remanded EB-3 Case: Culinary Arts

1defit&fy!ag dr-;~~ de-';". (3 
prevent clearly unwarranted 
hvrnion of penonal privacy 
PUBLic COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
'.k 
PETITION: 
 Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 
 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based preference visa petition was initially approved by the Director, Vermont 
Service Center. In connection with the beneficiary's application for lawful permanent residence (Form I-485), the 
Baltimore District Director served the petitioner with notice of intent to deny the beneficiary's 1-485, and the I- 
485 was subsequently denied. The Vermont Service Center Director then issued a Notice of Intent to Revoke the 
petitioner's approved 1-140. In a Notice of Revocation (NOR), the Vermont Service Center director ultimately 
revoked the approval of the Immigrant Petition for Alien Worker (Form 1-140). The matter is now before the 
Administrative Appeals Office (AAO) on appeal.' The director's decision with regard to the revocation of the I- 
140 petition will be withdrawn, and the matter remanded to the director for further consideration of the 
petitioner's ability to pay the proffered wage. 
The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a cook of 
Peruvian specialty foods. The petition was filed for classification of the beneficiary under section 203(b)(3)(A)(i) of 
the Immigration and Nationality Act (the Act) as a slulled worker. As required by statute, the petition was 
accompanied by an individual labor certification, the Application for Alien Employment Certification (Form ETA 
750), approved by the Department of Labor (DOL). 
The petitioner's Form ETA 750 was filed with DOL on October 24, 1994 and certified by DOL on February 17, 
1995. The petitioner subsequently substituted the beneficiary on the certified ETA Form 750, and filed Form I- 
140 with CIS on January 3, 1998, which was approved on July 6, 1998. 
The approval of this petition was revoked pursuant to Section 204(c) of the Act. A Form 1-130, Petition for Alien 
Relative, was filed on the beneficiary's behalf on November 2, 1992. Concurrent with the filing of Form 1-130, 
the beneficiary also sought lawful permanent residence and employment authorization as the immediate relative 
of a U.S. citizen. The record reflects that the petitioner submitted a marriage license, proof of a divorce from a 
former husband, along with photos, and the beneficiary's immigration documentation, with the petition. 
In connection with the initial Form 1-130, the record reflects that the district director of the CIS office located in 
Dallas, Texas on November 16, 1992 requested that the 1-130 petitioner and the beneficiary come to an interview 
on January 2 1, 1993. The director's notice also stated that the interview would be videotaped. The Texas director 
requested that the petitioner bring records to establish that the marriage was bona fide. The record reflects that the 
uetitioner auuears to have submitted several documents at the interview. including copies of rental leases for the 
L. -. 
years 1991 and 1992 for 
 Irving, Texas. These leases are signed by both the 
petitioner and the beneficiary. The record also contains a receipt for rent payment for September 1991 that 
indicates the beneficiary paid the September rent by money order. The record also reflects the petitioner's 
registration in the state of Texas WIC and food stamp programs, copy of the beneficiary's birth certificate and 
passport, and a letter offering the beneficiary employment with an auto repair company in Grand Prairie, Texas, as 
soon as the beneficiary obtained legal residency. The record also contains an automobile insurance policy for the 
from November 2, 1992 to May 2, 1993 that has the beneficiary's address 
altered from Garland, Texas, t Irving, Texas. 
It is noted that the petitioner has to appeal the decision to revoke the approval of a petition within 15 days after 
the service of notice of the revocation. See 8 C.F.R 4 205.2(d). In the instant petition, the director provided the 
petitioner 30 days, or 33 days if the appeal was mailed, to submit the appeal. For this reason, the AAO will review 
the revocation. 
Page 3 
The record also contains documentation provided by the manager of the petitioner's apartment complex to legacy 
INS that included the petitioner's two notices of intent to vacate the apartment. The record also contains extensive 
notes on the 1993 1-130 interview with separate interviews of the petitioner and the beneficiary. 
In addition, the record reflects that the petitioner gave permission to the INS for a home visit, the results of which 
are noted in the interviewer's notes. On May 24, 1993, the director issued a Notice of Intent to Deny (NOID). 
Since the contents of the NOID for the first 1-130 petition in 1992 is the basis for the subsequent NOIR and the 
revocation of the beneficiary's current 1-140 and 1-485 are based on the initial NOID, the AAO will examine this 
document at length.2 
With regard to discrepancies in the testimony of the petitioner and the beneficiary, the director stated the 
following with regard to the petitioner's testimony: 
You and your husband were interviewed together and separately at this office on January 21,1993 
concerning [the 1992 1-130 petition]. The record shows that [the petitioner] married [the 
beneficiary] on June 2 1, 199 1, at Dallas In your testimony you stated that you and your 
spouse were introduced by a man named hih 'n May of 1990. You further stated that shortly 
after that meeting [the beneficiary] left for South Carolina where he remained until June 1991. 
Upon [the beneficiary's] return the two of you were married. 
 When asked to describe your 
wedding day you stated that it was raining and the two of you were married at the courthouse, with 
a reception held at [the beneficiary's] "Aunt's house". You presented photos of the party held in 
Garland, and when asked to name the people in these photos you stated that they were relatives and 
friends of [the beneficiary]. You also stated that you did not know the' s. When [the 
beneficiary] was asked about the photos he stated that the lady was a friend o wii nd that he did 
not know her. He further stated that ad arranged everything including the reception at this 
woman's house. 
ubmitted with the petition there was a birth certificate for a child named- 
who was born January 17, 1992. When questioned about his child you revealed that 
of your ex-spouse 
 You were divorced fmm ~r.in 
1989. You stated that at the time of your maniage to [the beneficiary], you were pregnant with 
Stephanie, and at the time of the child's birth you were living with your parents and [the 
beneficiary] was living with his aunt in Garland. This was in January of 1992. 
When questioned further about separations, you said that you and your spouse lived apart fiom 
September 1991 to June 1992. You also claimed to be separated a few days after Thanksgiving and 
did not live together again until December 1992. This was the time period when the visa petition was 
filed. 
2 
- The director's notice to revoke and his subsequent decision to revoke the 1-140 petition both refer to the 
"Stokes interview" which the AAO assumes is a reference to the 1993 interview in Dallas, Texas. The director in 
his revocation decision noted that the interview revealed discrepancies in the petitioner's and the beneficiary's 
responses. However, neither decision stated explicitly the discrepancies as identified in the interviewer's notes. 
When the beneficiary was questioned about separations, he stated that [the petitioner] and he had 
se~arated in December 1991 and did not reside together again until Aueust of 1992. He stated that 
during this separation he was residing a 
 &ing, Texas. The apartment 
lease for both these time periods reflected that both [the petitioner] and [the beneficiary] were 
residing at, Irving, Texas. 
In an attempt to verify the leases submitted, the apartment manager was contacted and 
questioned. She stated that both you and the beneficiary had signed the lease dated August 199 1, and 
the lease dated June 1992. She further stated that [the petitioner] had submitted notice to her office 
twice, once in July 1992 and again in December 1992, stating that [the petitioner] would be vacating 
the apartment. From the records at the apartment [the petitioner was] on a month to month basis from 
February 1992 to June 1992. When asked if she had any knowledge of [the beneficiary] living there 
she stated that the only time she had seen him was when he paid the rent in December of 1992. She 
indicated that when the [petitioner] came to office to withdraw the notices to vacate [the petitioner] 
said that "as long as he stayed away, [the petitioner] would continue to live in the apartment." Ms. 
lso stated that when [the petitioner] came to check on the balance still owing on the 
December rent, [the petitioner] did not know that it had already been paid in full by [the beneficiary]. 
Due to the discrepancies in [the petitioner and beneficiary's] testimonies concerning [their] wedding, 
separations, and where [they] were living at certain times, a home visit was conducted. When the 
apartment was inspected no personal items belonging to [the beneficiary] were found. The apartment 
had only one bedroom and when the closet was examined only two items of men's clothing were 
found.3 
A visit was made to the manager's office with [the petitioner] and the beneficiary. A maintenance 
man who came into the office appeared not to know the beneficiary as he passed him and went 
straight to [the petitioner] to discuss the repairs he had been doing in the apartment. From the 
discussion it was apparent that he had visited the apartment various times and yet did not know the 
beneficiary. 
In reviewing the facts in this visa petition, it is noted that the testimony of both petitioner and 
beneficiary contained many discrepancies, concerning the wedding day, amount of separations, length 
of time separated, places of abode, and general activities on the day before the interview. The 
documentation shows that [the petitioner was] pregnant with another man's child at the time of the 
marriage. Leases submitted do not reflect a true picture of cohabitation, and insurance forms had 
been altered. Accordingly the Service concludes that this was a marriage entered into solely to obtain 
an immigration benefit for the beneficiary. 
3 
 The interviewer's notes do not reflect this part of the decision. The notes state "no evidence of [the 
beneficiary's] living there. Only one article of clothing in clothes basket. No clothing in closets." 
Based on this information, this service is advising of its intent to deny the visa petition. A final 
decision will not be made for fifteen days. During that time you may submit any evidence that you 
feel will overcome the reasons for denial. If your response is not received by this Service within 
fifteen (15) days, the Service will deny your visa petition on notice pursuant to [8 C.F.R. $1 
103.2(b)(2). 
The record reflects no response from the petitioner to the statements made by the director in the NOID with 
regard to the 1-130 interview with the petitioner and the beneficiary or home visit. The record reflects that the 
Dallas District Director sent the petitioner a decision dated July 13, 1993 that stated the petitioner had not 
presented evidence or rebuttal of the allegations contained in the NOID, and that the 1-130 petition was denied. 
The beneficiary was also sent a decision that stated the 1-130 visa petition was withdrawn and that all action on 
the matter had been terminated. No notice or correspondence was received from the beneficiary or a 
representative of the beneficiary to update or correct representations made on the Form 1-130 or supporting 
documents. The record reflects no attempt to appeal the decision of the Distnct Director to the Board of 
Immigration Appeals. A subsequent petition to grant the beneficiary voluntary departure was eventually approved 
following several court hearings and a finding by the Immigration Judge of ineffective assistance of the 
beneficiary's former counsel who was eventually di~barred.~ 
The instant 1-140 petition was approved on July 6, 1998, and the beneficiary filed Form 1-485 with supporting 
forms and documentation on November 12, 1998. It is noted that the beneficiary did reveal his prior marriage on 
his 1-485 Form. 
On May 23, 2002, the District Director, Baltimore District Office, issued a notice of intent to deny the 
beneficiary's Form 1-485, Application to Register Permanent Residence. The director referenced Section 212 of 
the Act, which addresses classes of aliens ineligible for visas or admission, in particular, immigrants inadmissible 
for fraud or willful misrepresentation of material fact. The director stated that the CIS record reflected that legacy 
INS, now CIS, denied the previous 1-130 petition based on a "sham" marriage. The director stated that the 
beneficiary's former spouse failed to respond to the NOID sent to her in which CIS contended that the marriage 
between the beneficiary and his former spouse was entered into solely to obtain an immigration benefit. The 
director stated that the record contained substantial and probative evidence of a sham marriage. The director also 
noted that the beneficiary was not eligible for a waiver of inadmissibility based on extreme hardship. 
On February 26, 2004, the Vermont Service Center Director issued a Notice of Intent to Revoke (NOIR) that 
stated it had come to the attention of the center that the beneficiary had been determined to have been involved in 
a "sham" marriage. The director further noted that the beneficiary was inadmissible under INA 212(a)(6)(i) for 
misrepresentation and the 1-140 petition would be revoked under INA Section 1204(c) for circumventing the 
immigration laws. The director also stated that in the "Stokes inter vie^,"^ several discrepancies arose between the 
4 
 The record reflects that the beneficiary did voluntarily depart the United States on April 15, 1995, and 
subsequently reentered the United States on May 25, 1995 on an F-1 student visa. 
5 
 Stokes Interview appears to be a generic term used by legacy INS to describe an interview to investigate 
possible marriage fraud. The AAO notes that the term "Stokes" applies to a ruling that applies only to the New 
York City district of CIS. 
petitioner's and the beneficiary's separate sworn statements. The director finally stated that the facts and issues in 
this matter were properly discussed in those two decisions denying the previous 1-130 and 1-485 for failure to 
provide documentary evidence or by testimony given at the time of the "Stokes interview" and did not need to be 
repeated in the director's decision, as they were a matter of re~ord.~ 
In response to the NOIR, counsel stated that the beneficiary did not engage in a sham marriage. Counsel stated 
that the copy of the earlier denial of a 1-130 was not included in the director's notice, but that the denial 
presumably was based on the interview held eleven ears a o which the beneficiary attended with his ex-wife. 
Counsel submitted a notarized affidavit from both  sthe he beneficiary's former wife, and 
the beneficiary. The beneficiary's former wife first stated that she was contacted by the beneficiary after not 
speaking to him for many years and asked to s eak with his attorney. ~shen stated that her marriage with 
the beneficiary was not a fraudulent. Ms. 4 stated that the inconsistencies that CIS mentioned in its decisions 
are explained by her former husband in the affidavit and that she agreed with her ex-husband's explanation. Ms. 
also stated that she sent an ernail to counsel stating that she wished that she had not been so dumb when she 
was young and had stayed with the beneficiary. 
In his section of the affidavit, the beneficiary stated that he met his former wife in 1990, and that he started 
traveling to South Carolina to find jobs with some friends. He stated that he came back to Texas in June of 1991 
and he and his former wife were married on June 21, 1991. The beneficiary stated that his former wife had 
admitted to him that she was pregnant with her former husband's baby but that they agreed to raise the child 
together. The beneficiary then stated that the reception after wedding was held at his aunt's house,- 
and that the friends at the reception were people he had met from work, although his wife had one or two fnends 
at the reception as well. 
The beneficiary stated that he and his wife fought a lot about many things because she wanted to go back to work 
and did not want to stay home to take care of the baby and she wanted him to take care of the baby. The 
beneficiary also stated that this wife started cheating on him with her ex-husband and other boyfriends and she 
kept doing this during the entire relationship. The beneficiary stated that he came home in the end of January or 
February 1993 and found his wife at home with a boyfriend who was drunk and that the boyfriend attacked him. 
The beneficiary stated that this was the reason that he and his wife lived some time apart in 1991 and 1992. 
With regard to the 1-130 interview, the beneficiary stated that the questions were all in English which made the 
examination very difficult for the beneficiary given his poor level of English. The beneficiary also stated that the 
INS examiner at the interview was openly hostile toward him and his former wife and insulted both of them. The 
beneficiary stated that the examiners told his wife that she was a welfare mom, and a piece and that his 
wife started crying. The beneficiary then stated that the official began to say that his friend ad arranged 
everything about the wedding which was not true, but the beneficiary felt so scared that he couldn't remember 
last name. The beneficiary stated that the examiner accused them of altering some of the forms submitted, 
but that this was not true. The beneficiary stated that the insurance form submitted had corrections on it, but the 
corrections were made by the insurance company to update the address. 
The director refers to the 2002 decisions to deny the Form 1-130 and 1-485 issued by the Baltimore District 
Director. 
Page 7 
With regard to the home visit, the beneficiary stated that the INS official looked in the closet in the apartment and 
asked [the beneficiary] to show them his clothes. The beneficiary stated he showed them the few things that he 
had in the closet, but most of the clothes he owned were on the floor in the dirty clothes pile, and that his wife's 
clothes and the kids' clothes took up most of the closet space. The beneficiary stated the examiners did not go 
into the bathroom, although he had a lot of personal items there such as a toothbrush, shaving supplies and other 
personal items. The beneficiary states that instead of checking the bathroom, the examiner went through the 
kitchen cabinets and searched every container. The beneficiary stated that they also searched his toolbox which 
was in the living room, as well as his tool belt and harness. With regard to the visit to the manager's office, the 
beneficiary stated that the officials went to the office and asked the manager whether he lived in the apartment 
and whether he paid the rent. The manager told the examiner that the beneficiary did live in the building and did 
pay rent. The beneficiary further stated that the maintenance worker for the building did not talk to his former 
wife about repairs but just said "hi." The beneficiary also stated that the NOID issued in 1993 alleged that his 
friendad arranged everything including the reception at this woman's house. The beneficiary asserted that 
he never said those words, and that it defied common sense that his friend would make arrangements for his 
wedding reception which was held in his aunt's house. The beneficiary also noted that although the NOD stated 
that his wife could not name the people in the wedding photos and said they were his friends, she did correctly 
identify a mutual fnend in the photos and could not name the others because there were guests and fnends of 
friends that the beneficiary had never met himself or had never introduced to his wife. The beneficiary also stated 
that the NOD also alleged that when his wife's daughtewas born on January 17, 1992, his wife was 
living with her parents. The beneficiary stated that this was false because he would go and stay with his aunt when 
he and his former wife were fighting, and his wife was staying in the apartment when [the daughter] was born, 
and would only go to her parents' house when she needed help with the baby. 
With regard to the discrepancies noted in the NOID for the various separations between the married couple, the 
beneficiary stated that the likely reason for the discrepancy is that he left and then came back gradually to the 
apartment. The beneficiary stated that he first left in September of 1991 but came back to try to patch things up 
several times until December when he definitely stayed sway. The beneficiary also stated that he first started 
working things out again with his wife in June 1992, but did not firmly move back until August 1992. Finally the 
beneficiary stated that his wife and he were later divorced, and that although they wanted to make a life together, 
they could not make their marriage work. The beneficiary stated that given the treatment they received from INS, 
and her past experience, his former wife decided not to answer the notice of the intent to deny sent to her. 
On June 28, 2004, the director revoked the approval of the 1-140 petition. The director cited the regulation at 8 
C.F.R. 9 103.2(b)(12) stating that this regulation says, in pertinent part: "An application or petition shall be denied 
where evidence does not establish filing eligibility at the time the application or petition was filed."' The director 
stated that the grounds for revocation had not been overcome, and that the record outlined the reasons for 
revocation as follows: 
7 
The complete text of 8 C.F.R. 9 103.2(b)(12) is as follows: Effect where evidence submitted in response to a 
request does not establish eligibility at the time offiling. An application or petition shall be denied when evidence 
submitted in response to a request for initial evidence does not establish filing eligibility at the time the 
application or petition was filed. 
Page 8 
Stokes interview where several discrepancies arose between the beneficiary's prior USC wife, 
. . 
and the beneficiary's separate sworn statements. 
Noted discrepancies when your claimed apartment was inspected, testimonial discrepancies 
concerning the wedding day, amount of separations, places of abode, and other general activities 
al[l] lead to a conclusion that your marriage was not bona fide and was entered into solely to gain 
an immigration benefit. 
[The] two affidavits submitted and the beneficiary cannot be given much weight, as 
both statements are self-serving and are not supported by any corroborating evidence. 
The director added that the petitioner's arguments and assertions did not outweigh the documentary evidence 
included in the record. The director also noted that the previous 1-130 and 1-485 petitions had been denied, and 
that the facts and issues in the matter were properly discussed in those two decisions for failure to provide 
documentary evidence or by testimony given at the time of the Stokes interview, and did not need to be repeated 
in the revocation notice, as they were a matter of record. The director then revoked the 1-140 petition. 
On appeal, counsel states that the affidavits submitted are not self-serving, and that the beneficiary's former wife 
has no interest in the outcome of the matter and had not been in contact with the beneficiary for many years. 
Counsel further states that CIS must reexamine all the evidence de novo and cannot rely on the erroneous findings 
of the Stokes interview that are over ten years old. Finally, counsel states that 8 C.F.R. 103.2(b)(12) is in 
appositive whereas the beneficiary had never been determined to be responsible for marriage fraud prior to the 
filing of the instant petition. 
Counsel submits two further affidavits and re uests an additional 90 days to submit additional evidentiary 
documentation. The first affidavit is from that stated he is a mend of the beneficiary and has 
lmown him since 1988, and that they had worked together. Mr. tates that the beneficiary's wedding 
reception was held at the beneficiary's aunt's house in Garland, and that the wedding reception had many friends 
of [the beneficiary's former wifeland that he attended the reception. 
A second affidavi 
 is submitted to the record. In this affidavit, Mrs. tates 
that she resides at 
 allas Texas and that she was submitting the affidavit to help her nephew 
who lived with her at her house in Garland, Texas while attending school. a stated that she decided to 
help the beneficiary o 
 wedding reception as she could not go to the wedding at the courthouse because 
she was working. Mrs. 
 states that the beneficiary and his wife brought their friends 
that she made Peruvian food for the reception which began at 7 PM and ended at 10 PM. Mr 
the beneficiary and his wife were living in Irving, Texas and doing good as a couple for more than one year, and 
that the beneficiary then told her that they were having problems, and he moved into an apartment. 
On appeal, counsel states that 8 C.F.R. 103.2(b)(12) is inapposite in the current proceedings because the 
beneficiary has not been judged to have been responsible for marriage fraud prior to the filing of the instant 
petition. However, if a previous petition had been denied in which marriage fraud is suspected or had occurred, 
Page 9 
the actual judging of the beneficiary as having committed marriage fraud is not necessary. As previously noted, 
Section 204 of the Act governs the procedures for granting immigrant status. Section 204(c) provides for the 
following: 
Notwithstanding the provisions of subsection (b)' no petition shall be approved if 
(1) the alien has previously been accorded, or has sought to be accorded, an immediate 
relative or preference status as the spouse of a citizen of the United States or the spouse 
of an alien lawfully admitted for permanent residence, by reason of a marriage 
determined by the [director] to have been entered into for the purpose of evading the 
immigration laws or 
(2) the [director] has determined that the alien has attempted or conspired to enter into a 
marriage for the purpose of evading the immigration laws. 
In addition, 8 C.F.R. fj 204.2, (a)(l)(ii) states: 
Fraudulent marriage prohibition. Section 204 (C) of the act prohibits the approval of a visa 
petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for 
the purpose of evading the immigration laws. The director will deny a petition for immigrant 
visa classification filed on behalf of any alien for whom there is substantial and probative 
evidence of such attempt or conspiracy, regardless of whether that alien received a benefit 
through the attempt or conspiracy. Although it is not necessary that the alien have been 
convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or 
conspiracy must be contained in the alien's file. 
Therefore the beneficiary does not have to have committed marriage fraud, an attempt to obtain a benefit based on 
marriage fraud is sufficient to find the beneficiary inadmissible for entry into the United States. The record is also 
not clear as to why counsel finds 8 C.F.R. $ 103.2(b)(12) inapposite to the current proceedings. The director cited 
to this regulation with regard to whether the petitioner had provided sufficient evidence to overcome the 
revocation decision, and then determined that the petitioner had not provided sufficient evidence. 
The standard for reviewing section 204(c) appeals is laid out in Matter of TawJik, 20 I&N Dec. 166 (BIA 1990). 
In Tawfik, the Board held that visa revocation pursuant to section 204(c) may only be sustained if there is 
substantial and probative evidence in the record of proceeding to support a reasonable inference that the prior 
marriage was entered into for the purpose of evading immigration laws. See also Matter of Kahy, 19 I&N Dec. 
803 (BIA 1988); Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 1978); Matter of La Grotta, 14 I&N Dec. 110 
(BIA 1972). 
The AAO notes that Notice of Intent to Revoke are issued pursuant to Matter of Arias, 19 I&N Dec. 568 (BIA 
1988) and Matter ofEstime, 19 I&N Dec. 450 (BIA 1987). Both cases held that a notice of intent to revoke a visa 
Subsection (b) of section 204 of the Act refers to preference visa petitions that are verified as true and 
forwarded to the State Department for issuance of a visa. 
petition is properly issued for "good and sufficient cause" when the evidence of record at the time of issuance, if 
unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet 
his burden of proof. At the time the Baltimore District Office considered the adjudication of the beneficiary's I- 
485, the record reflected that he had been party to a denied 1-130, which in turn was based on the non-response of 
his former wife to the allegations of marriage fraud raised in an earlier Notice of Intent to Deny. In turn the 
Vermont Service Center issued a NOR, based on the denial of the beneficiary's 1-485. 
The issues to be examined in these proceedings is whether the NOIR was properly issued and whether there is 
substantial and probative evidence in the record of proceeding to support a reasonable inference that the prior 
marriage was entered into for the purpose of evading immigration laws. Matter of TawJik, 20 I&N Dec. 166 (BIA 
1990). See also Matter of Kahy, 19 I&N Dec. 803 (BIA 1988); Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 
1978); Matter of La Grotta, 14 I&N Dec. 110 (BIA 1972). It is noted that probative evidence in other marriage 
fraud cases reviewed by the AAO has included letters from former spouses requesting that a petition be 
withdrawn, or allegations of the USC spouse being paid to marry a non-U.S. citizen. This is not the case in the 
instant petition. 
Both the decisions by the Baltimore District Office decision and the Vermont Service Center decisions are based 
on the contents of a previous 1993 NOID to deny the initial 1-130. This decision concluded that the testimony of 
both the beneficiary's former spouse and the beneficiary contained many discrepancies, concerning the wedding 
day, amount of separations, length of time separated, places of abode, and general activities on the day before the 
interview. The interviewer also mentioned documentation that showed the former spouse was pregnant with 
another man's child at the time of the marriage, that leases submitted did not reflect a true picture of cohabitation, 
and that insurance forms had been altered. Based on these conclusions, the interviewer determined that the 
marriage was one entered into solely to obtain an immigration benefit for the beneficiary. 
Upon review of the determinations in the initial NOID, it is noted that at least one conclusion drawn by the 
examiner can be viewed as irrelevant, namely, the fact that the former spouse was pregnant at the time of the 
wedding. Other determinations are speculative, or are not sufficiently explained as to their probative weight. For 
example, the notice of intent to deny issued in 1993 noted that the rental leases did not reflect a true picture of 
cohabitation. Both rental leases submitted to the record are signed by both the petitioner and the beneficiary, and 
are identical to the leases apparently obtained by the INS examiner prior to the interview. It is also not clear how 
rental leases signed by both marriage partners do or do not reflect a true picture of cohabitation. It is also not clear 
whether the discrepancies between the beneficiary's and his former spouse's testimony described in the 1993 
notice as to separations are sufficient probative or substantial e~idence.~ The altering of the insurance form does 
raise legitimate concerns as to why the document was altered. Furthermore the record reflects no attempt by the 
INS examiner to allow the petitioner or the beneficiary to clarify their statements. With regard to the home visit, 
as noted previously, the interviewer's notes do not correspond with the actual contents of the Notice of Intent to 
9 
 It is noted that the interviewer's notes are much more explicit with regard to major discrepancies in the 
petitioner's and beneficiary's description of their activities the day prior to the interview, and their activities on 
the previous Christmas Day; however, these discrepancies are not explained in the decision. Other discrepancies 
noted by the examiner in the interview notes do not appear to be conclusive of marriage fraud. With regard to the 
weather on their wedding day, the petitioner thought it was a rainy day while the beneficiary stated it was a sunny 
day. 
Deny the 1-130, so it is not possible to determine the probative nature of the home visit. Furthermore the 
interviewer's notes do not include any description of the encounter with the maintenance person at the apartment 
complex that is contained in the decision." The more conclusive evidence identified in the decision with which 
to examine the fraudulent nature of the marriage appears to be the discrepancy as to where the wedding reception 
was held, and the altered insurance policy. 
With regard to the wedding reception, on appeal, counsel submits an affidavit from Mrs- 
who claims to be the beneficiary's aunt and to have helped him out with the wedding reception. This affidavit, 
while accepted into the record, only confuses the record. The beneficiary in his affidavit identified - 
as the aunt who helped him with the wedding reception. Furthermore, the beneficiary's explanation that the 
insurance company altered the automobile insurance form is not viewed as persuasive, as the beneficiary provides 
no further evidentiary documentation, such as a letter from the insurance company, to indicate that such alteration 
is a common practice. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, the petitioner has not 
overcome the issue of the altered insurance policy and the discrepancies with regard to the wedding reception. 
However the AAO does not view the resolution of these two issues to provide sufficient substantive or probative 
evidence to warrant the revocation of the initial 1-130 petition. 
In response to the director's notice of intent to revoke, the beneficiary submitted a notarized affidavit that 
contained statements by his former wife that the marriage was not fraudulent. It further contains comments that 
the lNS examiner was abusive to both the beneficiary and the petitioner. The AAO acknowledges that the sworn 
affidavit by the beneficiary and his former wife is self-serving; however, it can still be reviewed and given some 
weight. Furthermore, with regard to allegations of abusive treatment, such allegations are problematic as a hostile 
interview environment could affect the testimony provided by petitioners and beneficiaries. However, only an 
examination of the videotape of the interview could resolve the question of abusive treatment and how it affected 
the parties' testimony. 
Finally the AAO acknowledges that the fact that the petitioner never responded to the notice of the intent to deny 
the initial 1-130 carries considerable weight in these proceedings. The entire record was also available to the 
beneficiary, through the Freedom of Information Act procedures. In addition, the beneficiary appears to be 
knowledgeable of the fact that the 1-130 petition was terminated in 1993, and made no attempt at that time or at 
any time up to the proposed revocation of the instant petition to rebut the withdrawal. Nevertheless the record 
reflects that the petitioner and the beneficiary divorced in 1994, and therefore the beneficiary would have no 
reason to contest the withdrawal as the qualifying relationship between him and the petitioner no longer existed. 
In summary, the record of proceeding contains evidence that a family-based immigrant petition was filed to obtain 
an immimation benefit for the beneficiarv. We have no evidence that the marriage certificate is a fraudulent 
- - 
document. Thus, on the face of the document, a marriage occurred between the beneficiary and 
The record is not clear whether other notes with regard to the home visit exist. The interviewer's notes with 
regard to the home visit are incomplete and reflect no encounters with maintenance personnel at the apartment 
complex. 
subsequent divorce also occurred. 
In addition, an independent review of the documentation in the record of proceeding does not present substantial 
and probative evidence to support a reasonable inference that the prior marriage was entered into for the purpose 
of evading immigration laws. Thus, the director's determination that the beneficiary sought to be accorded an 
immediate relative or preference status as the spouse of a citizen of the United States by reason of a marriage 
determined by CIS to have been entered into for the purpose of evading the immigration laws is not affirmed. 
Furthermore, the record does not indicate that the Notice of Intent to Revoke the 1-140 petition provided a clear 
enough picture of the record of proceedings of the prior 1-1 30 petition to be considered a properly issued NOR. 
Thus, the director's revocation of the instant 1-140 petition is withdrawn. 
It is noted that an application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 
F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO 
reviews appeals on a de novo basis). Beyond the decision of the director, the petitioner did not establish that it has 
the ability to pay the proffered wage as of the 1994 priority date and to the present. The AAO will examine this 
issue briefly, and will remand the matter to the director for further consideration of the petitioner's ability to pay 
the proffered wage. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(3)(A)(i), provides 
for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. $ 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. 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 in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, 
the day the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. See 8 C.F.R. $ 204.5(d). Here, the Form ETA 750 was accepted for processing on October 
24, 1994. The proffered wage as stated on the Form ETA 750 is $10.46 per hour, which amounts to $21,756.80 
annually. The beneficiary, who is a substitute for the original beneficiary, did not indicate that the petitioner 
employed him at the time he signed the ETA 750, Part B, in 1997. 
With the petition, the petitioner submitted IRS Form 1120, federal corporate income tax return, for the year 1996 
which indicated the petitioner had taxable income before net operating loss deduction and s ecial deductions of 
$1,45 1. The petitioner also submitted a letter of employment verification frod 
Dallas, Texas. This letter indicated the beneficiary had worked as a cook with the restaurant 
to June 1988. 
Page 13 
On February 5, 1998, the director requested additional evidence with regard to the 1-140 petition. The director 
stated that the record showed the beneficiary was currently a full-time student at the University of North Texas 
studying computer science, and that the petitioner had filed a petition to employ the beneficiary as a fulltime 
specialty cook for $1 1.35." The director then stated that legacy INS, now Citizenship and Immigration Services 
(CIS) was not convinced that a valid job offer existed or that the beneficiary would be employed at the 
petitioner's business. The director requested that the petitioner address these observations. The director also 
requested that the petitioner provide the file receipt number for the original beneficiary. 
In response, the petitioner submitted an affidavit from the beneficiary that stated he had always had a dream to 
own his own restaurant. The beneficiary also identified several restaurants in the Dallas Texas are where he had 
worked. The beneficiary also stated that he studied computer science because he liked technology, and his 
computer knowledge can be applied in the restaurant business. The beneficiary finally stated that once he got a 
permit to work, he would go work for the petitioner's restaurant. The director then approved the 1-140 petition on 
July 6, 1998. 
Upon review of the record, the petitioner never established its ability to pay the proffered wage as of the 1994 
priority date and to the time at which the record was closed, namely the 1998 approval of the instant petition. A 
petitioner must establish the elements for the approval of the petition at the time of filing. A petition may not be 
approved if the beneficiary was not qualified at the priority date, but expects to become eligible at a subsequent 
time. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Thus, the petitioner in the instant petition had to 
establish its ability to pay the proffered wage as of October 24, 1994 priority date. However, the petitioner has 
submitted no evidence with regard to its ability to pay the proffered wage, with the exception of the submission of 
its 1996 federal tax return. 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will first examine 
whether the petitioner employed and paid the beneficiary during that period. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, the 
evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. Neither the 
beneficiary nor the petitioner indicated that the petitioner paid the beneficiary wages as of the 1994 priority date, 
and up to the time of the petition approval in 1998. Without more persuasive evidence, the petitioner did not 
establish that it employed and paid the beneficiary the full proffered wage in 1994 and onward. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net income figure reflected on the petitioner's 
federal income tax return, without consideration of depreciation or other expenses. Reliance on federal income 
tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well established by judicial 
precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu 
Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 
719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda 
v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). Showing that the petitioner's 
gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages in 
excess of the proffered wage is insufficient. In K. C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held 
11 
The ETA 750 indicates an hourly wage of $10.46, while the 1-140 petition indicates an hourly wage of 
$1 1.35. The wage stipulated in the Form ETA 750 is determinative in these proceedings. 
that CIS had properly relied on the petitioner's net income figure, as stated on the petitioner's corporate income 
tax returns, rather than the petitioner's gross income. The court specifically rejected the argument that the 
Service, now CIS, should have considered income before expenses were paid rather than net income. 
The petitioner is structured as a corporation. The petitioner's taxable income is the sum shown on line 28, taxable 
income before NOL deduction and special deductions, IRS Form 1120, U.S. Corporation Income Tax Return. As 
stated previously, the petitioner did not submit its federal income tax return for 1994; therefore the AAO can not 
examine whether the petitioner had sufficient taxable income to pay the proffered wage of $21,756.80. Nor can 
the MO examine the petitioner's taxable income for tax year 1995, 1997, or 1998. For illustrative purposes, the 
AAO will examine the petitioner's taxable income for tax year 1996. The petitioner's Form 1120 for tax year 
1996 indicates the petitioner had a taxable income of $1,451. This figure is not sufficient to pay the proffered 
wage. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a proffered wage. If the net income the petitioner demonstrates it had available during that period, if 
any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered 
wage or more, CIS will review the petitioner's assets. In addition, the petitioner's total assets must be balanced 
by the petitioner's liabilities. Otherwise, they cannot properly be considered in the determination of the 
petitioner's ability to pay the proffered wage. Rather, CIS will consider net current assets as an alternative 
method of demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilities.I2 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities 
are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal to or greater than the 
proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net current assets. As 
stated previously, the petitioner did not submit its tax returns, or other financial documentation for the 1994 
priority year, and for 1995, 1997 and 1998. Again, for illustrative purposes, the MO will examine the 
petitioner's net current assets for tax year 1996. 
Taxable incomeI3 $ 1,451 
Current Assets $ 20,516 
Current Liabilities $ 10,154 
Net current assets $ 10,362 
l2 According to Barron S Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts payable, 
short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
l3 Taxable income is the sum shown on line 28, taxable income before NOL deduction and special deductions, 
IRS Form 1120, U.S. Corporation Income Tax Return. 
The petitioner has not demonstrated that it paid any wages to the beneficiary in 1996. In 1996, as previously 
illustrated, the petitioner shows a taxable income of $1,451, and net current assets of $10,362, and has not, 
therefore, demonstrated the ability to pay the proffered wage. Therefore, the petitioner has not established that it 
had the ability to pay the proffered wage in 1996. As stated previously, the petitioner submitted no other financial 
documentation with regard to its ability to pay the proffered wage from the 1994 priority date to the date the 
record was closed. Therefore the petitioner has not established that it had the ability to pay the proffered wage as 
of the priority date onward. 
It is also noted that Form G-325 submitted with the beneficiary's 1-485 petition indicates that the beneficiary has 
worked for the petitioner since September 1999 as a cook, and has also worked as an electrician fiom September 
2000. Such dual employment would raise questions with regard to the fulltime nature of the beneficiary's job with 
the petitioner, and also whether, as the director initially questioned, the initial 1-140 is for a bona fide job. 
As stated previously, the director's decision to revoke the 1-140 petition pursuant to section 1204(c) of the Act is 
withdrawn. However, the matter will be remanded to the director for further consideration of the petitioner's 
ability to pay the proffered wage. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 
 1361. Here, that burden has not 
been met. 
ORDER: The director's decision to revoke the 1-140 petition is withdrawn, and the matter is remanded to the 
director for consideration of the petitioner's ability to pay the proffered wage.