remanded EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
InRe : 1518667 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 28, 2021 
The Petitioner, an operator of franchise restaurants, seeks to employ the Beneficiary as a food service 
worker. The company requests his classification under the third-preference, immigrant category for 
"other workers." Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). 
The Director of the Texas Service Center denied the petition and dismissed the Petitioner's following 
motion to reconsider. 1 The Director concluded thatthe company didn't demonstrate its required intent 
to employ the Beneficiary on a full-time basis . 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S. C. § 13 61 ( discussing the burden of proof); see also 
MatterofChawathe, 25 I&N Dec.169, 175 (AAO 2010) (discussing the standard of proof). Upon de 
nova review, we will withdraw the Director's decision and remand the matter for entry of a new 
decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an "other," or unskilled, worker generally follows a three-step process. First, a 
prospective employer must apply to the U.S. Department of Labor (DOL) for certification that: (1) 
there are insufficient U.S. workers able, willing, qualified, and available for an offered position; and (2) 
the employmentofa non citizen in the position won't harm wages and working conditions ofU.S. workers 
with similar jobs . See section212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit an approved labor 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. 
Among other things, USCIS determines whether a noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
1 The record indicates that USCIS mailed the petition's denial to an affiliate of the Petitioner. The Petitioner, however, 
hasn't alleged that the error prejudiced it. 
Finally, if USCIS approves a petition, a designated non citizen 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. 
II. THE MOTION TO RECONSIDER 
A motion to reconsider must establish that the challenged decision misapplied law or policy based on 
the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). In contrast, a motion to reopen must 
state new facts, supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). 
The Petitioner filed a Form I-290B, Notice of Appeal or Motion, designating the submission as a 
"motion to reconsider." Consistent with criteria for such motions, the filing omitted accompanying 
evidence. Neve1iheless, the Director's decision concludes: "The evidence submitted with the motion 
to reopen does not establish that the requirements for filing a motion to reopen have been met." 
As the Petitioner argues on appeal, the record indicates the Director's mistreatment of the company's 
motion to reconsider as a motion to reopen. By applying requirements for a motion to reopen, the 
Director erroneously denied the Petitioner's motion to reconsider. 
This error would justify a remand for reconsideration of the Petitioner's motion. Also, however, the 
record doesn't support the petition's denial based on the company's lack of intent to employ the 
Beneficiary on a full-time basis. 
III. INTENTION TO EMPLOY ON A FULL-TIME BASIS 
A petitioner must intend to employ a beneficiary under the terms and conditions of an accompanying 
labor certification. See Matter ojlzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a a 
petition's denial where, contrary to the terms of the accompanying labor certification, the petitioner 
didn't intend to employ a beneficiary as a domestic worker on a full-time, live-in basis). For labor 
certification purposes, the term "employment" means "[p ]ermanent, full-time work." 20 C.F.R. 
§ 656.3. 
The Petitioner attested on the Form I-140 and labor certification that it intends to permanently employ 
the Beneficiary in the offered position of food service worker on a full-time basis. Pursuant to the 
Director's request for additional evidence (RFE), the Petitioner submitted a list of its employees at the 
restaurant where the Beneficiary would work and copies of the eatery's work schedules for a four­
week period from September 201 7 to October 201 7. The employee list classifies some of the workers 
as full-time and others as part-time. The work schedules similarly assign some workers to 35 hours a 
week or more, and others to lesser amounts. See Memorandum from Barbara Ann Farmer, Admin'r 
for Reg'l Mgm't, Div. of Foreign Labor Certification, DOL, Field Memorandum No. 48-94 2 (May 
16, 1994) (stating that, for most occupations, full-time employment means at least 35 weekly hours of 
work). 
The record lacked evidence that the restaurant's employees worked and received compensation for 
their scheduled hours. The Director therefore found the Petitioner's materials insufficient to establish 
its full-time employment of restaurant employees. He also noted that the company didn't explain why 
the restaurant scheduled some employees, classified as full-time on the list, to work less than 35 hours 
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each week. In concluding that the Petitioner didn't establish its intent to employ the Beneficiary on a 
full-time basis, the decision stated: "Based on the evidence submitted, it is unlikely that the petitioner 
actually employs non-managerial staff as full-time employees." 
As the Petitioner argues, however, the Director didn 'trequest evidence that the restaurant's employees 
worked and received wages for their scheduled hours. Rather, in inquiring about the Petitioner's 
employment of non-managerial workers, the RFE specifically requested a listing of the restaurant's 
employees and its four most recent work schedules. Without providing the Petitioner an opportunity 
to submit additional evidence of the employees' work and wages, the Director shouldn't have rejected 
evidence that he specifically requested. See USCIS Policy Manual, Vol. 1, PartE, Ch. 6, F.3 "Requests 
for Evidence," https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-6 (last visited Sep. 24, 
2021) (stating that "[t]he RFE should ask for all the evidence the officer anticipates needing to 
determine eligibility"). 
Also, despite inconsistencies between the restaurant's employee list and work schedules, the 
documents indicate that, during the four-week period, the restaurant consistently scheduled at least 
three, non-managerial employees to work on full-time bases. Thus, contrary to the decision's 
conclusion, the record indicates that the Petitioner employs non-managerial staff on a full-time basis. 
In addition, the Petitioner submitted letters from: its chief legal officer, stating its intentto permanently 
employ the Beneficiary on a full-time basis; the restaurant's director of operations, stating that it offers 
full-time employment to U.S. job applicants; and the Beneficiary, stating his intent to work full-time 
in the offered position. 
Thus, a preponderance of evidence establishes the Petitioner's intent to permanently employ the 
Beneficiary on a full-time basis. We will therefore withdraw the Director's decision. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The appeal overcomes the denial ground. But the record doesn't establish the Petitioner's required 
ability to pay the proffered wage of the offered position. 
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's priority 
date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of 
ability to pay must generally include copies of annual reports, federal income tax returns, or audited 
financial statements. Id. 
The accompanying labor certification states the proffered wage of the offered position of food service 
worker as $18,554 a year. The petition's priority date is October 7, 2016, the date DOL accepted the 
labor certification application for processing. 8 C.F.R. § 204.S(d) (explaining how to determine a 
petition's priority date). 
The Petitioner submitted copies of audited financial statements for 2016, the year of the petition's 
priority date. The Director, however, denied the petition in November 2007 and didn't dismiss the 
company's motion to reconsider until January 2018. Contrary to 8 C.F.R. § 204.5(g)(2), the record 
lacks required evidence of the Petitioner's ability to pay the proffered wage in 2017 and the years that 
have since followed. 
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Also, USCIS records show that, since before the petition's denial, the Petitioner filed Form I-140 
petitions for other beneficiaries. A petitioner must demonstrate its ability to pay the proffered wages 
of each petition it files until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
This Petitioner must therefore demonstrate its ability to pay the combined proffered wages of this 
petition and any others that were pending or approved as of this petition's priority date of October 7, 
2016 or filed thereafter. See Patelv. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affinning our 
revocation of a petition's approval where, at the time of the filing's grant, the petitioner didn't 
demonstrate its ability to pay the combined proffered wages of multiple petitions). 2 
The Director didn't notify the Petitioner of these evidentiary deficiencies. We will therefore remand 
the matter. On remand, the Director should ask the Petitioner to submit copies of annual reports, 
federal income tax returns, or audited financial statements for 2017, 2018, 2019, and 2020. The 
company must also provide the proffered wages and priority dates of its other petitions that were 
pending or approved as of October 7, 2016 or filed thereafter. The Petitioner may also submit 
additional evidence of its ability to pay. Additional evidence may include documentationofany wages 
it paid applicable beneficiaries during relevant years or any materials supporting factors stated in 
Mattero/Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
If supported by the record, the Director may notify the Petitioner of any additional, potential grounds 
of denial. The Director, however, must provide the company a reasonable opportunity to respond to 
all issues raised on remand. Upon receipt of a timely response, the Director should review the entire 
record and enter a new decision. 
V. CONCLUSION 
The record didn't support the Director's denial of the petition or his dismissal of the Petitioner's 
motion to reconsider. The company, however, didn't demonstrate its continuing ability to pay the 
proffered wage from the petition's priority date onward. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
2 The Petitionerneedn't demonstrate its ability to pa yprof-fored wages of petitions that it withdrew or, unless pending on 
appeal or motion, that USCIS rejected, denied, or revoked. The Petitioner also needn't demonstrate its ability to pay 
proffered wages before the priority dates of corresponding petitions or after the dates that corresponding beneficiaries 
obtained lawful permanentresidence. 
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