remanded EB-3 Case: Hospitality

U.S. Citizenship 
and Immigration 
Services 
In Re : 10042853 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 15, 2021 
The Petitioner , an operator of a hotel and conference center , seeks to employ the Beneficiary as catering 
director. The company requests his classification under the third-preference , immigrant visa category for 
skilled workers. See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i) . 
The Director of the Texas Service Center denied the petition . The Director concluded that , contrary 
to a job requirement of the offered position , the Petitioner didn 't demonstrate the Beneficiary's ability 
to obtain a food management certificate . 
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 
Matte r ofCha wathe, 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 a skilled worker generally follows a three-step process. First , a prospective employer 
must apply to DOL for certification that: (1) there are insufficient U.S. workers able , willing, qualified, 
and available for an offered position ; and (2) the employment of a noncitizen in the position won't 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 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally , if USCIS approves a petition , a designated 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. THE REQUIRED FOOD MANAGEMENT CERTIFICATION 
A petitioner must demonstrate a beneficiary's possession of all DOL-certified, job requirements of an 
offered position by a petition's priority date. Matter a/Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). In evaluating a beneficiary's qualifications, USCIS must examine the 
job-offer portion of an accompanying labor certification to determine a position's minimum 
requirements. USCIS may neither ignore a certification te1m, nor impose additional requirements. 
See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the 
authority for setting the con tent of the labor certification") ( emphasis in original). 
The accompanying labor certification states that the offered position of catering director requires 
neither education nor training, but at least three years of experience"[ m ]anaging catering for events 
& banquets for hotels and/or restaurants." Also, paii H.14 of the labor certification, "Specific skills 
or other requirements," states the position's need for "[c]ertification in Food Management from 
Arkansas (or able to obtain)." 
On the labor certification, the Beneficiary attested that he was a certified food manager in Texas. A 
copy of his Texas ce1iificate accompanied the petition and indicates his receipt of the credential by the 
petition's priority date. Pursuant to the job requirement stated on the labor certification, however, the 
Director's request for additional evidence (RFE) asked the Petitioner for proof that the Beneficiary 
has, or can obtain, food management certification in Arkansas. 
The Petitioner's RFE response includes a letter from the company's managing partner stating that an 
applicant for an Arkansas food management ce1iificate must pass an online test. See also Ark. Dep't 
of Health, Food Protection-Inspection Portal, "Certified Food Managers Training Information," 
https://www.healthy.arkansas.gov/programs-services/topics/food-protection (last visited Sep. 13, 
2021 ). An affidavit from the Beneficiary states: 
The Certification in food management from Arkansas is quite similar to the food 
management certification I possess from Texas since the basic Food Handling and 
Management practices that both certifications cover must meet what is required by the 
Federal authorities for topics including Food borne illness, Food Handling practices, 
Personal hygiene, Pest Control, Time & Temperatures etc. The fact that I possessed a 
Food Management certification from Texas when this ... labor certification was filed 
evidences that I am "able to obtain" the Arkansas certification. 
The Beneficiary also stated that he had, in fact, obtained an Arkansas food management certification. 
The RFE response contained a copy of an Arkansas certificate in the Beneficiary's name stating its 
issuance 10 days before USCIS' receipt of the materials. Despite the additional evidence, the Director 
concluded that the Petitioner didn't establish the Beneficiary's qualifications at the time of the 
petition's priority date. See 8 C.F.R. § 103 .2(b )(1) (requiring a petitioner to establish eligibility for a 
requested benefit "at the time of filing"). 
In determining whether the Beneficiary was "able to obtain" the required Arkansas food management 
certification by the petition's priority date, we find Madany persuasive. There, the United States 
Court of Appeals for the District of Columbia Circuit considered similar facts. In Madany, the labor 
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certification stated that, to qualify for the offered position of nurse, the beneficiary "must be able to 
obtain [a] Virginia nursing license." Madany, 696 F.2d at 1013. The Court found that the immigration 
service could require "a preliminary showing that the alien intends to acquire and is reasonably likely 
to acquire the qualification in question within a reasonable period of time." Id. at 1014. Once such a 
preliminary showing is made, the immigration service "can deny the preference classification on that 
basis only ifthere is a finding, supported by substantial evidence, thatthe particular alien actually will 
not be able to acquire the specified qualification." Id. ( emphasis in original). The petitionerinMadany 
made no preliminary showing that the beneficiary would likely pass a Virginia nursing license 
examination. Id. The court therefore upheld the immigration services' denial of the petition. Id. 
Unlike in M adany, the Petitioner made a preliminary showing. In response to the RFE, the Beneficiary 
attested to his intention to accept the offered position and thus to obtain the required food management 
certificate. Also, the copy of the Beneficiary's Texas food management certificate demonstrated a 
reasonable likelihood that he would acquire similar certification in Arkansas. See Madany, 696 F.2d. 
at 1014 (finding that "successful completion of a similar exam" would have supported the 
beneficiary's assertion of an ability to pass the required nursing test). Moreover, the Beneficiary 
obtained the required certification within a reasonable period. The Petitioner stated that it doesn't 
intend to employ the Beneficiary in the offered position until he obtains lawful permanent residence. 
The Beneficiary therefore reasonably satisfied the certification requirement during petition 
proceedings. Id. (stating that "the prospective employer's needs and expectations" should inform a 
determination of a reasonable period in which to obtain a qualification). 
For the foregoing reasons, the Petitioner demonstrated, by the petition's priority date, the Beneficiary's 
ability to obtain the requisite certification. We will therefore withdraw the Director's contrary finding. 
III. THE REQUIRED EXPERIENCE 
The appeal overcomes the denial ground. Butthe record does not establish the petition's approvability. 
The Petitioner hasn't demonstrated that, by the petition's priority date, the Beneficiary met the 
minimum experience requirements of the offered position. 
As previously indicated, the offered position of catering director requires at least three years of 
experience "[ m ]anaging catering for events & banquets for hotels and/or restaurants." To support the 
Beneficiary's claimed qualifying experience, the Petitioner submitted a letter from a former employer 
of the Beneficiary in Pakistan. See 8 C.F.R. § 204.5(1)(3)(ii)(A) (requiring a petitioner to support 
claimed, qualifying experience with a letter from a beneficiary's former employer). The letter states 
that the restaurant employed the Beneficiary full-time as general operations manager for more than six 
years, from February 2006 to December 2012. 
The Petitioner, however, also submitted a copy of the restaurant's Pakistani registry in 2008, 
identifying the Beneficiary as one of the business's three partners. The Beneficiary's ownership 
interest in his purported former employer casts doubt on the reliability of the experience letter it 
submitted for him. As an owner, the Beneficiary might not have been involved in the restaurant's 
operations. The letter's signatory is one of the restaurant's other partners, who may have issued the 
letter with a bias favoring the Beneficiary. Also, because of the Beneficiary's ownership interest in 
the restaurant, he may have influenced, or negotiated for, the letter's issuance. A petitioner may submit 
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a letter containing biased information, but such a factor will affect the weight to be accorded the 
evidence in an administrative proceeding. See Matter of D-R-, 25 I&N Dec. 445,461 (BIA 2011) 
( citations omitted). The letter here doesn't merit full, evidentiary weight and doesn't represent 
independent, objective evidence of the Beneficiary's qualifying experience. 
The Director didn't notify the Petitioner of this evidentiary deficiency. We will therefore remand the 
matter. On remand, the Director should request the Petitioner to submit independent, objective 
evidence of the Beneficiary's qualifying experience at the Pakistani restaurant, such as copies of 
government, tax, or contemporaneous business records. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
Also unaddressed by the Director, the record doesn't establish the Petitioner's 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). If a petitioner employs less than 100 people, as in this case, evidence of ability 
to pay must include copies of annual reports, federal income tax returns, or audited financial 
statements. Id. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary a full proffered 
wage beginning in the year of a petition's priority date. If a petitioner didn't pay a beneficiary at all 
or didn't annually pay them the full proffered wage, USCIS considers whether the business generated 
annual amounts of net income or net current assets sufficient to pay any differences between the 
proffered wage and the actual wages paid. If net income and net current assets are insufficient, USCIS 
may consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter of 
Sonegawa. 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 1 
The accompanying labor certification states the proffered wage of the offered position of catering 
director as $38,667 a year. The petition's priority date is October 23, 2018. Atthe time of the appeal's 
filing, evidence of the Petitioner's ability to pay the proffered wage in 2019 and 2020 was not yet 
available. For purposes of this decision, we will therefore consider the company's ability to pay only 
in 2018, the year of the petition's priority date. 
The Petitioner didn't submit evidence of any payments to the Beneficiary and doesn't claim to have 
ever employed him. Thus, based solely on wages paid, the record doesn't establish the Petitioner's 
ability to pay the proffered wage. 
The Petitioner submitted a copy of its federal income tax return for 2018. The return reflects net 
current assets of $3,304 and net income of $141,630. The net income amount exceeds the annual 
proffered wage of $38,667. The Petitioner therefore appears to have the ability to pay the 
Beneficiary's individual proffered wage. 
1 Federa 1 courts have upheld USC IS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, LLCv. Napolitano, 558 F.3d 111,118 (lstCir.2009); Rivziv.Dcp 'tofHomeland Sec., 37 F. Supp. 3d 870, 
883-84 (S.D. Tex.2014),ajfd, 627Fed.App'x. 292(5thCir. 2015). 
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USCIS records, however, indicate the Petitioner's filing of a Form I-140 petition for another 
beneficiary. A petitioner must demonstrate its ability to pay the proffered wage of each petition it files 
from a petition's priority date onward. 8 C.F.R. § 204.5(g)(2). This Petitioner must therefore 
demonstrate its ability to pay the combined proffered wages of this petition and any others 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's approval where, as of 
the filing's grant, a petitioner didn't demonstrate its ability to pay the combined proffered wages of 
multiple beneficiaries). 2 
USCIS records indicate that USCIS approved the Petitioner's other petition on October 23, 2018, and 
granted lawful permanent residence to the beneficiary later that year. 3 The Petitioner must therefore 
demonstrate its ability to pay the combined proffered wages of both petitions in 2018. If the annual 
proffered wage of the Petitioner's other petition exceeds $102,963, the companywouldn't demonstrate 
enough net income to pay the combined proffered wages that year. 
The record lacks the proffered wage and priority date of the Petitioner's other petition. On remand, 
the Director should therefore ask the Petitioner to provide the missing information. The Petitioner 
may also submit additional evidence of its ability to pay the combined proffered wages in 2018, 
including proof of any wages it paid the other beneficiary that year or materials supporting the factors 
stated in Sonegawa. The Petitioner must also provide copies of annual reports, federal tax returns, or 
audited financial statements for 2019, and 2020. 
If supported by the record, the Director may notify the Petitioner of any additional, potential grounds 
of denial. The Director must afford the Petitioner a reasonable opportunity to respond to all issues 
raised on remand. Upon receipt of a timely response, the Director should review the entire record and 
enter a new decision. 
V. CONCLUSION 
The Petitioner demonstrated the Beneficiary's ability to obtain the food management certification 
required for the offered position. The record, however, doesn't establish the Beneficiary's possession 
of the minimum experience required for the job or the Petitioner's 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 Petitionerneedn't demonstrate its ability to pa yprof-fored wages of petitions that it withdrew or, unless pending on 
appeal or motion, that USCTS rejected, denied, or revoked. The Petitioner also needn't demonstrate its ability to pay 
proffered wages before the priority dates of corresponding petitions or after corresponding beneficiaries obtained lawful 
permanent residence. 
3 USC IS records identify the Petitioner's other petition by the receipt numbd_.._ ______ _. 
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