remanded EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
In Re : 644852 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 3, 2022 
The Petitioner seeks to employ the Beneficiary as a food service worker. It requests classification of 
the Beneficiary as an unskilled worker under the third preference immigrant classification. 
Immigration and Nationality Act (the Act) 203(b)(3)(AXiii) , 8 U.S.C. § 1153(bX3XA)(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 
expenence . 
The Director of the Texas Service Center denied the petition for three separate grounds. First, the 
Director concluded that the Petitioner did not establish it had the ability to pay the Beneficiary the 
proffered wage as of the priority date. Second, the Director determined that the Petitioner did not 
establish that it intended to employ the Beneficiary in a full-time position , and thus failed to establish 
that it made a bona fid e job off er. Third , the Director found thatthe Petitioner willfully misrepresented 
a material fact in seeking the requested benefit and invalidated the labor certification . On appeal , the 
Petitioner asserts that it was able to pay the Beneficiary the proffered wage as of the priority date , that 
it made a bona fid e job offer , and that it did not misrepresent a material fact in seeking the requested 
benefit. 
In these proceedings, it is the Petitioner 's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C . § 1361. Upon de nova review , we will withdraw the Director 's 
decision and remand the matter to the Director for the entry of a new decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Immigration as an unskilled worker generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker, a prospective employer must first obtain 
certification from the U .S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. 
§ 1182(a)(5). DOL approval signifies that insufficient U .S. workers are able , willing , qualified , and 
available for a position. Id. Labor certification also indicates that the employment of a noncitizen will 
not harm wages and working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application 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 considers whether a beneficiary meets the 
requirements of a ce1iified position and a requested immigrant visa classification. If USCIS approves 
the petition, a noncitizen may finally 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. 
The term "other worker" is defined in the regulation at 8 C.F.R. § 204.5(1)(2) as follows: 
Other worker means a qualified [ noncitizen] who is capable, at the time of petitioning 
for this classification, of performing unskilled labor (requiring less than two years 
training or experience), not of a temporary or seasonal nature, for which qualified 
workers are not available in the United States. 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(D) states that a petition for an unskilled worker must be 
accompanied by evidence that the non citizen meets any educational, training and experience, and other 
requirements of the labor certification. 
In addition, a beneficiary must meet all of the education, training, experience, and other requirements 
specified on the labor certification as of the petition's priority date. See Matter of Wing 's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
II. ANALYSIS 
There are three issues on appeal: (1) whether the Petitioner's job offer was bona fide; (2) whether the 
Petitioner willfully misrepresented a material fact in seeking the requested benefit; and (3) whether 
the Petitioner had the continuing ability to pay the proffered wage from the priority date onward. 
Before addressing whether the Petitioner had the continuing ability to pay the proffered wage, we first 
withdraw the Director's conclusions that the Petitioner did not make a bona.fide job offer and that the 
Petitioner willfully misrepresented a material fact in seeking the requested benefit. 
A. Bona Fide Job Off er 
In reaching the conclusion that the Petitioner's job offer was not bona.fide, the Director noted that the 
Petitioner did not inform DOL that the Beneficiary's work history included working full time as an 
English teacher at a language institute in South Korea; instead, the Petitioner informed DOL that the 
Beneficiary worked as the vice president of that language institute. The Director also noted that the 
Petitioner required prospective workers to provide their employment history, even though its stated 
job requirements did not require any prior work experience. The Director further noted that the 
Petitioner's job postings provided inconsistent statements regarding whether the position requires a 
high school education, or no particular level of education. Additionally, the Director noted that the 
Petitioner's recruitment report stated that it received no resumes, but the Job Order Print indicates that 
the Virginia Workforce Commission referred 50 prospective workers. Based on those observations, 
the Director concluded that "the [P]etitioner failed to submit any evidence to show that the 
[B]eneficiary has the intent to abandon her family affairs to be employed as a sushi chef with the 
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[P]etitioner on a full-time basis" and that the record did not establish "whether a bona fide job offer 
exists and whether the job opportunity was clearly open to any qualified U.S. worker." 
On appeal, the Petitioner reasserts that the proffered position as a food serviceworkerrequires no prior 
employment experience; therefore, whether the Petitioner disclosed prior employment experience to 
DOL was immaterial to its function in confirming the unavailability of U.S. workers to fill the position 
and that the employment of a noncitizen would not adversely affect domestic workers, referencing 
section 212(a)(5) of the Act. Moreover, the Petitioner submits a declaration from the Beneficiary, which 
reasserts, as she did in another declaration in the record, that she co-founded the language institute with 
her former husband, her title was vice president and she performed multiple tasks, including business 
management, but she primarily taught English until she divorced her husband and ended her employment 
at the language institute; therefore, she did not fail to disclose her predominant work experience. The 
Petitioner also clarifies that the Virginia Workforce Commission "referrals" addressed by the Director 
"'were actually a parameter setting of how many total applications would be allowed to be accepted by 
the system," not an indication of how many applications were actually received. The Petitioner submits 
help screen information in support of the appeal that confirms that clarification. Furthermore, the 
Petitioner asserts that a case cited by the Director in questioning whether the Beneficiary's work 
experience supports the conclusion that job offer is bona fide specifically obse1ves, "Consideration may 
also be given to the [ non citizen's] own declaration regarding his intended employment," among other 
factors related to intent to engage in a particular profession. Matter of Semetjian, 11 I&N Dec. 751, 754 
(Reg'l Comm'r 1966). Furthermore, theDirector'sreferenceto the Beneficiaiyworkingas a "sushi chef" 
rather than as a food service worker raises questions regarding the Director's analysis. 
Based on the preponderance of evidence standard, the record does not support the Director's conclusion 
regardingthe bonafidesofthejob offer. SeeMatterofChawathe,25 I&NDec. 369,376 (AAO 2010); 
see also Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). Therefore, we withdraw the 
Director's conclusion that the record does not establish a bona fide job offer. 
B. Willful Misrepresentation of a Material Fact 
In reaching the conclusion that the Petitioner willfully misrepresented a material fact in seeking the 
requested benefit, the Director focused on five issues. First, the Director asserted that an individual 
named Y-H-H- signed the Form I-140, Immigrant Petition for Alien Workers, on behalf of the 
Petitioner, thereby taking "legal responsibility for the truth and accuracy of any evidence submitted in 
support of Form I-140 [sic]." Second, the Director noted that the record contains inconsistent 
information regarding whether the proffered position has any educational or work experience 
requirements. Third, the Director noted that the record contains inconsistent information regarding 
whether the proffered position would be full time or"' (3 0 Hours or More)' which is indicative of part­
time employment." Fourth, the Director noted that the phone number the Petitioner provided in a job 
posting notice was non-functional, "thus, even if there were any individuals interested in the job 
offered, they would have been unable to speak to anybody about scheduling an interview." Fifth, the 
Director reiterated the conflicting information regarding whether the Petitioner had received any 
resumes, addressed above. 
On appeal, the Petitioner disavows that an individual named Y-H-H- signed the Form I-140; instead, 
the Petitioner asse1is that its Chief Legal Officer, an individual namedD-B-, signed the Fonn I-140. 
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A review of the Form I-140 confirms that the Director erred by asserting that an individual named 
Y-H-H- signed the Form I-140. In fact, the Petitioner's Chief Legal Officer, D-B-, signed the Form 
I-140. Next, the Petitioner explains that the "'(30 Hours or More)' portion of the job posting is a 
system limitation of the state workforce site," not a statement by the Petitioner that the proffered 
position would be limited to part-time, rather than full-time, employment. Further, as addressed above, 
the Petitioner clarified that the Virginia Workforce Commission "referrals" addressed by the Director 
"'were actually a parameter setting of how many total applications would be allowed to be accepted by 
the system,"not anindicationofhow many applications were actually received. Additionally, on appeal, 
the Petitioner sufficiently addressed the Director's concerns regarding listing education and work 
requirements, and an inoperable phone number, in its recruiting materials. 
Based on the preponderance of evidence standard, the record does not support the Director's conclusion 
that the Petitioner willfully misrepresented a material fact in seeking the requested benefit. See Matter 
of Chawathe, 25 I&N Dec. at 3 7 6; see also Matter of E-M-, 20 I&N Dec. at 79-80. Therefore, we 
withdraw the Director's conclusion that the Petitioner willfully misrepresented a material fact, and we 
reinstate the labor certification. 
C. Ability to Pay 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. 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 determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage. 1 
Fmiher, where a petitioner has filed Fonn I-140 petitions for multiple beneficiaries, it must demonstrate 
that its job offer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to each 
beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patelv. 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). 
1 Federal courts haveupheld ourmethodofdetermininga petitioner's ability to pay a proffered wage. See, e.g., RiverSt. 
Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F2d 
1305, 1309 (9th Cir. l 984);Estrada-Hcrnandczv. Holder, l 08F. Supp. 3d 936, 942-946(S.D. Cal. 2015); Rizviv. Dep 't of 
Homeland Sec., 3 7 F. Supp. 3d 870, 883-84 (S.D. Tex.2014), aff'd, 627Fed. App'x292,294-295 (5th Cir. 2015). 
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In this case, the proffered wage is $16,827.00 per year. The Petitioner must demonstrate its continuing 
ability to pay the proffered wage from the priority date in 2015 until the Beneficiary obtains lawful 
permanent residence. 8 C.F.R. § 204.5(g)(2). The regulation requires that "[e ]vidence of this ability 
shall be either in the form of copies of annual reports, federal tax returns, or audited financial 
statements." Id. The regulation further provides that if a petitioner employs 100 or more workers, we 
may accept a statement from a financial officer of the petitioner which establishes its ability to pay the 
proffered wage. Id. 
The record contains the combined audited financial statements for the Petitioner and its affiliates for 
2015. The audited financial statements separately state the Petitioner's net income and net current assets 
for 2015 and appear to establish the Petitioner's ability to pay based on its net income in 2015. However, 
in the interim, the Petitioner's franchise tax status has ended in the State of Texas. The Texas 
Comptroller of Public Accounts database lists the Petitioner's corporate status as "franchise tax 
ended." Tex. Comptroller of Pub. Accounts, https://mycpa.cpa.state.tx.us/coa/coaSearchBtn (last 
visited Aug. 3, 2022). This indicates that the "entity has ceased to exist in its state or country of 
formation or has ceased doing business in Texas." Tex. Comptroller of Pub. Accounts, 
https://mycpa.cpa.state.tx.us/coa/FranchiseStatusHelp.jsp (last visited Aug. 3, 2022). 2 
Because the Petitioner has ceased to exist or ceased doing business in Texas, we will remand the matter 
to the Director to determine the Petitioner's status and its continuing ability to pay the Beneficiary the 
proffered wage. 3 We note that the Petitioner has filed multiple Form I-140 petitions for other 
beneficiaries since the 2015 priority date. Therefore, it must establish its ability to pay this Beneficiary 
as well as the beneficiaries of the other Form I-140 petitions that were pending or approved as of, or filed 
after, the priority date of the current petition.4 On remand, the Director should request additionaL 
updated evidence of the Petitioner's ability to pay all of its applicable beneficiaries. The Director should 
allow the Petitioner a reasonable time to respond. The Petitioner may also submit additional materials 
in support of the factors discussed in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 
1967), which permits USCIS to consider the totality of the circumstances affecting a petitioner's 
ability to pay the proffered wage. 5 
2 This information calls into question the Petitioner's intent to employ the Beneficiary at the Texas location specified on 
the labor certification. 
3 If the Petitioner intends to claim that it has a successor-in-interest, it must: (1) fully describe and document the transaction 
transferring ownership of a II, or a relevant part, of the predecessor's business to the successor; (2) demonstrate that the job 
opportunity remains the same as certified by the DOL; and (3) establish eligibility for the requested benefit in a II respects, 
including the ability to pay of the predecessor and the successor. See Matter o(DialAutoRepair Shop, Inc., 19 I&NDec. 481, 
482-83 (Comm'r 1986). 
4 The Petitioner's ability topaytheprofferedwage of one of the other I-140 beneficiaries is not considered: 
• Afterthe other beneficiary obtains lawfulpermanentresidence; 
• If anl-l 40petitionfiledon behalf of the other beneficiary has been withdrawn, revoked, or denied without a pending 
appeal or motion; or 
• Before the priority date of the I-140petition filed on behalfoftheother beneficiary. 
5 In determining the Petitioner's ability to pay theprofferedwage, we may examine such factors as: the numberofyears 
the Petitioner has conducted business; its number of employees; the growth of its business; its incurrence of 
uncharacteristic losses or expenses; its reputation in its industry; the Beneficiary's replacement of a current employee or 
outsourced service; or other factors affecting the Petitioner's ability to pay. See id. 
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We also note that the record contains a letter dated June 28, 2016, from the Petitioner's chief financial 
officer (CFO), stating that the Petitioner has the ability to pay the proffered wage. The CFO asserts 
that the Petitioner employed 1,507 employees at that time and that it had net income of $3,412,224 in 
2015. However, given the Petitioner's terminated franchise tax status and its multiple Form I-140 
filings, we decline to exercise our discretion to accept the letter from the Petitioner's CFO. 
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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