remanded EB-3 Case: Dry Cleaning

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-Y-W-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 25,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of dry cleaning businesses, seeks to employ the Beneficiary as a sewer. It 
requests her classification under the third-preference, immigrant category as an "other worker." 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). 
This category allows a U.S. business to sponsor a foreign national with less than two years of 
training or experience for lawful permanent resident status. 
The Acting Director of the Nebraska Service Center denied the petition. The Director found that the 
Petitioner did not demonstrate the required ability to pay the proffered wage. 
On appeal, the Petitioner submits additional evidence and asserts that the Director overlooked proof 
of its ability to pay. 
Upon de novo review, we will withdraw the Director's decision and remand this matter for further 
consideration consistent with the following opinion. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill an 
offered position in the United States with a foreign national, an employer must first obtain 
certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i) (requiring the DOL to certify that insufficient workers are able, willing, 
qualified, and available for a position and that employment of a foreign national will not hann the 
wages and working conditions of U.S. workers in similar jobs). If the DOL certifies a position, an 
employer must next submit the certification with an immigrant visa petition to U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. If USCIS approves a 
petition, a foreign national may finally 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. 
Mauer ofS- Y- W-. Inc. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petit toner must demonstrate its continuing ability to pay a proffered wage, from a petition's 
priority date until a beneficiary obtains lawful permanent residence. 1 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. !d. 
In determining ability to pay, USe!S first examines whether a petitioner paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay the full 
proffered wage, USe IS next considers whether it generated sufficient annual amounts of net income 
or net current assets to pay any difference between the proffered wage and the actual wages paid. If 
net income and net current assets are insufficient, users may also consider other factors affecting a 
petitioner's ability to pay. See Maller of Sonegawa. 12 l&N Dec. 6!2, 6!4-15 (Reg'! eomm'r 
1967)2 
Here, the accompanying labor certification states the proffered wage of the offered position of sewer 
as $28,000 a year. The Petitioner did not submit any evidence of its payments to the Beneficiary in 
2017, the year of the petition's priority date. Based solely on payments to the Beneficiary, the 
record therefore does not establish the Petitioner's ability to pay the proffered wage. 
The Director based his decision on the most recent required evidence available: copies of the 
Petitioner's federal income tax returns for 2016. On appeal, however, the Petitioner submits copies 
of its tax returns for 2017. 
The Petitioner's 2017 tax returns reflect net income of $36,016. That amount exceeds the annual 
proffered wage of $28,000. The record on appeal therefore establishes the Petitioner's ability to pay 
the proffered wage. We will therefore withdraw the Director's decision. 
Ill. THE BONA FIDES OF THE '.JOB OPPORTUNITY 
The Petitioner has overcome the denial ground. But the record docs not establish the petition's 
approvability. We will therefore remand this matter. 
Although unaddressed by the Director, the record does not establish the bona fides of the job 
opportunity. USers may deny a petition accompanied by a labor certification that violates DOL 
regulations. See Matter of Sunoco Energy Dev. Co., 17 l&N Dec. 283, 284 (Reg'! eomm'r !979) 
(affirming a petition's denial under 20 e.F.R. 656.30(c)(2) where the accompanying certification 
was invalid for the geographic area of intended employment). users may also invalidate a 
1 This petition ·s priority date is March 22, 2017, the date the DOL accepted the accompanying labor certification 
application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
2 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wase. See. e.g. 
River St. Donuts. LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009). 
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Maller 4S-Y-W-. Jnc. 
certification after its issuance upon a· finding of " fraud or willful misrepre sentation ofa material fact 
invol ving the labor certification application. " 20 C.F.R. § 656.30(d). 
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. § 656.1 O(c)(8). "This provision infuses the recruitment process with 
the requirement of a bona .fide job opportunity: not merely a test of the job market." Maller (?f 
Modular Container Sys .. Inc., 89-INA-228 , 1991 WL 223955 *7 (BALCA July 16, 1991) (en bane) 
(referring to the former, identical regulation at 20 C.F.R. § 656.20(c)(8)). 
Here, the Petitioner attested on the labor certification to the bona .fides of the job opportunity for a 
sewe r. The record , however, contains evidence of a prior busines s and personal relationship 
between the Petitioner and the Beneficiar y. See Matter of Sunmari 374, 2000-INA-93, 2000 WL 
70794 2, *3 (BALCA May 15, 2000) (holding that a relation ship trigg ering concerns about the bona 
fides of a j ob opportunity "is not only of the blood ; it may be financial , by marriage , or through 
friendship "). 
On appeal, the Petitioner submitted copies of joint federal income tax returns of its so le shareholder 
and his spouse for 2016. The tax returns indic ate the sole shareholder's spouse's employment that 
year by a Washington corporation whose sole officer is the Beneficiary's spouse. See Wash. Sec'y 
of State, Corps., Business Search, https://www.sos.wa.gov/corps/ (last visited Mar. 27, 2018). 
USC IS records also indicate that the corporation filed an immigrant petition on behalf of the spouse 
of the Petitioner 's sole shareholder. 3 
The Washington corporation' s employment and immigration sponsorship · of the spouse of the 
Petitioner's sole shareholder indicates a prior business and personal . relations hip between the 
Beneficiar y 
and the Petitioner. The relationship casts significant doubt on the ava ilability of the 
offered position to U.S. workers. See· Maller o.f Modular Container, 1991 WL 223955 at *8 (stating 
that a relationship between a labor certification employer and a foreign nation al may indicate a non­
bonafide job opportunity). 
On remand , the Director should ask the Petitioner to detail the nature of its relatio nship with the 
Beneficiary and to submit addition al evidence that the offered position is clearly open to U.S. 
worker s. Requested evidence should addre ss the bonafide job opportunity factors stated·in Modular 
Container and include copies of additional documentation of the Petitioner 's recruitment for the 
offered position during the labor certification process, including its newspaper advertisements, 
recruitment report, and any applications or resumes received from applicants. The Director may 
request add itional evidence addressing any additional petition deficiencie s he may notice. 
The Director should give the Petition er a reasonable opportunity to provide all requested ev idence . 
Upon rece ipt of a timel y respon se, the Director should review the entire record and enter a new 
decis ion . 
3 USC IS records identify the petition by the receipt number 
3 
Mauer ofS- Y- W-. Inc. 
IV. CONCLUSION 
Contrary to the Director's decision, the Petitioner on appeal has demonstrated its ability to pay the 
proftered wage. The record, however, does not establish the bona fides of the job opportunity. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter ofS-y-W-. Inc., lD# 1165602 (AAO Apr. 25, 2018) 
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