remanded EB-3 Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re : 8654274 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 20, 2020 
The Petitioner seeks to employ the Beneficiary as an international marketing associate. It requests 
classification of the Beneficiary as a professional under the third preference immigrant classification. 
Immigration and Nationality Act (the Act) , section 203(b )(3)(A)(ii), 8 U.S.C. § 1153(b )(3)(A)(ii) . 
This employment -based immigrant classification allows a U.S. employer to sponsor a professional 
with a baccalaureate degree for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had the continuing ability to pay the proffered wage. 
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 remand the matter to the 
Director for further consideration and entry of a new decision . 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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) .1 See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C . § 1182(a)(5)(A)(i) . 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 foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. 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) . See section 204 of the Act, 8 U.S.C. § 1154. Third , ifUSCIS approves the petition, 
the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
October 4, 2017. See 8 C.F.R. § 204.S(d). 
II. ABILITY TO PAY THE PROFFERED WAGE 
The Director determined that the Petitioner did not establish its continuing ability to pay the proffered 
wage. The proffered wage is $174,000 per year. 
The regulation at 8 C.F.R. § 204.5(g)(2) requires a petitioner to establish its continuing ability to pay 
the proffered wage from the priority date until the beneficiary obtains lawful permanent residence. In 
determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the foll proffered 
wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the foll 
proffered wage, we next examine whether it had sufficient annual amounts of net income or net current 
assets to pay the difference between the proffered wage and the wages paid, if any. If a petitioner's 
net income or net current assets are insufficient, we may also consider other evidence of its ability to 
pay the proffered wage. 2 
The record indicates that the Petitioner is a professional limited liability company (LLC) taxed as an 
S corporation. The record does not demonstrate that the Petitioner has paid the Beneficiary any wages 
from the priority date onward. The Petitioner's federal tax return states net income 3 of $228,561. 
Therefore, for the year 201 7, the Petitioner had sufficient net income to pay the proffered wage. 4 We 
will therefore withdraw the Director's decision. However, for the reasons discussed below, we will 
remand the matter to the Director. 
III. BENEFICIARY'S QUALIFICATIONS 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12); Matter o_f Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
Section H of the labor certification states that the offered position of international marketing associate 
requires a bachelor's degree in marketing/management and 60 months of experience in the job offered. 
Experience in an alternate occupation is not acceptable. Further, part H.14. of the labor certification 
requires the following special skills: ability to adapt to a wide variety of environments and cultures; 
strong understanding of sales and marketing in the global environment; strong leadership skills, 
communication skills, and analytical skills; fluent in Urdu and English; and must be able to travel 
overseas. 
2 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, -- F. Supp. 3d --, 2015 WL 3634497, *5 (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). 
3 Where an LLC taxed as an S corporation's income is exclusively from a trade or business, USCIS considers net income 
to be the figure for ordinary income, shown on line 21 of page 1 of a petitioner's IRS Fonn 1120S, U.S. Income Tax Return 
for an S Corporation. However, where an S corporation has income, credits, deductions, or other adjustments from sources 
other than a trade or business, net income is found on line 18 of Schedule K to Fonn l l 20S. See Internal Revenue Serv., 
Instructions to Form 1120S, 22, at https://www.irs.gov/pub/irs-pdt1/i l l 20s.pdf (last visited Mar. 16, 2020). In this case, 
the Petitioner's net income is found on line 21 of page 1 of its Form l 120S. The Director ened in his determination of the 
Petitioner's net income in 2017. 
4 In any future proceedings, the Petitioner must establish its continuing ability to pay the proffered wage from the priority 
date onward. 
2 
The labor certification states that the Beneficiary worked part-time (25 hours per week) as visiting 
faculty at an educational institution in Pakistan from January 1, 2015, to October 4, 2017; as the foll­
time ( 40 hours per week) director of marketing at thel I in Pakistan from 
Serember 1, 2011, to January 4, 2016; and as the foll-time ( 40 hours per week) director of operations 
at ' I" in Pakistan from September 1, 2011, to October 4, 201 7. Thus, the labor 
certification indicates that the Beneficiary worked a total of 80 hours per week from September 1, 
2011, to December 31, 2014; a total of 105 hours per week from January 1, 2015, to January 4, 2016; 
and a total of 65 hours per week from January 5, 2016, to October 4, 201 7. The Petitioner must resolve 
incongruities in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the Petitioner's 
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Id. 
Evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer, and a specific description of the 
duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). The Petitioner's initial submission did 
not contain any regulatory-required evidence of the Beneficiary's experience. In a request for evidence 
(RFE), the Director asked the Petitioner to submit evidence of the Beneficiary's experience and to 
explain the Beneficiary's three overlapping positions. In response, the Petitioner submitted a letter 
dated February 12, 2016, from the Director of Human Resources at the~-------~stating 
that the Beneficiary worked as Director of Marketing and Public Relations from September 20, 2011, 
to January 16, 2016.5 It did not indicate whether he worked foll- or part-time. Even if the Petitioner 
established that the Beneficiary worked foll-time fo~ I from September 20, 2011, 
to January 16, 2016, he gained approximately four years and four months of qualifying experience 
there, which is less than the five years of required qualifying experience for the offered job. 
The Petitioner also submitted a statement dated November 11, 2018, from the Beneficiary stating that 
he was the sole owner ofl I an event management and advertising agency, since February 
2004. 6 He asserted that he ran the company "in the evening time while [he] was working for Different 
Five Star Hotels" but did not list his job duties as required by 8 C.F.R. § 204.5(1)(3) or indicate whether 
he worked foll-or part-time. The statement does not confirm that he gained any experience in the job 
offered. Therefore, this employment is not qualifying experience for the offered job. 
Further, in response to the RFE, the Petitioner submitted a letter dated November 14, 2018, from the 
Pakistan~---------------~ stating the Beneficiary had worked as faculty 
and conducted classes since January 2015. It does not indicate whether he worked foll-or part-time, 
and it does not indicate that he worked in the job offered. Therefore, this employment is not qualifying 
experience for the offered job. 
5 These dates do not match the dates listed on the labor certit~ 
6 It also submitted a registration certificate and tax returns forl___J These documents do not confirm the Beneficiary's 
job duties or work schedule. 
3 
In response to the RFE, the Petitioner asserted that the Beneficiary worked the jobs simultaneously, 
including working nights and weekends. However, it did not provide any independent, objective 
evidence to support this claim. See Matter of Ho, 19 I&N Dec. at 591-92. None of the evidence 
submitted relating to the Beneficiary's experience confirms his work schedule. 7 The Petitioner has 
not resolved the incongruities in the record regarding the Beneficiary's purported simultaneous 
employment. 
For the reasons discussed above, we cannot affirmatively find that the Beneficiary possessed the 
minimum five years of experience in the offered job required by the labor certification as of the priority 
date. We farther note that the record contains no evidence that the Beneficiary is fluent in English and 
is able to "travel overseas" 8 as required by part H.14. of the labor certification. On remand, the 
Director should request additional evidence of the Beneficiary's qualifications and allow the Petitioner 
reasonable time to respond. 
IV. THE PETITIONER'S STATUS 
Beyond the Director's decision, we note that the petitioning entity is not in good standing with the 
State of Texas. The Texas Office of the Comptroller's online database lists the Petitioner's status as 
"forfeited." Texas Comptroller of Public Accounts, https://mycpa.cpa.state.tx.us/coa/search.do (last 
visited Mar. 16, 2020). Further, the Petitioner is a law firm whose sole attorney/member was disbarred 
in July 2019 in the State of Texas. State Bar of Texas, 
https://www.texasbar.com/ AM/Template.cfm ?Section= Find A Lawyer&template=/Customsource/ 
MemberDirectory/MemberDirectoryDetail.cfm&ContactID9 I (last visited Mar. 16, 2020). 
This information indicates that the Petitioner is not authorized to do business in Texas and calls into 
question the Petitioner's intent to do business in the future. On remand, the Director should request 
additional evidence of the Petitioner's status and intent to do business, and allow the Petitioner 
reasonable time to respond. 
V. CONCLUSION 
The Petitioner has established its ability to pay the proffered wage in 201 7, the year of the priority 
date. We will therefore withdraw the Director's decision on this issue. However, the Director's 
decision did not clarify whether the Beneficiary possessed the experience and special skills required 
by the labor certification as of the priority date. The Petitioner's status and intent to do business are 
also not clear. Thus, we will remand the matter to the Director for farther consideration. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
7 The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
l&N Dec. 369, 376 (AAO 2010). 
8 The Beneficiary is from Pakistan. A visa would be required for him to enter nearly every country in the world, with no 
assurance of the visa being granted. 
4