remanded EB-3 Case: Poultry Processing

U.S. Citizenship 
and Immigration 
Services 
In Re: 01437211 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN . 01, 2022 
The Petitioner , a poultry processing business, seeks to employ the Beneficiary as a poultry trimmer. 
It requests classification of the Beneficiary as an unskilled worker under the third preference 
employment-based immigrant visa category. Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b) (3)(A)(iii). This immigrant visa category allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires less than two years of training or experience . 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that the job offer was bona fide, and open and available to qualified U.S. workers because it 
may have sought or received payment from the Beneficiary for activity related to the labor 
certification. 
On appeal the Petitioner contests the Director's findings, asserting that the Director misconstrued the 
facts and misapplied the law. 
The AAO conducts appellate review on a de nova basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The burden is on the petitioner in visa petition proceedings to establish eligibility for the 
benefit sought. See Matter of Brantigan, 11 l&N Dec. 493 (BIA 1966). The petitioner must prove by 
a preponderance of the evidence that the beneficiary is fully qualified for the benefit sought. See 
Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010) . To establish its eligibility for the 
immigration benefit it seeks under the preponderance of the evidence standard, the petitioner must 
submit sufficiently probative and credible evidence to establish that its claim is "more likely than not" 
or "probably" true. See Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm 'r 1989). 
Upon de nova review, we determine that the Petitioner has established, by a preponderance of the 
evidence, that the proffered position was a bona fide job opportunity open to U.S. workers and that 
applicable regulations were not violated in the labor certification process. Accordingly, we will 
withdraw the Director's decision. We will remand the case for adjudication within the statutory and 
regulatory framework for 1-140 immigrant visa petitions. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration 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) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the 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 certified labor application 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 considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USC IS approves 
the 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. 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish, among 
other things, that it has the ability to pay the proffered wage stated in the labor certification. As 
provided in the regulation at 8 C.F.R. § 204.5(g)(2): 
The petitioner must demonstrate this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence. Evidence of 
this ability shall be either in the form of copies of annual reports, federal tax returns, or 
audited financial statements. In a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by [USCIS]. 
II. ANALYSIS 
With respect to the basis for the Director's decision, the Petitioner's assertions on appeal are 
persuasive. The Petitioner must prove eligibility by a preponderance of evidence, such that the 
applicant's claim is "probably true" based on the factual circumstances of each individual case. Matter 
of Chawathe; Matter of E-M-. We find that the Petitioner has met that burden with respect to the 
Director's findings. Accordingly, we will withdraw the Director's decision. 1 
1 We recognize that that the Director raised significant if somewhat speculative concerns. While not sufficiently developed 
for purposes of this visa petition, the Director is not barred from further inqui1y, investigation, or the development of 
questions for consular processing or adjustment of status proceedings. See Matter of 0, 8 l&N Dec. 295 (BIA 1959) 
(stating that the immigrant visa petition is not the appropriate stage of the process for questions regarding admissibility). 
2 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date of the petition onward. 2 In this case the proffered wage is 
$17,202 per year and the priority date is January 10, 201 7. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
There is no evidence that the Beneficiary in this case has ever been employed by the Petitioner. 
Therefore, the Petitioner cannot establish its ability to pay the proffered wage from the priority date 
of January 10, 2017, onward based on wages paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax retum(s), annual report(s), or audited 
financial statements(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the beneficiary 
in a given year, the petitioner would ordinarily be considered able to pay the proffered wage during 
that year. However, when a petitioner has filed other I-140 petitions it must establish that its job offer 
is realistic not only for the instant beneficiary, but also for the beneficiaries of its other I-140 petitions 
(I-140 beneficiaries). A petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
Comm'r 1977). Accordingly, a petitioner must demonstrate its ability to pay the combined proffered 
wages of the instant beneficiary and every other I-140 beneficiary from the priority date of the instant 
petition until the other I-140 beneficiaries obtain lawful permanent resident status. See Patel v. 
Johnson, 2 F.Supp. 3d 108, 124 (D.Mass. 2014) (upholding our denial of a petition where a petitioner 
did not demonstrate its ability to pay multiple beneficiaries). 3 
The record includes a letter from the Petitioner's chief financial officer (CFO) stating that the 
Petitioner's gross net income for 2016 is in excess of $57 million and that it has a total of 5,500 
employees, as well as an excerpt from a 2015 "Private Company Financial Report" for the Petitioner. 
As noted by counsel in the appeal, the Petitioner had filed numerous other I-140 petitions. The 
regulation at 8 C.F.R. § 204.5(g)(2), after identifying the three alternative types of required 
documentation, provides that USCIS "may accept a statement from a financial officer" of an employer 
with 100 or more workers and/or "additional evidence, such as profit/loss statements, bank account 
2 The "priority date" of an employment-based immigrant petition is the date the underlying labor certification application 
is filed with the DOL. See 8 C.F.R. § 204.S(d). 
3 The Petitioner's ability to pay the proffered wage of one of the other T-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful pennanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
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records, or personnel records" as evidence of a petitioner's ability to pay the proffered wage. The 
regulation does not require USCIS to accept such evidence. 
The record lacks the evidence required by the regulations of the Petitioner 's ability to pay the proffered 
wage to all beneficiaries from the petition's priority date onward. Therefore, we will remand this case 
for the Director to request the submission of regulatory required evidence from the Petitioner, as 
specified in 8 C.F.R. § 204.5(g)(2), for the priority date year of2017 and any subsequent year(s) in 
the Director's discretion. The Director may also request any other evidence that may be deemed 
necessary to determine the Petitioner's eligibility for the requested immigration benefit. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's eligibility for the immigration benefit it seeks on behalf of the Beneficiary. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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