remanded EB-3 Case: Poultry Processing

U.S. Citizenship 
and Immigration 
Services 
In Re : 1722110 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 31, 2022 
The Petitioner , a poultry producer , seeks to employ the Beneficiary as a poultry processing worker. The 
company requests her classification under the third-preference, immigrant visa category for "other 
workers." See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(bX3XA)(iii). 
The Director of the Texas Service Center denied the petition. The Director found that , contrary to a 
U.S. Department of Labor (DOL) regulation, the Petitioner did not demonstrate that it paid the 
company that prepared the application for the accompanying certification. The Director therefore 
found insufficient evidence of the availability of the job opportunity to U.S. workers. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also 
MatterofChawathe, 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. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an "other," or unskilled, worker generally follows a three-step process . First, a 
prospective employer must apply to DOL for certification that: (1) there are insufficient U.S. workers 
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. § l 182(a)(5). 
Second , an employer must submit an approved labor certification 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 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. 
II. BONA FIDES OF THE JOB OPPORTUNITY 
A labor certification employer must attest that "[t]he job opportunity has been and is clearly open to 
any U.S. worker." 20 e.F.R. § 656.10(c)(8). To ensure the bonafides of job opportunities, DOL bars 
businesses and individuals from selling, bartering, or buying labor certifications. 20 e.F.R. 
§ 656.12(a). Also, a labor ce1iification employer cannot: 
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. 
20 e.F.R. § 656. l 2(b ). For these purposes, the term "payment" includes: "monetary payments; wage 
concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in 
kind payments; and free labor." Id. 
The Director found that the company that recruited the Beneficiary for the offered position also 
prepared the labor certification application. The Director further dete1mined that the Petitioner 
omitted requested evidence of its paymentto the other company for the application's preparation. The 
purported omission appeared to indicate the Petitioner's receipt of improper "payment" from the 
application's preparer in the form of"free labor." See 20 e.F.R. § 656.12(b). The Director therefore 
concluded that the Petitioner did not demonstrate the availability of the offered position to U.S. 
workers. 
The Director, however, did not explain his legal authority to determine the bona fides of the job 
opportunity. We will therefore withdraw the decision. 
III. ABILITY TO PAY THE PROFFERED WAGE 
The record does not support the Director's denial of the petition. The Petitioner, however, has not 
established the petition's approvability. The company did not demonstrate 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 
date until a beneficiary obtains lawful permanent residence. 8 e.F.R. § 204.5(g)(2). This petition's 
priority date is April 25, 2017, the date DOL received the accompanying labor certification application 
for processing. See 8 e.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
Evidence of ability to pay must generally include copies of annual reports, federal tax returns, or 
audited financial statements. 8 e.F.R. § 204.5(g)(2). 
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 the wages paid. If net income and net current assets are insufficient, users 
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may consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter of 
Sonegawa, 12 r&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 1 
The labor certification states the proffered wage of the offered position of poultry processing worker 
as $10.50 an hour, or - based on a 40-hour, work week- $21,840 a year. 
The Form r-140 indicates the Beneficiary's residence in Vietnam. The Petitioner does not claim to 
have ever employed her and did not submit any evidence of payments to her. Thus, based solely on 
wages paid, the Petitioner has not demonstrated its ability to pay the proffered wage. 
The record lacks copies of the Petitioner's annual reports, federal tax returns, or audited financial 
statements. But a users director has discretion to accept a statement from a financial officer of a 
petitioner with at least 100 workers as proof of the business's ability to pay a proffered wage. 8 C.F.R 
§ 204.5(g)(2). The Petitioner submitted a letter from its chief financial officer (CFO), stating that, as 
of April 1,201 7, the company employed more than 6,000 workers and generated annual net income 
of more than $114 million. The Director, however, did not indicate whether he accepted the letter as 
proof of the company's ability to pay. The record therefore did not demonstrate the Petitioner's ability 
to pay the proffered wage. 
On remand, the Director should determine whether the CFO' s statement sufficiently demonstrates the 
Petitioner's ability to pay the proffered wage. If the Director finds the statement insufficient, he must 
explain why and request copies of the company's annual reports, federal tax returns, or audited 
financial statements for 2017 through 2022. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to 
demonstrate its ability to pay "continuing until the beneficiary obtains lawful permanent residence"). 
Also, users records indicate the Petitioner's filing of Form r-140 petitions for other beneficiaries. A 
petitioner must demonstrate its ability to pay the proffered wage of each petition it files until a 
beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner musttherefore 
demonstrate its ability to pay the combined proffered wages of this Form 1-140 petition and any others 
it filed that were approved or pending as of this petition's priority date of April 25, 201 7 or filed 
thereafter. See Patelv. Johnson, 2 F.Supp.3d 108,124 (D. Mass. 2014) (affirming our revocation of 
a petition's approval where, as of the filing's grant, the petitioner did not demonstrate its ability to pay 
the combined proffered wages of multiple petitions). 2 
USCIS records indicate that, since April 25, 2017, the Petitioner has filed about 400 Form 1-140 
petitions for other beneficiaries. The record lacks the proffered wages and priority dates of the other 
petitions. USCIS therefore cannot determine the total combined proffered wages that the Petitioner 
must demonstrate its ability to pay. For this additional reason, the company has not demonstrated its 
ability to pay. 
1 Federal courts haveupheld USCIS' method of determining a petitioner's ability to pay a proffered wage. Sec, e.g., River 
St. Donuts. LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Rivzi v. Dcp 't of Homeland Sec., 3 7 F.Supp.3d 870, 
883-84 (S.D. Tex.2014),affd, 627Fed. App'x. 292(5thCir.2015). 
2 The Petitionerneednotdemonstrateits ability to payproffered wages ofpetitions that it withdrew or-unless pending on 
appeal or motion - that USCIS rejected, denied, or revoked. The Petitioner also need not demonstrate its ability to pay 
proffered wages before the priority dates of corresponding petitions or after corresponding beneficiaries obtained lawful 
permanent residence. 
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Thus, if the Director finds the CFO' s statement insufficient to demonstrate the Petitioner's ability to 
pay, the Director should further ask the company for a list of all Form I-140 petitions it has filed since 
April 25, 201 7 and their corresponding proffered wages and priority dates. The Petitioner may also 
submit additional evidence of its ability to pay the combined proffered wages, including proof of any 
wages it paid applicable beneficiaries in relevant years or materials supporting the factors stated in 
Sonegawa. SeeMatterofSonegawa, 12 I&N Dec. at614-15. 
If supported by the record, the Director may notify the Petitioner of any additional, potential grounds 
of denial. The Director, however, must afford the company a reasonable opportunity to respond to all 
issues raised on remand. See 8 C.F.R. § 103 .2(b )(8)(iv). Upon receipt of a timely response, the 
Director should review the entire record and enter a new decision. 
IV. CONCLUSION 
The Director did not explain his legal authorization for denying the petition based on the alleged 
unavailability of the job opportunity to U.S. workers. The Petitioner, however, did not demonstrate 
its required ability to pay the position's proffered wage. 
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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