remanded EB-3 Case: Auto Repair

U.S. Citizenship 
and Immigration 
Services 
In Re: 02688046 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 3, 2021 
The Petitioner, an auto repair business, sought to employ the Beneficiary as an auto technician. It 
requested skilled worker classification for the Beneficiary 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 "EB-3" immigrant classification allows an 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. 
After initially approving the petition, the Director of the Texas Service Center revoked the petition's 
approval on multiple grounds. The Director determined that the Petitioner did not establish that the 
Beneficiary had the requisite education and experience to qualify for the proffered position under the 
terms of the labor certification. The Director also found that the Beneficiary willfully misrepresented 
material facts on the labor certification concerning his training and experience, and invalidated the 
required labor certification on that basis. Finally, the Petitioner determined that the Petitioner did not 
establish its ability to pay the proffered wage for multiple beneficiaries. 
The matter is now before us on the Beneficiary's appeal. 1 Although normally not the case, under 
certain circumstances described below a beneficiary may be considered an affected party in immigrant 
petition revocation proceedings . In this case the Director determined that the Beneficiary met the 
requisite conditions to be considered an affected party and sent a revocation decision to the Beneficiary 
as well as to the Petitioner. 
On appeal the Beneficiary asserts that he met all of the labor certification requirements to qualify for 
the job offered, and that he did not willfully misrepresent any material facts in the labor certification 
concerning his qualifications. The Beneficiary also asserts that the Petitioner proved its ability to pay 
the proffered wage at the time the petition was filed, and that no further evidence need be submitted 
from that entity since the Beneficiary has ported to a new employer and the original Petitioner is no 
longer seeking to employ the Beneficiary . 
1 USCIS regulations do not generally allow a beneficiary to appeal a petition's revocation . See 8 C.F.R. 
§ 103.3(a)(l)(iii)(B) (stating that a beneficiary is not an "affected party " with legal standing in a proceeding) . 
The AAO reviews the questions in this matter de novo. See Matter of Christo 's Inc., 26 I&N Dec. 
537,537 n.2 (AAO 2015). Upon de novo review, we will withdraw the Director's decision and remand 
the case for further consideration and the issuance of a new decision. As an appellant in revocation 
proceedings, it is the Beneficiary's burden in these proceedings to establish eligibility for the requested 
benefit by a preponderance of the evidence. See Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
I. LAW 
A. Employment-based Immigrant Petition Process 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). 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 section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition (Form I-140) with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
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). A notice of intent to revoke (NOIR) "is not properly issued unless there 
is 'good and sufficient cause' and the notice includes a specific statement not only of the facts 
underlying the proposed action, but also of the supporting evidence." Matter of Estime, 19 I&N Dec. 
450, 451 (BIA 1987). Per Matter of Estime, "[i]n determining what is 'good and sufficient cause' for 
the issuance of a notice of intention to revoke, we ask whether the evidence of record at the time the 
notice was issued, if unexplained and unrebutted, would have warranted a denial based on the 
petitioner's failure to meet his or her burden of proof" Id. 
B. The Beneficiary as an Affected Party 
USCIS regulations do not generally allow a beneficiary to appeal a petition's revocation. See 8 C.F.R. 
§ 103.3(a)(l)(iii)(B) (stating that a beneficiary is not an "affected party" with legal standing in a 
proceeding). However, certain "portability-eligible" beneficiaries ofrevoked I-140 visa petitions are 
treated as affected parties in revocation proceedings. Section 204(j) of the Act, 8 U.S.C. § l 154(j). 
See Matter ofV-S-G-Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017). In that case we held that 
"[b ]eneficiaries of valid employment-based immigrant visa petitions who are eligible to change jobs 
or employers and who have properly requested to do so [under section 204(j)], are 'affected parties' 
2 
under DHS regulations for purposes ofrevocation proceedings .... " Matter of V-S-G- Inc., Adopted 
Decision 201 7-06 at * 1. 
Under the portability provision of section 204(j) of the Act, approved petitions may remain valid under 
certain conditions even after eligible beneficiaries change jobs or employers. A beneficiary of a valid 
visa petition, whose application for adjustment of status remains pending for at least 180 days, may 
"port" the petition to a new job if that job is in the same or similar occupational classification as the 
position offered in the petition. See 8 C.F.R. § 245.25(a)(2)(i). In order to be deemed an affected 
party in revocation proceedings, a beneficiary must have submitted to USCIS a proper request to port 
to another employer. As of January 17, 2017, a request to port must be submitted on a Form 1-485 
"Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 
204(j)." See USCIS Policy Memorandum PM-602-0152, Guidance on Notice to, and Standing/or, 
A C2 l Beneficiaries about 1-140 Approvals Being Revoked After Matter of V-S-G- Inc. (Nov. 11, 2017), 
http://www.uscis.gov/laws/policy-memoranda, at 2; see also 8 C.F.R. § 245.25(a). A beneficiary's 
request to port is "proper" when USCIS has evaluated the request and determined, prior to the issuance 
of a NOIR or a notice of revocation (NOR), that the beneficiary is indeed eligible to port. See USCIS 
Policy Memorandum PM-602-0152, supra, at 5. Thus, a beneficiary becomes an "affected party" with 
legal standing in a revocation proceeding when USCIS makes a favorable determination that the 
beneficiary is eligible to port. Id. 
II. PROCEDURAL HISTORY 
The instant petition was filed by.__ _____________ __,on November 18, 2014, 
accompanied by a labor certification that was filed with the DOL on April 8, 2013 and approved in 
October 2014. A Form 1-485 adjustment of status application by the Beneficiary was also filed on 
November 18, 2014. The 1-140 petition was initially approved on May 7, 2015. On June 29, 2017, 
however, the Director sent a NOIR to the Petitioner, copied to the Petitioner's attorney, who responded 
with a brief and supporting documentation on July 24, 2017. On that same date the Beneficiary filed 
a Form 1-485 Supplement J with the Texas Service Center on which he affirmed his intent to accept 
the job offer from the Petitioner. 2 On February 22, 2018, the Beneficiary filed a second Form 1-485 
Supplement J with the Texas Service Center, requesting to port tol 13 and 
identifying the Petitioner's attorney as his attorney as well. The Director proceeded the revoke the 
1-140 petition's approval on July 2, 2018, in separate NORs sent to the Petitioner and the Beneficiary, 
with copies to the attorney representing both parties. In the revocation decision sent to the Beneficiary 
the Director stated that the Beneficiary was eligible to receive notices and participate in the 
proceedings based on his compliance with the requirements for portability under section 204(j) of the 
Act. On July 19, 2018, the Beneficiary filed an appeal. We will address each of the Director's grounds 
for revocation in tum. 
2 The Beneficiary checked the box at Part 1.1.a. of Supplement J which states: "Confirm that the job offered to you in the 
Form T-140, that is the basis of your Form T-485, remains a bona fide job offer that you intend to accept once your Form 
1-485 is approved." 
3 The record indicates that.~---~~was established by the Beneficiary in May 2015, and that he has been self­
employed in that business since June 2015. On the second Supplement J filed in February 2018 the Beneficiary checked 
the box at Part 1.1.b. which states: "Request job portability under INA section 204(j) to a new, full-time, permanent job 
offer that you intend to accept once your Form 1-485 is approved." 
3 
III. ANALYSIS 
A. Labor Certification Requirements 
The education, training, and experience requirements for the proffered position of auto technician were 
listed as follows in section H of the labor certification: 
4. 
5. 
6. 
6-A. 
7. 
8. 
9. 
10. 
14. 
Education: Minimum level required: 
Is training required for the job? 
Is experience in the job offered required? 
How long? 
Is an alternate field of study acceptable? 
Is an alternate combination of education 
and experience acceptable? 
Is a foreign educational equivalent acceptable? 
Is experience in an alternate occupation acceptable? 
Specific skills or other requirements: 
High School 
No 
Yes 
24 months 
No 
No 
Yes 
No 
High School diploma with 2 years relevant training/experience. 
Any suitable combination of education, training or experience is acceptable. 
Sections J and K of the labor certification state that the Beneficiary's highest level of education 
relevant to the job oppo
1
unity 
1
as a high school diploma in 1994 from 
I I High School in South Korea, and claim that the Benefic .... ia-ry--h-ad_t_h_e_r_e_g_u-is-it_,e 
experience fol~he job I ~pportunity by virtue of (I) his employment as an auto technician byl I 
Auto Repair i from June 16, 1993, to February 2, 1995, and (2) his student/trainee course in 
auto repair at Technical School inc=] from June 2, 1992, to May 26, 1993. 
As evidence of the Beneficiary's education the Petitioner submitted a copy of an English language 
"Certificate of Graduation" certifying that the Beneficiary entered ~----------~ High School on March 2, 1991, and after completing the course requirements graduated on 
February 15, 1994. The certificate itself is undated. 
As evidence of the Beneficiary's experience the Petitioner submitted copies of: 
• A "Certificate of Course Completion" (in Korean with an English translation) from the 
principal of1 !Technical School, dated May 26, 1993, certifying that the Beneficiary 
completed the "auto (heavy machinery) mechanic" courses during the period of June 2, 
1992, to May 26, 1993; and 
• An English language "Verification of Employment" on the letterhead ofl !Auto 
Repair, signed by the general manager and dated February 17, 2013, certifying that the 
Beneficiary was employed as an auto technician from June 16, 1993, to February 2, 1995, 
and describing his job duties; and 
4 
• A "Certificate of Discharge from Military Service" from the Army Chief of Staff (in 
Korean with an English translation) indicating that the Beneficiary had completed his 
military service from February 9, 1995, to April 17, 1997 (though the Beneficiary's 
military service was not listed in the labor certification as qualifying experience for the job 
offered). 4 
In response to the NOIR the Petitioner supplemented its initial evidence of the Beneficiary's 
experience with a copy of a "Certificate of Experience" (in Korean with an English translation) from 
the president of1 I Auto Repair, dated July 18, 2007, certifying that the Beneficiary was 
employed in the "KIA A/S" department from June 16, 1993, to February 2, 1995.5 
In the revocation decision the Director stated that the evidence of the Beneficiary's graduation 
certificate from.~--~--------~ High School was in doubt because the asserted time 
in high school from March 1991 to February 1994 overlarped with some or all of the time in which 
the Beneficiary assertedly gained experience atl._ __ ____. Technical School from June 1992 to May 
1993 and atl I Auto Repair from June 1993 to February 2005. The Director noted that the 
subject school was identified as the.__ _______ _, Technical School in the earlier labor 
certification that accompanied the I-140 petition filed by another petitioner in 2007. The Director 
also stated that the Beneficiary's "Certificate of Course Completion" froml I Technical School 
appeared to be a specialized training diploma, which was not shown to be the foreign equivalent of a 
U.S. high school diploma. 
As for the Beneficiary's experience with I I Auto Repair, the Director stated that the Petitioner 
had not satisfactorily explained a discrepancy regarding the Beneficiary's employment dates in the 
labor certification filed with the earlier petition in 2007 ( alleging employment from June 1, 1993 to 
February 1, 1995) and the "verification of employment" submitted with the instant petition (alleging 
June 16, 1993 to February 2, 1995). Nor had the Petitioner satisfactorily explained why the labor 
certification accompanying the earlier I-140 petition identified the Beneficiarv's employer during the 
time period from June 1993 to February 1995 as Kia Motors, notl ]Auto Repair. Several 
other minor differences between the earlier petition and the current petition were also pointed out by 
the Director. With regard to the experience the Beneficiary claimed as a student/trainee in auto 
mechanics at I !Technical School from June 1992 to May 1993, the Director questioned 
whether the Beneficiary could have completed that course load at the same time he was attending the 
I IHigh School and stated that the record lacked credible and probative 
evidence establishing that the Beneficiary actually attended the schools. Finally, the Director noted 
that the Beneficiary's "Certificate of Discharge from Military Service" identified somewhat different 
dates of service (February 9, 1995 to April 17, 1997) than the labor certification submitted with the 
earlier I-140 petition (January 1, 1995 to January 1, 1997), and did not describe the Beneficiary's job 
in the military. 
4 We note that the alleged experience in the South Korean army was listed in the labor certification that accompanied an 
earlier Form 1-140 petition filed on behalf of the Beneficiary by another petitioner in 2007 (receipt number I I 
I , I This petition was originally approved, but the approval was subsequently revoked ( along with that of the instant 
petition) on July 2, 2018. No appeal was filed in that case. 
5 This document had initially been submitted to USCIS in support of the earlier Form 1-140 petition filed on behalf of the 
Beneficiary in 2007. 
5 
The Director farther noted that the Korean to English translations in the record did not folly comply 
with the regulatory requirements of8 C.F.R. § 103.2(b)(3). 
Based on the foregoing discussion the Director determined that the Beneficiary did not meet the terms 
of the labor certification with respect to the educational and experience requirements for the proffered 
position of auto technician. 
On appeal the Beneficiary reiterates his contention that he meets the labor certification's educational 
requirement with his diploma from.__ __________ ____,High School in 1994 and that he 
meets the labor certification's experience requirement with his jobs as a student/trainee in auto 
mechanics atl !Technical School from June 1992 to May 1993 and as an auto technician at 
I !Auto Repair from June 1993 to February 1995, as well as in his military service from 
February 1995 to April 1997. The Beneficiary submits additional documentation pertaining to his 
alleged education and experience in South Korea, including a copy of his "School Record" atl I I I High School in the years 1991-1994 and a "School History" indicating that the school's 
name was changed tol I High School in 1997. The foregoing documents 
are submitted in Korean with English translations and certifications of the translators which comply 
with the requirements of 8 C.F.R. § 103.2(b )(3). In addition, the Beneficiary resubmits copies of (1) 
the "Certificate of Course Completion" from the principal ofl I Technical School, dated 
May 26, 1993, certifying that the Beneficiary completed the "auto (heavy machinery) mechanic" 
courses during the period of June 2, 1992, to May 26, 1993; (2) the "Certificate of Experience" from 
I I Auto Repair, dated July 18, 2007, certifying that the Beneficiary was employed in the "KIA 
Motors After Sales" department from June 16, 1993, to February 2, 199 5; and (3) the "Certificate of 
Discharge from Military Service" indicating that the Beneficiary served in a maintenance mobility 
division. This time the Korean and English language versions of these documents are accompanied 
by certifications of the translators that comply with the requirements of 8 C.F .R. § 103 .2(b )(3 ). 6 
The Beneficiary asserts that'------------~ High School is a vocational high school 
in which students receive a general education in the first year and specialized career-focused courses 
in their last two years. The credential advice of the Electronic Database for Global Education 
(EDGE), 7 created by the American Association of Collegiate Registrars and Admissions Officers 
(AACRAO), 8 states that a vocational high school certificate (Silop Kodung Hakkyo) in South Korea, 
is awarded upon completion of three years of vocational high school and is comparable to completion 
of a vocational or other specialized high school curriculum in the United States. aacrao.org/edge/ 
country/credential/Korea-Republic-of/silop-kodung-kakkyo-(vocational-high-school-cert[ficate) (last 
visited Aug. 16, 2021). In the revocation decision the Director did not question whether a certificate 
of graduation froml I High School was equivalent to a U.S. high school 
6 The Beneficiary also resubmits the English-language "Verification of Employment" witH I Auto Repair from 
June 1993 to February 1995. 
7 As described on its website, AACRAO EDGE "has been the leading US resource for evaluating foreign educational 
credentials for more than 15 years." aacrao.orgledge/about-edge (last visited Aug. 16, 2021). 
8 AACRAO is described on its website as "a nonprofit, voluntary, professional association of more than 11,000 higher 
education admissions and registration professionals who represent more than 2,600 institutions in over 40 countries." 
http://wwvv.aacrao.org/who-we-are (last visited Aug. 16, 2021 ). 
6 
diploma. Rather, the Director questioned whether the Beneficiary could rtually lave earned such a 
credential while also working foll-time as a student/trainee in auto repair at Technical School 
and, after that, as an auto technician atl I Auto Repair. Such combinations of work and study 
are hardly unknown, however, and merely expressing skepticism about the Beneficiary's ability to do 
both is not a sufficient basis for concluding that the Beneficiary's graduation certificate from I I 
.__ _______ ___, High School was not genuine. Thus, the Director's conclusion that the 
Beneficiary did not meet the minimum educational requirement of the labor certification because of 
his concurrent foll-time employment is not well grounded. We will remand for farther consideration 
of this issue. 
With regard to the Beneficiary's experience, the Director determined that he had failed to resolve the 
evidentiary inconsistencies in the record. On appeal the Beneficiary asserts that the date discrepancies 
between the labor certification accompanying the earlier 1-140 petition and the other documentation 
of record concerning the Beneficiary's employment with I IAuto Repair and the South 
Korean army, and the misidentification of previous employers in the earlier labor certification as Kia 
Motors rather than I I Auto Repair and I !Technical School rather thanl I 
Technical School, were careless errors of the original attorney. The Beneficiary contends that the date 
discrepancies were not substantial in any event, that the "Certificate of Experience" from I I 
Auto Repair submitted on appeal shows that the Beneficiary was employed from June 1993 to 
February 1995 in the company's "Kia Motors After Sales Services" department, and that the 
Beneficiary's employer from June 1992 to May 1993 is correctly identified in all supporting 
documentation as I I Technical School. The Beneficiary also asserts that minor 
inconsistencies concerning the address, phone, and fax number of I I Auto Repair are 
explainable in the documents themselves. Based on our review of the materials discussed by the 
Director in the revocation decision, we are not persuaded that the decision adequately explains how 
the Beneficiary fell short of resolving the inconsistencies in the record. At the same time, we also note 
that the Beneficiary has not provided any social security or pension documentation from the South 
Korean government, or pay records from any of his alleged employers, as requested in the NOIR, to 
bolster his claim to have gained the experience claimed in this proceeding. The Beneficiary claims 
that no such materials are available. We will remand for farther consideration of the experience issue 
as well, including the materials submitted by the Beneficiary on appeal and the Beneficiary's claim 
that he is unable to provide the specific documentation requested in the NOIR. 9 
The Beneficiary relies on testimonial evidence from his purported former employers to establish his 
claimed employment experience. No independent, objective evidence has been submitted in support 
of this testimony. Probative evidence beyond a letter or affidavit may be considered when submitted 
to resolve inconsistencies or discrepancies in the record. See Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). Ultimately, to determine whether a petitioner has established eligibility for a requested 
benefit by a preponderance of the evidence, USCIS must examine each piece of evidence - both 
9 The regulation at 8 C.F.R. § 103.2(b )(2) states that "[t]he non-existence or other unavailability of required evidence 
creates a presumption of ineligibility .... If a required document ... does not exist or cannot be obtained, an applicant or 
petitioner must demonstrate this and submit secondary evidence . . . If secondary evidence also does not exist or cannot 
be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant 
secondary evidence and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition 
who have direct personal knowledge of the event and circumstances. 
7 
individually and within the context of the entire record- for relevance, probative value, and credibility. 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). It is the Appellant's burden in these 
proceedings 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) . 
B. Willful Misrepresentation of Material Facts in the Labor Certification 
Pursuant to the statutory framework for the granting of immigrant status, any United States employer 
desiring and intending to employ an alien entitled to immigrant classification under the Act may file 
a petition for classification. Section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F); see 8 C.F.R. 
§ 204.5( c ). Such petitions must be accompanied by a labor certification from the DOL. See section 
212(a)(5) of the Act, 8 U.S .C. § l 182(a)(5); see also 8 C.F.R. § 204 .5(1)(3)(i). The Petitioner 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 Comm'r 1966) (affirming denial where, contrary 
to an accompanying labor certification, a petitioner did not intend to employ a beneficiary under the 
terms of the labor certification); see also Matter of Sunoco Energy Dev. Co., 17 I&N Dec. 283, 284 
(Reg'l Comm'r 1979) (affirming a petition's denial under 20 C.F.R. § 656.30(c)(2) where the labor 
certification did not remain valid for the intended geographic area of employment). Because the filing 
of a labor certification establishes a priority date for any immigrant petition later based on the labor 
certification, the petitioner must establish that the job offer was realistic as of the priority date and that 
the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. The bona fides of the job opportunity are essential elements in evaluating whether a job 
offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977). 
The Act requires USCIS to determine eligibility for the visa classification requested. See section 
204( a)( 1 )(F) of the Act, 8 U.S. C. § 1154( a)( 1 )(F). Certain classifications require a labor certification 
to establish eligibility. See section 203(b )(3)(C) of the Act, 8 U.S.C. § 1 l 53(b )(3)(C); 8 C.F.R. 
§ 204.5(a)(2); 8 C.F.R. § 204.5(1)(3)(i). Section 204(b) of the Act allows a petition's approval only 
after an investigation of the facts in each case to ensure that the facts stated in the petition , which 
necessarily includes the labor certification, are true. Section 204(b) of the Act, 8 U.S.C. 
§ l l 54(b ). For those petitions requiring a labor certification, USCIS 's investigation into the facts must 
include consultation with DOL. Id. Thus, the labor certification is not conclusive evidence of 
eligibility. Instead, it is a pre-condition to being eligible to file a Form 1-140. USCIS is responsible 
for reviewing the Form 1-140, and the labor certification is incorporated into the Form 1-140 by statute 
and regulation . See section 203(b )(3)(C) of the Act, 8 U.S.C . § 1153(b )(3)(C); 8 C.F.R . § 204.5(a)(2); 
8 C.F.R. §103.2(b)(i). USCIS is required to approve an employment-based immigrant visa petition 
only where it is determined that the facts stated in the petition, which incorporates the labor 
certification, are true and the foreign worker is eligible for the benefit sought. See section 204(b) of 
the Act, 8 U.S.C. § 1154(b). 
As previously discussed, we are remanding this case for further consideration of whether the 
Beneficiary met the educational and experience requirements of the labor certification. Since we are 
not affirming the Director's prior determinations on these issues, the Director must also reconsider 
whether the Beneficiary willfully misrepresented any material fact(s) in the labor certification 
regarding his education and experience. 
8 
C. Petitioner's Ability to Pay the Proffered Wage 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it has 
the ability to pay the proffered wage stated in the labor certification. As provided in the regulation at 
8 C.F.R. § 204.5(g)(2): 
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 indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date 10 of the petition onward. In this case the proffered wage is 
$41,662 per year and the priority date is April 8, 2013. 
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 record does not show that the Beneficiary was employed by the Petitioner at any time 
before or after the priority date. Therefore, the Petitioner could not establish its ability to pay the 
proffered wage of $41,662 per year based on wages paid to the Beneficiary from the priority date of 
April 8, 2013, onward. 
If a petitioner does not establish that it has paid the beneficiary an amount 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 retum(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 ordinarily be considered able to pay the proffered wage during 
that year. 
10 The "priority date" of an employment-based immigrant petition is the date the underlying labor certification application 
is filed with the DOL. See 8 C.F.R. § 204.S(d). 
9 
The Petitioner's initial evidence included a copy of its federal income tax return, Form 1120S, for the 
year 2013, which recorded net income of$42,020 11 and net current assets of $31,020 12 that year. Thus, 
the Petitioner's net income exceeded the proffered wage in the priority date year of 2013. 
In the revocation decision the Director determined that the Petitioner did not establish its continuing 
ability to pay the proffered wage after 2013 "for multiple beneficiaries." The Director's reference to 
"multiple beneficiaries" is confusing since there is no evidence in the record of multiple beneficiaries 
nor any previous reference thereto by the Petitioner, the Beneficiary, or the Director in the course of 
these proceedings. Accordingly, we will withdraw the Director's determination on this issue. As we 
are already remanding on other issues, the Director should revisit the ability to pay issue as well, 
explain the reference to multiple beneficiaries in the revocation decision, and consider whatever 
additional evidence the Beneficiary may provide. 
IV. CONCLUSION 
For the reasons discussed above we will remand this case to the Director, who may issue a new NOIR 
in accordance with the requirements of 8 C.F.R. § 205.2(b) and (c) and Matter of Estime. Following 
the Petitioner's response to the NOIR, or the expiration of the time period for response, the Director 
shall issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further consideration 
and the entry of a new decision consistent with the foregoing analysis. 
11 If an S corporation, like the Petitioner, has income exclusively from a trade or business, USCTS considers its net income 
(or loss) to be the figure for "Ordinary business income (loss)" on page 1, line 21, of the Form 1120S. However, if there 
are relevant entries for additional income, credits, deductions or other adjustments from sources other than a trade or 
business, they are reported on Schedule K of the Form 1120S, and the corporation's net income or loss will be found in 
line 18 of Schedule K ("Income/loss reconciliation"). 
12 For a corporation net current assets ( or liabilities) are the difference between its cunent assets, entered on Schedule L, 
lines 1-6, of the Form 1120S, and its cunent liabilities, entered on Schedule L, lines 16-18, of the Form 1120S.