remanded EB-3 Case: Restaurant Operations

U.S. Citizenship 
and Immigration 
Services 
In Re : 15820647 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 22, 2021 
The Petitioner , a restaurant operator, seeks to employ the Beneficiary as a wine steward. The company 
requests his 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(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 - because the Petitioner falsely concealed a personal 
relationship between the company's vice president /co-owner and the Beneficiary - it didn't 
demonstrate the bonafides of the job opportunity. 
In revocation proceedings, the Petitioner bears the burden of establishing eligibility for the requested 
benefit by a preponderance of evidence. See Mattera/Ho, 19 I&NDec. 582,589 (BIA 1988) (citation 
omitted) (discussing the burden of proof); see also Matter ofChawathe, 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 the U.S. Department of Labor (DOL) for certification that: (1) 
there are insufficient U.S. workers able, willing, qualified, and available for an offered position ; and (2) 
the employmentofa non citizen in the position won't harm wages and working conditions ofU.S. worl<:ers 
with similar jobs. See section 212(a)(5) of the Act, 8 U.S.C. § 1182(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 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally , if USCIS approves a petition , a designated noncitizen 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. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, USCIS may revoke 
a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 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. 
II. THE SUFFICIENCY OF THE NOIR 
Unless a filing is subject to automatic revocation under 8 C.F.R. § 205.1, USCIS can't revoke a 
petition's approval without first issuing a petitioner a written notice of intent to revoke (NOIR). 
8 C.F.R. § 205.2(a), (b ). "The petitioner ... must be given the opportunity to offer evidence in support 
of the petition ... and in opposition to the grounds alleged for revocation of the approval." 8 C.F.R 
§ 205.2(b ). 
USCIS may issue a NOIR if the unexplained and unrebutted record at the time of the notice's issuance 
would have warranted the petition's denial. Matter ofEstime, 19 I&N Dec. 450,451 (BIA 1987). A 
NOIR "must include a specific statement not only of the facts underlying the proposed action, but also 
of the supporting evidence." Id. at 452. 
Id. 
Where a notice of intention to revoke is based on an unsupp01ied statement or an 
unstated presumption, or where the petitioner is unaware and has not been advised of 
derogatory evidence, revocation of the visa petition cannot be sustained, even if the 
petitioner did not respond to the notice of intention to revoke. 
Revocation must be grounded on, and a petitioner need only respond to, the factual allegations in a 
NOIR. Matter ofArias, 19 I&N Dec. 568, 570 (BIA 1988). A NOIR's allegations don't support 
revocation of a petition's approval if they are "conclusory, speculative, equivocal, ... [or] irrelevant'' 
to the proposed revocation ground. Id. 
In October 2019, the Director issued the Petitioner a NOIR alleging the company's submission of 
insufficient evidence of the bonajides of the job opportunity for a wine steward. 1 A labor certification 
employer must attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." 
20 C.F.R. § 656.10( c )(8). "This provision infuses the [labor certification] recruitment process with 
the requirement of abonafide job opportunity." MatterofModular Container Sys., Inc., 89-INA-228, 
slip op. at *7 (BALCA July 16, 1991) (en bane). 
Where the alien for whom labor certification is sought is in a position to control hiring 
decisions or where the alien has such a dominant role in, or close personal relationsrup 
with, the sponsoring employer's business that it would be unlikely that the alien would 
be replaced by a qualified U.S. applicant, the question arises whether the employer has 
a bona fide job opp01iunity. 
1 The NOIR alleged additional revocation grounds. The Director, however, revoked the petition's approval based only on 
the purported unavailability ofthejob opportunity to U.S. workers. We thereforewon'tdiscuss the NOIR's other grounds. 
2 
Id. 
Asked in part C.9 of the labor certification application "is there a familial relationship between the 
owners, stockholders, partners, corporate officers, or in corp orators [ of the employer], and the alien?" 
the Petitioner checked the box marked "No." The NOIRnotes that, on an application fora U.S. visitor 
visa in 2016, before the filing of the labor certification application in 2017, the Beneficiary listed the 
Petitioner's vice president/co-owner as his "contact person" in the United States. The NOIR also notes 
that, in an interview with a U.S. official regarding the visa application, the Beneficiary testified that 
he learned of the Petitioner's job opportunity through his mother. He stated that his mother met the 
company's principal during her work as a notary and suggested the Beneficiary to him as a potential 
employee at the Petitioner's restaurant. 
Based on this evidence, the NOIR alleges that, on the labor ce1iification application, the Petitioner 
falsely concealed the pre-existing relationship between the company's principal and the Beneficiary. 
The NOIR states that "it is unclear how the petitioner could employ the beneficiary in the offered 
position because the job opportunity was not open to any U.S. worker." 
The NOIR's allegations, however, wouldn't have warranted the petition's denial. First, the labor 
certification asked whether "a familial relationship" existed between a principal of the Petitioner and 
the Beneficiary. The record lacks evidence that the Beneficiary is related by blood or marriage to the 
Petitioner's principal. The record therefore doesn't support the company's false concealment of such 
a relationship. Also, under the labor certification process, employers may selectnoncitizens they wish 
to hire before beginning the required recruitment of U.S. workers for the offered positions. See 
20 C.F.R. § 656.17. Thus, the Petitioner's offer of employment to the Beneficiary before the labor 
certification recruitment process doesn't indicate the unavailability of the position to U.S. workers. 
The Director therefore erred in revoking the petition's approval for lack of a bona .fide job 
opportunity. We will therefore withdraw the Director's decision. 
For the foregoing reasons, the NOIR' s allegations wouldn't have warranted the petition's denial based 
on the alleged unavailability of the offered position to U.S. workers. We therefore can't sustain the 
petition's revocation and will withdraw the Director's decision. 
III. THE REQUIRED EXPERIENCE 
The appeal overcomes the revocation ground. But the record nonetheless indicates USCIS' erroneous 
approval of the petition. At the time of the NOIR's issuance, the Petitioner didn't demonstrate the 
Beneficiary's qualifying experience for the offered position. 
A petitioner must demonstrate a beneficiary's possession of all DOL-certified job requirements of an 
offered position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). 2 In assessing a beneficiary's qualifications for a position, USCIS must 
examine the job-offered portion of an accompanying labor certification to determine the job's 
minimum requirements. USCIS may neither ignore a certification term nor impose additional 
2 This petition's priority date is September 7, 2017, the dateDOL accepted the accompanying labor certification application 
for processing. Sec 8 C.F.R. § 204.S(d) ( explaining how to determine a petition's priority date). 
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requirements. See, e.g., Madany v Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holdingthat"DOL 
bears authority for setting the content of the labor certification") ( emphasis in original). 
The accompanying labor certification states the minimum requirements of the offered position of wine 
steward as one year of experience in the job offered. The labor certification indicates that the position 
requires neither education nor training. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained about 
two years, 10 months of full-time, qualifying experience at three restaurants in France. He stated the 
following employment history: 
• About eight months as a wine steward, from March 2016 to November 2016; 
• About one year, two months as a waiter/wine advisor, from January 2015 to March 2016; and 
• About one year as a wine steward, from January 2014 to January 2015. 
To support claimed, qualifying experience, a petitioner must submit letters from a beneficiary's former 
employers. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must include the employers' names, addresses, 
and titles, and descriptions of the beneficiary's experience. Id. 
The Petitioner submitted a letter from only one of the Beneficiary's claimed former employers: the 
restaurant where he purportedly worked as a wine steward from January 2014 to January 2015. The 
address on the letter, however, doesn't match the address of the purported former employer listed on 
the labor certification. The discrepancy casts doubt on the Beneficiary's claimed experience. Matter 
of Ho, 19 I&N Dec. at 5 91 (requiring a petitioner to reso Ive inconsistencies of record with independent, 
objective evidence pointing to where the truth lies). 
Also, the letter's description of the Beneficiary's experience matches verbatim the job duties of the 
offered position listed on the labor certification. The similarity of the job descriptions suggests that 
the purported former employer didn't describe the Beneficiary's experience based on the employer's 
records or personal knowledge. Rather, the letter appears to have been drafted by someone else. The 
reliability of the letter is therefore suspect. 
For the foregoing reasons, the record at the time of the NOIR's issuance didn't demonstrate the 
Beneficiary's possession of the minimum experience required for the offered position. We will 
therefore remand the matter. 
On remand, the Director should issue a new NOIR notifying the Petitioner of the evidentiaty 
deficiency. The new notice should also instruct the company to provide independent, objective 
evidence - such as tax or contemporaneous business records - of the Beneficiary's claimed, qualifying 
experience. See Matter of Ho, 19 I&N Dec. at 591. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record at the time of the NOIR's issuance also did not 
establish the Petitioner's 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 
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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 didn't annually pay the full proffered 
wage or didn't 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 may consider 
other factors affecting a petitioner's ability to pay a proffered wage. See Matter ofSonegawa, 12 I&N 
Dec. 612, 614-15 (Reg'l eomm'r 1967). 3 
The labor ce1iification states the proffered wage of the offered position of wine steward as $45,198 a 
year. As previously noted, the petition's priority date is September 7, 2017. Thus, at the time users 
approved the petition in June 2018, the Petitioner had to demonstrate its ability to pay the proffered 
wage in 2017 and 2018. 
The Petitioner doesn't claim that it ever employed the Beneficiary and didn't submit any evidence of 
payments it made to him in 2017 or 2018. Thus, based solely on wages paid, the Petitioner didn't 
demonstrate its ability to pay the proffered wage from the petition's priority date onward. 
The record contains copies of the Petitioner's federal income tax returns for 201 7 and 2018. The 
returns reflect negative amounts of net current assets in both years, but net income of $103,730 in 
2017 and $229,472 in 2018. 4 Both of these amounts exceed the annual proffered wage of $45,198. 
The Petitioner therefore appears to have demonstrated its ability to pay the Beneficiary's individual 
proffered wage in 2017 and 2018. 
users records, however, indicate the Petitioner's filing of a Form I-140 petition for another 
beneficiary. A petitioner must demonstrate its ability to pay the proffered wage of each petition it files 
until a beneficiary obtains lawful permanent residence. 8 e.F.R. § 204.5(g)(2). This Petitioner must 
therefore demonstrate its ability to pay the combined proffered wages of this petition and any other 
petitions that were pending or approved at the time of this petition's priority date or filed thereafter in 
2017 or 2018. SeePatelv. Johnson, 2F. Supp. 3d 108, 124(D. Mass. 2014) (affirmingourrevocation 
of a petition's approval where, at the time of the filing's grant, a petitioner did not demonstrate its 
ability to pay the combined proffered wages of multiple petitions). 5 
3 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St.Donuts.LLCv.Napolitano,558F.3d 111, 118(lstCir.2009). 
4 The Petitioner chose to be treated as an S corporation for federal income tax purposes in 2017 and 2018. See 26 U.S.C. 
§ 1261 (defining the term "S corporation"). As an S corporation, the Petitioner listed additional income deductions in 
those years on its Schedules K to IRS Forms 1120S, U.S. Income Tax Returns for an S Corporation. See U.S. Internal 
Rev. Serv. (IRS), "Instrnctions to Fonn l l20S,"22,https://www.irs.gov/pub/irs-pdf/il 120s.pdf(lastvisitedApr. 27, 2021) 
(describing Schedule K as "a summary schedule of all shareholders' shares of the corporation's income, deductions, 
credits, etc."). We therefore consider the "reconciliation" amounts listed on lines 18 of the Petitioner's Schedules Kin 
2017and2018 to reflectthecompany's net incomes more accurately than the amounts listed on the IRS Forms 1 120S for 
those years. 
5 The Petitionerneedn't demonstrate its ability to pa yproffored wages of petitions that it withdrew or, unless pending on 
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USCIS records indicate the Petitioner's filing of its other petition in 2018. Because the priority date 
of the other petition is also in 2018, the Petitioner needn't demonstrate its ability to pay the combined 
proffered wages of both petitions in 2017. Rather, the record establishes the Petitioner's ability to pay 
in 2017. In 2018, however, the company must establish its ability to pay the combined proffered 
wages of this and the other petition. The record doesn't indicate the proffered wage of the Petitioner's 
other petition. Thus, we can't calculate the total amount of proffered wages that the company must 
demonstrate its ability to pay in 2018. The record therefore doesn't establish the company's ability to 
pay the proffered wage that year. 
The record doesn't establish the Petitioner's ability to pay the combined proffered wages in 2018. 
Thus, on remand, the new NOIR should inform the Petitioner of this evidentiary defect and ask the 
company to provide the proffered wage of its other petition. The Petitioner may also submit additional 
evidence of its ability to pay in 2018, including materials supporting the factors stated in Matter of 
Sonegawa. See 12I&NDec. at614-15. 
If supported by the record, the new NOIR may include additional, potential grounds of revocation. 
The Director, however, must 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. 
V. CONCLUSION 
The record doesn't support the revocation of the petition's approval based on the bonafides of the job 
opportunity. The Petitioner, however, didn't demonstrate the Beneficiary's qualifying experience for 
the offered position or the company's continuing ability to pay the 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. 
appeal or motion, that USCIS denied, rejected, or revoked. The Petitioner also needn't demonstrate its ability to pay 
proffered wages before the priority dates of corresponding petitions or after the dates that corresponding beneficiaries 
obtained lawful permanentresidence. 
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