remanded EB-3 Case: Agriculture

U.S. Citizenship 
and Immigration 
Services 
In Re : 06842528 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 29, 2021 
The Petitioner, a farm, seeks to employ the Beneficiary as a production worker. It requests 
classification of the Beneficiary as an unskilled worker under the third preference immigrant 
classification. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C . 
§ 1153(b )(3)(A)(iii). 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 less 
than two years of training or experience. 
The Director of the Texas Service Center denied the petition . He determined that certain fees paid by 
the Beneficiary to a third party consultant violate the provisions of20 C.F.R . § 656.12, which prohibits 
the labor certification being sold, bartered, or purchased by individuals or entities. The matter is now 
before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's 
decision and remand the matter to the Director for the entry of a new decision . 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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) .1 See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the 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 id. Second, the employer files an immigrant visa petition 
with U.S. Citizenship and Immigration Services (USCIS) with the certified labor certification. See 
section 204 of the Act, 8 U.S.C. § 1154. Third, upon approval of the petition, a foreign national may 
apply for an immigrant visa abroad, or if eligible, adjust status in the United States to lawful permanent 
resident. See section 245 of the Act, 8 U.S.C. § 1255. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
January 6, 2017. See 8 C.F.R. § 204.S(d). 
II. ANALYSIS 
On appeal, upon review of the entire record, we conclude that the Petitioner has established by a 
preponderance of the evidence that the labor certification was not the subject of improper commerce 
or payment. Thus, the Director erred in denying the petition and entering a finding of willful 
misrepresentation of material fact against the Petitioner. We will therefore withdraw the Director's 
decision and finding of willful misrepresentation of material fact against the Petitioner. We will also 
withdraw the Director's invalidation of the labor certification and reinstate it. 
Although the Director's decision is withdrawn, we cannot affirmatively conclude that the Petitioner 
has established eligibility for the benefit sought. The Petitioner must establish its continuing ability 
to pay from the priority date in 2017. 2 The regulation at 8 C.F.R. § 204.5(g)(2) requires that 
"[ e ]vidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or 
audited financial statements." The regulation further provides that if a petitioner employs 100 or more 
workers, we may accept a statement from a financial officer of the petitioner which establishes its 
ability to pay the proffered wage. Id. 
The record does not contain the Petitioner's annual reports, federal tax returns, or audited financial 
statements from the priority date in 2017 onward. Instead, it contains a letter dated September 20, 
2018, from the Petitioner's CFO stating that the Petitioner has the ability to pay the proffered wage. 
The Petitioner's CFO asserts that the Petitioner employs 569 employees and that it had gross revenue 
of over $50 million in 2016. However, given the Petitioner's history of filing petitions detailed below, 
on remand, the Director should request additional evidence of the Petitioner's continuing ability to 
pay. 
Where a petitioner has filed Form 1-140 petitions for multiple beneficiaries, it must demonstrate that its 
job offer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to each 
beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 
2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to pay multiple 
beneficiaries). USCIS records show that the Petitioner has filed hundreds of Form 1-140 petitions for 
other beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of the other Form 1-140 petitions that were pending or approved as o±: or filed after, the 
priority date of the current petition. 3 We do not consider the other beneficiaries for any year that the 
Petitioner has paid the Beneficiary a salary equal to or greater than the proffered wage. 
The Petitioner must document the receipt numbers, names of beneficiaries, priority dates, and 
proffered wages of these other petitions, and indicate the status of each petition and the date of any 
status change (i.e., pending, approved, withdrawn, revoked, denied, on appeal or motion, beneficiary 
obtained lawful permanent residence). To offset the total wage burden, the Petitioner may submit 
2 The annual proffered wage is $18,034. 
3 The Petitioner's ability to pay the proffered wage of one of the other T-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful pennanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a pending 
appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
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documentation showing that it paid wages to other beneficiaries. To demonstrate that it has the ability 
to pay the Beneficiary and the other beneficiaries, the Petitioner must, for each year at issue (a) 
calculate any shortfall between the proffered wages and any actual wages paid to the primary 
Beneficiary and its other beneficiaries, (b) add these amounts together to calculate the total wage 
deficiency, and ( c) demonstrate that its net income or net current assets exceed the total wage 
deficiency. 4 Without this information, we cannot determine the Petitioner's ability to pay the combined 
proffered wages of all of its applicable beneficiaries. 
We cannot affirmatively find that the Petitioner has the continuing ability to pay the combined 
proffered wages of all of its applicable beneficiaries from the priority date in 201 7. On remand, the 
Director should request additional evidence of the Petitioner's ability to pay and allow the Petitioner 
reasonable time to respond. The Petitioner may also submit additional materials in support of the 
factors discussed in Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967), which 
permits USCIS to consider the totality of the circumstances affecting a petitioner's ability to pay the 
proffered wage. 5 
III. CONCLUSION 
In conclusion, we withdraw the Director's decision on the issue of improper commerce and payment, 
and we remand the matter to the Director to determine whether the Petitioner has the continuing ability 
to pay the combined proffered wages of all of its applicable beneficiaries. Additionally, we withdraw 
the Director's finding of willful misrepresentation of material fact against the Petitioner involving the 
labor certification application, and we withdraw the Director's invalidation of the labor certification 
and reinstate it. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
FURTHER ORDER: The ETA Form 9089, case numbd~-----~l is reinstated. 
4 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
5 In determining the Petitioner's ability to pay the proffered wage, we may examine such factors as: the number of years 
the Petitioner has conducted business; its number of employees; the growth of its business; its incurrence of 
uncharacteristic losses or expenses; its reputation in its industry; the Beneficiary's replacement of a current employee or 
outsourced service; or other factors affecting the Petitioner's ability to pay. See Matter of Sonegawa, 12 l&N Dec. at 614-
15. 
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