remanded EB-3 Case: Hospitality

U.S. Citizenship 
and Immigration 
Services 
In Re : 1614222 
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 owner, operator, and developer of hotels - seeks to employ the Beneficiary as a 
housekeeper. The company requests her 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 misrepresented the minimum job requirements of the offered position on the application for 
the accompanying certification from the U.S. Department of Labor (DOL) . 
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 (discussing the burden of proof); see also 
Matter ofChawathe, 25 l&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 DOL certification that: (1) there are insufficient U.S. workers able, 
willing, qualified, and available foran offered position; and (2) employment of a non citizen in the position 
would not harm wages and working conditions of U.S. workers with similar jobs. See section 212(aX5) 
of the Act, 8 U.S.C. § 1182(a)(5). 
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 JOB REQUIREMENTS 
The Director found that the Petitioner misrepresented the minimum, job requirements of the offered 
position on the accompanying labor certification application. The Director, however, did not explain 
his legal authorization for determining the position's minimum job requirements. We will therefore 
withdraw the Director's decision. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the Petitioner has not established its required ability to pay 1he 
position's proffered wage. A petitioner must demonstrate its continuing ability to pay a proffered 
wage, from a petition's priority date until a beneficiary obtains lawful pennanent 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. 
The accompanying labor certification states the proffered wage of the offered position of housekeeper 
as $18,013 a year. The petition's priority date is April 17, 2017, the date DOL accepted the labor 
certification application for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a 
petition's priority date). 
The Petitioner submitted copies of its federal income tax returns for 2012 through 2016. At the time 
of the appeal's filing, regulatory required evidence of the Petitioner's ability to pay the proffered wage 
in 201 7, the year of the petition's priority date, or thereafter was not yet available. Thus, contrary to 
8 C.F.R. § 204.5(g)(2), the record does not establish the Petitioner's ability to pay the proffered wage 
from the petition's priority date. 
Also, USCIS records indicate the Petitioner'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 permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner musttherefore 
demonstrate its ability to pay the combined proffered wages of this petition and any others that were 
pending or approved as this petition's priority date of April 1 7, 201 7 or filed thereafter. See Patel v. 
Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding our revocation of a petition's approval 
where, as of the filing' s grant, the petitioner did not demonstrate its ability to pay combined proffered 
wages of multiple petitions). 1 
The Director did not inform the Petitioner of these evidentiary deficiencies. We will therefore remand 
the matter. 
On remand, the Director should ask the Petitioner to submit copies of annual reports, federal tax 
returns, or audited financial statements for 2017 through 2022. See 8 C.F.R. § 204.5(g)(2). The 
Petitioner must also provide the proffered wages and priority dates of its other petitions that were 
pending or approved as of April 17, 2017 or filed thereafter. The Petitioner may submit additional 
1 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 wa gesof petitions before theirrespectivepriority dates or after their corresponding beneficiaries obtained lawful 
permanent residence. 
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evidence of its ability to pay, including proof of any wages paid to applicable beneficiaries in relevant 
years or materials supporting the factors stated in Matter of Sonegawa, 12 I&N Dec. 612, 614-15 
(Reg'l Comm 'r 1967). 
If supported by the record, the Director may notify the Petitioner of any other potential denial grounds. 
The Director, however, must afford the company a reasonable opportunity to respond to all issues 
raised on remand. See 8 C.F.R. § 103.2(b)(8)(iv). Upon receipt of a timely response, the Director 
should review the entire record and enter a new decision. 
IV. CONCLUSION 
The Director did not explain the legal authorization for his denial of the petition. The Petitioner, 
however, has not established its continuing ability to pay the proffered wage of the offered position 
from the petition's priority date onward. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for en try of a new 
decision consistent with the foregoing analysis. 
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