remanded EB-3 Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 19, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an engineering/construction company, seeks to employ the Beneficiary as a project 
designer. It requests classification of the Beneficiary as a professional under the third preference 
immigrant classification. Immigration and Nationality Act (the Act), section 203(b )(3)(A)(ii), 
8 U.S.C. § 1153(b )(3)(A)(ii). This employment-based immigrant classification allows a U.S. 
employer to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the position offered is a bona fide job opportunity or job offer. On appeal, 
the Petitioner asserts that the Director's decision is factually inaccurate and legally insufficient. 
Upon de novo review, we will remand the matter to the Director for further consideration and entry of 
a new decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). 1 See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that there 
are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(l)-(11) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, 
the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
February 8, 2018. See 8 C.F.R. § 204.S(d). 
Matter of G-, Inc. 
II. BONA FIDE JOB OPPORTUNITY 
The Beneficiary indicated in a supporting letter that he interviewed with the Petitioner for the offered 
position in November 2016. The record shows that the recruitment for the job occurred between 
September and December 2017. The Director indicated in his decision that the Petitioner "interviewed 
and decided to hire the Beneficiary prior to the actual recruitment." Thus, he determined that the 
recruitment efforts were not conducted in good faith because the job offer was limited to the 
Beneficiary and that no U.S. workers were "truly allowed a realistic opportunity to apply, applied, or 
interviewed." The Director determined that the Petitioner did not demonstrate that the position being 
offered is a bona fide job opportunity. 2 
Because of the design of the labor certification process, every petitioner who files a labor certification 
has already identified a foreign national that they wish to hire prior to the required recruitment. The 
Petitioner's identification of the Beneficiary prior to the required recruitment, or even its employment 
of the Beneficiary in the offered job, does not indicate the lack of a bona.fide job opportunity. Rather, 
it indicates that the Petitioner followed DOL regulations in following PERM 3 protocol after 
identifying a foreign national for the position. See, e.g., 20 C.F.R. § 656.17. Thus, the Director erred 
in denying the petition for lack of a bona fide job opportunity solely due to the Petitioner's 
identification of the Beneficiary as an applicant prior to the commencement of the labor certification 
recruitment process. We will therefore withdraw the Director's decision on the issue of bona.fide job 
opportunity. 
The Director also stated that the Petitioner intended to employ the Beneficiary outside the terms of the 
labor certification. A petitioner must be "desiring and intending to employ [a foreign national] within 
the United States." Section 204(a)(l)(F) of the Act. It must intend to employ a beneficiary under the 
terms and conditions of an accompanying labor certification. See Matter of Izdebska, 12 I&N Dec. 
54, 55 (Reg'l Comm'r 1966). However, because the Director did not support his statement with any 
relevant facts or analysis, we will withdraw the Director's decision on the issue of intent to employ 
the Beneficiary. 
Notwithstanding our withdrawal of the Director's decision, we find that the record as presently 
constituted contains insufficient evidence the Petitioner's continuing ability to pay the proffered wage 
from the priority date. We will therefore remand the matter to the Director. 
III. ABILITY TO PAY 
The record does not contain regulatory required evidence of the Petitioner's ability to pay the proffered 
wage from the priority date on February 8, 2018, and continuing until the beneficiary obtains lawful 
permanent residence. The regulation at 8 C.F.R. § 204.5(g)(2) requires that "[e]vidence of this ability 
2 Citing Matter of Amger Corp., 87-TNA-545 (BALCA 1987) and 8 U.S.C. § 1361, the Director stated that the petitioner 
has the burden of establishing that a bona fide job opportunity exists when asked to show that a valid employment 
relationship is available to U.S. workers. 
3 The regulatory scheme governing the labor ce1iification process is referred to by the acronym PERM, for Program 
Electronic Review Management. 
2 
Matter of G-, Inc. 
shall be either in the form of copies of annual reports, federal tax returns, or audited financial 
statements." 
The Petitioner submitted regulatory-required evidence of its ability to pay the proffered wage in 2017. 
However, the record does not contain regulatory-prescribed evidence of its ability to pay for 2018. 
Without this regulatory-required evidence, we cannot affirmatively find that the Petitioner has the 
continuing ability to pay the proffered wage from the priority date. On remand, the Director should 
request such regulatory-required evidence and allow the Petitioner reasonable time to respond. 
IV. CONCLUSION 
As the Director's decision did not evaluate the Petitioner's continuing ability to pay the proffered wage 
form the priority date, we will remand the matter to the Director for farther consideration. 
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 ofG-, Inc., ID# 05759190 (AAO Aug. 19, 2019) 
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