remanded EB-3 Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re: 10183159 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 26, 2021 
The Petitioner, an operator of a gas station/convenience store, seeks to employ the Beneficiary as a 
cashier. The company requests her classification under the third-preference, immigrant category for 
skilled workers. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b )(3)(A)(i). 
The Director of the Texas Service Center denied the petition and dismissed the Petitioner's following 
motions to reopen and reconsider. The Director concluded that, contrary to the Act and Department 
of Homeland Security regulations, the Petitioner did not demonstrate the availability of the offered 
position to U.S. workers or the company's intention to employ the Beneficiary in the job.1 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 of 
the Act, 8 U.S.C. § 1361. 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 a skilled worker generally follows a three-step process. First, to permanently fill a 
position in the United States with a foreign worker, a prospective employer must 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. Labor certification also indicates that employment of a noncitizen 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 
1 The Director referred to the availability of the offered position to U.S. workers as "the bona tides of the job offer." That 
term, however, may also describe a petitioner's intention to employ a beneficiary in an offered position. To avoid 
confusion, we will refer to the availability of the offered position to U.S. workers as the "the bona tides of the job 
opportunity." We will call the issue of the Petitioner's intention to employ the Beneficiary in the offered position "the 
bona tides of the job offer." 
requirements of a DOL-certified position and a requested immigrant visa classification. If USCIS 
grants a petition, a designated noncitizen 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. 
II. BONA FIDES OF THE JOB OPPORTUNITY 
An employer must attest on a labor certification application that "[t]he job opportunity has been and 
is clearly open to any U.S. worker." 20 C.F.R. § 656.lO(c)(B). 
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 relationship 
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 opportunity. 
Matter of Modular Container Sys., Inc., 89-INA-228, slip op. at 7 (BALCA July 16, 1991) (en bane). 
The Petitioner attested to the bona tides of the job opportunity of cashier on the accompanying labor 
certification. But the Director noted that the company's president/owner and the Beneficiary knew of 
each other before the application's filing in 2019. On a 2015 application for a U.S. visitor's visa, the 
Beneficiary I isted the president/owner as her "contact person" in the United States, describing him as 
a "friend." 
In affidavits, the Beneficiary, her spouse, and the Petitioner's president/owner identified the 
president/owner as "a friend of a friend." The Beneficiary and her spouse applied for visas in 2015 to 
visit their friend in the United States. Because the friend was renovating his home at the time of the 
applications, they said they followed his advice and listed his friend - the Petitioner's president/owner 
- as the U.S. contact person on their applications. The Beneficiary and her spouse stated that they did 
not then personally know the president/owner, but later met him at a wedding in Pakistan in 2016. 
They stated that, when the Beneficiary most recently entered the United States in 2018, she did not 
intend to work for the Petitioner. Rather, the couple said that, before their friend told them of the 
Petitioner's job opportunity in Virginia, the Beneficiary sought employment in Texas. 2 
The relationship between the Petitioner's president/owner and the Beneficiary before the filing of the 
labor certification casts doubt on the availability of the offered position to U.S. workers. The evidence, 
however, does not support the non-bona tides of the job opportunity. Contrary to the guidelines 
provided in Modular Container, the record does not indicate the Beneficiary's possession of a 
dominant role in the Petitioner's business, an ability to control hiring for the offered position, or a 
"close," personal relationship with the company's president/owner. We will therefore withdraw the 
Director's contrary finding. 
2 USCIS records indicate that the Beneficiary and her spouse last entered the United States as visitors in! Inn May 
6, 2018. In a recruitment report submitted to DOL during the labor certification process, the Petitioner indicated its 
initiation of the recruitment period by requesting a prevailing wage determination on June 11, 2018. 
2 
Ill. BONA FIDES OF THE JOB OFFER 
A business may file a petition if it is "desiring and intending to employ [a noncitizen] within the United 
States." Section 204(a)(1)(F) of the Act. A petitioner must intend to employ a beneficiary pursuant 
to the terms and conditions of an accompanying labor certification. See Matter of lzdebska, 12 l&N 
Dec. 54, 55 (Reg'I Comm'r 1966) (affirming a petition's denial where, contrary to the terms of an 
accompanying labor certification, a petitioner did not intend to employ a beneficiary as a domestic 
worker on a full-time, live-in basis). 
The accompanying labor certification states the Petitioner's intention to employ the Beneficiary as a 
cashier in Virginia. The Director, however, noted the application's listing of the Beneficiary's 
residence in Texas. The Director also found that the Beneficiary's affidavit states neither her intention 
to work in the offered position nor her willingness to move to Virginia. The Director therefore 
concluded that the Petitioner did not demonstrate its intention to employ the Beneficiary in the offered 
position. 
The Beneficiary's residence outside the state of intended employment, however, would not necessarily 
indicate her lack of intent to work in the offered position. A beneficiary need not begin working for a 
petitioner until after they obtain lawful permanent residence. See USCIS' Proposed Rule for Retention 
of EB-1, EB-2, and EB-3 Immigrant Workers, 80 Fed. Reg. 81900, 81916 (Dec. 31, 2015) (stating 
that a beneficiary "need not have been employed at any time by the employer that filed the immigrant 
visa petition"). 
Moreover, contrary to the Director's findings, the record indicates the Beneficiary's intention to work 
in the offered position and willingness to move to Virginia. The Beneficiary's affidavit states that she 
"accepted" the job offer. Also, while the labor certification application lists the Beneficiary's address 
in Texas, the Form 1-140, which was filed about five months after the labor application, lists her 
address in the Virginia city of the proposed worksite. Her Form 1-485, Application for Adjustment of 
Status, which was concurrently filed with the petition, lists the same Virginia address. In addition, the 
Beneficiary's affidavit identifies Virginia as the site of the document's notarization and signing. Thus, 
contrary to the Director's findings, evidence indicates not only the willingness of the Beneficiary to 
move to Virginia, but also her actual relocation to the state. 
For the foregoing reasons, the record does not support the petition's denial based on a non-bona fide 
job offer. We will therefore also withdraw this finding. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The appeal overcomes the denial grounds. But the record does not establish the petition's 
approvability. Although unaddressed by the Director, the Petitioner has not demonstrated 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 C.F.R. § 204.5(g)(2). If, as here, a 
petitioner employs less than 100 people, evidence of ability to pay must include copies of annual 
reports, federal tax returns, or audited financial statements. Id. 
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The labor certification states the proffered wage of the offered position of cashier as $26,500 to 
$26,750 a year. The petition's priority date is January 2, 2019, the date DOL received the labor 
certification application for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a 
petition's priority date). 
At the times of the Director's denial of the petition and dismissals of the Petitioner's following 
motions, regulatory required evidence of the company's ability to pay the proffered wage in 2019, the 
year of the petition's priority date, was not yet available. The Director determined the company's 
ability to pay based on a copy of its federal income tax return for 2018. The Petitioner submitted 
financial statements for 2019. Contrary to 8 C.F.R. § 204.5(g)(2), however, the statements do not 
indicate that they were "audited." Also, the statements cover only the first quarter of 2019. The 
Petitioner therefore did not establish its ability to pay the proffered wage from the petition's priority 
date onward. 
Because regulatory required evidence of the Petitioner's ability to pay the proffered wage was 
previously unavailable, we will remand the matter. On remand, the Director should issue a written 
notice asking the Petitioner to submit copies of annual reports, federal tax returns, or audited financial 
statements for 2019 and, if available, 2020. See 8 C.F.R. § 204.5(g)(2). The Petitioner may also 
submit additional evidence of its ability to pay, including proof of any wages it paid the Beneficiary 
in relevant years or materials supporting the factors stated in Matter of Sonegawa, 12 l&N Dec. 612, 
614-15 (Reg'I Comm'r 1967). 
If supported by the record, the Director may raise additional, potential grounds of denial. The Director 
must provide 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 does not support the petition's denial on the stated grounds of a non-bona fide job 
opportunity and offer. The Petitioner, however, did not demonstrate its required ability to pay the 
proffered wage of the offered position from the petition's priority date onward. 
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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