remanded EB-3 Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
In Re : 1415 3 6 0 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 29, 2022 
The Petitioner, an operator of a clinic, sought to employ the Beneficiary as a medical records 
technician. The company requested her 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). 
After initially granting the filing, the Director of the Nebraska Service Center revoked the petition's 
approval and dismissed the Petitioner's combined motions to reopen and reconsider. The Director 
concluded that, contrary to Department of Homeland Security (DHS) regulations and policy, the 
Petitioner did not demonstrate that an authorized representative of the company signed the petition. 
In revocation proceedings, the Petitioner bears the burden of establishing eligibility for the requested 
benefit by a preponderance of evidence. See Matter of Ho, 19 I&N 582,589 (BIA 1988)(citation 
omitted) (discussing the burden of proof); see also Matter ofChawathe, 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. 1 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must obtain U.S. Department of Labor (DOL) certification that: (1) there are insufficient U.S. wmkers 
able, willing, qualified, and available for an offered position; and (2) employment of a noncitizen in the 
position will not harm wages and working conditions of U.S. workers with similar jobs. See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit a labor certification with an immigrant visa petition to U.S. 
Citizenship and Immigration Services (USCIS). See section 204 of the Act. Among other things, 
1 While the Petitioner challenges the revocation of the petition's approval , the company states that it no longer intends to 
employ the Beneficiary in the offered position. The company asserts the Beneficiary's potential eligibility for lawful 
permanent residence based on her receipt ofa job offer from another U.S. employer in an occupational classification similar 
to the position stated in the petition. See section 204(j) of the Act, 8 U.S.C. § 1154(j) (allowing eligible beneficiaries in 
long-pending cases to "port"to new jobs without requiringtheirnewemployers to file petitions). 
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. 
"[A]t any time" before a beneficiary obtains lawful permanent residence, 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 a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
Upon the occurrence of certain events, revocations happen automatically. See 8 C.F.R. 
§ 205 .1 ( a )(3 )(iii). Otherwise, USC IS must notify petitioners of proposed, revocation grounds and 
allow the prospective employers reasonable opportunities to submit rebuttal evidence and argument 
8 C.F.R. § 205.2. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition's approval if the unexplained 
and unrebutted record at the time of the notice's issuance would have warranted the petition's denial. 
Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). If a petitioner's NOIR response does not 
overcome stated revocation grounds, USCIS properly revokes a petition's approval. Id. at 451-52. 
II. THE SIGNATURES ON THE PETITION AND LABOR CERTIFICATION 
A petitioner must sign a petition, certifying the truth and accuracy of the filing' s contents under penalty 
of perjury. 8 C.F.R. § 103.2(a)(2). Also, USCIS will not adjudicate a petition unless the prospective 
employer signed the original, accompanying labor certification. 20 C.F.R. § 656.17(a)(l). 
The Petitioner's Form I-140 and accompanying labor certification indicate that they bear the signatures 
of the company's president. But, citing "significant similarities" between the documents' signatures 
and those of prior counsel, the Director's NOIR alleged that prior counsel improperly signed the 
president's name on the Form I-140 and labor certification. The NOIR stated that, after the petition's 
approval, an immigration officer faxed the Petitioner's president a copy of the Form I-140 page 
containing his purported signature. In a telephone conversation shortly after the fax transmission, he 
reportedly told the officer that the mark resembled his signature. Without confirming the signature's 
authenticity, however, the president ended the conversation, saying he wanted to consult prior counsel 
USCIS rejects benefit requests bearing improper signatures. l USCJS Policy Manual B(2), 
https://www.uscis.gov/policy-manual. If the Agency accepts a benefit request and later determines 
the signature on it to be deficient, USCIS denies the benefit. Id. Thus, if an unauthorized 
representative of the Petitioner signed the Form I-140, the petition would have been improperly filed 
and erroneously approved. 
The NOIR's allegations, however, would not have warranted the petition's denial for a defective 
signature. The NOIR states: "A thorough analysis of the record indicates significant similarities in 
signatures between the attorney of record ... and the signatory." Administrative agencies may 
question the authenticity of documents and other materials containing obvious defects or "readily 
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identifiable hallmarks of fraud." Matter of O-M-0-, 28 I&N Dec. 191, 193-95 (BIA 2021 ). But 
contrary to the NOIR's description, the signatures of prior counsel and those on the Form I-140 in the 
president's name visibly differ. For example, the names of both prior counsel and the president contain 
the letter "a." In the signatures in the president's name, the letter resembles a printed "a." In prior 
counsel's mark, however, the letter is virtually illegible. The record therefore does not support the 
NOIR's allegations of similar signatures. See Matter of Es time, 19 I&N Dec. at 452 (holding that the 
immigration service cannot sustain a petition's revocation "based on an unsupported statement"). 
Also, the NOIR does not explain USCIS' "thorough analysis" of the signatures. Thus, the NOIR 
contains conclusory observations, lacking "good and sufficient cause" for the notice's issue. See 
Matter of Arias, 19 I&N Dec. 568, 570-71 (BIA 1988). The notice also questions the signatures in the 
president's name based on "confinnation from [prior counsel] that he signed documents associated 
with other petitions to facilitate speedy processing." But the NOIR does not state evidence suppmiing 
its assertion that prior counsel confirmed his signing of documents in other petitions. See Matter of 
Estime, 19 I&N Dec. at 451-52 (stating that a NOIR '"must include a specific statement not only of the 
facts underlying the proposed action, but also of the supporting evidence"). Thus, based on these 
deficiencies, the NOIR as presently constituted would not have warranted the petition's denial. 
Additionally, USCIS must provide a petitioner "with a written notification of the decision that explains 
the specific reasons for the revocation." 8 C.F.R. § 205.2(c). As the Petitioner argues on appeal, the 
Director's March 201 7 decision does not specify the grounds for revoking the petition's approval. The 
decision states: "The issues addressed in the [NOIR] are a matter of record. As stated in the [NOIR], 
it appears the approval of the petition should be revoked. In view of the above, USCIS has revoked 
this I-140 petition." Contrary to 8 C.F.R. § 205.2(c), the decision does not explain whether the 
Director found the petition to be improperly signed and filed. The decision also does not indicate the 
Director's consideration of the Petitioner's NOIR response. For the foregoing reasons, we will 
withdraw the Director's decision. 
As currently constituted, the Director's NOIR and decision do not support the petition's revocation. 
The record, however, does not establish that the Petitioner's president signed the petition as indicated 
on the Form I-140. The NOIR alleged similarities between signatures in the president's name and 
those of prior counsel. But the Director did notnotifythe Petitioner of inconsistencies in the signatures 
in the president's name. 
In a May 2016 letter, the Petitioner's president purportedly stated that "I signed and sponsored" the 
Beneficiary for the offered position. 2 But the record does not explain inconsistent signatures in the 
2 The May 2016 letter also purportedly states the Petitioner's desire to withdraw the petition. At that time, a petitioner's 
"written notice of withdrawal" automatically revoked the approval of an employment-based petition. 8 C.F.R. 
§ 205. I (a)(3)(iii)(C) (2015). Because the matter remains pending on appeal, however, the letter does not result in automatic 
revocation. Rather, we must genernlly apply the rnles in place at the time of our review. See, e.g., Thorpe v. Housing 
Authority of City of Durham, 393 U.S. 268, 281-82 (1969) (concluding that an appellate body must apply the law as it 
exists at the time it renders its decision, including changes in a federal administrative regulation). Effective January 17, 
2017, DHS amended the regulation to bar automatic revocations based on withdrawals submitted 180days or more after 
petitions' approvals orafterthefilings of applications for adjustment of status by corresponding beneficiaries. See8 C.F.R. 
§ 205 .1 ( a )(3)(iii)(C). We must apply the amended regulation because the rnlemaking did not clearly dictate othe1wise. 
Nor would application of the amended regulation result in "manifest injustice." Sec Thorpe, 393 U.S. at 282. The 
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president's name. See Matter of Ho, 19 I&N Dec. at 591 (requiring a pet1t10ner to resolve 
inconsistencies with independent, objective evidence pointing to where the truth lies). The signatures 
in the president's name on the Form I-140, accompanying labor certification, support letters of July 
11, 2007, and his individual federal income tax return for 2006 are similar. The signatures on these 
documents all resemble the president's printed name. Also, the signatures in the president's name on 
the Forms I-290B (Notices of Appeal or Motion), May 2016 letter, and the Petitioner's federal income 
tax return for 2007 resemble each other. These signatures all appear to be in cursive writing from the 
same hand. But the signatures on the documents in the first group visibly differ from those on the 
materials in the second group. SeeMatterofO-M-0-, 28 I&NDec. at 193-95 (allowing administrative 
agencies to question the authenticity of materials containing obvious defects). The inconsistent 
signatures cast doubt on whether the president signed all the documents of record and authorized the 
petition's filing. 
The Director did not notify the Petitioner of the inconsistent signatures in the name of its president 
We will therefore remand the matter. On remand, the Director should issue a new NOIR describing 
the discrepancies. To determine whether the I-140 petition was properly filed, the Director should ask 
the Petitioner to explain the inconsistencies and demonstrate that its president signed the Form I-140 
and accompanying labor certification as indicated on the forms and in the May 2016 letter. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the Petitioner also did not establish its required 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 dateuntila beneficiary obtains lawful permanent residence. 
8 e.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. 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year, beginning with the year of a petition's priority date. If a petitioner did not annually 
pay the full proffered wage or did not pay a beneficiary at all, users considers whether the business 
generated annual amounts of net income or net current assets sufficient to pay any differences between 
the proffered wage and wages paid. If net income and net current assets are insufficient, users may 
consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter ojSonegawa, 
12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 3 
The labor certification states the proffered wage of the offered position of medical records technician 
as $12.85 an hour, or - based on a 40-hour work week - $26,728 a year. The petition's priority date is 
May 1 7, 2007, the date DOL accepted the labor certification application for processing. See 8 C.F.R 
§ 204.5(d) ( explaining how to determine a petition's priority date). 
Petitioner's purported withdrawal occurred more than seven years afterthepetition 's approval and almost nine years after 
the Beneficiary's filing of her adjustment application. Thus, under the amended regulation, the Petitioner's withdrawal 
would not have automatically revoked the petition's approval. 
3 Federal courts have upheld USCIS' 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(1stCir. 2009); Estrada-Hernandezv. Holder, 108F. Supp. 3d 936. 942-
43 (S.D. Cal. 2015). 
4 
USCIS approved the petition in February 2009. The record, however, shows that, before the approvaL 
the Beneficiary left the Petitioner's employ and sought to "port" to another U.S. business that offered 
her a position in the same or similar occupational classification. See section 204(j) of the Act. The 
Petitioner therefore must demonstrate its ability to pay the proffered wage from the petition's priority 
date of May 17, 2007, until February 2, 2008, when the Beneficiary's application for adjustment of 
status had remained unadjudicated for 180 days. See 8 C.F.R. § 245.25(a)(2)(ii)(B)(2). 
The Petitioner did not submit evidence that it paid the Beneficiary in 2007 or 2008. Thus, based solely 
on wages paid, the record does not demonstrate the company's ability to pay the proffered wage. 
The Petitioner submitted copies of the individual federal income tax return of its president for 2006 
and its federal income tax return for 2007. For a variety of reasons, the president's individual tax 
return does not establish the petitioning corporation 'sability to pay the proffered wage. First, the 2006 
return does not cover the year of the petition's 2007 priority date or thereafter. Also, the Schedule C, 
Profit or Loss from Business, that accompanies the president's 2006 return lists income from a 
business with a different name and address than the Petitioner. Additionally, the Petitioner is a 
corporation, a separate legal entity from its president. See, e.g., Matter of Aphrodite Invs. Ltd., 1 7 I&N 
Dec. 530,531 (Comm'r 1980) (citation omitted). Thus, in reporting the Petitioner's income on his 
individual tax return, the president appears to have improperly categorized the business as a sole 
proprietorship. See U.S. Internal Revenue Serv. (IRS), "Sole Proprietorships," 
https ://www.irs.gov/businesses/small-businesses-self-employed/sole-proprietorships ( stating that"[ a] 
sole proprietorship is someone who owns an unincorporated business") ( emphasis added). The 2006 
tax return therefore does not reflect the Petitioner's income or demonstrate the company's ability to 
pay the proffered wage. See 8 C.F.R. § 204.5(g)(2) (requiringaFormI-140 petition to show the ability 
of "the prospective United States employer" to pay the proffered wage). 
The Petitioner's 2007 tax return, on IRS Form 1120, U.S. Corporation Income Tax Return, reflects 
net income of $6,947 and net current assets of $38,087. The net current asset amount exceeds the 
annual proffered wage of $26,728. The Petitioner therefore appears to have demonstrated its ability 
to pay in 2007. As previously discussed, however, the signature of the Petitioner's president on the 
company's 2007 tax return does not resemble his purported marks on his individual return for 2006 
and on other documents of record. The inconsistent signatures cast doubt on the authenticity and 
accuracy of the Petitioner's 2007 return. See Matter ofHo, 19 I&N Dec. at 591 (requiring petitioners 
to resolve inconsistencies with independent, objective evidence pointing to where the truth lies). The 
Petitioner's tax return therefore does not reliably establish the company's ability to pay the proffered 
wage in 2007. 
Also, the record lacks regulatory required evidence of the Petitioner's ability to pay the proffered wage 
in 2008. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to submit copies of annual reports, federal 
tax returns, or audited financial statements). For this additional reason, the Petitioner did not 
demonstrate its ability to pay the proffered wage from the petition's priority date until the 
Beneficiary's adjustment application had remained unadjudicated for 180 days. 
On remand, the new NOIR should notify the Petitioner of these evidentiary deficiencies regarding its 
ability to pay the proffered wage. The company must explain the inconsistent signatures of its 
president on the tax returns and demonstrate the validity of its 2007 return. The Petitioner must also 
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provide copies of an annual report, federal tax return, or audited financial statements for 2008. See 
8 C.F.R. § 204.5(g)(2). The company may submit additional evidence of its ability to pay in relevant 
years, including proof of any payments it made to the Beneficiary or materials supporting the factors 
stated in Sonegawa. 
If supported by the record, the new NOIR may include additional, potential grounds ofrevocation. 
The Director, however, 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. 
IV. CONCLUSION 
As cunently constituted, the Director's NOIR and decision do not support revocation of the petition's 
approval based on the alleged invalid signing of the filing. The Petitioner, however, has not 
demonstrated that an authorized representative of the company signed the petition or that the business 
can pay the proffered wage of the offered position. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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