remanded EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 6, 2023 In Re: 26912689 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner , a sole proprietor of a donut shop, seeks to permanently employ the Beneficiary as a 
donut baker. The Petitioner requests his classification under the third-preference, immigrant visa 
category as an "other worker." See Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(iii) , 8 U.S.C. § 1153(b )(3)(A)(iii). This category allows a prospective U.S. employer to 
sponsor a noncitizen for lawful permanent residence to work in a job requiring less than two years of 
training or experience. Id.; 8 C.F.R. § 204.5(1)(2) ( defining the term "other worker"). 
After initially granting the petition, the Director of the Texas Service Center revoked the tiling 's 
approval. The Director concluded that the Petitioner did not establish the availability of the offered 
position to U.S. workers. On appeal, the Petitioner contends that, although she knew the Beneficiary 
before applying for the accompanying certification from the U.S . Department of Labor (DOL), the job 
opportunity is bona fide. 
In these revocation proceedings, the Petitioner bears the burden of demonstrating eligibility for the 
requested benefit by a preponderance of the evidence. See Matter ofHo, 19 I&N Dec . 582, 589 (BIA 
1988) ( citation omitted). Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 l&N 
Dec . 537, 537 n.2 (AAO 2015), we conclude that the Director lacked authority to determine the job 
opportunity's bona fides and will therefore withdraw his decision. But the record does not demonstrate 
the Petitioner's required ability to pay the offered position's proffered wage. We will therefore remand 
the matter for entry of a new decision consistent with the following analysis . 
I. LAW 
Immigration as an other , or unskilled , worker generally follows a three-step process . First, a 
prospective employer must obtain DOL certification that: there are insufficient U.S. workers able, 
willing, qualified, and available for an offered position; and permanent employment of a noncitizen in the 
position would not harm wages and working conditions of U.S. workers with similar jobs . Section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. 
§ l 154(a)(l)(F). Among other things, USCIS determines whether a noncitizen beneficiary meets the 
requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. 
§ 204.5(1)(3)(ii)(D), (4). 
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 ]t any time" before a beneficiary obtains lawful permanent residence, however, USCIS may revoke 
a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by sufficient evidence, the erroneous nature of a petition's approval justifies its revocation. 
Matter ofHo, 19 I&N Dec. at 590. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition if the unrebutted and unexplained 
record would have warranted the filing's denial. Matter ofEstime, 19 I&N Dec. 450,451 (BIA 1987). 
The Agency properly revokes a petition's approval if a petitioner does not respond to a properly issued 
NOIR, or their NOIR response does not overcome all alleged revocation grounds. Id. at 451-52. 
II. ANALYSIS 
A. Bona Fides of the Job Opportunity 
A labor certification employer must attest that its 'job opportunity has been and is clearly open to any 
U.S. worker." 20 C.F.R. § 656.10(c)(8). If an employer's owner or officer has a family relationship 
with a sponsored noncitizen or the noncitizen would be one of a small number of employees, the 
employer must be able to demonstrate the job's availability to all U.S. workers. 20 C.F.R. § 656.17(1). 
The Director's NOIR describes various ties that existed between the Petitioner and the Beneficiary 
before the labor certification application's filing in 2015. The NOIR notes that USCIS records indicate 
the Beneficiary's U.S. residence with the Petitioner and her spouse from 2000 to 2003. Asked in part 
C.9 of the labor certification "is there a familial relationship between the owners, stockholders, 
partners, corporate officers, or incorporators, and the alien?' the Petitioner indicated "No." But, as the 
Petitioner and the Beneficiary share the same South Korean nationality and family name, the NOIR 
alleges a family relationship between them. Also, the Petitioner indicated on the Form 1-140, 
Immigrant Petition for Alien Workers, that this was the first immigrant visa petition for the 
Beneficiary. But USCIS records show that the Petitioner and her spouse operated a prior business that 
petitioned for the Beneficiary in 2006. 
In response to the NOIR, the Petitioner admitted that she knew the Beneficiary before 2015. She 
stated that: her spouse supervised him at an electronics business in South Korea from 1980 to 1983; 
she and her spouse rented him, his spouse, and two children a room in their home from 2000 to 2003; 
and the prior electronics business of the Petitioner and her spouse unsuccessfully sponsored him for 
U.S. lawful permanent residence. But the Petitioner denied any family relationship between her and 
the Beneficiary. As evidence of the job opportunity's bona fides, the Petitioner submitted evidence 
that she has employed the Beneficiary in the offered position since October 2019, after he received an 
employment authorization document allowing him to legally work in the United States. See 8 C.F.R. 
§ 274a.12(c)(9). 
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The Director found that "the evidence demonstrates that the petitioner and beneficiary already knew 
one another, and that the relationship made it easier for the beneficiary to obtain a job from the 
petitioner." The Director also stated that "the evidence does not show that the petitioner made the 
attempt to have the job offer available to all eligible U.S . workers, but solely for the purpose of hiring 
the beneficiary." 
But, as previously indicated, Congress authorized DOL - not USCIS - to determine "that there are not 
sufficient [U.S.] workers who are able, willing, qualified ... and available" for an offered position . 
Section 212(a)(5)(A)(i)(I) of the Act. "[D]eterminations vested by statute with one agency are 
not normally subject to horizontal review by a sister entity, absent congressional authorization to that 
effect." Madany v. Smith, 696 F.2d 1008, 1012 (D.C. Cir. 1983). Thus, USCIS lacks authorization to 
determine the offered position's availability to U.S. workers. 
Even ifUSCIS had authority to consider the job opportunity's bona fides, the Director did not properly 
analyze the availability of the position to U.S. workers. Adjudicators must consider a variety of factors 
under a totality-of-the-circumstances analysis . See Matter of Modular Container Sys., Inc., 1989-
INA-228 (BALCA Jul. 16, 1991) (en bane). The Director cited Modular Container but did not 
consider and weigh the relative factors as the case requires. 
For the foregoing reasons, the Director improperly found insufficient evidence of the job opportunity's 
bona fides. We will therefore withdraw the Director's decision. 
B. Ability to Pay the Proffered Wage 
The appeal overcomes the revocation ground. But the record does not establish the petition's 
approvability. The Petitioner has not demonstrated her required ability to pay the offered position's 
proffered wage. 
A petitioner must demonstrate its continuing ability to pay an offered position's proffered wage, from 
a petition's priority date onward. 8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must generally 
include copies of a petitioner's annual reports, federal tax returns, or audited financial statements. Id. 
The Petitioner's labor certification states the proffered wage of the offered position of donut baker as 
$19,000 a year. The petition's priority date is July 17, 2015, the date DOL accepted the labor 
certification application for processing . See 8 C.F.R. § 204.5( d) ( explaining how to determine a 
petition's priority date). 
USCIS initially approved the petition in February 2019. The Petitioner therefore had to demonstrate 
its ability to pay the proffered wage from 2015, the year of the petition's priority date, until 2019. See 
Matter ofEs time, 19 I&N Dec. at 451 ( asking if the unrebutted and unexplained record would have 
warranted a petition's denial). As a sole proprietor, the Petitioner's business does not constitute an 
entity separate from her. Thus, in determining her ability to pay the proffered wage, USCIS considers 
her personal income, assets, and expenses, along with her ability to support herself and any 
dependents. See Ubeda v. Palmer, 539 F. Supp. 647, 650 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th 
Cir. 1983). 
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As proof of the Petitioner's ability to pay the proffered wage, she submitted a copy of her federal 
income tax return for 2014. Contrary to 8 C.F.R. § 204.5(g)(2), however, the record lacks required 
evidence of her ability to pay the proffered wage from 2015, the year of the petition's priority date, 
onward to 2019. Thus, at the time of the petition's approval, the record did not demonstrate the 
Petitioner's continuing ability to pay the proffered wage. The Director did not inform the Petitioner 
of this evidentiary deficiency. We will therefore remand the matter. 
On remand, the Director should issue a new NOIR, informing the Petitioner of her need to demonstrate 
her ability to pay the proffered wage and affording her a reasonable opportunity to respond with 
evidence, argument, or both. She must provide regulatory required evidence of her ability to pay from 
2015 to 2019. The Petitioner must also provide summaries of her expenses for each year. 
If supported by the record, the new NOIR may include additional, potential grounds of revocation. 
The Director, however, must inform the Petitioner of each ground and provide her with 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. 
III. CONCLUSION 
The Director improperly found insufficient evidence of the job opportunity's bona fides. The 
Petitioner, however, did not demonstrate her ability to pay the offered position's proffered wage. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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