dismissed EB-3 Case: Poultry Processing

U.S. Citizenship 
and Immigration 
Services 
In Re: 5355380 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 27, 2022 
The Beneficiary sought to obtain lawful permanent resident status based on a job offer as a poultry 
boner. A petition in the name of a U.S. poultry processing company requested his classification under 
the third-preference, immigrant visa 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). 
After the filing's initial grant, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that the accompanying certification from the U.S. Department of 
Labor (DOL) mispresented the poultry company's intent to employ a noncitizen in the offered position 
and to pay him at least the prevailing wage for the occupation. The Director also found insufficient 
evidence of the company's required ability to pay the position's proffered wage. 
As an appellant in revocation proceedings, the Beneficiary bears the burden of establishing eligibility 
for the requested benefit by a preponderance of evidence. 1 Matter of Ho, 19 I&N Dec. 582, 589 (BIA 
1988) (discussing the burden of proof); see also Matter ofChawathe, 25 l&N Dec. at 369,375 (AAO 
2010) (discussing the standard of proof). Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an "other," or "unskilled," worker generally follows a three-step process. First, a 
prospective employer must apply to the U.S. Department of Labor (DOL) for certification that: (1) 
there are insufficient U.S. workers able, willing, qualified, and available for an offered position; and (2) 
employment of a noncitizen in the position will not harm wages and working conditions ofU .S. workers 
with similar jobs . See section212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit a labor certification with an immigrant visa petition to USCIS. See 
section204 of the Act, 8 U.S.C. § 1154. Among other things, USCIS determines whetheranoncitizen 
1 The Director found that the Beneficiary properly requested and qualifies to "port" to a new employerunder section 204G) 
of the Act, 8 U.S.C. § l l 54(j). Finding no material error in those dete1minations, we accepttheBeneficiary's appeal. See 
Matter of V-S-G-lnc ., Adopted Decision2017-06 (AAO Nov . 11, 2017) (requiring U.S. Citizenship and Immigration 
Services (USCIS) to treat beneficiaries who are eligible to port andhaveproperly requested to do so as affected parties in 
petition revocation proceedings). 
beneficiary meets the requirements of a DOL-certified position and a requested immigrant visa 
category. 8 e.F.R. § 204.5(1). 
Finally, if users approves a petition, a beneficiary 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.e. § 1255. 
"[A]t any time" before a beneficiary obtains lawful permanent residence, users may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.e. § 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. 
users properly issues a notice of intent to revoke (NOIR) a petition's approval if the unexplained 
and unrebutted record at the time of the notice's issuance would have warranted the filing's denial 
Matter of Estime, 19 I&N Dec. 450, 451 (BIA 198 7). The Agency properly revokes a petition's 
approval if an affected party's NO IR response does not re but or resolve the alleged revocation grounds. 
Id. at 451-52. 
II. THE ALLEGED MISREPRESENTATIONS 
The Director found that the accompanying labor certification misrepresented the poultry company's 
intent to employ a non citizen in the offered position and to pay him at least the occupation's prevailing 
wage. 2 The Director's NOIR notes that the firm that prepared the petition and accompanying labor 
certification application pleaded guilty in 2008 to conspiring to commit visa fraud. See 18 U.S.e. 
§§ 371, 1546(a). The firm admitted that, between 1997 and 2004, it filed at least 61 other labor 
certification applications and Form I-140 petitions in the names of the poultry company and other 
businesses without their consent. 
We will withdraw the invalidation of the accompanying labor certification and the revocation of the 
petition's approval based on the certification's alleged misrepresentations. We will next consider the 
other revocation 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 e.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of annual rep01is, federal tax 
returns, or audited financial statements. Id. users, however, may accept statements from financial 
officers of petitioners that employ at least 100 people as evidence of the businesses' abilities to pay 
proffered wages. Id. 
2 The labor certification application, filed in November 2001, initially identified a proposed worker other than the 
Beneficiary. When USCIS approved the petition in March 2004, however, the Agency granted a request by the firm that 
prepared and filed the Form I-140 petition and accompanying labor application to substitute the Beneficiary into the 
certified application for the initial worker. See 20 C.F.R. § 656.11 (a) (untilJuly 16, 2007, allowing requests to substitute 
workers into la borce1tificationapplications). Because we will affirm the petition's revocation, the Beneficia1ywould not 
be able to use the filing's November2001 prioritydatewith any later, employment-based petitions for him. See 8 C.FR. 
§ 204.5( e) (barringestablishmentofa priority date "as a result ofa denied petition"). 
2 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year, beginning with the year of a petition's priority date. If a petitioner did not annually 
pay a beneficiary the full proffered wage or did not pay a beneficiary at all, users considers whether 
the business generated annual amounts of net income or net current assets sufficient to pay any 
differences between the proffered wage and the wages paid. If net income and net current assets are 
insufficient, users may consider other factors affecting a petitioner's ability to pay. See Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 3 
The accompanying labor certification states the proffered wage of the offered position ofpoultry boner 
as $16,160 a year. The petition's priority date is November 16, 2001, the date an office in DO L's 
employment service system accepted the labor certification application for processing. See 8 e.F.R 
§ 204.5(d) ( explaining how to detennine a petition's priority date). 
As noted in the Director's NOIR, the record lacks regulatory required evidence of the poultry 
company's ability to pay the proffered wage. 4 The petition contained copies of a commercial data 
report about the company and its federal unemployment tax returns for 2001 and 2002. These 
documents, however, do not constitute required evidence under 8 e.F.R. § 204.5(g)(2). The 
unemployment tax returns are "federal tax returns" and indicate the poultry company's payment of 
wages in 2001 and 2002. But the documents do not reflect the company's income or net current assets 
as needed to determine the business's ability to pay the proffered wage. Thus, contrary to 8 C.F.R. 
§ 204.5(g)(2), the record lacks required evidence of the poultry company's ability to pay. 
A NOIR must provide a petitioner "the opportunity to offer evidence in support of the petition ... and 
in opposition to the grounds alleged for revocation of the approval." 8 e.F.R. § 205 .2(b ). A NOIR 
must also "include a specific statement not only of the facts underlying the proposed action, but also 
of the supporting evidence." MatterofEstime, 19 I&NDec. at452. On appeal, the Beneficiary asserts 
that the Director's NOIR insufficiently informed him of evidence needed to demonstrate the poultry 
company's ability to pay. 
The NOIR, however, quotes the ability-to-pay regulation at 8 e.F.R. § 204.5(g)(2) in its entirety. The 
regulation states that evidence of ability to pay may include a statement from a financial officer of a 
petitioner that employs at least 100 people. 8 e.F.R. § 204.5(g)(2). Otherwise, the regulation states 
that "[e]vidence of this ability [to pay] shall be either in the form of copies of annual reports, federal 
tax returns, or audited financial statements." Id. The NOIR requested "copies of the petitioner's 
federal income tax returns, audited financial statements, or annual reports for every year from 2001 
through the time of [the petition's] filing on November 24, 2003." Thus, contrary to the Beneficiary's 
argument, the NOIR sufficiently notified him of evidence needed to demonstrate the poultry 
company's ability to pay the proffered wage. 
3 Federal courts haveupheld USCIS' method of determining a petitioner's ability to pay a proffered wage. Sec, e.g., River 
St.Donuts,LLCv.Napolitano,558F.3d 111, 118(1stCir.2009). 
4 The Director issued an earlier NOTR and revocation decision to the poultry company. But, after realizing the 
Beneficiary's eligibility to port to a notheremployerunder section 204(j) of the Act, the Directorreopened the revocation 
proceedings on her own motion and issued a secondNOIR to both the poultry company and the Beneficiary. See Matter 
of V-S-G-, supra. The Petitioner did not respond to either NOIR We will use the term "NOIR'' to refer to the second 
notice. 
3 
The Beneficiary also argues that, because the record included the poultry company's number of 
employees and "net worth," the Director should have determined the company's ability to pay under 
Sonegawa by considering a totality of circumstances. See Matter of Sonegawa, 12 I&N Dec. at 614-
15. 
As previously discussed, however, the record lacks regulatory required evidence of the company's 
ability to pay. The record includes neither a statement from a financial officer of the poultry company 
nor copies of the company's annual reports, federal income tax returns, or audited financial statements. 
See 8 C.F.R. § 204.5(g)(2). Thus, without required evidence, a favorable determination under 
Sonegawa would not have demonstrated the Petitioner's ability to pay the proffered wage. 
IV. CONCLUSION 
The record at the time of the NOIR's issuance lacked required evidence of the poultry company's 
ability to pay the proffered wage of the offered position. We will therefore affirm the revocation of 
the petition's approval. 
ORDER: The appeal is dismissed. 
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