remanded EB-3 Case: Business Operations

U.S. Citizenship 
and Immigration 
Services 
In Re: 6962540 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 22, 2020 
The Petitioner seeks to employ the Beneficiary as a business operations assistant. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant category. 
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 national for 
lawful permanent resident status to work in a position that requires at least two years of training or 
experience. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
demonstrate that the Petitioner had the continuing ability to pay the proffered wage from the priority 
date onward. 
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 for further proceedings consistent with our opinion and 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)(A) of 
the Act, 8 U.S.C. § 1182(a)(5)(A). 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). See section 204 of the Act, 8 U.S.C. 
§ 1154. Third, if USCIS approves the petition, the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
November 16, 2017. See 8 C.F.R. § 204.5(d). 
II. ABILITY TO PAY THE PROFFERED WAGE 
The Director determined that the Petitioner did not establish its continuing ability to pay the proffered 
wage. The proffered wage is $97,406 per year. 
The regulation at 8 C.F.R. § 204.5(g)(2) requires a petitioner to establish its continuing ability to pay 
the proffered wage from the priority date until the beneficiary obtains lawful permanent residence. In 
determining a petitioner's abi I ity to pay, we first examine whether it paid a beneficiary the ful I proffered 
wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the full 
proffered wage, we next examine whether it had sufficient annual amounts of net income or net current 
assets to pay the difference between the proffered wage and the wages paid, if any. If a petitioner's 
net income or net current assets are insufficient, we may also consider other evidence of its ability to 
pay the proffered wage. 2 
The record indicates that the Petitioner is a limited liability company (LLC) taxed as an S corporation. 
The record does not demonstrate that the Petitioner has paid the Beneficiary any wages from the 
priority date onward. The Petitioner's federal tax returns state net income3 of $131,293 in 2017 and 
$337,843 in 2018. Therefore, for the years 2017 and 2018, the Petitioner had sufficient net income to 
pay the proffered wage.4 We will therefore withdraw the Director's decision. However, for the reason 
discussed below, we will remand the matter to the Director. 
Ill. BONA FIDES OF THE JOB OPPORTUNITY 
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). This attestation "infuses the recruitment process with 
the requirement of a bona fide job opportunity: not merely a test of the job market." Matter of Modular 
Container Sys., Inc., 89-INA-228, 1991 WL 223955, at *7 (BALCA 1991) (en banc);5 see 20 C.F.R. 
§ 656.17(1). A relationship between a petitioner and a beneficiary triggering concerns about the bona 
tides of a job opportunity "is not only of the blood; it may also be financial, by marriage, or through 
friendship." Matter of Sunmart 374, 2000-INA-93, 2000 WL 707942, at *3 (BALCA May 15, 2000); 
see Matter of Chamdal Food Mart, 2000-INA-92 (BALCA May 15, 2000). Here, the Petitioner 
answered "No" at part C.9 of the labor certification application which asks whether there is "a familial 
relationship between the owners, stockholders, partners, corporate officers, or incorporators [of the 
Petitioner], and the alien." The regulation at 20 C.F.R. § 656.17(1) states that if there is a familial 
2 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-946 (S.D. Cal. 2015); Rizvi v. Dep't of 
Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
3 Where an LLC taxed as an S corporation's income is exclusively from a trade or business, USCIS considers net income 
to be the figure for ordinary income, shown on line 21 of page 1 of a petitioner's IRS Form 1120S, U.S. Income Tax Return 
for an S Corporation. However, where an S corporation has income, credits, deductions, or other adjustments from sources 
other than a trade or business, net income is found on line 18 of Schedule K to Form 1120S. See Internal Revenue Serv., 
Instructions to Form 1120S, at https://www.irs.gov/pub/irs-pdf/i1120s.pdf (last visited Dec. 16, 2020). In this case, the 
Petitioner's net income is found on line 18 of Schedule K to Form 1120S. The Director erred in his determination of the 
Petitioner's net income in 2017 and 2018. 
4 On remand, the Petitioner must establish its continuing ability to pay the proffered wage from 2019 onward. 
5 BALCA stands for the DOL's Board of Alien Labor Certification Appeals. 
2 
relationship between the stockholders, corporate officers, incorporators, or partners, and the 
beneficiary, the petitioner in the event of an audit must be able to demonstrate the existence of a bona 
fide job opportunity (i.e., that the job is available to all U.S. workers).6 By signing the labor 
certification application, the Petitioner attested to the bona tides of the job opportunity. 
However, USCIS records show that the Beneficiary appears to be related to the Petitioner's sole 
shareholder/President. I I Specifically, it appears that I ts sister-in-law, 
I l(a.k.a. I I, is related to the Beneficiary. It does not appear that any 
relationship was disclosed to the DOL during the labor certification process. If the Beneficiary is 
related to the Petitioner's sole shareholder/President, their relationship casts doubt on the bona tides 
of the job opportunity.7 Therefore, we will remand the matter to the Director to determine the bona 
tides of the job opportunity and whether an affected party misrepresented the position's availability to 
U.S. workers on the labor certification. 8 A misrepresentation of the bona fide nature of the job 
opportunity could also warrant invalidation of the labor certification. See 20 C.F.R. § 656.30(d) 
(authorizing USCIS to invalidate a labor certification after its issuance upon a finding of fraud or 
willful misrepresentation of a material fact). 
6 If a petitioner answers "yes" to Part C.9 of the ET A Form 9089, DOL may audit the labor certification and request the 
following documentation from the petitioner: 
(1) A copy of the articles of incorporation, partnership agreement, business license or similar documents 
that establish the business entity; 
(2) A list of all corporate/company officers and shareholders/partners of the corporation/firm/business, 
their titles and positions in the business' structure, and a description of the relationships to each other 
and to the alien beneficiary; 
(3) The financial history of the corporation/company/partnership, including the total investment in the 
business entity and the amount of investment of each officer, incorporator/partner and the alien 
beneficiary; and 
(4) The name of the business' official with primary responsibility for interviewing and hiring applicants 
for positions within the organization and the name(s) of the business' official(s) having control or 
influence over hiring decisions involving the position for which labor certification is sought. 
(5) If the alien is one of 10 or fewer employees, the employer must document any family relationship 
between the employees and the alien. 
20 C.F.R. § 656.17(1). 
7 The Act and the regulations authorize USCIS to further examine the availability of an offered position to U.S. workers. 
USCIS must "investigat[e] ... the facts in each case" and determine "whether the facts stated in the petition are true." 
Section 204(b) of the Act, 8 U.S.C. § 1154(b). In addition, we may deny petitions accompanied by labor certifications 
that violate DOL regulations. See Matter of Sunoco Energy Dev. Co., 17 l&N Dec. 283, 284 (Reg'I Comm'r 1979) 
(affirming a petition's denial under the DOL regulation at 20 C.F.R. § 656.30(c)(2) where the labor certification did not 
remain valid for the intended geographic area of employment). 
8 A finding of willful misrepresentation of material fact against a petitioner or beneficiary requires the following elements: 
I The petitioner or beneficiary procured, or sought to procure, a benefit under U.S. immigration laws; 
I The petitioner or beneficiary made a false representation; 
I The false representation was willfully made; 
I The false representation was material; and 
I The false representation was made to a U.S. government official. 
See 8 USCIS Policy Manual J.2(B), https://www.uscis.gov/policymanual; see also Matter of Y-G-, 20 l&N Dec. 794 (BIA 
1994); Matter of Kai Hing Hui, 15 l&N Dec. 288 (BIA 1975). 
3 
On remand, the Director should request evidence of the bona tides of the job opportunity and allow 
the Petitioner reasonable time to respond. Upon receipt of all of the evidence, the Director will review 
the entire record and enter a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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