remanded EB-3 Case: Restaurant Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 23607779 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 29, 2022 
The Petitioner, a restaurant business, seeks to employ the Beneficiary as an assistant manager. It 
requests classification of the Beneficiary as an "other worker" under the third preference immigrant 
classification. Immigration and Nationality Act (Act) section 203(b)(3)(A)(iii), 8 U.S.C. § 
1153(b)(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a U.S. employer 
to sponsor a foreign national for lawful permanent resident status to work in a position performing 
unskilled labor that requires less than two years of training or experience and is not of a temporary or 
seasonal nature. 
The Director of the Nebraska Service Center denied the petition. The Director determined that the 
primary requirements of the job listed in the labor certification do not meet the immigration petition 
classification for an unskilled worker. 
The AAO reviews the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 
537,537 n.2 (AAO 2015). Upon de nova review, we will withdraw the Director's decision and remand 
the case for further action, consideration, and entry of a new decision in accordance with below. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, the prospective 
employer must obtain a labor certification approval from the U.S. Department of Labor (DOL) to 
establish that there are not sufficient U.S. workers who are available for the offered position. 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 a position. Id. Labor certification also indicates that the 
employment of a foreign national will not harm wages and working conditions of U.S. workers with 
similar jobs. Id. Second, the employer must submit the approved labor certification with an immigrant 
visa petition to USCIS. Section 204 of the Act, 8 U.S.C. § 1154. The immigrant visa petition must 
establish that the foreign worker qualifies for the offered position, that the foreign worker and the 
offered position are eligible for the requested immigrant classification, and that the employer has the 
ability to pay the proffered wage. See 8 C.F.R. § 204.5. Finally, if USCIS approves the immigrant 
visa petition, the foreign worker may apply for an immigrant visa abroad or, if eligible, for adjustment 
of status in the United States. Section 245 of the Act, 8 U.S.C. § 1255. 
II. ANALYSIS 
A. Work Experience 
The Director denied the petItIon because the labor certification requirements do not meet the 
immigration petition classification of an unskilled (other) worker. 
The regulation at 8 C.F.R. § 204.5 states in pertinent part: 
(I) Skilled workers, professionals, and other workers. 
(1) Any United States employer may file a petition on Form 1-140 for 
classification of an alien under section 203(b)(3) as a skilled worker, 
professional, or other (unskilled) worker. 
(2) Definitions. As used in this part: 
Other worker means a qualified alien who is capable, at the time of petitioning 
for this classification, of performing unskilled labor (requiring less than two 
years training or experience), not of a temporary or seasonal nature, for which 
qualified workers are not available in the United States. 
Professional means a qualified alien who holds at least a United States 
baccalaureate degree or a foreign equivalent degree and who is a member of 
the professions. 
Skilled worker means an alien who is capable, at the time of petitioning for 
this classification, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary or seasonal nature, for which 
qualified workers are not available in the United States. Relevant post­
secondary education may be considered as training for the purposes of this 
provision. 
Section H of the accompanying labor certification states that the minimum requirements for the job 
offered are as fol lows: 
H.4 
H.4-B 
H.5 
H.6 
H.6-A 
H.7 
H.7-A 
H.8 
H.8-A 
Education: minimum level 
Major field of study 
Training required? 
Experience in the job offered required? 
Number of months of experience 
Alternate field of study acceptable? 
Major field of study 
Alternate combination of education and 
experience acceptable? 
Alternate level of education required 
2 
High School 
[No response] 
No 
Yes 
6 
No 
[No response] 
Yes 
Bachelor's 
H.8-C 
H.9 
H.10-A 
Number of years of alternate experience 
Foreign educational equivalent acceptable? 
Is experience in an alternate occupation 
acceptable? 
0 
Yes 
No 
Section H.14, specific skills or other requirements states, "Bachelor's degree in any major will be 
accepted in lieu of the required experience." 
Therefore, to meet the education requirements of the instant labor certification, the Beneficiary must 
possess a U.S. high school diploma, or its foreign equivalent. In order to meet the experience 
requirements, the Beneficiary must have six months of job experience. In the alternative of the 
education and experience requirements, the Beneficiary must possess a U.S. bachelor's degree, or its 
foreign educational equivalent, and no work experience.1 
The Director found that the labor certification fel I outside the other (unskilled) worker classification 
due to the inclusion of the bachelor's degree as an acceptable alternative to the six month work 
experience requirement. Upon de nova review, we conclude the Director's decision was in error. 
The skilled worker classification requires "at least two years of training or experience." 8 C.F.R. § 
204.5(1)(2). In contrast, the unskilled worker classification requires "less than two years training or 
experience." Id. A qualifying position for an unskilled worker cannot exceed these limitations. To 
differentiate between the skilled worker and unskilled worker classification, we must look at "the 
requirements of training and/or experience" on the labor certification. 8 C.F.R. § 204.5(1)(4). The 
regulation further provides that post-secondary education may be considered as training. 8 C.F.R. § 
204.5(1)(2). Necessarily, the unskilled worker classification must require less training and experience 
than the skilled worker classification. 
Here, the labor certification requires a minimum of a high school education and six months of work 
experience. We agree with the Petitioner's argument that a bachelor's degree is not a requirement for 
the labor certification, but instead is an alternate acceptable in lieu of the six months of work 
experience requirement. Since the labor certification only requires a minimum of a high school 
diploma and six months work experience, such requirement falls within the definition of unskilled 
(other) worker, "less than two years of work experience and/or training." We must generally follow 
the plain and unambiguous language of a statute or regulation. See, e.g., Matter of J.M. Acosta, 27 
l&N Dec. 420, 426 (BIA 2018). 
The Director erred in denying the petition based on the labor certification not meeting the statutory 
requirements of the immigrant visa classification. We therefore withdraw the Director's decision on 
this issue. 
1 USCIS may neither ignore a term of the labor certification, nor impose additional requirements. See, e.g., Madany v. 
Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (stating that the "DOL bears the authority for setting the content of the labor 
certification"). 
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B. Ability to Pay 
Although not discussed by the Director, the record does not demonstrate the Petitioner's ability to pay 
the proffered wage from the priority date onward. 8 C.F.R. § 204.5(g)(2). 
In determining ability to pay, USCIS first determines whether the petitioner paid the beneficiary the 
full proffered wage each year from the priority date. If the petitioner did not pay the proffered wage 
in any given year, USCIS next determines whether the petitioner had sufficient net income or net 
current assets to pay the proffered wage (reduced by any wages paid to the beneficiary). If net income 
and net current assets are insufficient, USCIS may consider other relevant factors, such as the number 
of years the petitioner has been in business, the size of its operations, the growth of its business over 
time, its number of employees, the occurrence of any uncharacteristic business expenditures or losses, 
its reputation within its industry, or whether a beneficiary will replace a current employee or 
outsourced service. See Matter of Sonegawa, 12 l&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
If a petitioner has filed immigrant visa petitions on behalf of multiple beneficiaries, the petitioner must 
establish that it has had the ability to pay the proffered wage to each beneficiary. See Patel v. Johnson, 
2 F.Supp.3d 108, 124 (D. Mass. 2014). Petitions filed on behalf of other beneficiaries are considered 
from the priority date of each petition (not including any year prior to the priority date of the petition 
being reviewed on appeal) until the present or until any other beneficiary obtains lawful permanent 
residence. Petitions that have been withdrawn or denied are not considered in this analysis. 
In this case, the proffered wage is $32,843 per year and the priority date is April 20, 2021. The record 
includes a copy of the Petitioner's 2020 federal income tax return, which covers a time period prior to 
the priority date. The record does not include sufficient evidence to demonstrate the Petitioner's ability 
to pay the proffered wage from the priority date onward. USCIS records indicate that, after this 
petition's priority date of April 20, 2021, the Petitioner filed at least one additional Form 1-140 petition 
for another beneficiary.2 The record lacks the proffered wage and priority date of the other petition. 
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. Since we lack information regarding the Petitioner's 
total wage obligation, we also cannot properly and fully assess the Petitioner's totality of the 
circumstances. See Matter of Sonegawa, 12 l&N Dec. at 614-15. 
The Director did not address the Petitioner's ability to pay the proffered wage in the decision. 
Therefore, we will remand this case for the Director to request the submission of regulatorily required 
evidence from the Petitioner, as specified in 8 C.F.R. § 204.5(g)(2). The Director may also request 
any other evidence that may be deemed necessary to determine the Petitioner's eligibility for the 
requested immigration benefit. 
2 USCIS records identify an additional Form 1-140 petition by the receipt number filed on July 8, 2019. 
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Ill. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's eligibility for the immigration benefit it seeks on behalf of the Beneficiary. 
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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