remanded EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
In Re: 01641347 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 26, 2022 
The Petitioner, a limited service restaurant, seeks to employ the Beneficiary as a food service worker. 
It requests classification of the Beneficiary as an "other worker" under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 U.S.C. 
§ 1153(B)(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent residence a foreign national who is capable of performing 
unskilled labor that requires less than two years of training or experience and is not of a temporary or 
seasonal nature. 
The Director of the Texas Service Center denied the petition. The Director determined that the 
Petitioner did not establish that it intended to employ the Beneficiary in a permanent full-time position, 
and thus failed to establish that the proffered position was a bona fide job offer. 
On appeal the Petitioner contends that the Director misconstrued its internal designations of part-time 
employees (paid on an hourly basis) and full-time employees (paid a yearly salary). The Petitioner 
asserts that the Beneficiary will be employed as a full-time permanent employee. The Petitioner also 
claims that its part-time hourly employees actually work over 35 hours per week, the equivalent of 
full-time employment, as reflected in the company's payroll records. 
The AAO conducts appellate review on a de nova basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The burden is on the petitioner in visa petition proceedings to establish eligibility for the 
benefit sought. See Matter of Brantigan, 11 l&N Dec. 493 (BIA 1966). The petitioner must prove by 
a preponderance of the evidence that the beneficiary is fully qualified for the benefit sought. See 
Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). To establish its eligibility for the 
immigration benefit it seeks under the preponderance of the evidence standard, the petitioner must 
submit sufficiently probative and credible evidence to establish that its claim is "more likely than not" 
or "probably" true. See Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
Upon de nova review, we determine that the Petitioner has established, by a preponderance of the 
evidence, that it intends to employ the Beneficiary in the proffered position on a full-time permanent 
basis. Accordingly, we will withdraw the Director's decision, and remand the case for adjudication 
within the statutory and regulatory framework for 1-140 immigrant visa petitions. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, 
the foreign national 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. 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish, among 
other things, that it has the ability to pay the proffered wage stated in the labor certification. As 
provided in the regulation at 8 C.F.R. § 204.5(g)(2): 
The petitioner must demonstrate this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence. Evidence of 
this ability shall be either in the form of copies of annual reports, federal tax returns, or 
audited financial statements. In a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. 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 [USCIS]. 
II. ANALYSIS 
With respect to the basis for the Director's decision, the Petitioner's assertions on appeal are 
persuasive. The Petitioner must prove eligibility by a preponderance of evidence, such that the 
applicant's claim is "probably true" based on the factual circumstances of each individual case. Matter 
of Chawathe; Matter of E-M-. We find that the Petitioner has met that burden with respect to the 
Director's findings. Accordingly, we will withdraw the Director's decision. 1 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date2 of the petition onward. In this case the proffered wage is 
$16,973 per year and the priority date is February 16, 2017. 
1 We recognize that that the Director raised significant if somewhat speculative concerns. While not sufficiently developed 
for purposes of this visa petition, the Director is not barred from further inquiry, investigation, or the development of 
questions for consular processing or adjustment of status proceedings. See Matter of 0, 8 I&N Dec. 295 (BIA 1959) 
(stating that the immigrant visa petition is not the appropriate stage of the process for questions regarding admissibility). 
2 The "priority date" of an employment-based immigrant petition is the date the underlying labor certification application 
is filed with the DOL See 8 C.F.R. § 204.5(d). 
2 
In determining a petitioner's ability to pay the proffered wage, users first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 e.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
In this case the record indicates that the Beneficiary has never been employed by the Petitioner. 
Therefore, the Petitioner has not established its ability to pay the proffered wage from the priority date 
of February 16, 2017, onward based on wages paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount equal to or above the 
proffered wage from the priority date onward, users will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax retum(s), annual report(s), or audited 
financial statements(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the beneficiary 
in a given year, the petitioner would ordinarily be considered able to pay the proffered wage during 
that year. When a petitioner has filed other I-140 petitions, however, it must establish that its job offer 
is realistic not only for the instant beneficiary, but also for the beneficiaries of its other I-140 petitions 
(I-140 beneficiaries). A petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
eomm'r 1977). Accordingly, a petitioner must demonstrate its ability to pay the combined proffered 
wages of the instant beneficiary and every other I-140 beneficiary from the priority date of the instant 
petition until the other I-140 beneficiaries obtain lawful permanent resident status. See Patel v. 
Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding our denial of a petition where a petitioner 
did not demonstrate its ability to pay multiple beneficiaries). 3 
The record indicates that the Petitioner has filed I-140 petitions for multiple beneficiaries. However, 
the Petitioner has not submitted any form of regulatory required evidence - neither federal income tax 
returns, nor annual reports, nor audited financial statements - for the priority date year of 2017 or any 
subsequent year. Without such documentation we are unable to determine the Petitioner's continuing 
ability to pay the proffered wages of the instant Beneficiary and its other I-140 beneficiaries based on 
its net income or net current assets from the priority date of February 16, 2017, onward. 
Therefore, we will remand this case for the Director to request the submission of regulatory required 
evidence from the Petitioner, as specified in 8 C.F.R. § 204.5(g)(2), for the priority date year of 2017 
and any subsequent year( s) in the Director's discretion. The Director may also request any other 
evidence that may be deemed necessary to determine the Petitioner's eligibility for the requested 
immigration benefit. 
3 The Petitioner's ability to pay the proffered wage of one of the other 1-140 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. 
3 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's eligibility for the immigration benefit it seeks on behalf of the Beneficiary. 
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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