remanded EB-3 Case: Dental Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 17513997 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: WLY 27, 2021 
The Petitioner, a dental laboratory, seeks to employ the Beneficiary as an operations manager. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(B)(3)(A)(i). This employment-based "EB-3" immigrant classification allows a U.S. employer 
to sponsor a foreign national for lawful permanent residence 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 grounds that (1) the Petitioner did not fully explain, and 
resolve evidentiary discrepancies about, the business and personal relationship between its 
owner/chief executive officer (CEO) and the Beneficiary, (2) the Beneficiary claimed to be performing 
duties for the Petitioner that were outside the scope of the job duties described in the petition, and (3) 
the Beneficiary made misrepresentations about his business plans in the United States to obtain E2 
nonimmigrant ("treaty investor") status and additional misrepresentations on the labor certification 
underlying the instant 1-140 petition. 
On appeal the Petitioner asserts that the Director did not adequately analyze the evidence in the record, 
and made erroneous determinations of misrepresentation against the Beneficiary. The Petitioner 
requests that the revocation decision be rescinded. 
Upon de nova review, we will withdraw the Director's decision and remand the case for further 
consideration, including the issue of whether the Petitioner can establish its ability to pay the proffered 
wage. 
I. LAW 
Employment-based immigration generally follows a three-step process . First, an employer obtains an 
approved labor certification (ETA Form 9089) 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)(I)-(II) 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, ifUSCIS 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 I&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. 
TI. ANALYSIS 
The instant petition was filed on November 13, 2017, accompanied by a labor certification that was 
filed with the DOL on May 31, 2017, and certified in September 2017. The petition was approved on 
November 22, 2017. The record indicates that the Beneficiary began working for the Petitioner in the 
proffered position of operations manager in March 2018. 
A. Revocation Process 
In January 2020 the Director issued a notice of intent to revoke (NO IR) the petition's approval. The 
NOIR discussed additional information received by USCIS indicating that the Petitioner's owner/CEO 
knew the Beneficiary prior to the filing of the I-140 petition in 2017 and had previously tried to help 
the Beneficiary obtain legal status in the United States. This included support for the E2 nonimmigrant 
visa which the Beneficiary successfully obtained in 2015, with which the Beneficiary operated a small 
company calledl l described in the E2 visa application as "a full service 
dental laboratory." The NOIR mentioned that the Beneficiary provided contract labor services for the 
Petitioner - "fabricat[ing] crown and bridge dental restorations" - before becoming an employee in 
March 2018. The NOIR noted that the Beneficiary's position was listed on the Petitioner's website as 
"Operations Manager/Cosmetic & High Aesthetics Division Specialist" which did not match the job 
title on the petition and the labor certification, which was simply operations manager. The NOIR also 
noted the Beneficiary's acknowledgement in an adjustment of status interview that he operated his 
business out of his home and had no employees, which was not consistent with earlier statements in 
connection with his E2 visa application that he had signed a commercial lease, bought equipment, and 
planned to hire two employees. According to the Director, it appeared that the Beneficiary 
misrepresented his business plans to acquire E2 status, and appeared to misrepresent his experience 
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with0 on the labor certification insofar as one of the job duties was described as "[ m Jake hiring 
and firing decisions and train staff." 1 Finally, the Director stated that it appeared the offered position 
"has been altered to qualify the [B]eneficiary specifically due to the relationship with the owner." 
In response to the NOIR the Petitioner submitted a brief from counsel and additional evidence in the 
form of declarations from its owner/CEO, its human resources manager, and the Beneficiary; tax 
records documenting the Beneficiary's income from his own companyr==J and from the Petitioner, 
as well his wife's compensation fromc=J for accounting services; the Beneficiary's job search efforts 
prior to his E2 visa in 2015 and his offer of employment from the Petitioner in 2017; the Petitioner's 
organizational chart and website page identifying the Beneficiary's position in the company; and some 
relevant case law. The Petitioner asserted that its owner/CEO and the Beneficiary did not know each 
other before 2015, and that the owner's assistance to the Beneficiary in obtaining status in the United 
States, including his E2 visa, was supportive rather than violative of U.S. law and policy. The 
Petitioner claimed that the Beneficiary made no misrepresentations in his E2 visa application or in the 
labor certification underlying the I-140 petition. While acknowledging that the Beneficiary's business 
had not developed as successfully as forecast in the E2 visa application, and that the Beneficiary had 
not yet hired a technician or a receptionist and opted to operated out of his home, the record nonetheless 
showed that the business was operational, earning some money, and, according to the Petitioner, 
compliant with the rules and regulations applicable to E2 visas. Reiterating its assertion that the 
Petitioner's owner/CEO and the Beneficiary had no longstanding business or personal relationship 
because they only met in 2015, the Petitioner maintained that the proffered position was clearly open 
to U.S. workers. Furthermore, the Petitioner asserted that the Beneficiary had not worked outside the 
scope of his role and title as operations manager since his hiring in March 2018. The Petitioner 
maintained that the Beneficiary has not functioned as an anesthesiologist, though he may be present 
in an operational capacity to oversee procedures performed other employees, and that the 
Beneficiary's website identification as "Operations Manager/Cosmetic & High Aesthetics Division 
Specialist" is meant to highlight his field of specialty as well as his job title. 
In the revocation decision, issued on November 17, 2020, the Director stated that although the record 
indicated the Petitioner's owner/CEO and the Beneficiary did not meet until 2015, the Petitioner had 
not explained their relationship to the person who introduced them,I I The decision 
did not explain the relevance ofl l's prior relationship to the Petitioner's owner/CEO 
and/or the Beneficiary in this proceeding. The Director also indicated that the role played by the 
Petitioner's owner/CEO in getting the Beneficiary's business started with his E2 visa might make him 
liable for any default judgment entered against the entity, but once again failed to explain what 
relevance this speculation had to the instant proceeding. The decision quoted excerpts from the 
declarations of the Petitioner's owner/CEO and the Beneficiary which, in the Director's view, 
contradicted each other with respect to the scope of the former's influence in hiring decisions. The 
Director stated that the declaration of the Petitioner's human resources manager did not address "the 
[B]eneficiary's claim" that he was performing functions beyond his stated job duties as operations 
manager, but no confirmed claim of this nature was cited in the decision, or in the foregoing NOIR. 
1 The full description of the Beneficiaiy's experience with0 is described in section K of the labor certification as 
follows: "Responsible for overall management and operation of dental laboratory business. Make hiring and firing 
decisions and train staff. Monitor inventory and suppliers to ensure timely ordering and delivery of required equipment 
and supplies. Direct and manage day-to-day activities related to constructing dental products and providing services." 
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The declaration of the human resources manager stated that the Beneficiary performed ceramic dental 
technician work for the Petitioner when operating asc=J in a contract labor relationship with the 
Petitioner prior to being hired as its operations manager. As for the Beneficiary's E2 visa application 
and approval, the Director stated that the Beneficiary provided no evidence that he was complying 
with local zoning ordinances in operating his business out of his home. The Director also indicated 
that the Beneficiary's shift to a home-based business and performance of significant non-managerial 
functions cast doubt on his intent to invest a substantial amount of capital in a bona fide enterprise that 
he would develop and direct, as required for E2 visa holders under applicable regulations. Once again, 
however, the decision did not explain the relevance of these observations to the instant petition for 
skilled worker classification. Finally, the Director reiterated that the Beneficiary stated at his 
adjustment of status interview that he planned to hire a technician and a receptionist for~ but had 
not done so and merely contracted with his wife to perform accounting work. 
The Director concluded that "[a]fter a review of the evidence and response [to the NOIR], it is still the 
position of USCIS that the [B]eneficiary made misrepresentations to acquire E2 status, and further 
made misrepresentations on his ETA-9089. In view of the above, USCIS has revoked this 1-140 
petition." 
On appeal we agree with the Petitioner's basic position that the revocation decision is not well 
grounded in the facts or the law. As pointed out in our discussion of the decision, the Director makes 
a number of factual and legal references - primarily with respect to the Beneficiary's business under 
his E2 treaty investor visa- whose relevance is not clearly articulated with regard to the instant petition 
for skilled worker classification. Even if there are some inconsistencies or discrepancies in the record, 
the Director does not explain why they are of sufficient magnitude to warrant revocation of the 
previous approval. The decision states broadly that the Beneficiary "made misrepresentations in his 
ETA-9089," but does not identify any specific examples thereof in the labor certification. While the 
Director expressed doubt in the NOIR that the Beneficiary's job duties withc::=J included hiring and 
firing decisions and training staff: as claimed in the labor certification ( section K), the Director does 
not return to this subject in the revocation decision. Most importantly, the Director's decision does 
not identify the statutory and/or regulatory basis for the revocation of the petition's previous approval. 
Since the revocation decision is not adequately explained, we will remand this matter to the Director 
for further consideration. The Director may issue a new NOIR in accordance with the requirements 
of 8 C.F.R. § 205.2(b) and (c) and Matter ofEstime. Following the Petitioner's response to the NOIR, 
or the expiration of the time period for response, the Director shall issue a new decision. 
B. Petitioner's Ability to Pay the Proffered Wage 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish 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 
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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 [USeIS]. 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date2 of the petition onward. In this case the proffered wage is 
$47,050 per year and the priority date is May 31, 2017. 
In determining a petitioner's ability to pay the proffered wage, users 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 e.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
In this case, the documentary evidence shows that the Beneficiary has been employed by the Petitioner 
since March 2018 and that his gross compensation was $32,441.21 in 2018 and $45,339.71 in 2019. 
Thus, the Petitioner has not established its ability to pay the proffered wage of $47,050 per year based 
on wages paid to the Beneficiary from the priority date of May 31, 2017, onward. 
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, users 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. However, when a petitioner has filed other I-140 petitions it must establish that its job offer 
is realistic not only for the instant beneficiary, but also for the beneficiaries of its other I-140 petitions 
(I-140 beneficiaries). A petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
eomm'r 1977). Accordingly, a petitioner must demonstrate its ability to pay the combined proffered 
wages of the instant beneficiary and every other I-140 beneficiary from the priority date of the instant 
petition until the other I-140 beneficiaries obtain lawful permanent resident status. See Patel v. 
Johnson, 2 F.Supp. 3d 108, 124 (D.Mass. 2014) (upholding our denial of a petition where a petitioner 
did not demonstrate its ability to pay multiple beneficiaries). 3 
2 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.S(d). 
3 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
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In this case USCIS records show that the Petitioner has filed multiple I-140 petitions. Therefore, it 
must establish that its net income or net current assets year by year are sufficient to meet its proffered 
wage obligations to the instant Beneficiary and all of its other I-140 beneficiaries. When the instant 
petition was filed (and initially approved) in November 2017, the Petitioner submitted a copy of its 
2016 federal income tax return, which was the most recently filed return. No federal tax return, annual 
report, or audited financial statement has been submitted for any subsequent year. Thus, the record 
does not include any type of required regulatory evidence for the priority date year of 201 7 or 
succeeding years. Nor does the record include any evidence of the Petitioner's proffered wage 
obligations and wages paid to its other I-140 beneficiaries. Accordingly, the current record does not 
establish the Petitioner's continuing ability to pay the proffered wage(s) of the instant Beneficiary and 
its other I-140 beneficiaries from the priority date of May 31, 201 7, onward. 
In any new NOIR to be issued on remand, therefore, the Director shall include a request that the 
Petitioner submit at least one type of required evidence, as specified in 8 C.F.R. § 204.5(g)(2), for 
each year from the priority date year of 2017 to the revocation year of 2020, as well as evidence of its 
proffered wage obligations and wages paid to all of its I-140 beneficiaries, as previously discussed, 
from the priority date of May 31, 2017, to the date ofrevocation in November 2020. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case for the Director to issue a new NOIR in 
accordance with the requirements of 8 C.F.R. § 205.2(b) and (c) and Matter o/Estime. Following the 
Petitioner's response to the NOIR, or the expiration of the time period for response, the Director shall 
issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further consideration 
and the entry of a new decision consistent with the foregoing analysis. 
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