remanded EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: WL. 18, 2023 In Re: 27444031 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner provides tax and accounting services and seeks to permanently employ the Beneficiary 
as an accountant. The business requests his classification under the employment-based , third­
preference ("EB-3") immigrant visa category as a professional. See Immigration and Nationality Act 
(the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). Prospective U.S. employers may 
sponsor noncitizens for lawful permanent residence in this category to work in jobs requiring at least 
a bachelor's degree. Id. 
After the filing 's initial grant, the Acting Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that the Petitioner did not demonstrate its intent to employ the 
Beneficiary in the offered position or the job's availability to U.S. workers. On appeal, the business 
contends that the Director based the findings on irrelevant facts and lacked authorization to consider 
the bona fides of the job opportunity . 
In these revocation proceedings, the Petitioner bears the burden of demonstrating eligibility for the 
requested benefit by a preponderance of the evidence. See Matter ofHo, 19 I&N Dec. 582, 589 (BIA 
1988) ( citation omitted). Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 l&N 
Dec. 537, 537 n.2 (AAO 2015), we conclude that the record does not support the Director's 
revocation. But, because the Petitioner did not demonstrate its required ability to pay the job 's 
proffered wage at the time of the petition's approval, we will remand the matter for entry of a new 
decision consistent with the following analysis. 
I. LAW 
Immigration as a professional generally follows a three-step process . First, a prospective employer 
must obtain U.S. Department of Labor (DOL) certification that: there are insufficient U.S. workers 
able, willing, qualified, and available for an offered position; and permanent employment of a noncitizen 
in the job would not harm wages and working conditions of U.S. workers with similar positions. Section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit a DOL-approved labor certification with an immigrant visa petition 
to U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. 
§ l 154(a)(l)(F). Among other things, USCIS determines whether a noncitizen beneficiary meets the 
requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. 
§ 204.5(1)(3)(ii)(A), (C). 
Finally, if USCIS 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.C. § 1255. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, USCIS may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by a record, a petition's erroneous approval may justify its revocation. Matter of Ho, 19 
I&N Dec. at 590. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition's approval if the unexplained 
and unrebutted record at the time of the NOIR's issuance would have warranted the petition's denial. 
Matter ofEstime, 19 I&N Dec. 450, 451 (BIA 1987). If a petitioner does not respond to a NOIR or 
the business's reply does not rebut the stated revocation grounds, USCIS properly revokes a petition's 
approval. Id. at 452. 
II. ANALYSIS 
A. The Petitioner's Intent to Employ the Beneficiary in the Offered Position 
A business may file an immigrant 
visa petition if it is "desiring and intending to employ [ a noncitizen] 
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 stated on an accompanying labor certification. Matter of 
Izdesbka, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, contrary to 
the terms of an accompanying labor certification, a petitioner did not intend to employ a beneficiary 
as a domestic worker on a full-time, live-in basis). 
On the Form 1-140, Petition for Alien Workers, and the accompanying labor certification, the 
Petitioner attested to its intent to permanently employ the Beneficiary in the full-time position of 
accountant at an office inl !Texas. But, as stated in the Director's August 2022 NOIR, the 
Beneficiary attested at his adjustment of status interview in March 2021 that he would work in the 
offered position for the Petitioner at a different I ~ddress than listed on the Form 1-140 and 
labor certification. He also stated that this location would be his only worksite. 
The Petitioner's NOIR response contained an affidavit from the Beneficiary stating that he 
"misunderstood the [USCIS officer's] question [about his future worksite] and answered it 
incorrectly." He said he realized his mistake during the interview and tried to notify the officer of the 
correct worksite address at that time, "but the officer had said that my answer was fine." 
The Beneficial explained that the Petitioner had two offices in its main office on 
and an office on another street called~----~ Before the petition's approval 
in December 2019, the Petitioner provided a copy of its sublease for the I I office, valid 
from February 2017 through January 2020. The Beneficiary stated that he would work in the offered 
position at the I loffice, the same location where the business employed him as an 
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accounting clerk from April 2017 to January 2018. He said the Petitioner used the ._I_____ _. 
office - the purported mistaken address he first provided to the USCIS officer - only for client 
meetings. In an August 2022 letter, the Petitioner's president stated that the I I office 
served "as a secondary location but is permanently closed now." 
Because the Beneficiary testified that he would work at a different address than listed on the Form 1-
140 and labor certification, the Director concluded that the business did not demonstrate its intent to 
employ the Beneficiary in the offered position. The Director's decision states: "It is unclear how the 
petitioner could employ the beneficiary in the offered position because it appears that the petitioner 
intended to employ the beneficiary outside of the worksite location listed on the [labor certification]." 
USCIS may deny or revoke a petition's approval if a petitioner intends to employ a beneficiary in a 
geographical area not stated on an accompanying labor certification. See Matter of Sunoco Energy 
Dev. Co., 17 I&N Dec. 283,284 (Reg'l Comm'r 1979) (affirming a petition's denial where a petitioner 
intended to employ a beneficiary in a different state than listed on the accompanying labor 
certification). But, even if the Petitioner intended to employ the Beneficiary at the I I 
office, the new worksite would not have warranted the petition's denial. A labor certification is valid 
for the particular job opportunity, the noncitizen, and the "area of intended employment" stated on the 
certification. 20 C.F.R. § 656.30( c )(2). The term "area of intended employment" means the area 
within normal commuting distance of the place of intended employment, and any place within a 
metropolitan statistical area (MSA) "is deemed to be within normal commutin distance of the lace 
of intended employment." 20 C.F.R. § 656.3. The Petitioner's.-----'------------------------~offices are within the same MSA, •~----------~TX," as both offices lie in the city 
of I I See The Foreign Labor Certification Data Center, "Wage Search Wizard," 
www.flcdatacenter.com/oeswizardstart.aspx. 1 Thus, regardless of at whichl loffice the 
Petitioner intended to employ the Beneficiary, the labor certification would remain valid. Also, the 
NOIR does not allege, and the record does not indicate, that the offered position's duties or 
requirements would change or that the business would offer the job to another noncitizen. Therefore, 
even if the Petitioner intended to employ the Beneficiary at the I !office, the worksite 
change would not have warranted the petition's denial. 2 
Moreover, the record does not support the Petitioner's intent to employ the Beneficiary at the
I loffice. The Beneficiary claims that he mistakenly identified that address as his future 
worksite and that, when he tried to provide the correct I I address, the USCIS officer 
indicated that the mistake did not matter. Also, the Beneficiary's error, at most, indicates his intent to 
work at the I loffice. But the record lacks evidence that the Petitioner intended to employ 
him there. Thus, for the foregoing reasons, the record does not sufficiently support revocation of the 
petition's approval based on the Petitioner's alleged intent to employ the Beneficiary at a different 
worksite. We will therefore withdraw the Director's contrary finding. 
1 Under contract with DOL' s Office of Foreign Labor Certification, the State of Utah developed and maintains the data 
center website. Id. 
2 A worksite change during labor certification application proceedings also does not necessarily merit an application's 
denial. See Matter ofRivet Logic COip., 2012-PER-01827, slip op. at 4 (BALCA Sept. 9, 2016) (reversing certification 
denial where. during supervised recruitment, an employer posted notice of the application's filing at a new worksite not 
listed on the original application but in the same MSA as the originally listed worksite ). 
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B. The Offered Position's Availability to U.S. Workers 
A labor certification employer must attest that "[t]he job opportunity has been and is clearly open to 
any U.S. worker." 20 C.F.R. § 656.10(c)(8). The Director concluded that the Petitioner did not 
demonstrate the offered position's availability to U.S. workers. The NOrR cites evidence suggesting 
that, compared to the five U.S. workers who applied for the job, the Beneficiary received preferential 
treatment. The NOrR notes that: 
• Although the Beneficiary told users officers that the Petitioner's president verbally offered 
him the accountant's position in January 2018, the labor certification - filed in March 2019 -
does not list this "word-of-mouth recruitment" for the position; 
• The Beneficiary stated that, although the Petitioner's president interviewed him for his prior 
accounting clerk position, the president did not specifically interview him before offering him 
the accountant's position; and 
• The Petitioner's labor certification recruitment efforts did not begin until November 2018, 
about 10 months after the business offered the Beneficiary the accountant's job. 
As the Petitioner contends, however, users lacks authority to consider the offered position's 
availability to U.S. workers. As previously indicated, Congress authorized DOL to determine whether 
"there are not sufficient [U.S.] workers who are able, willing, qualified ... and available" for an 
offered position. Section 212(a)(5)(A)(i)(r) of the Act. "[D]eterminations vested by statute with one 
agency are not normally subject to horizontal review by a sister entity, absent congressional 
authorization to that effect." Madany v. Smith, 696 F.2d. 1008, 1012 (D.C. Cir. 1983). Thus, the 
Director should not have considered the offered position's availability to U.S. workers. 
Also, even if users could consider the bona fides of the job opportunity, the NOrR cites facts that do 
not support the alleged inadequacies in the Petitioner's recruitment efforts. The Director found the 
Petitioner's verbal job offer to the Beneficiary to constitute word-of-mouth recruitment that the 
business should have listed on the labor certification application. But the Director appears to 
mistakenly refer to a section of the application form that does not apply to the Petitioner's job offer. 
Section Lb.5. of the application instructs an employer to "Specify additional recruitment information 
in this space." But section Lb. applies only to "Special Recruitment and Documentation Procedures 
for College and University Teachers." See 20 C.F .R. § 656.18. The Petitioner did not offer the 
Beneficiary a job as a college or university teacher, but rather as a professional. Thus, the business 
needed to complete information about the recruitment steps listed in sections Le and Ld. of the 
application. 
The NOrR also suggests the Director's misunderstanding of the labor certification process. The 
process focuses not on the recruitment of noncitizens for offered positions, but rather on recruitment 
of potentially qualified U.S. workers. See 20 C.F.R. § 656.17(e) (listing labor certification recruitment 
requirements). DOL requires U.S. labor market tests to determine whether "there are not sufficient 
workers who are able, willing, qualified ... and available" for offered jobs. Thus, when and how the 
Petitioner offered the Beneficiary the position and whether the business interviewed him would not in 
this case demonstrate inadequacies in the business's recruitment efforts or the job's unavailability to 
U.S. workers. 
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For the foregoing reasons, the record does not support revocation of the petition's approval based on 
the job's availability to U.S. workers. We will therefore withdraw the revocation decision. 
e. Ability to Pay the Proffered Wage 
The appeal overcomes the revocation grounds. But, at the time of the petition's approval, the 
Petitioner did not establish eligibility for the benefit request. Although unaddressed by the Director, 
the record did not demonstrate the business's required ability to pay the offered position's proffered 
wage. 
A petitioner must demonstrate its continuing 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). Unless a 
petitioner employs at least 100 workers, evidence of ability to pay must include copies of annual 
reports, federal tax returns, or audited financial statements. Id. 
When 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 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 cover any 
differences between the proffered wage and 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 ofSonegawa, 12 r&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 
The Petitioner's labor certification states the proffered wage of the offered position of accountant as 
$45,968 a year. The petition's priority date is March 31, 2019, the date DOL accepted the business's 
labor certification application for processing. See 8 e.F .R. § 204.5( d) ( explaining how to determine a 
petition's priority date). 
users approved the petition on December 20, 2019. Thus, at that time, the Petitioner had to 
demonstrate its ability to pay the proffered wage in 2019, the year of the petition's priority date. 
The record lacks evidence that the Petitioner paid the Beneficiary in 2019. Thus, based solely on 
wages paid, the business did not demonstrate its ability to pay the proffered wage. 
The Petitioner submitted copies of a 2019 balance sheet and income statement as of September 30. 
The income statement reflects net income of $120,857.85, exceeding the annual proffered wage of 
$49,968. But, contrary to 8 e.F.R. § 204.5(g)(2), the Petitioner did not demonstrate that the income 
statement was "audited." The statement therefore does not demonstrate the business's ability to pay 
the proffered wage in 2019. 
The Petitioner also submitted copies of its quarterly state unemployment tax returns for the first three 
quarters of 2019 and bank statements from March 2019 to September 2019. The state tax returns, 
however, do not indicate the business's annual net income or net current assets. The tax returns 
therefore do not demonstrate the Petitioner's ability to pay the proffered wage. Also, the bank account 
statements indicate that the Petitioner ended September 2019 with a balance of $25,104.25, less than 
the annual proffered wage. The Petitioner also submitted copies of a November 2019 statement for a 
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different bank account. But the November 2019 statement shows an end balance of$19,303.25, also 
less than the annual proffered wage. Thus, the Petitioner's bank statements do not establish the 
business's ability to pay the proffered wage in 2019. 
The Petitioner's prior counsel asserted the willingness of the business's president to reduce his share 
of the corporation's profits to pay the Beneficiary's proffered wage in 2019. The Petitioner submitted 
a copy of its president's joint federal income tax return for 2018, indicating adjusted gross income of 
$248,603. 
USCIS may allow a shareholder with authority to allocate a closely held corporation's expenses to 
forego variable compensation and apply it to a proffered wage. But former counsel's assertion of the 
willingness of the Petitioner's president to forego his share of the business's profits in 2019 does not 
constitute evidence. Matter of Obaigbena, 19 l&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of 
Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 1980)). The business must substantiate former 
counsel's assertion with independent evidence, such as affidavits or declarations, and submit evidence 
of its president's income in 2019. 
Also, the copy of the 2018 tax return indicates that the Petitioner's president and his spouse reside in 
a "community property" state. Thus, the couple generally co-own property they acquire during their 
marriage. See, e.g., Tex. St. Law Library, "Community Property," https://guides.sll.texas.gov/ 
community-property. The Petitioner therefore must submit evidence that its president's spouse also 
would have foregone his 2019 business profits to pay the Beneficiary's proffered wage. 
Further, the Petitioner's president and his spouse must demonstrate that, after subtracting the portion 
of his 2019 profits used to pay the Beneficiary's proffered wage, the couple would have had sufficient 
income to support themselves and any dependents that year. Their 2018 tax return shows that the 
couple had two dependent children. The Petitioner must therefore submit an estimate of the family's 
2019 expenses so that USCIS may determine the couple's ability to pay the Beneficiary's proffered 
wage that year. 
The Director did not inform the Petitioner of the evidentiary deficiencies regarding its ability to pay 
the proffered wage. We will therefore remand the matter. 
On remand, the Director should issue a new NOIR, notifying the business of the evidentiary 
deficiencies and affording it a reasonable opportunity to respond. The Director should ask the 
Petitioner to submit copies of an annual report, federal tax return, or audited financial statements for 
2019. The business must also submit evidence of the purported willingness of its president and his 
spouse to forego his 2019 business profits, proof of his 2019 income, and an estimate of their family 
expenses that year. The Petitioner may submit any additional evidence of its ability to pay in 2019, 
including proof that it paid the Beneficiary wages or materials supporting the factors stated in 
Sonegawa. See Matter ofSonegawa, 12 l&N Dec. at 614-15. 
If supported by the record, the new NOIR may include any additional, potential revocation grounds. 
The Director, however, must provide the business with a reasonable opportunity to respond to all 
issues raised on remand. Upon receipt of a timely response, the Director should review the entire 
record and enter a new decision. 
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III. CONCLUSION 
The record does not support the Director's revocation of the petition's approval. But, at the time of 
the grant, the Petitioner had not demonstrated its ability to pay the offered position's proffered wage. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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