remanded EB-3 Case: Poultry Processing

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 19,2017 
APPEAL OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a poultry processing business, seeks to employ the Beneficiary as a poultry 
processor. It requests classification of the Beneficiary as an unskilled worker under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). This employment-based immigrant 
classification 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 omitted 
information on the ETA Form 9089, Application for Permanent Employment Certification (ETA 
Form 9089 or labor certification), regarding the Beneficiary's prior employment. 
On appeal, the Petitioner submits additional evidence and asserts that no experience was required for 
the proffered position and that, if the Beneficiary's experience had been more accurately explained 
on the labor certification, the experience would support the Beneficiary's qualifications for the 
proffered position. 
Upon de novo review, we will withdraw the decision of the Director and remand the matter for 
further proceedings consistent with the foregoing opinion and for the entry of a new decision. 
I. LAW AND ANALYSIS 
A. Employment-Based Immigration 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain 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 
1 
The date the labor certification is filed, in cases such as this one, is called the ''priority date." See 8 C.F.R. § 204.5(d). 
In this case, the priority date is January 29,2016. Therefore, the Petitioner must establish that all eligibility requirements 
for the petition have been satisfied from January 29, 2016, ancl continuing through the present. 
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Matter of 
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. Section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer may file an immigrant visa petition with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
approves the petition, the foreign national 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. 
B. Beneficiary Qualifications 
In this case, the labor certification states that the offered positiOn has no mtmmum education, 
training, or experience requirements. 2 However, the Director denied the petition because he found 
that the Beneficiary omitted information on the labor certification regarding his prior employment. 
Specifically, the Director stated that the Beneficiary indicated that he was an "employee" of 
in South Korea instead of indicating that he was a 
"butcher" at The Director stated that the "failure to more unambiguously detail on the 
ETA Form 9089 the precise nature of the beneficiary's work with constitutes a crucial 
omission" that could have prevented the DOL "from pursuing a line of inquiry that eventually may 
have led to the denial ofthe ETA Form 9089." 
However, as properly noted by the Petitioner on appeal, the proffered job requires no prior 
experience. Therefore, the Beneficiary's prior experience is not relevant to these proceedings. The 
use of the word "employee" rather than "butcher" was not a crucial omission that would have led to 
the denial of the labor certification, as the Beneficiary's prior experience was not at issue before the 
DOL. We will therefore withdraw the decision of the Director and remand the matter for further 
proceedings consistent with the foregoing opinion and for the entry .of a new decision. 
C. Bona Fide Job Opportunity 
On remand, the Director should determine whether the Petitioner violated DOL regulations which 
prohibit a beneficiary's payment of recruitment costs associated with the labor certification. 
Specifically, the regulation at 20 C.F.R. § 656.12 states: 
(a) Applications for permanent labor certification and approved labor certifications 
are not articles of commerce. They shall not be offered for sale, barter or purchase by 
individuals or entities. Any evidence that an application for permanent labor 
certification or a11 approved labor certification has been sold, bartered, or purchased 
shall be grounds for investigation under this part and may be grounds for denial 
under § 656.24, revocation under § 656.32, debarment under § 656.31 (f), or any 
combination thereof. 
2 
Part H.l4 of the labor certification requires an initial drug screening during or immediately preceding new hire 
orientation. The Petitioner submitted the Beneficiary's negative drug screen results dated .January 5, 2016. 
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(b) An employer must not seek or receive payment of any kind for any activity related 
to obtaining permanent labor certification, including payment of the employer's 
attorneys' fees, whether as an incentive or inducement to filing, or as a 
reimbursement for costs incurred in preparing or filing a permanent labor 
certification application, except when work to be performed by the alien in 
connection with the job opportunity would benefit or accrue to the person or entity 
making the payment, based on that person's or entity's established business 
relationship with the employer. An alien may pay his or her own costs in connection 
with a labor certification, including attorneys' fees for representation of the alien, 
except that where the same attorney represents both the alien and the employer, such 
costs shall be borne by the employer. For purposes of this paragraph (b), payment 
includes, but is not limited to, monetary payments; wage concessions, including 
deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind 
payments; and free labor. 
(c) Evidence that an employer has sought or received payment from any source in 
connection with an application for permanent labor cet1ification or an approved labor 
certification, except for a third party to whose benefit work to be performed in 
connection with the job opportunity would accrue, based on that person's or entity's 
established business relationship with the employer, shall be grounds for investigation 
under this part or any appropriate Government agency's procedures, and may be 
grounds for denial under § 656.32, revocation under § 656.32, debarment 
under§ 656.31(t), or any combination thereof. 
In this case, the record contains a contract between the Beneficiary and a recruitment agency 
showing a $20,000 payment required by the Beneficiary for the agency's services. However, the 
contract does not list the agency's services provided to the Beneficiary under the terms of the 
contract. 
The record also contains a letter from the Petitioner stating that: 
• It appointed the recruitment agency to recruit workers in Asia; 
• The Petitioner did not receive any compensation from the Beneficiary or the recruitment 
agency; 
• The Petitioner paid all costs associated with the labor certification and it did not incur 
legal fees for the labor certification because the work was performed in-house; 
• The recruitment agency conducted interviews of potential applicants to ensure they were 
aware of the position being offered, job duties, wage, and location of the job; and 
• The recruitment agency subsequently sent the interview results to the Petitioner. 
However, the letter does not indicate the total sum of money, if any, that the Petitioner paid the 
recruitment agency for its work, and the record does not contain a contract between the Petitioner 
and the recruitment agency. 
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Further, the record contains a letter from the Beneficiary stating that he did not pay the Petitioner 
any sums relating to the labor certification, but that he did pay the recruitment agency "for the 
recruiting and settlement services" as detailed in the contract (however, as previously noted, those 
services aren't detailed in the contract). It appears that the Beneficiary paid recruitment costs in 
connection with the labor certification in violation of 20 C.F.R. § 656.12. The Beneficiary's 
financial involvement in the labor certification process casts suspicion on the integrity of the process 
and the existence of a bona fide job opportunity. See Labor Certification for the Permanent 
Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud 
and Abuse and Enhancing Program Integrity, 72 Fed. Reg. 27903, 27920 (May 17, 2007) (codified 
at 20 C.F.R. pt. 656). On remand, the Director should request the contract between the Petitioner 
and the recruitment agency, evidence of any payments made in connection with the recruitment of 
the Beneficiary, and any other evidence that may show whether the Beneficiary, the Petitioner, or 
both, paid 
recruitment costs associated with the labor certification. 
D. Ability to Pay the Proffered Wage 
On remand, the Director should also determine whether the Petitioner established its ability to pay 
the proffered wage as of the January 29, 2016, priority date onward. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability (~f prospective employer to pay wage. Any petitiOn filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. 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. 
A petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer 
is realistic. See Matter ~f Great Wall, 16 I&N Dec. 142 (Acting Reg'! Comm'r 1977); see also 
8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USCIS requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality 
of the circumstances affecting the petitioning business will be considered if the evidence warrants such 
consideration. See Matter ~fSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). The proffered wage 
is $8.91 to $10.21 per hour. 
In this case, the record does not contain annual reports, federal tax returns, or audited financial 
statements for the Petitioner from 2016 onward as required by 8 C.F.R. § 204.5(g)(2). 3 Although we 
3 The record contains the Petitioner's audited financial statements for the fiscal year ending May 30, 2015, which does 
not include the priority date. The record also contains a letter form the Petitioner indicating that it employs over 6,000 
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note that the 2016 audited financial statements or tax return might not have been available at the 
time of filing, on remand, the Director should request regulatory-required evidence of the 
Petitioner's continuing ability to pay the proffered wage. 
II. CONCLUSION 
The decision of the Director regarding the Beneficiary's experience will be withdrawn. The matter 
is remanded to the Director for consideration of the existence of a bonafide job opportunity and the 
Petitioner's ability to pay the proffered wage. The Director may request any additional evidence 
considered pertinent. Similarly, the Petitioner may provide additional evidence within a reasonable 
period of time to be determined by the Director. Upon receipt of all the evidence, the Director will 
review the entire record and enter a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of ID# 374256 (AAO Apr. 19, 2017) 
workers. However, the letter does not list the Beneficiary's name, and it appears to be a letter used for multiple petitions 
filed by the Petitioner. The Petitioner has filed hundreds of Form l-140s. Consequently, USCIS must take into account 
the Petitioner's ability to pay the Beneficiary's wages in the context of its overall recruitment efforts. The Petitioner 
must demonstrate that it has the ability to pay the wages of all of the individuals it is seeking to employ. 
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