remanded EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
In Re: 19134914 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 19, 2022 
The Petitioner seeks to employ the Beneficiary as an Asian specialty cook. It requests classification 
of the Beneficiary under the third preference employment-based immigrant visa category. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b) (3)(A)(iii). 
This immigrant visa category 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 petition was initially approved. The Director of the Nebraska Service Center subsequently 
revoked the approval of the petition. On appeal, the Petitioner asserts that the Director's decision is 
without merit and requests to reverse the revocation, stating that the reasons for revocation were not 
clearly and fully stated, nor supported by fact or law. 
The AAO reviews the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 
537, 537 n.2 (AAO 2015). It is the Beneficiary's burden 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 l&N Dec. 369,375 (AAO 2010). Upon de nova review, we will withdraw the Director's 
decision and remand the matter to the Director. 
I. LAW 
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). 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)(l)-(11) of the 
Act. 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 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 l&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. 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish, among 
other things, 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 a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. 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]. 
11. PROCEDURAL HI STORY 
The instant petition was filed with USCIS in March 2018, accompanied by a labor certification that 
was ti led with the DOL in September 2016, and certified in September 2017. The petition was 
approved in March 2018. However, the Director issued a NOIR in May 2020. 
In the NOIR, the Director pointed out that the Petitioner answered "No" to the question at section C.9 
of the labor certification, which reads: 
Is the employer a closely held corporation, partnership, or sole proprietorship in which 
the alien has an ownership interest, or is there a familial relationship between the 
owners, stockholders, partners, corporate officers, or incorporators and the alien? 
The Director cited to Matter of Sunmart 374, 2000-INA-93 (BALCA, May 15, 2000) stating that "a 
relationship triggering concerns about the bona fides of a job opportunity 'is not only of the blood; it 
may also be financial, by marriage, or through friendship."' The Director stated that during an 
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adjustment interview, the Beneficiary said that he has known the Petitioner's owner for many years, 
and he used to work for him at the restaurant owned by the Petitioner's spouse. The Director further 
stated that the Beneficiary indicated that he found out about the job by being contacted by the 
Petitioner's owner and he did not undergo a formal hiring process. The Director then made a note of 
the distance between the Beneficiary's residence and the Petitioner, and stated that it is unlikely that 
the Beneficiary actually drives that far to get to work. The Director cited Matter of Silver Dragon 
Chinese Restaurant, 19 l&N Dec. 401 (Comm. 1986) stating that if the Beneficiary's true relationship 
in the petitioning business is not apparent in the labor certification proceedings, it causes the certifying 
officer to fail to examine more carefully whether the position was clearly open to qualified U.S. 
workers and whether U.S. workers were rejected solely for lawful job-related reasons. 
In response to the NOIR, the Petitioner stated that it has correctly answered the question at section C.9 
of the labor certification and the DOL has audited and approved the labor certification. The Petitioner 
further stated that the Beneficiary has no ownership interest in the petitioning restaurant, and he is not 
related to the owner of the Petitioner by blood or marriage.1 The Petitioner submitted statements from 
its owner and the Beneficiary and asserted that the proffered position was a bona fide job offer and 
that there was no misrepresentation of any material fact regarding the familial relationship between 
the Petitioner and the Beneficiary. With respect to the part-time working arrangements, the Petitioner 
submitted a statement from the Beneficiary in which he stated that he briefly worked for the Petitioner 
in 2018 to gain familiarity and that he and his family intend to move to where the Petitioner is located 
after he obtains his legal permanent residence. 
In the revocation decision, the Director repeated the same statements above. The Director noted that 
in response to the NOIR, the Petitioner stated that a familial relationship does not exist between the 
Petitioner and the Beneficiary. Then the Director characterized this as "self-serving statement" and 
stated that the Director will continue to rely on the Beneficiary's statements provided during the 
adjustment interviews to revoke the approval of the petition. 
On appeal, the Petitioner emphasizes that it has fully complied with the DOL's audits, and the DOL 
has certified the labor certification. The Petitioner also states that the NOIR and the Director's 
revocation decision contain incorrect factual statements. The Petitioner states that the restaurant where 
the Petitioner's owner and the Beneficiary had worked is owned by the Beneficiary's spouse and not 
the spouse of the Petitioner's owner as stated by the Director, and notes that the Beneficiary's sworn 
statement provided during his interview reflects this correctly.2 The Petitioner adds that the fact that 
the Petitioner and the Beneficiary worked together previously does not invalidate the properly 
approved petition. The Petitioner reiterates that the Beneficiary has no ownership interest nor control 
in the petitioning corporation. 
1 The Petitioner distinguished Matter of Silver Dragon Chinese Restaurant, 19 l&N Dec 401 (Comm. 1986), which was 
cited by the Director in the NOi R, by pointing out that the beneficiary in that case had an interest in the petitioning business. 
2 On appeal, the Petitioner submits a broker agreement the Beneficiary's s wife entered into for the sale of her restaurant. 
Furthermore, the public records contained in the Texas Comptroller of Public Accounts website reflect the Beneficiary's 
wife as the registered agent for the restaurant where the Beneficiary and the Petitioner's owner had worked. Available at 
https:/ /mycpa.cpa.state. tx. us/coa/coaSearch Btn#. 
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Ill. ANALYSIS 
Upon review of the record in its totality, we conclude the Director did not sufficiently explain the 
specific reasons for the revocation as required under 8 C.F.R. § 205.2(c) and the Director made 
incorrect statements. For example, the Director misconstrues the content of the question at section 
C.9 of the labor certification, and erroneously concludes that the Petitioner's answer of "No" was 
incorrect. As noted above, section C. 9 includes two distinct questions; one, whether the Beneficiary 
has an ownership, and two, whether there is a familial relationship. The Petitioner explained in 
response to the NOIR that the Beneficiary does not have any ownership interest in the Petitioner, and 
that while the Petitioner and the Beneficiary have known each other, they do not have a familial 
relationship. The Petitioner also submitted a statement from the Beneficiary stating that he and the 
Petitioner's owner had worked together in the past at the Beneficiary's wife's restaurant as chefs. The 
Beneficiary also explained the circumstances surrounding his part-time employment with the 
Petitioner in 2018. However, in revoking the petition, the Director stated that the Petitioner's 
statement is "self-serving" and that USCTS will continue to rely on the evidence provided from the 
interviews to revoke the petition, without further discussing the evidence submitted in response to the 
NOIR.3 
Further, the Director's decision contains statements inconsistent with the information contained in the 
Beneficiary's sworn statement. Specifically, the Beneficiary and the Petitioner's owner worked 
together at the Beneficiary's spouse's restaurant, and not at the Petitioner's spouse's restaurant. 
Moreover, the Director cites to Matter of Silver Dragon Chinese Restaurant and Matter of Sunmart 
but does not sufficiently explain how those cases are applicable to the instant case. Accordingly, we 
will withdraw the Director's decision and remand the case for the Director to further consider the 
record and sufficiently discuss the evidence and explain why it does not establish eligibility. 4 
In addition, we note that the record, as currently constituted, does not establish the Petitioner's 
continuing ability to pay the proffered wage from the priority date of the petition onward.5 8 C.F.R. 
§ 204.5(g)(2). In this case, the proffered wage is $21,986 per year and the priority date is September 
27, 2016. 
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 
3 The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded simply because it is 
"self-serving." See Matter of S-A-, 22 l&N Dec. 1328, 1332 (BIA 2000). However, the Board further stated: "We not 
only encourage but require the introduction of conoborative testimonial and documentary evidence, where available." Id.; 
see also, Matter of Y-B-, 21 l&N Dec. 1136 (BIA 1998) (noting that there is a greater need for corroborative evidence 
when the testimony lacks specificity, detail, or credibility). 
4 We recognize that that the Director raised significant if somewhat speculative concerns. While not sufficiently developed 
for purposes of this visa petition, the Director is not barred from further inquiry, investigation, or the development of 
questions for consular processing or adjustment of status proceedings. See Matter of 0, 8 l&N Dec. 295 {BIA 1959) 
(stating that the immigrant visa petition is not the appropriate stage of the process for questions regarding admissibility). 
5 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. § 204.5(d). 
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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. 
According to the Beneficiary, he "briefly" worked for the Petitioner "[a]bout 40 hrs, every two weeks" 
and received payments about "$400-$440 gross pay" for every two weeks. The record contains pay 
stubs for the period of September 1, 2018, through October 15, 2018, showing that the Petitioner paid 
the Beneficiary $11 per hour. However, we are unable to ascertain the exact period of time the 
Petitioner employed the Beneficiary. Furthermore, the Petitioner has not submitted any IRS Form 
W-2, Wage and Tax Statements, for the years it employed the Beneficiary to demonstrate the total 
annual pay the Beneficiary received from it. Therefore, the Petitioner has not established its ability to 
pay the proffered wage from the priority date onward based on wages paid to the Beneficiary. 
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. 
The Petitioner has submitted a copy of an amended 2016 federal income tax return that was prepared 
in March 2018, but has not submitted the original 2016 tax return that it filed. Therefore, we are 
unable to compare the information contained in the original and the amended 2016 federal income tax 
returns. Furthermore, the record does not contain tax returns for 2017 and onward. The Petitioner 
also has not submitted any annual reports and audited financial statements for the priority date year of 
2016 or any subsequent year. Without the necessary financial documentation, we are unable to 
determine the Petitioner's continuing ability to pay the Beneficiary's proffered wage based on its net 
income or net current assets from the priority date of September 27, 2016, onward. 
Therefore, we will remand this case for the Director to request the submission of regulatory required 
evidence from the Petitioner, as specified in 8 C.F.R. § 204.5(g)(2), for the priority date year of 2016 
and any subsequent year(s) in the Director's discretion. The Director may also request any other 
evidence that may be deemed necessary to determine the Petitioner's eligibility for the requested 
immigration benefit. 
IV. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's eligibility for the immigration benefit it seeks on behalf of the Beneficiary. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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