remanded EB-3 Case: Bookkeeping

U.S. Citizenship 
and Immigration 
Services 
In Re: 01422286 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 13, 2022 
The Petitioner, a trucking company, seeks to employ the Beneficiary as a bookkeeper. The company 
requests her classification under the third-preference, immigrant category as a skilled worker. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C . § 1153(b)(3)(A)(i) . 
After first granting the filing, the Director of the Texas Service Center revoked the petition's approval. 
The Director concluded that, on the accompanying certification from the U.S. Department of Labor 
(DOL), the Petitioner willfully concealed family relationships among its corporate officers and the 
Beneficiary. On appeal, the Petitioner asserts that prior counsel misrepresented the relationships 
without the company's knowledge. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See Matter of Ho, 19 I&N Dec. 582, 589 (BIA 1988) (discussing the burden of proof in 
revocation proceedings); see also Matter of Chawathe, 25 l&N Dec. 369, 3 7 5 (AAO 2010) ( discussing 
the standard of proof). Upon de nova review, we will withdraw the Director's decision and remand 
the matter for entry of a new decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must obtain DOL 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 of U.S. workers with similar jobs. See section 212(a)(5) of the Act, 8 U.S.C. 
§ 1182(a)(5). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. 
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). 
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. 
At any time before a beneficiary obtains lawful permanent resident status, 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 justifies 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 of Estime, 19 I&N Dec. 450, 451 (BIA 1987). If a petitioner does not submit a NOIR response 
or the business's response does not overcome the stated revocation grounds, USCIS properly revokes 
the petition's approval. Id. at 452. 
II. THE ALLEGED MISREPRESENTATION 
The Director concluded that, on part C.9 of the accompanying labor certification, the Petitioner 
willfully concealed family relationships among its two corporate officers at the time and the 
Beneficiary. We will withdraw the Director's decision. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record at the time of the NOIR's issuance did not establish 
the Petitioner's required ability to pay the proffered wage of the offered position. 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 C.F.R. § 204.5(g)(2). Evidence of ability to pay 
must generally include copies of annual reports, federal tax returns, or audited financial statements. 
Id. 
The labor certification states the proffered wage of the offered position of bookkeeper as $31,554 a 
year. The petition's priority date is October 27, 2008, the date DOL accepted the labor certification 
application for processing. See 8 C.F .R. § 204.5( d) ( explaining how to determine a petition's priority 
date). USCIS approved the petition in June 2009. Thus, the Petitioner had to demonstrate its ability 
to pay the proffered wage in 2008, the year of the petition's priority date, and 2009, the year of the 
filing' s approval. 
The Petitioner submitted a copy of its federal income tax return for 2008. The record, however, lacks 
regulatory required evidence of the company's ability to pay the proffered wage in 2009. Thus, the 
record at the time of the NOIR's issuance would have warranted the petition's denial. See Matter of 
Estime, 19 I&N Dec. at 451. 
The Director did not notify the Petitioner of this potential revocation ground. We will therefore 
remand the matter. On remand, the Director should issue a new NOIR instructing the company to 
submit copies of annual reports, federal tax returns, or audited financial statements for 2009. See 
8 C.F.R. § 204.5(g)(2). The Petitioner may also submit additional evidence of its ability to pay the 
proffered wage in 2009, including proof of any wages it paid the Beneficiary or documentation 
supporting the factors stated in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
2 
If supported by the record, the new NOIR may include additional, potential grounds of revocation. 
The Director, however, must notify the Petitioner of all potential revocation grounds and afford the 
company a reasonable opportunity to respond. See 8 C.F.R. § 205.2(b). Upon receipt of a timely 
response, the Director should review the entire record and issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
3