remanded EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 22516857 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 12, 2022 
The Petitioner, a restaurant business, seeks to employ the Beneficiary as a foreign specialty cook. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification. 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 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 petition was initially approved. However, the Director of the Nebraska Service Center subsequently 
revoked the approval on the ground that a bona fide job offer open to U.S. workers did not exist. 
Furthermore, the Director found that the Petitioner willfully misrepresented a material fact by failing to 
disclose the familial relationship between the Petitioner's owner and the Beneficiary on the labor 
certification. 
On appeal, the Petitioner acknowledges the familial relationship between the Petitioner and the 
Beneficiary, but asserts that the proffered position was nevertheless a bona fide job offer open to U.S. 
workers. The Petitioner further asserts that there was no willful misrepresentation of a material fact on 
the labor certification regarding the familial relationship between the Petitioner and the Beneficiary . 
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). Upon de nova review, we will withdraw the Director's decision and remand the 
case for further action, consideration, and entry of a new decision in accordance with below. 
I. LAW 
Immigration as a skilled worker usually follows a three-step process. First, the prospective employer 
must obtain a labor certification approval from the U.S. Department of Labor (DOL) to establish that 
there are not sufficient U.S. workers who are available for the offered position. Section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). DOL approval signifies that insufficient U.S. workers are able, willing, 
qualified, and available for a position. Id. Labor certification also indicates that the employment of a 
foreign national will not harm wages and working conditions of U.S. workers with similar jobs. Id. 
Second, the employer must submit the approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. § 1154. The 
immigrant visa petition must establish that the foreign worker qualifies for the offered position, that the 
foreign worker and the offered position are eligible for the requested immigrant classification, and that 
the employer has the ability to pay the proffered wage. See 8 C.F.R. § 204.5.1 Finally, if USCIS 
approves the immigrant visa petition, the foreign worker may apply for an immigrant visa abroad or, if 
eligible, for adjustment of status in the United States. Section 245 of the Act, 8 U.S.C. § 1255. 
At any time before a beneficiary obtains lawful permanent residence, however, 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 the record, a petition's erroneous approval may justify its revocation. See Matter of Ho, 19 l&N Dec. 
582, 590 (BIA 1988). 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). 
II. ANALYSIS 
The Petitioner is a restaurant that was established in 2003 and specializes in east Indian food. The instant 
petition was filed with USCIS on August 1, 2007, accompanied by a labor certification that was filed 
with the DOL on June 11, 2007, and certified on June 15, 2007. The petition was approved on March 
9, 2009. However, on September 1, 2020, the Director issued a notice of intent to revoke (NOIR) the 
approval, pointing to contradictory information revealed during the Beneficiary's consular interview 
with the U.S. Department of State. The Director explained that the Beneficiary provided a written 
statement that the Petitioner's owner, I I is the Beneficiary's maternal uncle. As such, the 
Petitioner incorrectly answered "No" to the compound 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 also explained that the Beneficiary's previous visa applications and his written statement 
indicated he did not have the work experience required under the labor certification. The Director gave 
the Petitioner an opportunity to respond to the derogatory information and establish that the Beneficiary 
met the requirements of the labor certification, and that the Petitioner did not make willful 
misrepresentations on the labor certification. 
On March 21, 2022, the Director revoked the petition concluding the Petitioner did not demonstrate by 
a preponderance of the evidence that the proffered position was a bona fide job offer open to U.S. 
workers. The Director further found that the Petitioner's failure to disclose its owner's familial 
relationship with the Beneficiary in response to the question at C.9 of the labor certification constituted 
a willful material misrepresentation. 
1 These requirements must be satisfied by the priority date of the immigrant visa petition. See 8 C.F.R. § 204.5(g)(2), Matter 
of Wing's Tea House, 16 l&N Dec. 158, 159 (Act. Reg'I Comm'r 1977). For petitions that require a labor certification, the 
priority date is the date on which the DOL accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d). 
In this case, the priority date is June 11, 2007. 
2 
Upon review, we will withdraw the Director's findings and remand the matter to the Director to 
determine whether the Petitioner has demonstrated that the Beneficiary qualifies for the EB-3 
classification as a skilled worker, and whether he meets the specific requirements of the labor 
certification. 
A Bona Fide Job Offer 
A petition may be approved 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. § 1154(b). 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). 
The petitioner has the burden of establishing that a bona fide job opportunity exists when it is asked to 
show that the job is clearly open to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 
1987); see also 8 U.S.C. § 1361; 20 C.F.R. § 656.17(1). 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 bane); see 20 C.F.R. § 656.17(1). 
In order to assess whether a bona fide job offer may be at issue, section C.9 of the labor certification 
asks, "Is the employer a closely held corporation ... in which the alien has an ownership interest, or is 
there a familial relationship between the owners, stockholders, partners, corporate officers, 
incorporators, and the alien?" The Petitioner checked "No" in response to this question, indicating that 
there is no relationship between the Beneficiary and the owners, stockholders, partners, corporate 
officers, or incorporators. However, the correct answer to the question at C.9 was "Yes" since the 
Petitioner's owner is the Beneficiary's uncle. 
On appeal, the Petitioner asserts that at the time of filing the labor certification in 2007, the Petitioner 
answered section C.9 correctly. The Petitioner asserts the DOL did not have a clear definition of 
'familial relationship' until July 28, 2014,2 and in 2007, the definition of 'family' was limited to persons 
related by 'blood' , instead of by 'marriage'. Citing 8 C.F.R. § 213a.2(b)(2), which relates to affidavits 
of support that would be submitted on behalf an intending immigrant to overcome the public charge 
inadmissibility, the Petitioner applies its limited definition of 'relative', " ... husband, wife, father, 
mother, child, adult son, adult daughter, brother, or sister" as the definition of 'familial relationship' for 
section C.9 of the labor certification. However, we find that the Petitioner's citation to 8 C.F.R. § 
213a.2(b)(2) for the definition of familial relationship is misplaced. This regulation does not relate to 
2 On July 28, 2014, the DOL's Office of Foreign Labor Certification provided guidance for the PERM Program definition of 
familial relationship when responding to question C.9 of the labor certification, "A familial relationship includes any 
relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, 
grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws 
and step-families." U.S. Dep 't of Labor, Employment & Training Administration, Office of Foreign Labor Certification, 
OFLC Frequently Asked Questions and Answers, PERM Program, 
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (accessed September 1, 2022). 
3 
foreign labor certifications submitted to the DOL; and instead, the regulation relates to affidavits of 
support for employment-based intending immigrants seeking an immigrant visa under section 203(b) of 
the Act. 
At the time the Petitioner completed the labor certification in 2007, familial relationship was defined by 
case law. In Matter of Sunmart, 374, 2000-INA-93 (BALCA May 15, 2000), the Board of Alien Labor 
Certification Appeals (BALCA) found that a relationship invalidating a bona fide job offer may arise 
where the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or 
through friendship." At the time the Petitioner completed the labor certification in 2007, the DOL had 
provided guidance that relationships by marriage could invalidate a bona fide job offer and should be 
disclosed on the labor certification. See id. Therefore, the correct answer to the question at C.9 of the 
labor certification was "Yes" . 
The DOL regulation at 20 C.F.R. § 656.17(1), alien influence and control over job opportunity, makes 
clear that the intention behind the inquiry at line C.9 of the labor certification is to ensure that a job 
opportunity is open to all workers by identifying any relationships, business or familial, that might affect 
job availability. As BALCA explained in Matter of Modular Container Systems, Inc., 89-INA-228, 
1991 WL 223955, *7 (BALCA 1991) (en bane), 
[w]here the alien for whom labor certification is sought is in a position to control hiring 
decisions or where the alien has such a dominant role in, or close personal relationship 
with, the sponsoring employer's business that it would be unlikely that the alien would be 
replaced by a qualified U.S. applicant, the question arises whether the employer has a bona 
fide job opportunity. 
While a familial relationship between the petitioner and the beneficiary does not establish a bar to labor 
certification, it does present the question of whether the job opportunity is bona fide. See 20 C.F.R. §§ 
656.lO(c)(S), 656.17(1); Matter of Modular Container Systems, Inc., 89-INA-228, 1991 WL 223955 at *7. 
In order to determine whether a bona fide job opportunity exists in situations where the beneficiary has 
a familial relationship with the petitioner depends on "whether a genuine determination of need for alien 
labor can be made by the employer corporation and whether a genuine opportunity exists for American 
workers to compete for the opening." Id. at *7. DOL adopted the holding in Matter of Modular Container 
Systems, Inc. at 20 C.F.R. § 656.17(1). 
To determine the bona fides of a job opportunity, we must consider multiple factors, including but not 
limited to, whether a foreign national: is in a position to control or influence hiring decisions regarding 
an offered position; is related to corporate directors, officers, or employees; incorporated or founded a 
company; has an ownership interest in the company; is involved in the management of the company; 
sits on its board of directors; is one of a small group of employees; and has qualifications matching 
specialized or unusual job duties or requirements stated on an accompanying labor certification; is so 
inseparable from the sponsoring employer because of the foreign national's pervasive presence and 
personal attributes that the employer would unlikely continue in operation without the noncitizen; and 
whether the employer complied with DOL regulations and otherwise acted in good faith. Id. at *8-10. 
The Director's revocation decision found "that the position was not open to any U.S. worker and this 
was not a bona fide [sic] job opportunity." The Director explained that the Petitioner's failure to disclose 
the familial relationship on the labor certificate may have affected the outcome of the labor certification 
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process. The Director noted that while a familial relationship is not an automatic disqualification from 
approval of the labor certification, without details of the Petitioner's relationship to the Beneficiary, 
DOL would not have conducted a closer inspection of the job offer to ascertain whether it was truly a 
bona fide job opportunity open to U.S. workers. However, the Director did not address the lack of bona 
tides in the NOIR, and did not request evidence relating to the bona tides of the job opportunity. 
While the Petitioner confirmed its owner is the Beneficiary's maternal uncle, the Petitioner asserts its 
lack of disclosure of its relationship with the Beneficiary does not automatically invalidate the labor 
certification, and the Beneficiary was offered a bona fide job opportunity since the Petitioner conducted 
a proper and fair recruitment for U.S. workers in 2007. With the NOIR reply, the Petitioner submitted 
an affidavit from its owner explaining the nature of its business, the need for a specialty cook, and the 
recruitment process. However, the Director did not address this evidence in the decision. 
We find that the Director's revocation decision was based, in part, on issues that were not addressed in the 
NOIR. The Director must fully inform the Petitioner of all factors that contributed to the revocation decision 
in order to effectively provide the Petitioner with an opportunity to rebut the grounds for revocation. The 
Director's decision did not provide analysis of the evidence submitted for the bona tides of the job offer. 
With the appeal, the Petitioner submits recruitment materials, including the recruitment documents for 
this job ofoffer, recent job advertisements, and recent letters from Indian restaurant owners in the 
area explaining the challenges for hiring specialty cooks. This new evidence may be considered 
by the Director on remand. 
We will withdraw the Director's finding that the job offer was not bona fide and remand for the Director 
to consider the new evidence submitted on appeal and issue a new NOIR. 
B. Willful Misrepresentation of a Material Fact 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts. For an 
immigration officer to find a willful and material misrepresentation of fact, he or she must determine 
that (1) the petitioner or beneficiary made a false representation to an authorized official of the U.S. 
government, (2) the misrepresentation was willfully made, and (3) the fact misrepresented was material. 
See Matter of M-, 6 l&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 l&N Dec. 288, 289 (BIA 
1975). The term "willfully" means knowing and intentionally, as distinguished from accidentally, 
inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy and Goodchild, 17 
l&N Dec. 22, 28 (BIA 1979). A "material" misrepresentation is one that "tends to shut off a line of 
inquiry relevant to the alien's eligibility." Matter of Ng, 17 l&N Dec. 536, 537 (BIA 1980). Any alien 
who seeks an immigration benefit by fraud or willfully misrepresenting a material fact is ineligible for 
a visa or admission to the United States. See section 212(a)(6)(C)(i) of the Act. 
Here, the Director found that the Petitioner willfully misrepresented a material fact by incorrectly 
answering "No" to the question at section C.9 of the labor certification, "Is the employer a closely held 
corporation ... in which the alien has an ownership interest, or is there a familial relationship between 
the owners, stockholders, partners, corporate officers, incorporators, and the alien?" As noted above, 
the record reflects a familial relationship between the Petitioner's owner and the Beneficiary. 
5 
However, the Director's finding of willful misrepresentation of a material fact against the Petitioner did 
not adequately analyze the facts and apply the law. In the section of the revocation decision addressing 
willful misrepresentation of a material fact, the Director stated only that, "as the [P]etitioner has made 
false statements on the labor certification, the record shows willful misrepresentation of a material fact. 
Therefore, this office declines the withdrawal request as the [P]etitioner willfully misrepresented a 
material fact and the petition should not have been approved as there is no bona fide job offer." 
In the NOIR reply and with the appeal, the Petitioner submitted an affidavit from its owner explaining 
that at the time he completed the labor certification in 2007, he did not believe he had a familial 
relationship with the Beneficiary because under his Indian culture, a person is considered 'family' if 
related by 'blood', not by 'marriage'. As noted above, this evidence was not addressed in the Director's 
decision. 
The Petitioner's owner indicates he answered the labor certification questions truthfully and correctly 
to the best of his knowledge and in good faith, believing he was not related to the Beneficiary due to 
their relationship being a result of his marriage to the Beneficiary's mother's sister. However, as stated 
above, at the time the Petitioner completed the labor certification in 2007, the DOL had provided 
guidance that relationships by marriage could invalidate a bona fide job offer and should be disclosed 
on the labor certification. Matter of Sunmart, 374, 2000-INA-93 (BALCA May 15, 2000). The 
Petitioner appears to suggest that its response was made in a good faith belief over the Petitioner's 
confusion as to what degree of familial relationship needed to be disclosed to DOL. However, case law 
provided guidance that a relationship by marriage is relevant to DOL making a labor certification 
decision. See id. 
On appeal, the Petitioner's counsel also introduces a letter from a certified Hindu and lndu interpreter 
explaining that once a woman is married, she takes her husband's family as her true family, and her 
paternal relatives are considered her true relatives, with in-laws and non-blood relatives being more 
distant and remote relatives. The Petitioner claims this is an expert opinion supporting the Petitioner's 
understanding of 'familial relationship'. However, while the AAO may, in its discretion, use as advisory 
opinion statements submitted as expert testimony, the AAO is not required to accept or may give less 
weight to any opinion that is not in accord with other information or is in any way questionable. Matter 
of Caron International, 19 l&N Dec. 791 (Comm'r. 1988); Matter of Sea, Inc., 19 l&N Dec. 817 
(Comm'r 1988). See also Matter of D-R-, 25 l&N Dec. 445 {BIA 2011) (expert witness testimony may 
be given different weight depending on the extent of the expert's qualifications or the relevance, 
reliability, and probative value of the testimony). While the Petitioner submitted a certificate indicating 
the interpreter is certified by the Supreme Court of Nevada to interpret Hindi and Urdu, there is no 
evidence or indication that the interpreter is an expert in the Petitioner's owner's culture. Therefore, the 
interpreter's opinion offered on appeal will only be allotted minimal probative value. 
The Petitioner's owner further explained that English is not his first language, and it was an error in his 
understanding of the question when he completed the labor certification, therefore, the omission of the 
relationship between the Petitioner and the Beneficiary was not a willful misrepresentation. However, 
the Petitioner's argument is not persuasive. The Petitioner's owner completed and signed both the labor 
certification and the Form 1-140 petition, declaring under the penalty of perjury that the information on 
them, and the evidence submitted with each, were true and correct. 
6 
The Petitioner also submitted two letters from community members attesting to the Petitioner's owner's 
good moral character. Such attestations as to the owner's good moral character are not relevant to 
whether the Petitioner willfully misrepresented material facts on the labor certification in 2007. 
Although we agree with the Director that by not marking "Yes" to this question, the Petitioner shut off 
a line of inquiry by the DOL relevant to the Beneficiary's eligibility for the labor certification and this 
immigration benefit, we do not find that the Director sufficiently explained the reasoning for the finding 
for willful misrepresentation of a material fact. The Director ultimately failed to separate and analyze 
the elements of willful misrepresentation of a material fact or to discuss those elements within the 
context of the relevant factors that contributed to the finding of willful misrepresentation based on a 
complete review of the Petitioner's evidence. 
C. Beneficiary's Experience 
Although not discussed by the Director in the decision, the record does not establish that the Beneficiary 
has the requisite work experience stated in the labor certification. The labor certification was filed on 
June 11, 2007. The labor certification states that the offered position requires 24 months of experience 
in the offered job of foreign specialty restaurant cook, and no alternate experience is accepted. The 
duties and required skills for the offered position are stated as: 
Prepare, season & cook soups, meats, vegetables, desserts or other specialty items in 
restaurant according to east Indian cuisine recipes. 
On the labor certification, the Petitioner asserts that the Beneficiary gained experience as a cook with 
in India from September 1, 2003 to June 1, 2006. The Petitioner submitted a letter 
from lin support of the Beneficiary's experience. 
In the NOIR, the Director questioned the petition's approval on the ground that the Beneficiary did not 
have the requisite two years of qualifying experience. The Director identified inconsistencies in the 
Beneficiary's employment history as claimed in the labor certification and supporting evidence, with the 
information indicated on the Beneficiary's previous nonimmigrant visa applications and in the 
Beneficiary's statements made during his consular interview. Specifically, on three previous 
nonimmigrant visa applications submitted in support of the Beneficiary's prior Bl/B2 visa requests on 
November 25, 2010, July 13, 2011, and May 6, 2014, under the work experience sections, he did not list 
his work history with ______ Also, during the consular interview, the Beneficiary stated 
under oath that he was not a cook, but instead was a gym owner. 
In response to the NOIR, the Petitioner explained that the Beneficiary unintentionally omitted his work 
experience from his previous visa applications since he worked more than one job, and he relied on the 
travel agency to fill out the forms. The Petitioner submitted statements from both the Beneficiary and 
his wife, stating that the error in omitting his employment history on his nonimmigrant visa applications 
was not intentional, as the Beneficiary was applying for a visitor nonimmigrant visa and believed 
employment history to be unimportant. 
The Petitioner further explained that the Beneficiary's written statement about his lack of experience as 
a cook was inaccurate, and the Beneficiary only made the written statement because he felt pressured 
7 
by the consular officer to make the statement and the Beneficiary suffers from a brain injury which 
caused confusion when making the statement. In support of the Beneficiary's work experience, the 
Petitioner submitted the Beneficiary's statement; the Beneficiary's wife's statement; affidavits from the 
______ __,owner, co-workers and customers; menu and photographs ofl I 
and the Beneficiary's medical documentation. 
The Director did not address the Beneficiary's work experience in the decision. The Director will have 
an opportunity to review the Beneficiary's work experience on remand, and issue a new NOIR to address 
any concerns. 
In adjudicating immigration benefit requests, USCIS regularly reviews affidavits, testimonials, and 
letters from both laypersons and recognized experts. To be probative, a document must generally 
provide: (1) the nature of the affiant's relationship, if any, to the affected party; (2) the basis of the 
affiant's knowledge; and (3) a specific, rather than merely conclusory, statement of the asserted facts 
based on the affiant's personal knowledge. Matter of Chin, 14 l&N Dec. 150, 152 {BIA 1972); see also 
8 C.F.R. § 103 .2(b )(2)(i) (requiring affidavits in lieu of unavailable required evidence from "persons 
who are not parties to the petition who have direct personal knowledge of the event and circumstances"); 
Matter of Kwan, 14 l&N Dec. 175, 176-77 {BIA 1972); lyamba v. INS, 244 F.3d 606,608 (8th Cir. 
2001); Dabaase v. INS, 627 F.2d 117, 119 (8th Cir. 1980). A petitioner may submit a letter or affidavit 
that contains hearsay or biased information, but such factors will affect the weight to be accorded the 
evidence in an administrative proceeding. See Matter of D-R-, 25 l&N Dec. 445, 461 {BIA 2011). 
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 l&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 individually and 
within the context of the entire record, for relevance, probative value, and credibility. Matter of 
Chawathe, 25 l&N Dec. 369, 376 {AAO 2010). 
Here, the Petitioner relies on testimonial evidence from the Beneficiary's former employer, co-workers, 
and customers to establish the Beneficiary's claimed employment experience, without providing 
independent, objective evidence in support of this testimony. The statements attest to the Beneficiary's 
work experience and full time hours atl I However, the statements also expIain that 
the Beneficiary does not have any independent evidence of his work withl _ because 
he was paid in cash. Also, some of the testimonial evidence are from persons with the same family 
name as the Beneficiary I Any relation of the affiants to the Beneficiary would be relevant 
when evaluating this testimonial evidence. The Petitioner's claim that the Beneficiary does not have 
any independent, objective evidence of his previous employment, combined with the inconsistencies in 
the record as to the Beneficiary's work experience, casts doubt about the Beneficiary's employment 
experience. 
Based on conflicting information from the Beneficiary's previous nonimmigrant applications and his 
written statement during his consular interview, further independent, objective evidence is required. The 
record does not include the Beneficiary's income or payroll records, or any other independent, objective 
evidence to corroborate his claimed employment. Although the Beneficiary asserts that his employment 
history was omitted on the visa application because he did not complete the forms and believed the 
information to be unimportant, it appears that one of the applications may have been submitted on a date 
8 
when the Beneficiary claims to be employed at _____ May 6, 2014, thereby casting further 
doubt on his assertions. The Petitioner must resolve inconsistencies with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. at 591-92. Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in 
support of the requested immigration benefit. Id. 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 l&N Dec. 799, 806 (AAO 2012). 
As the inconsistencies in the record have not been resolved, the Petitioner has not established with 
independent, objective evidence that the Beneficiary possesses the required 24 months of experience in 
the offered position, as required by the labor certification. Accordingly, we will remand this matter for 
further consideration, based on the entire record of proceedings. 
D. Ability to Pay 
Although not discussed by the Director, 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. 8 
C.F.R. § 204.5(g)(2). In this case, the labor certification states the proffered wage is $10.94 per hour 
($22,755 per year for a 40 hour work week), and the priority date is June 11, 2007. 
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. 
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 return(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. 3 
If net income and net current assets are insufficient, USCIS may consider other relevant factors, such as 
the number of years the petitioner has been in business, the size of its operations, the growth of its 
business over time, its number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, its reputation within its industry, or whether a beneficiary will replace a current 
3 If a petitioner has filed immigrant visa petitions on behalf of multiple beneficiaries, the petitioner must establish that it has 
had the ability to pay the proffered wage to each beneficiary. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) 
(affirming our revocation of a petition approval where the petitioner did not demonstrate its ability to pay the combined 
proffered wages of multiple beneficiaries). Petitions filed on behalf of other beneficiaries are considered from the priority 
date of each petition (not including any year prior to the priority date of the petition being reviewed on appeal) until the 
present or until the other beneficiary obtains lawful permanent residence. Petitions that have been withdrawn or denied are 
not considered in this analysis. 
9 
employee or outsourced service. See Matter of Sonegawa, 12 l&N Dec. 612, 614-15 (Reg'l Comm'r 
1967). 
Here, there is no evidence that the petitioner has ever employed the Beneficiary; therefore, the Petitioner 
must demonstrate that its net income or net current assets equals or exceeds the proffered wage from the 
priority date onward. The Petitioner submitted a copy of its 2007 federal income tax return. The return 
demonstrates the Petitioner's ability to pay the Beneficiary's proffered wage for the priority year, 2007, 
as the Petitioner's net income for 2007 was $234,419. 
However, the record does not contain financial documentation demonstrating the Petitioner's continued 
ability to pay the Beneficiary's proffered wage for the years 2008 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 years 2008 onward. The 
Director may also request any other evidence that may be deemed necessary to determine the Petitioner's 
eligibility for the requested immigration benefit. 
111. 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. The Director 
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 to 
respond, the Director shall issue a new decision. 
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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