remanded EB-3 Case: Factory Work

U.S. Citizenship 
and Immigration 
Services 
In Re : 19596008 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 17, 2022 
The Petitioner seeks to employ the Beneficiary as a factory worker. It requests classification of the 
Beneficiary as unskilled worker under the third preference immigrant classification . Immigration and 
Nationality Act (the Act) 203(b)(3)(AXiii), 8 U.S.C. § 1153(b)(3)(A)(iii). This employment-based 
immigrant classification allows a U.S. employer to sponsor a non citizen for lawful permanent resident 
status to work in a position that requires less than two years of training or experience. 
Although the Director of the Texas Service Center initially granted the petition , the U.S. Department 
of State (DOS) returned the petition because the Beneficiary appeared ineligible for the requested 
benefit. After sending a notice of intent to revoke (NOIR), the Director revoked the approval of the 
petition, concluding that the record did not establish the Petitioner's continuing ability to pay the 
proffered wage and the record did not establish that the job offer is bona.fide . On appeal, the Petitioner 
reasserts that it has the ability to pay the proffered wage and that the job offer is bona.fide. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's 
decision and remand the matter to the Director for the entry of a new decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Immigration as an unskilled worker generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker , a prospective employer must first obtain 
certification from the U .S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. 
§ l l 82(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 noncitizen will 
not harm wages and working conditions ofU. S. workers with similar jobs. Id. 
If DOL approves a position , an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS) . See section 204 of 
the Act, 8 U .S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a noncitizen 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. 
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 ). 
II. ABILITY TO PAY THE PROFFERED WAGE 
As discussed above, the Director revoked the approval of the petition on March 31, 2021, concluding 
in part that the Petitioner did not establish its continuing ability to pay the proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pe1iinent 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 either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage. 1 
Further, where a petitioner has filed Form I-140 petitions for multiple beneficiaries, it must demonstrate 
that its job offer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to each 
beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patelv. 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). Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of the other Form I-140 petitions that were pending or approved as of, or filed after, the 
priority date of the current petition. 2 
1 Federalcourtshaveupheld our method of determining a petitioner's ability to pay a proffered wage. See. e.g .. River St. 
Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (I st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. I984);Estrada-Hernandezv. Holder, I 08F. Supp. 3d936, 942-946(S.D. Cal. 2015); Rizvi v. Dep 't of 
Homeland Sec., 3 7 F. Supp. 3d 870, 883-84 (S.D. Tex.2014), aff'd, 627Fed. App'x292,294-295 (5th Cir. 2015). 
2 The Petitioner's ability topaytheproffered wage of one of the other I-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an I-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied with out a pending 
appeal or motion; or 
• Before the priority date of the I-140petitionfiledon behalfoftheother beneficiary. 
2 
The Form I-140, Petition for Alien Workers, indicated that the proffered wage would be $8.50 per 
hour, or $17,680 annually (based on a 40-hourworkweek). The Form I-140 also indicated that the 
Petitioner employed 85 workers at the time of filing. The priority date is the date that DOL received 
the DOL ETA Form 9089, Application for Permanent Employment Certification, which is April 28, 
2016. 
The record does not contain evidence that the Petitioner has paid the Beneficiary any wages. The 
Petitioner submitted IRS Forms l 120S, U.S. Income Tax Return for an S Corporation, for the years 
2016 through 2019, which indicate the Petitioner's annual net income exceeded to proffered wage 
each year. However, the Director noted that the Petitioner filed 3 7 petitions between the instant Form 
I-140 filing date and the date of the revocation of its approval, and he concluded that the Petitioner did 
not demonstrate that it had the ability to pay the proffered wages to those beneficiaries. The Director 
calculated that the Petitioner would have to demonstrate its ability to pay those workers a total of 
$442,000 per year, assuming that the average pay rate for the petitions is $8.50 per hour, or $17,680 
annually. 
The Director appears to have erred in the calculation of the Petitioner's ability to pay the beneficiaries 
of its other petitions. The Director assumed an average pay rate for the petitions, instead of utilizing 
the actual proffered wage for each of the petitions. Moreover, the total number of workers to be 
considered in the ability to pay analysis generally includes not only those for whom the Petitioner filed 
between the instant Form I-140 filing date and the date of the revocation of its approval, but also those 
that were pending or approved during that period. 
Because the Director appears to have miscalculated the Petitioner's ability to pay the Beneficiary and 
the other beneficiaries during the relevant period, we will remand the matter to the Director to 
determine the Petitioner's ability to pay. On remand, the Director should request additional, updated 
evidence of the Petitioner's ability to pay all of its applicable beneficiaries. The Director should allow 
the Petitioner a reasonable time to respond. The Petitioner should document the receipt numbers, names 
of beneficiaries, priority dates, and proffered wages of these other petitions, and indicate the status of 
each petition and the date of any status change (i.e., pending, approved, withdrawn, revoked, denied, 
on appeal or motion, beneficiary obtained lawful pe1manent residence). To offset the total wage 
burden, the Petitioner may submit documentation showing that it paid wages to other beneficiaries. 
To demonstrate that it has the ability to pay the Beneficiary and the other beneficiaries, we would 
expect to see the Petitioner perform the following calculation for each year at issue: (a) calculate any 
shortfall between the proffered wages and any actual wages paid to the primary Beneficiary and its 
other beneficiaries, (b) add these amounts together to calculate the total wage deficiency, and ( c) 
demonstrate that its net income or net current assets exceed the total wage deficiency. The Petitioner 
may also submit additional materials in support of the factors discussed in Matter of Sonegawa, 
12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967), which permits USCIS to consider the totality of the 
circumstances affecting a petitioner's ability to pay the proffered wage. 3 
3 In determining the Petitioner's ability to pay theprofferedwage, we may examine such factors as: the numberofyears 
the Petitioner has conducted business; its number of employees; the growth of its business; its incurrence of 
uncharacteristic losses or expenses; its reputation in its industry; the Beneficiary's replacement of a current employee or 
outsourced service; or other factors affecting the Petitioner's ability to pay. See id. 
3 
We note that on appeal, the Petitioner asserts that another entity "has been the W-2 
employer for beneficiaries whose certified labor certificates and I-140 petitions have been filed by 
Petitioner" but that the Petitioner "is indeed the true employer of the certified labor certificate and 
filed I-140 petition on behalf of the instant [B]eneficiary ." The Petitioner also submits a letter from 
the Petitioner's president, stating that he is also the president of I I and that "[a ]fter April 
1, 2012, [the Petitioner] decided to hire I I services to handle payroll, taxes, health insurance, 
workers• compensation, and related paperwork for employees of [ the Petitioner• s] manufacturing 
department becaus has a much larger number of manufacturing employees." The affidavit 
reiterates that merely serves as the bookkeeper for employees in [the Petitioner's] 
manufacturing department." Despite the Petitioner's assertions, the record does not contain 
documentary evidence that the Petitioner contracted! I to process payroll for its employees. 
The court in Sitarv. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the 
governing regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of 
individuals or entities who have no legal obligation to pay the wage." Id. at *2. 
We note that the Petitioner also submits on appeal bank statements for the Petitioner andl I 
for the periods of May through October 2019, reflecting transactions of sums of money descnbed 
as "bills, payroll." The description "bills, payroll" does not clearly establish whether the transactions 
were solely for payroll expenses, solely for bills other than payroll expenses, or some combination of 
payroll-related expenses and other billed expenses. Moreover, even ifl I had established 
that it has been processing payroll for the Petitioner since 2012, which it did not, the record does not 
explain why the Petitioner reported annual wages paid on the Forms 1120S for the years of 2016 and 
201 7, but no annual wages paid for the years of 2018 and 2019. 4 If it paid wages to employees or 
contractors as asserted, those amounts should be represented on its tax returns as well as on IRS Forms 
W-2, Wage and Tax Statements, or IRS Fonns 1099-MISC, Miscellaneous Income. 
The discrepancies discussed above cast doubt on the veracity of the descriptions that the transfers of 
money from the Petitioner tol I were for the purposes of paying the wages of the 
Petitioner's employees during those months of 2019 and otherwise. Doubt cast on any aspect of a 
petitioner's proof may undernnne the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Mattera/Ho, 19 I&N Dec. 582,591 (BIA 1988). On remand, the Director 
should request independent, objective evidence to resolve the ambiguities and inconsistencies in the 
record. See id. 
III. BONA FIDE JOB OFFER 
The Director also revoked the petition's approval because the record did not establish that the job offer 
is bona fide and open to U.S. workers. Specifically, the Director determined that the Beneficiary paid 
recruitment costs in connection with the labor certification process in violation of 20 C.F.R. § 656.12. 
On appeal, the Petitioner contests this determination. 
4 We note that the bank statements purportedly belonging tol I do not have any identifying information on 
them other than the company name, which appears to be in a differentfontthanthefontcontainedin the other portions of 
the statements. Further, the redaction a bovethe company name on the statements may include relevantinfmmation, such 
as a joint owner of the bank account. 
4 
The Director indicated in the revocation decision that the Petitioner failed to provide evidence 
requested by the NOIR relating to this issue. However, the Petitioner submitted materials in response 
to the NOIR that do not appear to have been considered by the Director. When revoking the approval 
of a petition, a director has an affirmative duty to explain the specific reasons for the revocation; this 
duty includes informing a petitioner why the evidence did not satisfy its burden of proof pursuant to 
section 291 of the Act. See 8 C.F.R. § 103.3(a)(l)(i). The Director's decision in this case does not 
explain why the infonnation provided in response to the NOIR was insufficient with regard to the 
issue of a bona fide job offer or how it failed to satisfy its burden of proofregarding eligibility for the 
benefit sought. Therefore, we will remand this matter to the Director for further consideration of the 
Petitioner's NOIR response. 
IV. CONCLUSION 
For the reasons discussed above, we will withdraw the Director's revocation, and 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. On remand, the Director may wish to issue a new NOIR, and 
allow the Petitioner an opportunity to respond. 
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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