remanded EB-3 Case: Food And Beverage

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 12, 2023 In Re: 29096449 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner, a food and beverage company, seeks to employ the Beneficiary as a crew member. It 
requests classification of the Beneficiary as an "other worker" under the third preference employment­
based immigrant visa category. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 
8 U.S.C. § 1153(b) (3)(A)(iii). This immigrant visa category allows a U.S. employer to sponsor a 
foreign national for lawful permanent resident status to work in a position that requires less than two 
years of training or experience. 
Petitions for other workers must be accompanied by a valid labor certification approval from the U.S. 
Department of Labor (DOL) to establish that there are not sufficient U.S. workers who are able, 
willing, qualified, and available for the offered position. Section 212(a)(5) of the Act, 8 U.S.C. 
§ 1182(a)(5). IfDOL 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. A labor certification expires if, within 180 days of its approval, it is 
not filed in support of a petition. 20 C.F .R. § 656.30(b )( 1 ). 
In this case, the Director of the Nebraska Service Center denied the petlt10n because it was 
accompanied by an expired labor certification. The Director concluded that the Petitioner did not 
properly file the immigrant visa petition until April 17, 2023, one day after the April 16, 2023 
expiration date of the labor certification. However, as the Petitioner notes on appeal, the April 16, 
2023 expiration date of the labor certification fell on a Sunday. Where the last day of the validity 
period of the labor certification falls on a Sunday, the deadline is extended until the end of the next 
business day. 6 USCIS Policy Manual E.6(B)(3), https://www.uscis.gov/policy-manual. See also 1 
USCIS Policy Manual B.6(D). As the petition was timely filed on April 17, 2023, the next business 
day following the Sunday expiration date of the labor certification, the Director's decision is 
withdrawn. However, we cannot conclude that the Petitioner has established eligibility for the benefit 
sought, as further detailed below. Upon de novo review, we will withdraw the Director's decision and 
remand the matter for entry of a new decision consistent with the following analysis. 
I. ANALYSIS 
Immigration as a skilled worker generally follows a three-step process. As noted above, a prospective 
employer must first obtain certification from DOL, then submit an approved labor certification with 
an immigrant visa petition to USCIS. Section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). 
USCIS determines whether a beneficiary meets the requirements of a DOL-certified position and a 
requested immigrant visa category. 8 C.F.R. § 204.5(1)(3)(ii)(B). In addition, USCIS determines 
whether the employer established its ability to pay the proffered wage. 8 C.F .R. § 204.5(g)(2). Finally, 
if USCIS approves a petition, a beneficiary 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. 
A. The Petitioner as Employer 
An employer may petition for a foreign national if it is "desiring and intending to employ [him or her] 
within the United States." Section 204(a)(l)(F) of the Act. The petitioner must intend to employ a 
beneficiary under the terms and conditions of an accompanying labor certification. See Matter of 
Izdebska, 12 l&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming denial where, contrary to an 
accompanying labor certification, a petitioner did not intend to employ a beneficiary under the terms 
of the labor certification); see also Matter ofSunoco Energy Dev. Co., 17 l&N Dec. 283, 284 (Reg'l 
Comm'r 1979) (affirming a petition's denial under 20 C.F.R. § 656.30(c)(2) where the labor 
certification did not remain valid for the intended geographic area of employment). Because the filing 
of a labor certification establishes a priority date for any immigrant petition later based on the labor 
certification, the petitioner must establish that the job offer was realistic as of the priority date and that 
the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. 1 The bona fides of the job opportunity are essential elements in evaluating whether a job 
offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977). 
Public records reveal that the Petitioner is no longer an active business in good standing after merging 
with another business. See Missouri Secretary of rate, 
https://bsd.sos.mo.gov /BusinessEntity ~--------------------~­
(visited Dec. 11, 2023). According to the Summary Articles of Mer er on record the Petitioner 
merged with I Iand the surviving entit is rather than 
the Petitioner. See id. The effective date of the merger is.__ ____,, 2023. This is after the filing of 
the labor certification on February 14, 2022, and before the filing of the instant petition on April 17, 
2023. 
Because we cannot affirmatively find that the Petitioner remains in business and that a bona fide job 
offer exists, we will remand the matter to the Director for further consideration. The Director may 
wish to request additional evidence of the status of the Petitioner 's business and allow the Petitioner 
an opportunity to respond. 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C .F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date. 
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B. Ability to Pay 
The regulation at 8 C.F .R. § 204.5(g)(2) requires that "[ e ]vidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited financial statements." The record does 
not contain regulatory-required evidence of the Petitioner's continuing ability to pay the proffered 
wage of $11.00 per hour, from the priority date on February 14, 2022. Although the record includes 
the Petitioner's federal tax return for 2021, this evidence is before the priority date and does not 
demonstrate the Petitioner's continuing ability to pay the proffered wage. 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. 
We note that where a petitioner has filed 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 Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our 
revocation of a petition's approval where, as of the filing' s grant, a petitioner did not demonstrate its 
ability to pay the combined proffered wages of multiple petitions). USCIS records show that the 
Petitioner has filed Form I-140 petitions for 16 other 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. 
Therefore, we will remand the matter to the Director to request additional evidence, if deemed 
appropriate, and analyze the record and determine whether the Petitioner has established its ability to 
pay the proffered wage to this Beneficiary , and the beneficiaries of its other petitions, from the priority 
date onward. On remand, the Director should request such regulatory-required evidence and allow 
the Petitioner reasonable time to respond. 
II. CONCLUSION 
Considering the above discussed deficiencies , we are withdrawing the Director's decision. However, 
the record does not demonstrate 
affirmatively that the Petitioner is eligible for the benefit sought, 
including whether the Petitioner can establish that it is a valid business entity and that it has the ability 
to pay the proffered wage to the Beneficiary as required by 8 C.F.R. § 204.5(g)(2). Therefore, we will 
remand this case to the Director for further consideration of the Petitioner's eligibility for the requested 
benefit. The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the 
evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010) . 
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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