remanded EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
In Re : 1825643 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 31, 2021 
The Petitioner, an operator of fast-food restaurants, seeks to employ the Beneficiary as a "combined 
food preparation and service worker." The company requests her classification under the third­
preference, immigrant visa category for "other workers." See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(AXiii). 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner didn't demonstrate its required ability to pay the combined proffered wages of this and other 
Form I-140 petitions the company filed . 
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. § 1361 (stating the burden of proof); see also Matter 
of Chawathe, 25 I&N Dec . 369,375 (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. EMPLOYJ\.1ENT-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 employment of a non citizen in the position will not harm wages and working conditions of U.S. 
workers with similar jobs. See section 212(a)(5) of the Act, 8 U.S.C. § 1182(aX5). 
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). 
Finally, if USCIS approves a petition, a designated noncitizen 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. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). This petition's priority date is January 30, 2017, the date DOL received the 
accompanying labor certification application for processing. See 8 C.F.R. § 204.5( d) ( explaining how 
to detennine a petition's priority date). Evidence of ability to pay must generally include copies of 
annual reports, federal tax returns, or audited financial statements. 8 C.F.R. § 204.5(g)(2). 
In determining ability to pay, USCIS examines whether a petitioner annually paid a beneficiary the full 
proffered wage from the year of a petition's priority date onward. If a petitioner didn't annually pay 
the full proffered wage or didn't pay a beneficiary at all, USCIS considers whether the business 
generated annual amounts of net income or net cunent assets sufficientto pay any differences between 
the proffered wage and the wages paid. If net income and net cunent assets are insufficient, USCIS 
may consider other factors affecting a petitioner's ability to pay the proffered wage. See Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 1 
The accompanying labor certification states the proffered wage of the offered position of food 
preparation/service worker as $16,994 a year, or, based on a 40-hour work week, about $8.17 an hour. 
The Form I-140 and the Beneficiary's resume indicates that she lives in Vietnam. The Petitioner does 
not claim to have ever employed her and did not provide evidence of any payments it made to her. 
Thus, based solely on wages paid, the Petitioner has not demonstrated its ability to pay the proffered 
wage. 
At the time of the petition's filing in August 2017, financial evidence of the Petitioner's ability to pay 
the proffered wage was not yet available for 2017, the year of the petition's priority date. The 
Petitioner submitted copies of its audited financial statements for 2016 and 2015 and a copy of its 
federal income tax return for 2015. The company also provided a letter from its chief financial officer 
(CFO) stating the company's employment of more than 7,400 people and net income in 2016 
exceeding $30 million. 2 
In a request for additional evidence (RFE), the Acting Director of the Texas Service Center notified 
the Petitioner that USCIS records show the company's filing 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 pe1manent 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 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, at the time of the filing' s grant, the petitioner did not demonstrate its ability to pay the combined 
1 Federal courts haveupheld USCIS' method of determining a petitioner's ability to pay a proffered wage. Sec, e.g., River 
St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (I st Cir. 2009); Rivzi v. Dep 't of Homeland Sec., 3 7 F. Supp. 3d 870, 
883-84 (S.D. Tex.2014),affd, 627Fed. App'x. 292(5thCir.2015). 
2 Because evidence indicates the Petitioner's employment of at least 100 people, the Director may accept the CFO's 
statement as proof of the company's ability to pay the proffered wage. See 8 C.F.R. § 204.5(g)(2). The new decision 
should statewhethertheDirector accepts theCFO's statement as proof and, if not, why not. 
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proffered wages of multiple petitions). 3 Thus, the RFE asked the Petitioner to provide additional 
evidence and in formation regarding its other Form 1-140 petitions, including a list of its petitions filed 
"as of the priority date, and continuing until the date of this notice." As previously indicated, this 
petition's priority date is January 30, 2017. USCIS mailed the RFE on September 5, 2017. 
The Petitioner's RFE response contained a list of 366 Fonns 1-140 the company filed, including this 
petition, and infomiation about the filings. 4 The Director concluded that the company submitted "an 
incomplete list of filings." The decision states that the Petitioner's list includes the company's Form 
1-140 filings up to January 2017. But the decision suggests that the list and corresponding information 
omits about 130 petitions the Petitioner filed between the petition's priority date in January 2017 and 
the RFE' s issuance in September 2017. Determining that the Petitioner omitted requested evidence, 
the Director found the record insufficient to demonstrate the company's ability to pay the combined 
proffered wages of all its applicable petitions. 
As the Petitioner argues on appeal, however, the Director appears to have mistaken the priority dates 
of the petitions on the Petitioner's list for their dates of filing. The company's list reflects virtually 
all Form 1-140 filings it made through September 5, 201 7. USCIS records confirm the listed filings 
and show no others, except two that were denied and one that was withdrawn. Thus, the Director erred 
in finding that the Petitioner omitted requested evidence. We will therefore withdraw the Director's 
decision. 
The Petitioner provided the proffered wages of its 366 petitions, totaling $6,397,537.80. 5 As 
previously indicated, the company's audited financial statements reflect net income of more than $30 
million in 2016. The Petitioner therefore argues that it has demonstrated its ability to pay the combined 
proffered wages of this and its other applicable petitions. 
Unless the Director accepts the CFO's statement, however, the record lacks regulatory required 
evidence of the Petitioner's ability to pay in 201 7, the year of the petition' spriority date, and thereafter. 
We will therefore remand the matter. On remand, ifrejectingthe CFO' s statement, the Director should 
ask the Petitioner to submit copies of annual reports, federal tax returns, or audited financial statements 
for 2017, 2018, 2019, and 2020. See 8 C.F.R. § 204.5(g)(2)(requiring a petitioner to demonstrate its 
ability to pay from a petition's priority date "and continuing until the beneficiary obtains lawful 
permanent residence"). The Petitioner may also submit additional evidence of its ability to pay, 
including proof of any wages it paid applicable beneficiaries in relevant years and materials supporting 
the factors stated in Sonegawa. See Matter ofSonegawa,12 l&N Dec. at 614-15. 
If supp01ied by the record, the Director may notify the Petitioner of any additional potential grounds 
of denial. The Director, however, must afford the company a reasonable opportunity to respond to all 
3 The Petitionerneed not demonstrate its ability to pay proffered wages of petitions that it withdrew, or, unless pending on 
appeal or motion, that USC IS rejected, denied, orrevoked. The Petitioner also need not demonstrate its ability to pay 
proffered wages before the priority dates of corresponding petitions ora fterthe dates corresponding beneficiaries obtain 
lawful permanent residence. 
4 
The Petitioner's ]ist numbers 3 72 petitions. But the doc=9rntli ,t' tho folloutgt netjtjans twice· I I l;I I.___ ___ ___..___ ___ ___., an I 
5 We subtracted the proffered wages of the six petitions thatwere listed twice. 
3 
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 erred in finding that the Petitioner omitted requested infmmation about its other Fmm I-
140 filings. Unless the Director accepts the CFO's statement, however, the record lacks updated 
evidence of the company's continuing ability to pay the combined proffered wages of this and its other 
applicable petitions. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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