remanded EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
In Re: 1669060 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 31, 2022 
The Petitioner, an operator of franchise restaurants, seeks to employ the Beneficiary as a pizza cook. 
The company requests his classification under the third-preference, immigrant visa 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. The Director concluded that the 
Petitioner did not establish its intent to employ the Beneficiary on a required, full-time basis. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. Seesection291 oftheAct,8 U.S.C. § 1361 (discussingtheburdenofproof);seealso 
MatterofChawathe, 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. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an "other," or "unskilled," worker generally follows a three-step process. First, a 
prospective employer must obtain U.S. Department of Labor (DOL) certification that: ( 1) there are 
insufficient U.S. workers able, willing, qualified, and available for an offered position; and (2) 
employment of a noncitizen in the position would 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 
DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
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. 
II. THE FULL-TIME NATURE OF THE OFFERED POSITION 
A business may file an immigrant visa petition if the enterprise is "desiring and intending to employ 
[a noncitizen] within the United States." Section 204(a)(l )(F) of the Act. A petitioner must intend to 
employ a beneficiary under the terms and conditions of an accompanying labor certification. See 
Matter of Jzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, 
contrary to the accompanying labor ce1iification, the petitioner did not intend to employ the 
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. 
On the petition and accompanying labor certification, the Petitioner attested that it intends to 
permanently employ the Beneficiary as a full-time, pizza cook. The labor ce1iification states that the 
position requires neither training, education, nor experience. The certification states the position's 
proffered wage as $16,744 a year. 
The Director questioned the claimed, full-time nature of the position. He found that "it was not 
credible that the beneficiary, who has worked as a self-employed construction project manager in Iran 
since 2011, would accept an unskilled pizza cook position with the petitioner ... earning only $16,744 
per year." 
The Director's second request for additional evidence (RFE) asked the Petitioner to submit records 
showing the full- or part-time status of its 1,751 employees and their names, work addresses,job titles, 
and hourly wages. In response, the Petitioner provided copies of weekly, work schedules from 
December 2017 to February 2018 at the restaurant where the Beneficiary would work. The company 
also provided copies of work schedules for a week in January 2018 from seven of its other restaurants. 
Of the 194 employees listed in the schedules, the Director noted that most were assigned to work part­
time, i.e., less than 35 hours a week. See DOL Field Memorandum No. 48-94,Policy Guidance on 
Alien Labor Cert. Issues, 2 (May 16, 1994) (requiring full-time,job opportunities to generally offer at 
least 3 5 hours a week). The Director's decision asserts: "Without information about each employee's 
job title and responsibilities, the petitioner has not established by a preponderance of the evidence that 
the beneficiary, as a non-supervisory pizza cook, will work for the petitioner on a full-time basis." 
The weekly work schedules submitted by the Petitioner distinguish managers from non-supervisory 
employees. As the Petitioner argues, the documents show that the company scheduled full-time work 
to some non-managers, including two at the restaurant where the Beneficiary would work. These two 
non-managers primarily worked full-time during the three-month period reflected on the schedules. 
Also, online job-search websites indicate the Petitioner's advertising, outside of the labor certification 
process, for full-time pizza cooks. See Salary.com, https://www.salary.com/research/jobs; 
Jobsearcher, https://jobsearcher. 1 
1 DOL does not require labor certification employers to advertise non-professional positions online. 20 C.F.R. 
§ 656.1 7(e )(2); cf 20 C.F.R. § 656.17( e )(l)(ii)(B), (C) (for professional positions, requiring additional recruitment steps 
that may include advertisements on job-search websites or those oftheprospectiveemployers). 
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Additionally, the Petitioner submitted several letters/affidavits from company officials stating its 
intent to employ the Beneficiary on a full-time basis. A written statement from the Beneficiary also 
indicates his desire to work full-time in the offered position. 
The Director noted that the Petitioner's RFE response did not include all requested evidence. USCIS 
may deny a petition if a petitioner omits requested information that "precludes a material line of 
inquiry." 8 C.F.R. § 103.2(b)(14). 
As the Petitioner argues, however, its omission of requested records regarding the full- or part-time 
status of all its employees does not materially affect the nature of its job offer to the Beneficiary. The 
Petitioner's employment of mostly part-time workers, even in the offered position, does not preclude 
the company's intent to employ the Beneficiary in the job full-time. Company officials stated that, 
although they would prefer to hire more full-time workers, some of its restaurants are understaffed 
and, to operate, must primarily rely on part-time employees. 
The Petitioner has stated its intent to employ the Beneficiary full-time, and he has stated his intent to 
work for the company on that basis. The record indicates that the Petitioner has scheduled non­
supervisory workers to work full-time and, outside of the labor ce1iification process, has adve1iised 
for full-time workers in the offered position. Thus, despite the Petitioner's primary reliance on part-
time workers, a preponderance of evidence demonstrates its intent to employ the Beneficiary on a full­
time basis. We will therefore withdraw the Director's contrary decision. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the Petitioner has not demonstrated its 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 tax returns, or audited financial statements. Id. 
As previously indicated, the accompanying labor certification states the proffered wage of the offered 
position of pizza cook as $16,744 a year. The petition's priority date is June 24, 2016, the date DOL 
accepted the labor certification applicationforprocessing. See 8 C.F.R. § 204.5(d) (explaining how 
to determine a petition's priority date). 
The record indicates that the Beneficiary lives in Iran. The Petitioner did not claim to have ever 
employed him and did not submit any evidence of wages it paid to him. Thus, based solely on wages 
paid, the record does not establish the Petitioner's ability to pay the proffered wage. 
The petition included copies of audited financial statements for 2016. The statements show that the 
company generated net income of $3,613,247 and net current assets of -$5 ,063 ,368. The net income 
amount exceeds the annual proffered wage of $16,744. The Petitioner therefore appears to have the 
ability to pay the Beneficiary's individual proffered wage in 2016, the year of the petition's priority 
date. 
3 
A petitioner, however, must demonstrate its ability to pay a proffered wage "continuing until the 
beneficiary obtains lawful permanent residence." 8 C.F.R. § 204.5(g)(2). The record lacks regulatmy 
required evidence of the Petitioner's ability to pay beyond 2016. The Petitioner therefore has not 
demonstrated its continuing ability to pay the proffered wage. 
Also, USCIS records show that, since November 2015, the Petitioner has filed more than 300 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 permanent residence. 8 C.F.R. 
§ 204.5(g)(2). The Petitioner must therefore demonstrate its ability to pay the combined proffered 
wages of this and any other petitions 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 where, as of the filing' s grant, the petitioner did not demonstrate its ability to 
pay the combined proffered wages of multiple petitions). 2 
The Director did not notify the Petitioner of these evidentiary deficiencies. We will therefore remand 
the matter. On remand, the Director should ask the company to submit copies of its annual reports, 
federal tax returns, or audited financial statements for 2017 through 2022. The Petitioner may also 
submit additional evidence of its ability to pay in those years, including proof that it paid wages to 
applicable beneficiaries or materials supporting the factors stated in Sonegawa. See Matter of 
Sonegawa, 16 I&NDec. at614-15. 
If supported by the record, the Director may notify the Petitioner of any additional, potential denial 
grounds. But he must afford the company a reasonable opportunity to respond to all issued raised on 
remand. See 8 C.F.R. § 103 .2(b )(8)(iv). Uponreceiptof a timely response, the Director should review 
the entire record and issue a new decision. 
IV. CONCLUSION 
The record does not support the Petitioner's alleged lack of intent to employ the Beneficiary on a full­
time basis. The company, however, has not demonstrated its continuing ability to pay the position's 
proffered wage. 
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 Petitionerneednotdemonstrateits ability to payproffered wages ofpetitions that it withdrew or-unless pending on 
appeal or motion - that USCIS rejected, denied, or revoked. The Petitioner also need not demonstrate its ability to pay 
proffered wages before the priority dates of corresponding petitions or after corresponding beneficiaries obtained lawful 
permanent residence. 
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