend to employ a 
beneficiary under the terms and conditions of an accompanying labor certification. See Matter of 
Izdebska, 12 I&N Dec. 54, 55 (Reg'l eomm'r 1966) (affirming denial where, contrary to an 
accompanying labor certification, a petitioner did not plan to employ a beneficiary as a domestic 
worker on a foll-time, live-in basis). In this case the Director identified concerns about the 
Petitioner's ability and intent to employ the Beneficiary as a mortgage broker, which according to 
the labor certification, involves the following duties: "Evaluate, authorize, or recommend approval 
of residential, commercial or credit loans. Originate loans and advise borrowers of financial status 
and methods of payment." 
In the revocation decision the Director referenced a statement by the Petitioner, submitted in 
response to the NOIR, that although it was a residential and commercial mortgage broker, it had 
surrendered its license for residential mortgage loans and did not currently broker residential 
mortgages. According to the Director, however, public records showed that the Petitioner was still 
operating as a residential mortgage broker and the Petitioner had not submitted evidence of its 
registration as an "exempt mortgage company" ( available under Illinois state law for companies that 
employ licensed mortgage loan originators but do not operate as residential mortgage brokers). The 
Director concluded that there did not appear to be a bona fide job available to the Beneficiary. 
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Matter of S-F-S-, Inc. 
On appeal, the Petitioner maintains that a bona fide job is available to the Beneficiary pending 
approval of this petition. Contrary to the Director's finding, the Petitioner asserts that it is not 
operating as a residential mortgage broker and is not required under Illinois state law to register as 
an exempt mortgage company. The Petitioner claims that following the surrender of its residential 
mortgage license (by consent order in 2012), and consistent with its name change to I I 
.__ ________ __. it continues to broker commercial mortgage loans and credit loans which, 
unlike residential mortgage loans, do not require a license. According to the Petitioner, the duties of 
the proffered position are unaffected by the surrender of its residential mortgage license, except that 
the Beneficiary's brokerage activities would be restricted to commercial and credit loans. The 
Petitioner states that it intends to reapply for a residential mortgage license when the residential real 
estate market improves. 
Upon review of the record, we find that the Petitioner has not demonstrated its intent to employ the 
beneficiary in a bona fide job. The Petitioner has not submitted any evidence or documentation to 
corroborate its claims that it no longer acts as a residential mortgage broker or that it is exempt from 
the licensing requirements. The Petitioner has also not demonstrated that it is exempt from 
registration as a commercial or credit loan broker, as it claims on appeal. According to the Illinois 
Loan Brokers Act of 1995, as amended, 815 ILCS 175/15-1, sec. 15-10, submitted by the Petitioner 
on appeal, "It shall be unlawful for any person to engage in the business of loan brokering unless 
registered under this Act." The Petitioner asserts that it is exempt from registration under the Illinois 
Loan Brokers Act because it fits the exception granted at sec. 15-80(a). That section lists a number 
of exemptions for the required registration under section 15-10, including an exception for "[ a ]ny 
person whose fee is wholly contingent on the successful procurement of a loan from a third party 
and to whom no fee, other than a bona fide third party fee, is paid before procurement." Id. sec. 
15-80(a)(5). The Petitioner claims that it meets this exemption; however, the Petitioner has not 
provided evidence to corroborate the claim that its business model fits this exception. Rather the 
record is devoid of evidence concerning the Petitioner's business operations. Without evidence that 
the Petitioner is appropriately licensed or registered, the record does not demonstrate the Petitioner's 
intent to employ the Beneficiary in the offered position. 5 Moreover, the lack of information about 
how the Petitioner conducts its business or even whether the Petitioner is operational, supports the 
Director's conclusion that the offered job is not bona fide. The audited financial statement submitted 
on appeal is not reflective of an operational business; rather it shows roughly $1,800 in income and 
$0 in sales, along with skeletal expenses including only rent, office supplies, postage, telephone, and 
business license and permits. There is no other evidence in the record to suggest that the petitioner 
has employees or is operational such that there is a bona fide job offered. 
5 We further note that engaging in activity in contravention of federal or state law precludes the approval of a petition. 
See Matter of I- Co1p. Adopted Decision 2017-02 (AAO Apr. 12, 2017). Here, the offered job is that of a mortgage 
broker. If the Beneficiary were to be employed while the company brokered loans without proper authorization, then the 
Beneficiary's employment as a mortgage broker would be contrary to state law. 
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Matter of S-F-S-, Inc. 
III. CONCLUSION 
The Petitioner has not established its ability to pay the proffered wage for the time period in 
question. The Petitioner has also not demonstrated that the job offer is bona fide. We will dismiss 
the appeal for the above stated reasons, with each considered an independent and alternative basis 
for the decision. In visa petition proceedings it is the petitioner's burden to establish eligibility for 
the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met 
that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-F-S, Inc., ID# 953218 (AAO June 19, 2019) 
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