remanded EB-3 Case: Market Research

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Y-R-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a restaurant operator, seeks to employ the Beneficiary as a market research analyst. 
It requests his classification under the third-preference, immigrant category as a professional. See 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). 
This employment-based, "EB-3" category allows a U.S. business to sponsor a foreign national for 
lawful permanent resident status to work in a job requiring at least a bachelor's degree. 
After the filing's initial grant, the Director of the Nebraska Service Center revoked the petition's 
approval. The Director concluded that the Petitioner had not demonstrated the Beneficiary's 
possession of the minimum requirements of the offered position. 
On appeal, the Petitioner argues that the record demonstrated the Beneficiary's qualifications for the 
position. 1 
Upon de nova review, we will withdraw the decision and remand the matter for entry of a new 
decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional 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)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for an offered position, and that employment of a foreign national 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 labor certification with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
1 The Petitioner 's Form 1-290B, Notice of Appeal or Motion, indicated that the business would submit a written brief, 
additional evidence , or both within 30 days of the appeal's filing. As of the date of this decision, however, more than 
four months after the appeal's filing, we have not received additional materials in this matter. 
Matter ofY-R-. 
8 U.S.C. § 1154. Among other things, USCIS determines whether a beneficiary meets the 
requirements of a DOL-certified position and the requested visa classification. If USCIS grants a 
petition, a foreign national 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. 
"[ A ]t any time" before a beneficiary obtains lawful permanent resident status, however, USCIS may 
revoke a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. 
§ 1155. If supported by the record, the erroneous nature of a petition's approval may justify its 
revocation. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). USCIS may issue a notice of intent 
to revoke (NOIR) if the unexplained and unrebutted record would have warranted a petition's denial. 
Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). 
II. REQUIREMENTS OF THE OFFERED POSITION 
A petitioner must establish that a beneficiary met all DOL-certified job requirements of an offered 
position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting 
Reg'l Comm'r 1977).2 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 term, nor impose additional requirements. 
See, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984) (holding that, 
absent a finding of fraud or willful misrepresentation of a material fact involving a labor 
certification, the immigration service "is bound by DOL's certification"). 
Here, the labor certification identified the minimum requirements of the offered position of market 
research analyst as a U.S. bachelor's degree or a foreign equivalent degree in marketing, economics, 
business, or a related field of study. The labor certification specified that the position does not 
require training or experience. 
On the labor certification, the Beneficiary attested that, by the petition's pnonty date, a U.S. 
university awarded him a bachelor's degree in economics. To support the claimed qualification, the 
Petitioner submitted copies of the Beneficiary's degree and a university transcript. See 8 C.F.R. 
§ 204.5(1)(3)(ii)(C) (requiring evidence of a baccalaureate degree "in the form of an official college 
or university record showing the date the baccalaureate degree was awarded and the area of 
concentration of study"). 
Based on a report of the Beneficiary's immigrant visa interview in Japan, however, the Director's 
NOIR alleged that "[t]he beneficiary is not folly qualified for the offered position as certified by 
[DOL ]." The labor certification stated the job duties of the offered position as establishing research 
methodology, designing data-gathering formats, and examining and analyzing statistical data to 
forecast future market trends. The Beneficiary reportedly told a U.S. consular officer that, during 
the Beneficiary's prior tenure with the Petitioner as a marketing manager, he conducted research by 
"driving around, talk[ing] to friends." The Beneficiary also stated that he obtained market data "on-
2 This petition's priority date is June 28, 2011, 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). 
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Matter ofY-R-. 
line." But he reportedly could not provide detailed descriptions of the data's location or of the tools 
used to analyze it. The Beneficiary stated that he worked as marketing manager at the Petitioner's 
restaurant for more than 10 years. But he reportedly could not provide a detailed description of the 
restaurant's operations or its most recent annual revenues. Based on the Beneficiary's reported 
statements, the NOIR alleged that "the beneficiary does not possess the technical knowledge, skills, 
experience, or ability to perform the job duties described on [the labor certification]." 
As of the NOIR's issuance, however, the record would not have warranted the petition's denial 
based on the Beneficiary's qualifications. As previously discussed, the plain language of the labor 
certification states that the offered position requires only a bachelor's degree in a specified field. 
The Petitioner indicated in parts H.5, H.6, and H.10 of the labor certification that "No" training or 
experience is required. Part H.14 of the certification also states that the position requires no 
"Specific skills or other requirements." Thus, contrary to the NOIR, the offered position does not 
require "technical knowledge, skills, experience, or ability to perform the job duties described." See 
Tongatapu, 736 F.2d at 1309 (holding that the immigration service "is bound by DOL's 
certification"). The Petitioner provided regulatory required evidence of the Beneficiary's possession 
of the requisite degree in a specified field, the offered position's sole requirement. The 
inconsistencies alleged in the NOIR do not undermine the evidence of the Beneficiary's 
qualifications for the offered position. 
Thus, despite the NOIR's allegations, the unexplained and unrebutted record established the 
Beneficiary's qualifications for the offered position. Because the record would not have warranted 
the petition's denial, USCIS improperly issued the NOIR on this ground. We will therefore 
withdraw the revocation decision. 
We also note that in the revocation decision, the Director doubted the Beneficiary's claimed 
experience with the Petitioner because the Beneficiary did not list the work on the labor certification 
application. See Matter of Leung, 16 I&N Dec. 12, 14-15 (Distr. Dir. 1976), disapp 'd of another 
ground by Matter of Lam, 16 I&N Dec. 432,434 (BIA 1978) (finding qualifying experience claimed 
in adjustment of status proceedings "not credible" where the applicant omitted the experience from 
the labor certification application on his behalf). The Director's NOIR, however, did not cite the 
absence of the Beneficiary's claimed experience from the labor certification application. The 
Petitioner therefore lacked an opportunity to respond to the Director's discounting of the experience. 
See Matter of Arias, 19 I&N Dec. 568, 570 (BIA 1988) (stating that a revocation can only be 
grounded on, and a petitioner need only respond to, the factual allegations in an NOIR). If the 
Director wishes to question the Beneficiary's claimed experience, she must properly notify the 
Petitioner of the allegation and explain why the issue would have warranted the petition's denial. 
III. ABILITY TO PAY THE PROFFERED WAGE 
The appeal overcomes the revocation ground. But the record did not establish the petition's 
approvability. Although unaddressed by the Director, the Petitioner did not demonstrate its 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). For 
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Matter ofY-R-. 
petitioners who employ less than 100 people, like this Petitioner, evidence of ability to pay must 
include annual reports, federal income tax returns, or audited financial statements. Id. 
Here, the labor certification states the proffered wage of the offered position of market research 
analyst as $38,064 a year. As previously noted, the petition's priority date is June 28, 2011. As of 
the petition's approval in January 2013, the Petitioner therefore had to demonstrate its ability to pay 
the proffered wage in 2011 and 2012. 
The record indicates that the Petitioner was a sole proprietorship. Its owner operated the business in 
his personal capacity. Unlike other legal entities, a sole proprietorship does not exist apart from its 
owner. Matter of United Inv. Grp., 19 I&N Dec. 248, 250 (Comm'r 1984). Therefore, in 
determining the ability of a sole proprietorship to pay a proffered wage, USCIS considers the 
owner's adjusted gross income, personal assets, and liabilities. Sole proprietors must not only 
demonstrate their abilities to pay proffered wages, but also to cover any other business expenses and 
to support themselves and any dependents. See Ubeda v. Palmer, 539 F.Supp. 647, 650 (N.D. Ill. 
1982) (affirming the immigration service's decision that a sole proprietor with a dependent spouse 
and five children did not demonstrate his ability to pay a proffered wage). 
Also, the Petitioner filed immigrant petitions for three other beneficiaries that, as of this petition's 
priority date of June 28, 2011, were pending, approved, or submitted shortly thereafter. The 
Petitioner therefore had to demonstrate the ability of its owner to pay the combined proffered wages 
of this and the three other petitions, in addition to covering other business expenses and supporting 
himself: his spouse, and his son. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) 
(affirming revocation of a petition's approval where, as of the filing's grant, a petitioner did not 
demonstrate its ability to pay the combined proffered wages of multiple petitions). 
The Petitioner submitted information about its other petitions and copies of the federal income tax 
returns of its owner for 2011. It also submitted copies of its owner's bank account and mutual fond 
statements and a list of his household expenses for 2011 and part of 2012. The materials 
demonstrated the owner's ability to pay the combined proffered wages of the petitions and all 
relevant expenses in 2011. Contrary to 8 C.F.R. § 204.5(g)(2), however, the record lacked copies of 
the owner's annual report, federal tax returns, or audited financial statements for 2012. The record 
therefore did not establish the Petitioner's continuing ability to pay the proffered wage from the 
petition's priority date. 
The NOIR did not notify the Petitioner of this deficiency. We will therefore remand the matter. On 
remand, the Director should issue a new NOIR to the Petitioner, informing it of the lack of required 
evidence of its owner's ability to pay the proffered wage in 2012. The Director may also allege 
other revocation grounds, if supported by the record. 
The Director must afford the Petitioner a reasonable period in which to respond to the new NOIR. 
Upon receipt of a timely response, the Director should review the entire record and enter a new 
decision. 
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Matter ofY-R-. 
IV. CONCLUSION 
Contrary to the revocation decision, the record establishes the Beneficiary's possession of the 
minimum requirements of the offered position by the petition's priority date. However, the record 
does not establish eligibility for the benefit sought. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter ofY-R-, ID# 5918112 (AAO Sept. 19, 2019) 
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