dismissed EB-3 Case: Travel Agency

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-T-M-. INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FER. 23. 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140.IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a travel agency, seeks to employ the Beneficiary as a manager. It requests classification 
of the Beneficiary as a skilled worker under the third preference immigrant classification. 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 naticinal for 
lawful permanent resident status to work in a position that requires at least two years of training or 
expenence. 
The Director of the Texas Service Center initially approved the petition. The Director of the 
Nebraska Service Center subsequently revoked approval of the petition after determining that the 
Petitioner had committed fraud or misrepresentation of material facts with respect to its work 
address and the familial relationship between the Beneficiary and the Petitioner's owner/corporate 
otticers. Based on the finding of fraud or willful misrepresentation of a material fact. the Director 
invalidated the labor certification. The Director also found that the Petitioner had not established its 
continuing ability to pay the Beneticim-y"s proffered wage from the priority date onward. We 
dismissed the subsequent appeal. The Petitioner subsequently tiled several motions to reopen and 
reconsider. In our most recent decision, we denied the Petitioner· s tiling because it did not meet the 
requirements of a motion to reopen or a motion to reconsider. 
The matter is again before us on a motion to reopen and a motion to reconsider. On motion. the 
Petitioner provides previously submitted evidence and asserts that it has submitted sufticient 
evidence to establish its ability to pay the proffered wage. and that we should reverse our finding that 
that the Petitioner made a fraudulent misrepresentation of a material fact. Upon review. we will 
deny both motions. 
I. LAW 
A motion to reopen must state new facts. supported by documentary evidence. 8 C.F.R. 
§ I 03.5(a)(2). Reasserting previously stated facts or resubmitting previously provided evidence does 
not constitute .. new facts." A motion to reconsider must establish that. based on the record at that 
time. our prior decision misapplied law or policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider 
must also be supported by a pertinent precedent or adopted decision. statutory or regulatory 
provision. or statement of United States Citizenship and Immigration Services (USCIS) or 
Matter of R- T-M-. Inc. 
Department of Homeland Security policy. We may grant motions that satisfy these requirements 
and demonstrate eligibility for the requested immigration benefit. 
II. ANALYSIS 
A. Motion to Reopen 
On motion to reopen, the Petitioner asserts that USCIS did not consider the substantial evidence 
demonstrating that it has the continuing ability to pay the proffered wage to the Beneficiary from the 
petition's November 2, 2005 priority date. The Petitioner submits previously provided evidence in 
the form of the Beneficiary's Internal Revenue Service Forms W-2. Wage and Tax Statement. for 
2010. and the Petitioner's income tax returns for 2005 to 2011. We have considered and addressed 
this evidence within the context of our prior decisions and fully explained why it is not sufficient to 
demonstrate the Petitioner's ability to pay. The resubmitted documents do not constitute new facts 
for purposes of a motion to reopen. 
The Petitioner further states that it did not commit fraud or a material misrepresentation of a material 
fact when it completed the labor certification but was instead "the victim of terrible legal 
representation" by a prior attorney. and submits a 2012 statement from the Beneficiary in which he 
claimed that he relied on the advice of the prior attorney of record when setting up the Petitioning 
entity. However. the Petitioner has already raised this claim and provided the 20 I 2 statement in a 
prior motion, and we addressed this in our prior decisions. To the extent that the Petitioner is 
suggesting that contradictory, and theref(xe derogatory, inforn1ation is the fault of a prior attorney, this 
assertion and the related statement from the Beneficiary do not satisfy the requirements for establishing 
a claim of ineffective assistance of counsel. Cf Afatter of Lozada. I 9 l&N Dec. 637 (BIA I 988). af/'d. 
857 F.2d I 0 (I st Cir. 1988) (requiring an appellant to meet certain criteria when tiling an appeal based 
on ineffective assistance of counsel). 
We will therefore deny the motion to reopen because the Petitioner has not submitted new facts 
supported by documentary evidence and has not demonstrated eligibility for the bene tit sought. 
B. Motion to Reconsider 
On motion to reconsider. the Petitioner contends that we did not consider its ability to pay the 
proffered wage based on a "Current Ratio Analysis'· of its total current assets to total current 
liabilities in 2008, and cites to a transcript of a 1994 teleconference that allegedly took place at the 
Eastern Service Center (now the USCIS Vermont Service Center). Unpublished agency decisions 
and legal opinions are not binding, even when they are published in private publications or widely 
circulated. R.L Inv. Ud. Partners l'. INS. 86 F. Supp. 2d 1014. 1022 (D. Haw. 2000). aff'd. 273 F.3d 
874 (9th Cir. 2001 ). The Petitioner has not cited to any USC IS guidance in the USCIS Policy 
Manual or the relevant portion of the Adjudicator's Field Manual requiring USC IS adjudicators to 
2 
Mal/er of R- T-M-. Inc. 
apply a current ratio analysis in the manner the Petitioner suggests in determining its ability to pay 
the proffered wage. 1 Regardless. we did not con tine the analysis of the Petitioner·s ability to pay to 
a single factor in our prior decisions. Rather. we also considered the overall magnitude of 
Petitioner·s business activities in determining that it had not established its continuing ability to pay 
from the priority date based on a totality of the circumstances. See Matter of Sonexawa 12 I&N 
Dec. 612 (Reg·! Comm·r) (providing an analytical framework for review of a broad range of 
business activities when considering ability to pay). Accordingly. the Petitioner has not established 
on motion that our prior decision was based on an incorrect application of law or policy. We 
therefore will deny the motion to reconsider. 
III. CONCLUSION 
The Petitioner has not shown proper cause for reopening or reconsideration of our prior decision. nor 
has the Petitioner demonstrated eligibility for the benefit sought. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofR-T-M-. Inc .. JD# 1014941 (AAO Feb. 23. 2018) 
1 
See Immigration Handbooks. Manuals and Guidance at https:!/www.uscis.gov/lawslimmigration-handbooks-manuals­
and-guidance (last visited on Feb. 15, 20 18).