remanded EB-3 Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-E-LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG . 27, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a franchise restaurant , seeks to employ the Beneficiary as a franchise business manager. 
It requests classification of the Beneficiary as a professional under the third preference immigrant 
classification . Immigration and Nationality Act (the Act), section 203(b)(3)(A)(ii), 8 U.S .C. 
§ 1153(b )(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required , that the petition contained a valid labor certification. On appeal, the Petitioner 
asserts that it established by a preponderance of the evidence that the petition contains a valid labor 
certification. 
Upon de nova review, we will remand the matter to the Director for further consideration and entry of 
a new decision. 
I. BONA FIDE JOB OFFER 
The Director denied the petition for the absence of a valid labor certification. He determined that the 
Beneficiary will not be employed as a full-time, pennanent employee based on the Beneficiary's (a) 
minorit ownership interest in a separate entity which will serve as a master franchisor for a restaurant 
m ____ ~__, Florida, and (b) title as a "master franchisor," but not owner, of another restaurant 
in ____ - Florida. A petitioner must be "desiring and intending to employ [a foreign national] 
within the United States." Section 204(a)(l)(F) of the Act. It must intend to employ a beneficiary 
under the terms and conditions of an accompanying labor certification. See Matter of Izdebska, 12 
I&N Dec . 54, 55 (Reg'l Comm'r 1966) (affirming denial where , contrary to an accompanying labor 
certification, a petitioner did not plan to employ a beneficiary as a domestic worker on a full-time, 
live-in basis). The Director indicated that the Beneficiary will likely be working for these other 
entities, and not for the Petitioner, and that the job offer was not bona fide as a result. 
On appeal, the Petitioner asserts that the Beneficiary owns a minority interest in a distinct business 
entity which signed an agreement with another distinct entity to be the master franchisor for restaurants 
in Florida. It states that no job offer has been made to the Beneficiary by these other entities, and that 
Matter of J-E- LLC 
the Beneficiary's ownership interest in a separate entity has no relationship to his permanent, full-time 
job with the Petitioner. It asserts that it has established by a preponderance of the evidence that the 
job offer is bona fide. Based on our review of the totality of the record, we agree that the Petitioner 
has established by a preponderance of the evidence that the job offer is bona fide. 
The Petitioner has established by a preponderance of the evidence that its job offer to the Beneficiary 
is valid and that the petition is accompanied by a valid labor certification. We will therefore withdraw 
the Director's decision. Notwithstanding our withdrawal of the Director's decision, we find that the 
record as presently constituted contains insufficient evidence regarding the Petitioner's continuing 
ability to pay the proffered wage from the priority date. We will therefore remand the matter to the 
Director. 
II. ABILITY TO PAY 
The record does not contain regulatory required evidence of the Petitioner's ability to pay the proffered 
wage from the priority date on August 3, 2018, and continuing until the beneficiary obtains lawful 
permanent residence. 1 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 Petitioner submitted evidence of its ability to pay the proffered wage in 201 7, including its federal 
tax return and evidence of wages it paid to the Beneficiary that year. However, the record does not 
contain regulatory-prescribed evidence of its ability to pay for 2018. Without this regulatory-required 
evidence, we cannot affirmatively find that the Petitioner has the continuing ability to pay the proffered 
wage from the priority date. On remand, the Director should request such regulatory-required 
evidence and allow the Petitioner reasonable time to respond. 
III. CONCLUSION 
As the Director's decision did not evaluate the Petitioner's continuing ability to pay the proffered wage 
form the priority date, we will remand the matter to the Director for further consideration. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter of J-E-LLC, ID# 05623962 (AAO Aug. 27, 2019) 
1 The annual proffered wage is $69,500. 
2