remanded EB-3 Case: Horse Racing

U.S. Citizenship 
and Immigration 
Services 
In Re: 20224300 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 07, 2022 
The Petitioner, a harness racing stable, seeks to employ the Beneficiary as a groom. It requests 
classification of the Beneficiary as an "other" worker under the third preference immigrant 
classification. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C . 
§ 1153(b )(3)(A)(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 experience. 
The Director of the Texas Service Center denied the petition, concluding that the Beneficiary had 
willfully misrepresented material facts regarding her work history . The matter is now before us on 
appeal. 
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 
finding of willful misrepresentation and remand the matter for the entry of a new decision. 
I. EMPLOYMENT-BASED IMMIGRATION 
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 noncitizen in the position will not adversely affect the wages and working conditions 
of similarly employed domestic workers. 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) with the certified labor certification . See section 204 of the Act, 8 U.S .C. § 1154. Third, if 
USCIS approves the petition, the 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. ANALYSIS 
A. Beneficiary's Experience 
A petition for the "other worker" classification must be accompanied by evidence that the beneficiary 
meets any educational, training, experience, or other requirements of the labor certification. 8 C.F.R. 
§ 204.5(1)(3)(ii)(D). The labor certification in this case does not require any education or training to 
qualify for the job of groom, but does require 12 months of prior experience in the offered position of 
groom. The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(A) states that work experience must be 
demonstrated with letters from employers giving the name, address, and title of the employer, as well 
as a description of the noncitizen's work experience. 
The labor certification instructions require petitioners to list all jobs that a beneficiary has held in the 
past three years, as well as any other experience that qualifies the beneficiary for the offered position. 
The labor certification in this instance was filed on May 3, 2019, and states the following work history 
for the Beneficiary: 
• Groom at the Petitioner 1 from August 1, 2017, to May 3, 2019; and 
• Groom atl from September 3, 2012, to August 31, 2014. 
The stated duties for both positions are: "Daily care of race horses mares and foals. Brushing, bathing 
and exercising horses. Prepping yearlings for sale." The Petitioner also provided a translated letter 
from I a manager at I stating that the Beneficiary worked there as a 
full-time groom from September 3, 2012, to August 31, 2014, and naming the same duties. 
On March 10, 2021, the Director issued a Notice oflntent to Deny (NOID), stating that the Beneficiary 
may have misrepresented her work history because it was inconsistent with the work history she 
provided when applying for a nonimmigrant visa (NIV) on April 15, 2015. In that NIV application, 
the work history provided was as follows: 
• Jockey at from September 1, 2012, to August 29, 2014; and 
• Jockey at I from October 1, 2010, to August 31, 2012. 
The stated duties for both positions are "training of trot horses." The Director noted that the position 
at _______ was not mentioned in the labor certification, 2 which made it inconsistent 
with the work history provided in the labor certification. 
In response to the NOID, the Petitioner provided a copy of the Beneficiary's resume, which states the 
following work history: 
1 According to the answer to Part J.21 on the labor certification, the Beneficiary's experience working as a groom with the 
Petitioner is not being used to demonstrate the required 12 months of qualifying experience. 
2 The NOID and denial state that the NIV application states the Beneficiary worked as a jockey at ______ 
from 2010 to 2014. The NIV application actually states that she was employed there from 2010 to 2012. 
2 
• Full-time Jockey at from October 1, 2010, to August 31, 2012; 
• Full-time Groom at from September 3, 2012, to August 31, 2014; and 
• Part-time Jockey atl _from July 3, 2012, 3 to August 31, 2014. 
The duties for the full-time jockey position are described as riding horses for promenade and training, 
riding young horses and teaching them, and going to races. The duties for the groom position are 
described as caring daily for racehorses, mares and foals; brushing, bathing, and exercising horses; 
and preparing yearlings for sale. The part-time jockey position is described as riding in races at night 
as needed. 
The Petitioner also provided an attorney letter stating that the labor certification only required the 
disclosure of the Beneficiary's complete work history for the three years preceding its submission -
in this case, from May 2016 to May 2019 - and the disclosure of other work experience that qualifies 
the Beneficiary for the offered position of groom. The letter explains that the Beneficiary's 
employment atl I ended in 2014, and so was not within the three-year period 
prior to the filing of the labor certification. The letter further states that the Beneficiary's work at 
_______ was as a jockey, not a groom, and so was not relevant experience for the offered 
position. Therefore, this work was not included in the labor certification. 
To support this claim, the Petitioner provided translated copies of the Beneficiary's pay statements 
from _______ from October 2011 to September 2012, all of which state that she was 
employed as a jockey. The Petitioner also provided a letter froml I the manager of 
I I stating that the Beneficiary was employed there as a jockey from October 1, 
2010, to August 31, 2012, and as a part-time jockey from September 3, 2012, to August 31, 2014, 
naming the same duties as those listed on the Beneficiary's resume. To support the claim of the 
Beneficiary's employment at ______ the Petitioner provided translated pay statements 
from September 2012 to August 2014, which indicate that she was employed there full-time during 
that period. 
On August 23, 2021, the Director denied the petition and found that the Petitioner and the Beneficiary 
made willful misrepresentations of material fact on the labor certification and experience letter 
regarding the Beneficiary's work at _______ The Petitioner disputes this finding on 
appeal. 
Section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § l 182(a)(6)(C)(i), states that "in general- any alien, who 
by fraud or willfully misrepresenting a material fact, seeks ( or has sought to procure, or who has 
procured) a visa, other documentation, or admission to the United States or other benefit provided 
under the Act is inadmissible." In order to support a finding of willful misrepresentation of a material 
fact, the record must show that a petitioner or beneficiary procured or sought to procure a benefit under 
U.S. immigration laws, that they made a false representation, that the false representation was made 
willfully, that the false representation was material, and that the false representation was made to a 
U.S. government official. See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994); see also 8 USCIS 
3 While the resume states that the Beneficiary was employed at ______ _,both full-time and part-time from 
July to August 2012, the signed letter from this employer states that her part-time employment began in September 2012, 
which eliminates this overlap and matches the period of full-time employment shown in the pay statements provided. 
3 
Policy Manual J.2(B), https://www.uscis.gov/policymanual. A false representation is an assertion or 
manifestation that is not in accordance with the true facts. 4 
In their NOID, the Director stated that the inconsistencies created by the NIV application were the 
Beneficiary's work as a jockey from 2010 to 2012 and her employment withl I 
from 2010 to 2014, which were not mentioned in the labor certification. The denial restates these 
omissions from the labor certification as the reason for the finding of willful misrepresentation of a 
material fact. 5 However, the Director does not specifically identify a false representation made by the 
Petitioner or the Beneficiary on the labor certification or employment letter regarding the Beneficiary's 
work at . ______ 6 Therefore, we will withdraw the findings of willful misrepresentation 
of a material fact against the Petitioner and the Beneficiary. 
However, the evidence of record does not demonstrate eligibility for the immigration benefit because 
it does not demonstrate that the Beneficiary is qualified for the offered position. Specifically, the 
record does not resolve the inconsistencies between the NIV petition, on which the Beneficiary stated 
she was a jockey at from 2012 to 2014 and that her duties consisted of training 
horses, and on the labor certification, where she stated she was employed there as a groom and that 
her duties consisted of bathing, exercising, and prepping horses for sale. Because the position atl I I I is the Beneficiary's only qualifying job experience, the Petitioner has not demonstrated 
by a preponderance of the evidence that the Beneficiary has 12 months of such experience, as required 
by the labor certification. Because the Petitioner was not sufficiently informed of this issue by the 
Director, we will remand the matter to the Director to reevaluate the provided evidence and request 
any evidence pertinent to issuance of a new decision. 
B. Petitioner's Ability to Pay the Proffered Wage 
Although not addressed by the Director in their decision, the Petitioner has not established its 
continuing ability to pay the proffered wage. The regulation at 8 C.F.R. § 204.5(g)(2) states that a 
petitioner must establish that it has the ability to pay the beneficiary the proffered wage from the 
priority date 7 onward. Documentation of ability to pay shall be in the form of copies of annual reports, 
federal tax returns, or audited financial statements, and in appropriate cases, additional financial 
evidence may be submitted. Id. This documentation should demonstrate the Petitioner's continuing 
ability to pay the proffered wage of $26,749 a year starting on the priority date, which in this instance 
is May 3, 2019. 
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. We next examine whether it had sufficient 
annual amounts of net income or net current assets to pay the proffered wage. If a petitioner's net 
income or net current assets are insufficient, we may also consider other evidence of its ability to pay 
4 8 USCIS Policy Manual J.3(C)(l ), https://www.uscis.gov/policymanual. 
5 It is further noted that the denial mentions but does not fully address the Petitioner's assertion that thel 
I I position did not need to be disclosed per the labor certification instructions. 
6 We note that the letter was written by a manager at not by the Petitioner or the Beneficiary. 
Further, the Beneficiary, not the Petitioner, certified the Beneficiary's experience at Section J of the labor certification. 
7 The "priority date" of a petition is the date the underlying labor certification is filed with DOL. 8 C.F .R. § 204.5( d). The 
Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the priority date. 
4 
the proffered wage. 8 USCIS may also consider the totality of the petitioner's circumstances, including 
the overall magnitude of its business activities, in determining the Petitioner's ability to pay the 
proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).9 
The evidence indicates that the Petitioner paid the Beneficiary $15,040 in 2019, or $11,709 less than 
the proffered wage, and $7,600 in 2020, or $19,149 less than the proffered wage. Therefore, we will 
next examine whether the Petitioner's net income or net current assets were sufficient to pay the 
difference between the wages paid and the proffered wage (the wage deficiency). 
The Petitioner appears to be a sole proprietorship, a business in which one person operates the business 
in their personal capacity. Black's Law Dictionary 1398 (7th ed. 1999). Unlike a corporation, a sole 
proprietorship does not exist as an entity apart from the individual owner. See Matter of United 
Investment Group, 19 I&N Dec. 248, 250 (Comm'r 1984). Therefore, the sole proprietor's adjusted 
gross income (AGI), assets, and personal liabilities are considered as part of the Petitioner's ability to 
pay. Sole proprietors report annual income and expenses from their businesses on their Internal 
Revenue Service Form 1040, U.S. Individual Income Tax Return. The business-related income and 
expenses are reported on Form 1040, Schedule C, and are carried forward to the first page of the tax 
return. Sole proprietors must show that they can cover their existing household expenses as well as 
pay the proffered wage out of their AGI or other available funds. See Ubeda v. Palmer, 539 F. Supp. 
647,650 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
The Petitioner's 2019 tax return states that his AGI that year was -$52,769. This is not sufficient to 
cover the $11,709 wage deficiency in 2019. The record does not contain the Petitioner's tax returns, 
annual reports, or audited financial statements for 2020. Therefore, the evidence of record also does 
not indicate that the Petitioner had sufficient net income to pay the $19,149 wage deficiency in 2020. 
Further, the record does not contain audited balance sheets showing the Petitioner's net current assets 
for any relevant year. 
The record includes a letter from the Petitioner's accountant which states that "[f]rom May 2019 to 
present, there has always been sufficient funds in the business back account to cover the proffered 
salary ... on a weekly basis." To support this claim, the Petitioner provided its bank statements from 
May 2019 to March 2021. These bank statements include daily ledger balances which indicate that 
the account was overdrawn on several occasions during this time period, thus they do not support the 
Petitioner's ability to pay. It is further noted that the bank account statements are documentation of 
funds located in the sole proprietorship's business checking account. Therefore, these funds are likely 
shown on Schedule C of the sole proprietorship's tax return as gross receipts and expenses. The 
8 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See. e.g.. River St. 
Donuts, LLC v. Napolitano. 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, I 07 F. Supp. 3d 936, 942-943 (S.D. Cal. 2015); Rizvi v. Dep 't of 
Homeland Sec ., 37 F. Supp. 3d 870. 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
9 USCTS may. at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of its net 
income and net current assets. We may consider such factors as the number of years the petitioner has been doing business, 
the established historical growth of the petitioner's business, the petitioner's reputation within its industry, the overall 
number of employees. whether the beneficiary is replacing a former employee or an outsourced service, the occurrence of 
any uncharacteristic business expenditures or losses, and any other evidence that USCIS deems relevant to the petitioner's 
ability to pay the proffered wage. Id. 
5 
Petitioner's net profit/loss is included in the calculation of the sole proprietor's AGI, which is 
insufficient in 2019 to establish the Petitioner's ability to pay the proffered wage. 
The documentation of the totality of the Petitioner's circumstances also does not establish its 
continuing ability to pay the proffered wage. The record indicates that the Petitioner is a harness 
racing stable which was established in 1985. While we acknowledge the Petitioner's many years in 
business, the record does not demonstrate factors beyond its net income and net current assets that 
would allow it to pay the wage deficiency. 
The accountant's letter states that the horse racing industry suffered a downturn in 2020 due to the 
COVID-19 pandemic and that the Petitioner's revenues should return to pre-pandemic levels in the 
future. However, the financial documentation submitted does not establish that the Petitioner had 
uncharacteristic losses in 2020. Further, it is not possible to determine whether the Petitioner has had 
a history of business growth since its establishment in 1985 due to the limited financial documentation 
submitted to the record. The record does not contain documentation of the Petitioner's reputation in 
the industry, its overall number of employees, or an indication that the Beneficiary will be replacing a 
former employee or outsourced service. Therefore, the Petitioner has not established its continuing 
ability to pay the proffered wage based on the totality of the circumstances. 
When addressing the Petitioner's ability to pay, the NOID treated the Petitioner as a corporation rather 
than a sole proprietorship. The denial did not address ability to pay. Furthermore, as noted above, the 
record does not include the Petitioner's federal tax returns, annual reports, or audited financial 
statements from 2020 onward, and the record is not clear as to whether this documentation was 
available for submission as required. Therefore, we will remand the matter to the Director for further 
consideration. The Director may request any additional documentation deemed relevant to determine 
the Petitioner's continuing ability to pay the proffered wage. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
6