remanded EB-3 Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re: 14442584 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 12, 2021 
The Petitioner, an operator ofl I restaurants, seeks to employ the Beneficiary as a .... I ___ _. I , I ::i. preparer of sandwiches and other foods. The company requests his classification under the 
third-preference , immigrant category for "other workers" in jobs requiring less than two years of training 
or experience. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii) . 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that the Petitioner did not establish its required ability to pay the 
proffered wage of the offered position . 
In these revocation proceedings, the Petitioner bears the burden of establishing eligibility for the 
requested benefit. See Matter of Ho, 19 I&N Dec . 582,589 (BIA 1988). 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 unskilled worker 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 an offered position. Id. A labor certification also signifies that 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 determines whether a beneficiary meets the 
requirements of a DOL-certified position and a requested visa classification. If USCIS grants a 
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. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, users may revoke 
a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.e. § 1155. If 
supported by a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
users may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and 
unrebutted record at the time of the NOIR's issuance would have warranted the petition's denial. 
Matter of Es time, 19 I&N Dec. 450, 451 (BIA 1987). USeIS properly revokes a petition's approval 
if a petitioner's NOIR response does not overcome the stated revocation grounds. Id. at 451-52. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, federal tax 
returns, or audited financial statements. Id. 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year from 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 examines whether the business generated sufficient 
annual amounts of net income or net current assets to pay any differences between the proffered wage 
and the wages actually paid. If net income and net current assets are insufficient, users may consider 
other factors potentially affecting a petitioner's ability to pay a proffered wage. See Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967).1 
The regulation also states: "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." 8 e.F.R. § 204.5(g)(2). 
Here, the accompanying labor certification states the proffered wage of the offered position of 
I las $16,994 a year. The petition's priority date is November 17, 2017, the date DOL 
accepted the labor certification application for processing. See 8 e.F .R. § 204.5( d) ( explaining how 
to determine a petition's priority date). 
The petition did not include copies of annual reports, federal tax returns, or audited financial 
statements. Rather, the Petitioner, which listed 127 employees on the Form I-140 and accompanying 
labor certification application, submitted a letter from its president/chief financial officer/sole 
shareholder. The letter states the Petitioner's employment of more than 100 people and its annual 
payment of more than $1 million in wages to workers at its 11 restaurants. 
1 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Rivzi v. Dep 't of Homeland Sec., 37 F. Supp. 3d 870, 
883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 292 (5th Cir. 2015). 
2 
Exercising his regulatory discretion, the Director accepted the letter from the Petitioner's president as 
proof of the company's ability to pay the proffered wage and approved the petition. The Director's 
NOIR, however, states that, because the Petitioner did not explain why it could not submit evidence 
otherwise required by 8 C.F.R. § 204.5(g)(2), USCIS erred in accepting the letter as sufficient proof 
of the company's ability to pay. 
As the Petitioner argues on appeal, however, 8 C.F.R. § 204.5(g)(2) does not condition USCIS' 
acceptance of a statement from a financial officer on the unavailability of a petitioner's annual reports, 
federal tax returns, or audited financial statements. Rather, the regulation allows USCIS to accept 
such a statement from any petitioner that employs at least 100 people, including a business that can 
submit evidence otherwise required by the regulation. Thus, the absence of proof of the unavailability 
of other evidence would not have prevented USCIS' acceptance of the president's letter and would 
not have warranted the petition's denial for insufficient evidence of ability to pay. We will therefore 
withdraw the Director's decision. 
The appeal overcomes the revocation grounds stated in the NOIR. Nevertheless, the record does not 
establish USCIS' discretionary authority to accept the letter from the Petitioner's president as proof of 
the company's ability to pay the proffered wage. 
As previously indicated, on the Form 1-140, filed in May 2018, the Petitioner asserted its employment 
of 127 people. In response to the Director's NOIR, the Petitioner submitted copies of its federal 
quarterly payroll tax returns for 2018. The quarterly returns indicate the Petitioner's employment of 
less than 100 people in each quarter of that year. 2 Thus, the record does not demonstrate the 
company's claimed employment of at least 100 people. See Matter of Ho, 19 I&N Dec. at 591 
(requiring a petitioner to resolve inconsistencies of record with independent, objective evidence 
pointing to where the truth lies). Because the Petitioner apparently did not meet the 100-employee 
threshold of 8 C.F.R. § 204.5(g)(2), USCIS lacked discretionary authority to accept the letter from the 
company's president as proof of its ability to pay the proffered wage. 
Consistent with the general requirements of 8 C.F.R. § 204.5(g)(2), the Petitioner's NOIR response 
includes copies of the company's federal income tax returns for 2017 and 2018. But these documents 
do not demonstrate the Petitioner's ability to pay the proffered wage. The 2017 return reflects net 
income of -$82,978 and net current assets of -$1,942,307. The 2018 return shows net income of 
- $212,973 and net current assets of -$2,013,161. None of these negative amounts equal or exceed the 
annual proffered wage of$16,994. 
Also, USCIS records show the Petitioner's filing of Form 1-140 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 here must 
therefore demonstrate its ability to pay the combined proffered wages of this and any other petitions 
that were pending or approved as of this petition's priority date or filed before this petition's approval. 
2 The 2018 payroll tax returns show the Petitioner's employment of 64 people in the first quarter, 61 people in the second 
quarter, and 57 people in the fourth quarter. The third-quarter return lists the company's employment of "O" workers. 
Based on the stated amount of wages paid, however, the number of workers listed in the third quarter appears to be a 
typographical error. The third-quarter wage amount exceeds the first-quarter amount, but falls short of the amounts for 
the second and fourth quarters. 
3 
See Patel v. 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, a petitioner did not demonstrate its ability to pay the combined 
proffered wages of multiple petitions). 3 
USCIS records indicate that, after this petition's priority date of November 17, 2017, and before the 
tiling's approval on November 6, 2018, the Petitioner filed at least three Form 1-140 petitions for other 
beneficiaries. 4 The record lacks proffered wages and priority dates of the other petitions. Thus, 
USCIS cannot calculate the total, combined proffered wages that the Petitioner must demonstrate its 
ability to pay. For this additional reason, the record does not demonstrate the Petitioner's ability to 
pay the proffered wage. Also, as we lack information regarding the Petitioner's total wage obligation, 
we cannot properly and fully assess the Petitioner's totality of the circumstances under Sonegawa. 
The Petitioner did not receive notice of the evidentiary discrepancy regarding the company's number 
of employees or the company's need to demonstrate its ability to pay the combined proffered wages 
of multiple petitions. We will therefore remand the matter. 
On remand, the Director should issue a new NOIR explaining why the record does not establish the 
Petitioner's ability to pay the proffered wage. The company may submit additional evidence/argument 
regarding its number of employees and its ability to pay, including proof of any payments it made to 
applicable beneficiaries in 2017 and 2018, and materials supporting the factors stated in Sonegawa. 
If supported by the record, the new NOIR may also include additional, potential grounds of revocation. 
The Director should afford the Petitioner a reasonable opportunity to respond to all issues raised on 
remand. Upon receipt of a timely response, the Director should review the entire record and enter a 
new decision. 
III. CONCLUSION 
The NOIR's stated grounds do not support revocation of the petition's approval. The Petitioner, 
however, did not demonstrate its ability to pay the proffered wage of the offered position. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
3 The Petitioner need not demonstrate its ability to pay the proffered wages of petitions that it withdrew or that USCIS 
rejected, denied, or revoked. The Petitioner also need not demonstrate its ability to pay proffered wages before the priority 
dates of their corresponding petitions, or after their corresponding beneficiaries have obtained lawful permanent residence. 
4 USCIS records identify the three other petitions by the following receipt numbers: I JI I 
I landl I 
4