remanded EB-3 Case: Food Manufacturing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 08, 2023 In Re: 27035915 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner, a manufacturer of frozen waffles and pancakes, seeks to employ the Beneficiary as a 
production helper. It requests classification of the Beneficiary as an unskilled worker under the third 
preference immigrant classification . See Immigration and Nationality Act (the Act) 
section 203(b )(3)(A)(iii), 8 U.S.C. § 1153(b )(3)(A)(iii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a noncitizen for lawful permanent resident status to 
work in a position that requires less than two years of training or experience. 
The Director of the Texas Service Center revoked the approval of the petition, concluding that the 
Petitioner had willfully misrepresented a material fact concerning the Beneficiary's payment of costs 
related to the labor certification filed on her behalf. In addition, the Director concluded that the 
Petitioner misrepresented its relationship with the Beneficiary. The matter is now before us on appeal. 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 I&N Dec . 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 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. LAW 
The Secretary of Homeland Security "may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition .... " Section 205 of the Act, 8 U.S.C. § 1155. By regulation 
this revocation authority is delegated to any U.S . Citizenship and Immigration Services (USCIS) 
officer who is authorized to approve an immigrant visa petition. 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 (NOR). 
See 8 C.F.R. § 205.2(b) and (c). The Board of Immigration Appeals (the Board) has discussed 
revocations on notice as follows: 
[A] notice of intention to revoke a visa petition is properly issued for "good and 
sufficient cause" where the evidence of record at the time the notice is issued, if 
unexplained and unrebutted, would warrant a denial of the visa petition based upon the 
petitioner's failure to meet his burden of proof. The decision to revoke will be sustained 
where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention 
to revoke, would warrant such denial. 1 
Immigration as an unskilled worker usually follows a three-step process. First, the prospective 
employer must obtain a labor certification approval from the U.S. Department of Labor (DOL) to 
demonstrate 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.e. § 1182(a)(5). 
Second, the employer must submit the approved labor certification with an immigrant visa petition to 
users. Section 204 of the Act, 8 U.S.e. § 1154. The immigrant visa petition must establish that the 
foreign worker qualifies for the offered position, that the foreign worker and the offered position are 
eligible for the requested immigrant visa category, and that the employer has the ability to pay the 
proffered wage. See 8 e.F.R. § 204.5. These requirements must be satisfied by the priority date of 
the immigrant visa petition. See 8 e.F.R. § 204.5(g)(2); Matter of Wing's Tea House, 16 I&N Dec. 
158, 159 (Acting Reg'l eomm'r 1977). For petitions that require a labor certification, the priority date 
is the date on which the DOL accepted the labor certification application for processing. 8 e.F.R. § 
204.5(d). In this matter, the priority date is June 14, 2017. 
Finally, ifUSeIS approves the immigrant visa petition, the foreign worker may apply for an immigrant 
visa abroad or, if eligible, for adjustment of status in the United States. Section 245 of the Act, 8 
U.S.e. § 1255. 
TT. ANALYSTS 
At issue in this case is whether the Director properly revoked the approval of the petition. For the 
reasons discussed below, we will withdraw the Director's decision and remand the matter for further 
consideration and the entry of a new decision. 
A. Willful Misrepresentation of a Material Fact 
users will deny a visa petition if the petitioner submits evidence which contains false information. 
See section 204(b) of the Act. A petition includes its supporting evidence - including a labor certification. 
8 C.F.R. § 103.2(b)(l). Further, misrepresentation of a material fact may lead to multiple consequences 
in immigration proceedings. Any noncitizen who, by fraud or willfully misrepresenting a material 
fact, seeks to procure ( or has sought to procure or has procured) a visa, other documentation, or 
admission into the United States or other benefit provided under this Act is inadmissible. Section 
212(a)(6)(e)(i) of the Act, 8 U.S.e. § 1182(a)(6)(e)(i). 
1 Matter of Ho, 19 I&N Dec. 582. 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). Upon the 
proper issuance of a notice of intent to revoke (NOIR) for good and sufficient cause, the petitioner bears the burden of 
proving eligibility the requested immigration benefit. Id. at 589. However, an NOR is not valid unless it is based on 
evidence contained in the record of proceedings. Matter o(Estime, 19 l&N Dec. at 451-52. 
2 
A finding of material misrepresentation requires the following elements: the petitioner procured or 
sought to procure a benefit under U.S. immigration laws; they made a false representation; and the 
false representation was willfully made, material to the benefit sought, and made to a U.S. government 
official. Id.; see generally 8 USCIS Policy Manual J.2(B), https://www.uscis.gov/policymanual. 
Under Board precedent, a material misrepresentation is one which "tends to shut off a line of inquiry 
which is relevant to the [noncitizen's] eligibility and which might well have resulted in a proper 
determination that he be excluded." 2 A willful misrepresentation requires that the individual 
knowingly make a material misstatement to a government official for the purpose of obtaining an 
immigration benefit to which one is not entitled. 3 Material misrepresentation requires only a false 
statement that is material and willfully made. The term "willfully" means knowing and intentionally, 
as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. 4 
In his NOIR, the Director noted that according to information from the United States Consulate in Ho 
Chi Minh City, Vietnam, during her immigrant visa interview subsequent to the approval of the 
petition, the Beneficiary stated that she had made payments to an intermediary company which then 
paid her representative in this case. The Director stated that the Petitioner had thus willfully 
misrepresented a material fact when it responded "no" to question 23 in Part I of the ET A Form 9089, 
Application for Permanent Employment Certification, which asks whether the employer had received 
payment of any kind for submission of the application. 
As indicated by the Director, the regulation at 20 C.F.R. § 656.12(b) states in pertinent part: 
An employer must not seek or receive payment of any kind for any activity related to 
obtaining permanent labor certification, including payment of the employer's attorneys' 
fees, whether as an incentive or inducement to filing, or as a reimbursement for costs 
incurred in preparing or filing a permanent labor certification application ... An alien may 
pay his or her own costs in connection with a labor ce1iification, including attorneys' fees 
for representation of the alien, except that where the same attorney represents both the alien 
and the employer, such costs shall be borne by the employer. 
The Director stated in the NOIR that under 20 C.F.R. § 656.12(b), the Petitioner's response on the 
labor certification misrepresents its receipt of payment in exchange for the application's submission. 
He further noted that the Petitioner's signatory, in signing the Form I-140, certified to the truth and 
accuracy of all of the evidence submitted in support of the petition. However, after providing the 
information from the consulate and the grounds for possible revocation, the Director's NOIR 
improperly requested the submission of evidence pertaining to the Beneficiary's employment 
experience, not to any prohibited payments relating to obtaining the permanent labor certification. 5 
As such it was not properly issued in accordance with 8 C.F .R. § 205 .2(b ), which requires that a 
2 Matter ofS- and B-C-, 9 I&N Dec. 436,447 (BIA 1961). 
3 Sergueeva v. Holder, 324 Fed. Appx. 76 (2d Cir. 2009) ( citing Matter ofKai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 
1975). 
4 See Matter ofHealy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). 
5 We note that the minimum requirements for the offered position do not include work experience requirements, nor is 
such evidence relevant to the Beneficiary's eligibility for the requested classification. 
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petitioner be given an opportunity to offer evidence in support of the petition and in opposition to the 
grounds alleged for revocation. 
In addition, the Director's NOR does not include consideration of the Petitioner's NOIR response, and 
it includes a ground of revocation of which the Petitioner was not notified in the NOIR. Specifically, 
in the NOR, the Director noted that the Petitioner checked "no" in response to question 9 of Part eon 
the ETA 9089, which asks whether there is a business or familial relationship between the Petitioner 
and the Beneficiary, and that this response also constituted willful misrepresentation of a material fact. 
Although the Director concluded that a familial relationship exists between the Petitioner and the 
Beneficiary, he did not refer to evidence in the record to support this assertion, and our review of the 
record does not find any such evidence. In addition, because the issue was not raised in the NOIR, it 
cannot form the basis of the revocation. See 8 e.F.R. § 205.2(b); Matter ofEstime, 19 I&N Dec. at 
451. 
For the reasons stated above, we will withdraw the Director's decision and remand this matter to the 
Director to review the entirety of the record and to issue a new NOIR concerning the Petitioner's and 
the Beneficiary's eligibility for the requested benefit, and whether the Petitioner willfully 
misrepresented material facts. When considering this evidence, the Director should note that the 
regulation at 20 e.F.R. § 656. l 2(b) does not prohibit the beneficiary of a petition from paying costs 
associated with the preparation and filing of a Form I-140 petition, whether or not they and the 
petitioner are represented by the same attorney. Upon receipt of a timely response to the new NOIR, 
or the expiration of the time period to respond, the Director should review the entire record, including 
the materials submitted on appeal, and enter a new decision. 
B. Ability to Pay the Proffered Wage 
Although not addressed by the Director in the NOIR or NOR, the record does not establish that the 
Petitioner has the continuing ability to pay the wage proffered to the Beneficiary from the priority 
date. This issue should therefore also be addressed by the Director on remand. 
A petitioner must establish its continuing ability to pay the proffered wage from the priority date of 
the petition. 8 e.F .R. § 204.5(g)(2). Evidence of ability to pay must generally include annual reports, 
federal tax returns, or audited financial statements. Id. If a petitioner employs 100 or more workers, 
users may accept a statement from a financial officer attesting to the petitioner's ability to pay the 
proffered wage. Id. 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 users. Id. 
In determining ability to pay in revocations, users first determines whether the petitioner paid the 
beneficiary the foll proffered wage each year from the priority date to the date of the petition's 
approval. If the petitioner did not pay the proffered wage in any given year, users next determines 
whether the petitioner had sufficient net income or net current assets to pay the proffered wage 
(reduced by any wages paid to the beneficiary) during that same timeframe. 
If net income and net current assets are insufficient, users may consider other relevant factors, such 
as the number of years the petitioner has been in business, the size of its operations, the growth of its 
business over time, its number of employees, the occurrence of any uncharacteristic business 
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expenditures or losses, its reputation within its industry, or whether a beneficiary will replace a current 
employee or outsourced service. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 
1967). 
Here, Section G of the labor certification indicates that the proffered wage is $8.28 per hour, or 
$17,222 on an annual basis. As previously indicated, the priority date in this matter is June 14, 2017; 
the petition was approved on September 8, 2018. 
The Form I-140 indicates that the Beneficiary resides in Vietnam, and the Petitioner does not claim to 
have previously employed her. It cannot therefore establish its ability to pay the offered wage based 
upon previous payments to the Beneficiary. 
The record does not include copies of the Petitioner's annual reports, federal tax returns, or audited 
financial statements, but it did submit a letter from its Chief Financial Officer (CFO) stating that it 
employed "roughly 220" full-time employees "at any given time throughout the year" and is able to 
pay all of the foreign workers it seeks to employ. However, while the labor certification states that it 
employs 220 workers, the record does not include supporting documentation which verifies the 
number of workers employed by the Petitioner. Also, the CFO' s letter does not provide any financial 
information supporting the Petitioner's ability to pay the proffered wage. 
In addition, USCIS records indicate that the Petitioner has filed dozens of Form I-140 petitions for 
other beneficiaries. A petitioner must demonstrate its ability to pay the proffered wage of each petition 
it files until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner 
must therefore demonstrate its ability to pay the combined proffered wages of this Form I-140 petition 
and any others it filed that were approved or pending as of this petition's priority date of June 14, 
2017, or filed thereafter. 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, the petitioner did not demonstrate 
its ability to pay the combined proffered wages of multiple petitions). While USCIS may accept a 
statement from a financial officer regarding ability to pay, we are not required to do so. Here, the 
Petitioner's obligation to demonstrate its ability to pay the combined proffered wages of multiple Form 
I-140 petitions merits additional scrutiny. Therefore, if the Director finds the CFO' s statement 
insufficient to demonstrate the Petitioner's ability to pay, in addition to the required evidence per 
8 C.F.R. § 204.5(g)(2), he should request the Petitioner to submit in response to the new NOIR a list 
of all Form I-140 petitions that were pending or approved as of, or filed after, the priority date of the 
current petition. 6. 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 permanent residence). The Petitioner may also submit additional evidence 
of its ability to pay the combined proffered wages, including proof of any wages it paid applicable 
6 The Petitioner's ability to pay the proffered wage of one of the other I-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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beneficiaries in relevant years or materials supporting the factors stated in Sonegawa. See Sonegawa, 
12 I&N Dec. at 614-15. 
III. CONCLUSION 
For the reasons discussed above, we will remand this matter to the Director to review the entirety of 
the record and to issue a new NOIR concerning the Petitioner's and the Beneficiary's eligibility for 
the requested benefit, and whether the Petitioner willfully misrepresented material facts. Upon receipt 
of a timely response, or the expiration of the time period to respond, the Director should review the 
entire record, including the materials submitted on appeal, and enter a new decision. 
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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