remanded EB-3 Case: Poultry Processing

U.S. Citizenship 
and Immigration 
Services 
In Re : 04698537 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 30, 2021 
The Petitioner seeks to employ the Beneficiary as a poultry trimmer. It requests classification of the 
Beneficiary as an unskilled worker under the third preference immigrant classification . Immigration 
and Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 U.S.C. § l l 53(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 
expenence. 
The Director of the Texas Service Center revoked the approval of the petition, concluding that the 
Petitioner did not establish that (1) it made a bona.fide job offer to the Beneficiary; and (2) the job 
requirements stated on the labor certification represent the Petitioner's actual minimum requirements. 
The matter is now before us on appeal. 
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 novo review, we will withdraw the Director's 
decision and remand the matter to the Director for the entry of a new decision . 
I. LAW 
A. 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) of the 
Act, 8 U.S.C. § 1182(a)(5). 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 id. Second, the employer files an immigrant visa petition 
with U.S . Citizenship and Immigration Services (USCIS) with the certified labor certification . See 
section 204 of the Act, 8 U.S.C. § 1154. Third, upon approval of the petition, a foreign national may 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
October 22, 2015. See 8 C.F.R. § 204.S(d). 
apply for an immigrant visa abroad, or if eligible, adjust status in the United States to lawful permanent 
resident. See section 245 of the Act, 8 U.S.C. § 1255. 
B. Revocation of a Petition's Approval 
After granting a petition, USCIS may revoke the petition's approval "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record and substantial 
evidence, a director's realization that a petition was erroneously approved may justify revocation. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). By regulation this revocation authority is delegated 
to any USCIS officer who is authorized to approve an immigrant visa petition "when the necessity for 
the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). 
II. ANALYSIS 
On appeal, upon review of the entire record, we conclude that the Petitioner has established by a 
preponderance of the evidence that it made a bona fide job offer to the Beneficiary and that the job 
requirements stated on the labor certification represent the Petitioner's actual minimum requirements. 
Thus, the Director erred in revoking the approval of the petition, and we will withdraw his decision. 
Although the Director's decision is withdrawn, we cannot affirmatively conclude that the Petitioner 
has established eligibility for the benefit sought. The Petitioner must establish its continuing ability 
to pay from the priority date in 2015.2 The regulation at 8 C.F.R. § 204.5(g)(2) requires that 
"[ e ]vidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or 
audited financial statements." The regulation farther provides that if a petitioner employs 100 or more 
workers, we may accept a statement from a financial officer of the petitioner which establishes its 
ability to pay the proffered wage. Id. 
The record does not contain the Petitioner's annual reports, federal tax returns, or audited financial 
statements for the priority date in 2015. 3 Instead, it contains two letters from the Petitioner's chief 
financial officer (CFO) stating that the Petitioner has the ability to pay the proffered wage. The CFO's 
letters detail the Petitioner's total number of employees, gross revenue, and net income for 2015 and 
2017, respectively. However, given the Petitioner's history of filing petitions detailed below, on 
remand, the Director should request additional evidence of the Petitioner's continuing ability to pay. 
Where a petitioner has filed Form 1-140 petitions for multiple beneficiaries, it must demonstrate that its 
job offer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to each 
2 The annual proffered wage is $18,366. 
3 The Petitioner submitted the combined audited financial statements of ~---------------~ ~-------~for the fiscal years ending June 3, 2017, and June 4, 2016. The combined audited financial 
statements contain a separate balance sheet and income statement for the Petitioner for the year ending June 3. 2017. 
However, the record does not contain a separate balance sheet and income statement for the Petitioner for the period that 
includes the priority date of October 22, 2015. The regulation at 8 C.F.R. § 204.5(g)(2) requires a petitioner, and not a 
combined group, to establish its ability to pay the proffered wage with its annual reports, federal tax returns, or audited 
financial statements. Because a corporation is a separate and distinct legal entity from its shareholders, the assets of its 
shareholders or of other enterprises cannot be considered in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Aphrodite Invs., Ltd., 17 I&N Dec. 530 (Comm'r 1980). The record does not contain regulatory-prescribed 
evidence of the Petitioner's ability to pay for the period that includes the priority date. 
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beneficiary. See 8 e.F.R. § 204.5(g)(2); see also 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). users records show that the Petitioner has filed hundreds of Form I-140 petitions for 
other beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of the other Form 1-140 petitions that were pending or approved as o±: or filed after, the 
priority date of the current petition. 4 We do not consider the other beneficiaries for any year that the 
Petitioner has paid the Beneficiary a salary equal to or greater than the proffered wage. 5 
The Petitioner must document the receipt numbers, names of beneficiaries, priority dates, and 
proffered wages of these other petitions, and indicate the status of each petition and the date of any 
status change (i.e., pending, approved, withdrawn, revoked, denied, on appeal or motion, beneficiary 
obtained lawful permanent residence). To offset the total wage burden, the Petitioner may submit 
documentation showing that it paid wages to other beneficiaries. To demonstrate that it has the ability 
to pay the Beneficiary and the other beneficiaries, the Petitioner must, for each year at issue (a) 
calculate any shortfall between the proffered wages and any actual wages paid to the primary 
Beneficiary and its other beneficiaries, (b) add these amounts together to calculate the total wage 
deficiency, and ( c) demonstrate that its net income or net current assets exceed the total wage 
deficiency. 6 The record contains a list of 388 petitions filed by the Petitioner between October 22, 
2015, and October 3, 2018. 7 It includes receipt numbers, priority dates, and proffered wages of these 
other petitions and indicates the status of each petition. However, it does not include the names of 
the beneficiaries and the dates of any status changes. 
Based upon review of the entire record, we cannot affirmatively find that the Petitioner has the 
continuing ability to pay the combined proflered wages of all of its applicable beneficiaries from the 
priority date in 2015. On remand, the Director should request additional evidence of the Petitioner's 
ability to pay and allow the Petitioner reasonable time to respond. The Petitioner may also submit 
additional materials in support of the factors discussed in Matter of Sonegawa, 12 I&N Dec. 612, 614-
15 (Reg'l eomm'r 1967), which permits users to consider the totality of the circumstances affecting 
a petitioner's ability to pay the proffered wage. 8 
4 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. 
5 We note that the record contains the Beneficiary's paystubs from portions of 2017 and 2018, but the paystubs do not 
contain any identifying information regarding the Beneficiary's employer. 
6 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
7 USCTS records show that the Petitioner filed several additional petitions between October 4, 2018, and the date of the 
Director's revocation decision on November 28, 2018. 
8 In determining the Petitioner's ability to pay the proffered wage, we may examine such factors as: the number of years 
the Petitioner has conducted business; its number of employees; the growth of its business; its incurrence of 
uncharacteristic losses or expenses; its reputation in its industry; the Beneficiary's replacement of a current employee or 
outsourced service; or other factors affecting the Petitioner's ability to pay. See Matter of Sonegawa, 12 l&N Dec. at 614-
15. 
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III. CONCLUSION 
In conclusion, we withdraw the Director's decision, and we remand the matter to the Director to 
determine whether the Petitioner has the continuing ability to pay the combined proffered wages of all 
of its applicable beneficiaries. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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