remanded EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 18407292 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 27, 2022 
The Petitioner, a convenience store, seeks to employ the Beneficiary as an assistant manager. It 
requests classification of the Beneficiary as a professional under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 8 U.S.C. 
§ 1153(B)(3)(A)(ii). This employment-based "EB-3" 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 on the ground that the Petitioner did not 
show that it made a bona fide job offer to the Beneficiary, or that it intends to employ the Beneficiary 
in the offered position. 
On appeal the Petitioner asserts that the Director's decision was erroneous in fact and law. The 
Petitioner contends that the evidence of record demonstrates that its business is in need of an assistant 
manager, that the Beneficiary has the qualifications for the job, that no qualified U.S. workers applied 
for the position, and that there was no legal basis for the Director to conclude that the Petitioner did 
not make a bona fide offer to the Beneficiary and did not intend to employ the Beneficiary in the job 
offered. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The burden is on the petitioner in visa petition proceedings to establish eligibility for the 
benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by 
a preponderance of the evidence that the beneficiary is fully qualified for the benefit sought. See 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). To establish its eligibility for the 
immigration benefit it seeks under the preponderance of the evidence standard, the petitioner must 
submit sufficiently probative and credible evidence to establish that its claim is "more likely than not" 
or "probably" true. See Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989). 
Upon de novo review, we will withdraw the Director's decision. We will remand the case for further 
consideration and the entry of a new decision. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies 
that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered 
position and that employing a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition (Form I-140) with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
approves the petition, the foreign national 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. 
II. ANALYSIS 
The instant T-140 petition was filed on January 25, 2019, accompanied by a labor certification that was 
filed with the DOL on August 24, 2018, and certified in November 2018. The labor certification stated 
that the minimum educational and experience requirements for the job of assistant manager were a 
bachelor's degree in business administration, or a foreign educational equivalent, and two years of 
experience in the job offered. After issuing a notice of intent to deny (NOID) and receiving the 
Petitioner's response thereto, the Director denied the petition on March 21, 2019, stating that the 
Petitioner did not explain why a bachelor's degree was needed for the position nor submit 
documentation of its recruitment process, and therefore failed to establish that the proffered position 
was a bona fide job offer open to U.S. workers or that it intended to employ the Beneficiary in the 
position. 
On appeal, however, the AAO withdrew the Director's decision. In our decision dated September 20, 
2019, we pointed out that the Petitioner's vice president had submitted a letter describing why a 
baccalaureate degree was required for the assistant manager position, and that the Director had no 
authority to challenge the bachelor's degree requirement in the certified ETA 9089 anyway unless 
there was a finding of fraud or misrepresentation of a material fact involving the job requirements that 
warranted the invalidation of the labor certification. Since there was no invalidation of the labor 
certification, we stated that the Director was bound by its job requirements and erred in questioning 
the bachelor's degree requirement for the proffered position. We concluded that the record did not 
support the Director's denial of the petition based on the bonafides of the job offer, and withdrew the 
Director's decision. However, we did not approve the petition because the evidence ofrecord did not 
establish the Petitioner's ability to pay the proffered wage from the priority date of August 24, 2018, 1 
onward. Since the Director had not previously addressed this issue, we remanded the case for the 
Director to request additional evidence of the Petitioner's ability to pay the proffered wage. We also 
stated that the Director could notify the Petitioner of other potential grounds for denial, and if one such 
1 The priority date of an employment-based immigrant petition is the date the underlying labor certification application 
was filed with the DOL. 8 C.F.R. § 204.5( d). The Petitioner must establish that all eligibility requirements for the petition 
have been satisfied by the priority date. 
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ground was fraud or willful misrepresentation of a material fact on the labor certification the Petitioner 
must be given notice of the specific allegation. 
The Director issued a request for evidence (RFE) on October 22, 2019, requesting the submission of 
documentation to establish the Petitioner's ability to pay the proffered wage of $26.50 per hour, as 
stated in the labor certification (or $55,120 per year based on a 40-hour work week), from the priority 
date of August 24, 2018, onward. If a petitioner does not establish that it has paid the beneficiary an 
amount equal to or above the proffered wage from the priority date onward, USCIS examines the net 
income and net current assets figures recorded on the petitioner's federal income tax return(s), annual 
report( s ), or audited financial statements( s ). If either of these figures, net income or net current assets, 
equals or exceeds the proffered wage or the difference between the proffered wage and the amount 
paid to the beneficiary in a given year, the petitioner would ordinarily be considered able to pay the 
proffered wage during that year. In response to the RFE the Petitioner submitted a copy of its federal 
income tax return, Form 1120S, U.S. Income Tax Return for an S Corporation, for 2018 which 
recorded net income of $105,306 2 and net current assets of $93,145 3 that year. Both of these figures 
exceeded the proffered wage. 
The Director then issued a NOID on February 13, 2020, once again stating that the evidence ofrecord 
did not show that the Petitioner made a bona fide job offer to the Beneficiary or that the Petitioner 
intends to employ the Beneficiary in the offered position, or that the Beneficiary intends to work in 
the offered position. To augment the record the Director indicated that the Petitioner should submit 
copies of its recruitment reports; the 2018 Form W-2, Wage and Tax Statements, for each of its 
employees; the Petitioner's Form 941, Employer's Quarterly Federal Tax Return, for all quarters in 
2018 and 2019, including the supplements identifying all employees; the Petitioner's payroll records 
in 2018; and a list of all employees in 2018 with information about their positions, salaries, hiring 
dates, and work hours per week. 
In response to the NOID the Petitioner submitted a brief from counsel, a letter from its vice-president, 
a copy of a previously submitted letter from its vice president; a copy of its recruitment report, 
including job advertisements for the proffered position; another copy of the Petitioner's 2018 federal 
income tax return; and the DOL's final rule on the processing of labor certification applications, 
effective July 16, 2007. 
The Director denied the petitioner for the second time on December 15, 2020. In the decision the 
Director noted that the Petitioner did not provide any of the payroll, tax, and employee documentation 
listed in the NOID, and stated that some of the Petitioner's employees also appeared to be owners. 
With regard to the new letter submitted by the Petitioner's vice president, the Director stated that it 
provided "limited information" about the Petitioner's business operations and attributed the fluctuating 
2 If an S corporation, like the Petitioner, has income exclusively from a trade or business, USCIS considers its net income 
(or loss) to be the figure for "Ordinary business income (loss)" on page 1, line 21, of the Form 1120S. However, if there 
are relevant entries for additional income, credits, deductions or other adjustments from sources other than a trade or 
business, they are reported on Schedule K of the Form 1120S, and the corporation's net income or loss will be found in 
line 18 of Schedule K ("Income/loss reconciliation"). 
3 For a corporation net current assets ( or liabilities) are the difference between its current assets, entered on Schedule L, 
lines 1-6, of the Form 1120S, and its current liabilities, entered on Schedule L, lines 16-18. 
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employee totals (the labor certification application in August 2018 indicated eight, while the petition 
in January 2019 indicated six) to the business's high turnover rate. Referring to the recruitment report, 
the Director noted that the job advertisements produced no applicants during the recruitment period in 
April and May 2018. The Director pointed out that the job advertisement with the State Workforce 
Agency (SW A) contained a line entry for "special skills" which stated that the job requires a 
"Bachelor's Degree or higher ( or foreign equivalent) in Business Administration and 2 years 
experience in the job duties," and that this language was not included in Box H.14 (Special skills and 
other requirements) of the labor certification. The duties of the proffered position as described on the 
labor certification (Box H.11) include the scheduling of staff, sales, inventory control, customer 
service, pricing, budget, and light bookkeeping, liaising with vendors, and ensuring that safety, health, 
and security rules are met. The employment verification letters that were submitted with the petition, 
the Director noted, do not mention any experience by the Beneficiary with safety, health, and security 
rules. In view of this inconsistency between the Beneficiary's employment verification letters and the 
job duties of the proffered position as described in Box H.11 of the labor certification, the Director 
determined that "the petitioner intends to hire the beneficiary contrary to the fact that he does not 
appear to have the requisite experience or skills for the position." 
The Director concluded that "[b]ased on the totality of the record ... the evidence does not show that 
the petitioner made a bona fide job offer to the beneficiary, or that the petitioner desires and intends 
to employ the beneficiary in the offered position." 
On appeal the Petitioner asserts that, contrary to the Director's decision, the business need for an 
assistant manager was well described in the statements from the Petitioner's vice president and the 
recruitment efforts during the labor certification process; that no able, willing, and qualified U.S. 
workers applied for the job; that the Beneficiary has the requisite qualifications for the job; and that 
the Petitioner has the ability to pay the proffered wage. The Petitioner asserts that the Director 
"applie[d] a nebulous and undefined meaning of"bona fide job offer" that does not exist in the Act or 
its implementing regulations. 
As in our previous remand decision following the Petitioner's initial appeal, we conclude that the 
record does not support the Director's denial of the petition based on the bonafides of the job offer to 
the Beneficiary. However, the Director did raise an additional issue concerning the inconsistency 
between the duties of the proffered position as described in Box H.11 of the labor certification and the 
duties the Beneficiary performed in previous jobs according to the employment verifications letters in 
the record, which called into question whether the Beneficiary had the requisite experience for the 
proffered position in accordance with the labor certification. Since this issue was not addressed by 
the Director in the RFE or the NOID, it was not a proper basis for the Director to deny the petition. 
Instead, the Director should have issued a supplemental RFE or NOID providing the Petitioner the 
opportunity to respond and submit additional evidence. 
We also note that the Director previously requested other documentation - including payroll, tax, and 
employee documentation - which was not submitted by the Petitioner. If relevant to the question of 
the Petitioner's continuing ability to pay the proffered from the priority date of August 24, 2018, 
onward, the Director may consider whether such documentation is necessary, or request additional 
required documentation related to the Petitioner's continuing ability to pay the proffered wage after 
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the priority date year of 2018. The regulation at 8 C.F.R. § 103.2(b)(14) provides that the failure to 
provide requested evidence that precludes a material line of inquiry may be grounds for denying the 
benefit request. 
Accordingly, we will remand this case to the Director for further consideration. The Director may 
issue an RFE or a NOID advising the Petitioner of any apparent inconsistencies between the job 
requirements on the labor certification and the Beneficiary's qualifying experience, and provide the 
Petitioner the opportunity to reply and submit rebuttal evidence. The Director may also request any 
other evidence that may be deemed necessary to determine the Petitioner's eligibility for the requested 
immigration benefit. 
As previously stated, it is the Beneficiary's burden in these proceedings to establish eligibility for the 
requested benefit by a preponderance of the evidence. See Section 291 of the Act; Matter of Chawathe. 
III. 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 Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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