remanded EB-3 Case: Poultry Processing

MATTER OF H-F-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 27,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a poultry processing company, seeks to employ the Beneficiary as a poultry processing 
worker. 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 no 
training or experience. 
The Director, Texas Service Center, approved the petition, but after further consideration concluded that 
the Petitioner had not established that a bona fide job offer existed. After issuing a notice of intent to 
revoke and giving the Petitioner an opportunity to respond, the Director invalidated the labor 
certification and revoked the approval of the petition. 
The matter is now before us on appeal. The Petitioner asserts that the Director did not fully consider its 
response to the notice of intent to revoke. Upon de novo review, we will withdraw the Director's 
decision and remand the case for further proceedings. 
I. LAW AND ANALYSIS 
A. The Employment-Based Immigrant Visa Process 
The employment-based immigrant visa process consists of three parts. First, the U.S. employer must 
obtain a labor certification, which the U.S. Department of Labor (DOL) processes. See 20 C.F.R. 
§ 656, et seq. The employer initiates its request for a labor certification by filing an ETA Form 9089, 
Application for Permanent Employment Certification (labor certification), with DOL. The labor 
certification sets forth: the position's job duties; the position's education, experience, and other special 
requirements; the required wage; and the position's work location(s). In addition, as part of the labor 
certification, a beneficiary attests to his or her education and experience. The date the labor certification 
is filed becomes the "priority date" for the immigrant visa petition. 8 C.F.R. § 204.5(d). The priority 
date of the current petition is June 6, 2008. 
The DOL's role in certifying the labor certification is set forth at section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). Its approval of the labor certification affirms that, "there are not sufficient 
Matter of H-F-, Inc. 
[U.S.] workers who are able, willing qualified" to perform the offered position where the beneficiary 
will be employed, and that the employment of the beneficiary will not "adversely affect the wages and 
working conditions of workers in the United States similarly employed." Jd The labor certification is 
valid for 180 days from the date of its approval by DOL. 
In the second step of the process, a petitioner files a Form I-140, Immigrant Petition for Alien Worker, 
with U.S. Citizenship and Immigration Services (USCIS) within the 180-day validity period. See 
20 C.P.R. § 656.30(b)(1), 8 C.P.R. § 204.5. The agency then examines whether a petitioner can 
establish its ability to pay the proffered wage; whether the education and/or experience required for the 
offered position matches that required by the visa classification; and whether a beneficiary has the 
required education, training, and experience for the offered position. See section 203(b)(3)(A)(ii) of the 
Act, 8 U.S.C. § 1153(b)(3)(A)(ii); 8 C.P.R. §204.5. 
B. The Bona Fide Nature of the Job Offer 
The issue before us is whether the Petitioner has established that a bona fide job opportunity exists. 
Under 20 C.P.R. §§ 626.20(c)(8) and 656.3, the petitioner has the burden when asked to show that a 
valid employment relationship exists and that a bona fide job opportunity is available to U.S. workers. 
See Matter of Amger Corp., 87-INA-545 (BALCA 1987). USCIS must consider the merits of the 
petitioner's job offer to determine whether the job offer is realistic. See Matter of Great Wall, 16 I&N 
Dec. 145 (Acting Reg'l Comm'r 1977). 
The Director approved the petition on July 20, 2009. On September 3, 2015, the Director issued a 
notice of intent to revoke (NOIR). The Director stated that an investigation by the U.S .. Department of 
State (DOS) consular office had revealed that the Beneficiary's sister paid the company that filed the 
petition on behalf of the Petitioner "a large nonstandard fee of $25,000 to prepare the petition." The 
Director also noted that a close friend of the Beneficiary had assisted with the transaction. The Director 
stated that "[l]arge, nonstandard fees are commonplace in the poultry industry as a part of a scheme by 
petitioners to accept payment from beneficiaries and require them to work off the debt." The Director 
stated that "payment for consideration and the incurring of debt in exchange for consideration results in 
the job not being available to all U.S. workers and the petition being invalid." The Director concluded 
that the Petitioner had "misrepresented the job offer as being open to all U.S. workers." 
The Regulation at 20 C.P.R.§ 656.12(b) states that "[a]n 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 prepariJ!g or filing a permanent labor certification application .... " At Line l.e.23. of 
the labor certification the Petitioner affirmed that it had not "received payment of any kind for the 
submission of this application." 
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(b)(6)
Matter of H-F-, Inc. 
The NOIR specifically requested that the Petitioner submit the following documentation: 
• A sworn affidavit from the third party who filed the petition for the Petitioner; 
• A sworn affidavit from the Petitioner attesting to any and all amounts received personally or 
on behalf of the Petitioner in return for consideration of the Beneficiary for employment; 
• A sworn affidavit from a financial officer of the Petitioner attesting to any and all amounts 
received personally or on behalf of the Petitioner in return for consideration of the 
Beneficiary for employment; and, 
• Evidence sufficient to demonstrate that the job was open to all U.S. workers. 
In response to the NOIR, the Petitioner submitted a statement from who filed the 
petition for the Petitioner. explained that the fees paid by the Beneficiary's sister 
covered both legal fees and "landing and reset!lement" fees. affirmed that none of the 
money paid on behalf of the Beneficiary was used for the labor certification process. The Petitioner 
also submitted the following documentation: 
• Copies of the labor certification Recruitment Report, newspaper advertisements, and other 
recruitment efforts made by the Petitioner; 
• A copy of a recruitment agreement between the Beneficiary and the third party that filed the 
petition; 
• . A copy of a June 3, 2015, letter from a friend of the Beneficiary attesting that she had helped 
pay the Beneficiary's legal fees and other fees in full; 
• A copy of an "Unskilled Labor Sponsorship Agreement" between the Petitioner and the third 
party that they hired to file the petition; and, 
• Letters dated September 30, 2015, from the Petitioner's CEO and from the Human 
Resources/Safety Manager explaining the difficulties the company had experienced in getting 
applicants for open positions and describing their use of a third party to help find suitable 
candidates. Both representatives of the Petitioner state that they "did not require or demand, 
and did not receive, ariy payment of any kind or in any amount from [the Beneficiary]." 
The revocation concludes that the Petitioner did not "adequately resolve the inconsistencies noted 
above;" however, the only inconsistency described in the NOIR concerned the claim that the fees 
included "landing and resettlement." The Director noted that the Beneficiary's friend's letter said 
fees were "legal fees," while counsel said fees included optional amounts for airport pickup, 
temporary housing, driving school, and numerous other expenses not related to legal fees. The 
Director stated that "no probative evidence of the delivery of any of these specific services was 
submitted." Despite the varied classification of the fees, we do not find this to be an inconsistency. 
The individual who paid the fees did not indicate that any fees were paid for the labor certification 
process. Further, evidence of the delivery of "landing and resettlement" -services would be 
unavailable where the Beneficiary never arrived in the United States. 
The Director's decision lists the documentation submitted by the Petitioner in response to the NOIR. 
However, we note that the NOR only discusses two of the documents, counsel's statement and the 
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Matter of H-F-, Inc. 
statement from the Beneficiary's friend. It is unclear whether the Director considered all evidence 
submitted in response to the NOIR. Therefore, we will remand the case to the Director for full 
consideration of the Petitioner's response to the notice of intent to revoke. 
C. The Petitioner's Ability to Pay the Proffered Wage 
Although not considered by the Director, we independently note that the Petitioner has not 
established its continuing ability to pay the proffered wage as of the priority date. See 8 C.F.R. 
§ 204.5(g)(2). · In general, 8 C.F.R. § 204.5(g)(2) requires annual reports, federal tax returns, or 
audited financial statements as evidence of a petitioner's ability to pay the proffered wage. The 
record only contains a copy of the Petitioner's "Combined/Consolidated Balance Sheets" dated 
December 27, 2008. The source of these photocopies is not identified. 
The regulation further provides: "In a case where the prospective United States employer employs 
1 00 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." (Emphasis added.) 
The record contains a June 24, 2009, letter from the Petitioner's human resources representative who 
stated that the company employs 400 workers and had net income of over $311,000 in 2008. 
However, given the record as a whole, we find that USCIS need not exercise its discretion to accept 
the letter from the human resources representative. USCIS records indicate that the Petitioner has 
filed over 55 Form I-140 petitions since 2009. Consequently, USCIS must also take into account the 
Petitioner's ability to pay the Beneficiary's wages in the context of its overall recruitment efforts. 
Presumably, the Petitioner has filed and obtained approval of the labor certifications on the 
representation that it requires all of these workers and intends to employ them upon approval of the 
petitions. Therefore, it is incumbent upon the Petitioner to demonstrate that it has the ability to pay 
the wages of all of the individuals it is seeking to employ. Accordingly, the Petitioner must establish 
that it has had the continuing ability to pay the combined proffered wages to each beneficiary from 
the June 6, 2008, priority date of the instant petition. See Patel v. Johnson, 2 F .Supp.3d 108 (D. 
Mass. +014); see also Great Wall, 144-145 (Acting Reg'l Comm'r 1977). The evidence in the record 
does not document the priority date, proffered wage and wages paid to each beneficiary, whether any 
of the other petitions have been withdrawn, revoked, or denied, and whether any of the other 
beneficiaries have obtained lawful permanent residence. ' 
III. CONCLUSION 
We determine that the Director did not consider the Petitioner's complete response to the NOIR. In 
view of the foregoing, the Director's notice of revocation is withdrawn. The petition is remanded to 
the Director, who 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. 
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Matter of H-F-, Inc. 
ORDER: The decision of the Director, Texas Service Center, is withdrawn. The matter is 
remanded to the Director, Texas Service Center, for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of H-F-, Inc., ID# 17658 (AAO June 27, 2016) 
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