remanded EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 20476821 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 26, 2022 
The Petitioner, a wholesaler and franchiser for a Danish retail furniture chain, seeks to employ the 
Beneficiary as a regional manager. The company requests his classification under the third-preference, 
immigrant visa category for professionals . See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S .C. § 1153(b)(3)(A)(ii). 
The Director of the Texas Service Center denied the petition concluding that because the Petitioner 
and Beneficiary had a business relationship , the Petitioner 's job offer was not bona fide because it 
intends to employ the Beneficiary outside the terms of the labor certification. The Director also made 
a finding of fraud or willful misrepresentation of a material fact and invalidated the labor certification. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act , 8 U.S.C. § 1361; Matter ofChawathe, 25 I&N 
Dec . 369 , 375 (AAO 2010) . We review 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 matter for entry of a new decision . 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional 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 employment of a 
noncitizen in the position won 't harm wages and working conditions of U.S. workers 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 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 . 
II. ANALYSIS 
Pursuant to the statutory framework for the granting of immigrant status, any United States employer 
desiring and intending to employ an alien entitled to immigrant classification under the Act, may file 
a petition for classification. Section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F); see 8 C.F.R . § 
204.5(c). Such petitions must be accompanied by a labor certification (Form ETA 9089) from the 
DOL. See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5); see also 8 C.F.R. § 204.5(1)(3)(i). The 
Petitioner must intend to employ a beneficiary under the terms and conditions of an accompanying 
labor certification. See Matter of Izdebska, 12 l&N Dec. 54, 55 (Reg'l Comm 'r 1966) (affirming 
denial where, contrary to an accompanying labor certification, a petitioner did not intend to employ a 
beneficiary under the terms of the labor certification); see also Matter of Sunoco Energy Dev. Co., 17 
l&N Dec. 283,284 (Reg'l Comm'r 1979) (affirming a petition's denial under 20 C.F.R. § 656.30(c)(2) 
where the labor certification did not remain valid for the intended geographic area of 
employment). Because the filing of a labor certification establishes a priority date for any immigrant 
petition later based on the labor certification, a petitioner must establish that the job offer was realistic 
as of the priority date and that the offer remained realistic for each year thereafter, until the beneficiary 
obtains lawful permanent residence . See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
Comm'r 1977). 
Further, the Act requires USCIS to determine eligibility for the visa classification requested. See 
section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). Certain classifications require a labor 
certification to establish eligibility. See section 203(b )(3)(C) of the Act, 8 U.S.C. § 1153(b )(3)(C); 
8 C.F.R. § 204.5(a)(2); 8 C.F.R. § 204.5(1)(3)(i). Section 204(b) of the Act allows a petition's approval 
only after an investigation of the facts in each case to ensure that the facts stated in the petition, which 
necessarily includes the labor certification, are true. Section 204(b) of the Act, 8 U.S.C. 
§ 1154(b ). Thus, the labor certification is not conclusive evidence of eligibility. Instead, it is a pre­
condition to being eligible to file a Form 1-140. USCIS is responsible for reviewing the Form 1-140, 
and the labor certification is incorporated into the Form 1-140 by statute and regulation . See 
section 203(b)(3)(C) of the Act, 8 U.S.C. § 1153(b)(3)(C); 8 C.F.R. § 204.5(a)(2); 8 C.F.R . 
§ 103 .2(b )(i). USCIS is required to approve an employment-based immigrant visa petition only where 
it is determined that the facts stated in the petition, which incorporates the labor certification, are true 
and the foreign worker is eligible for the benefit sought. Section 204(b) of the Act, 8 U.S.C. § 1154(b). 
In this case, the accompanying labor certification was filed on June 12, 2020. The Petitioner checked 
"no" to question C.9 on the labor certification: "Is the employer a closely held corporation, partnership, 
or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship 
between the owners, stockholders, corporate officers, incorporators, or partners, and the alien?" The 
Director found that the Petitioner did not disclose a prior business relationship to DOL, and that the 
relationship calls into question whether the Petitioner's job offer was bona fide. In a Notice of Intent 
to Deny (NOID) the petition, the Director confronted the Petitioner with evidence that its CEO had 
served as a business point of contact on the Beneficiary's E-2 nonimmigrant visa application . The 
Director's decision notified the parties that the Beneficiary's 2018 filing of a Uniform Commercial 
Code (UCC) financial statement form naming the Petitioner as a secured party was further evidence 
of their close ties. (That financial statement related to a business owned by the Beneficiary and his 
spouse.) According to the Director, the Beneficiary's use of the Petitioner as a secured party on its 
financial statement and the naming of the Petitioner's CEO as a "Business Associate" on his 
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nonimmigrant visa application, constitutes a business relationship that should have been disclosed on 
question C.9. of the labor certification. 
On appeal, the Petitioner argues that they did not fail to disclose a relationship that is contemplated by 
question C.9. of the labor certification. We agree. The extent to which the parties have a relationship 
that must be disclosed on question C.9. of the labor certification is a question of fact. Question C.9. 
contemplates two types ofrelationships. The instructions to the Form ETA 9089 state that a Petitioner 
must answer "Yes" or "No," and further explains that "Closely Held Corporations are corporations 
that have relatively few shareholders and whose shares are not generally traded in the securities 
market." DOL's published FAQs provide more guidance about when a Petitioner must disclose a 
relationship and answer "Yes" to question C. 9. See 
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last visited August 26, 2022). DOL's form 
instructions and FAQs guidance do not appear to contemplate a situation such as the one found 
between the Petitioner, its CEO and the Beneficiary ( or his spouse). 
The record contains no evidence that the parties are related by blood, marriage, or adoption. The 
Beneficiary listed the Petitioner's CEO as a "Business Associate" in his nonimmigrant visa 
application. Nor does the Beneficiary's identification of the Petitioner on the UCC financial statement 
as a secured party indicate the type of scenario contemplated by question C.9. DOL's guidance 
suggests that question C.9. contemplates situations where a beneficiary controls a petitioner's business 
operations and hiring, such that the labor certification's job offer is not legitimately open to U.S. 
workers. Here, neither document supports finding that the Petitioner is a closely-held corporation in 
which the Beneficiary holds a financial or controlling stake. In fact, no evidence of record shows that 
the Beneficiary has a stake in the Petitioner's operations or hiring practices. The Petitioner is a 
wholesaler and franchiser of an overseas retail furniture store in the United States, and the Beneficiary 
(with his spouse) operates three of these franchise stores. However, neither the ETA 9089 form 
instructions nor the DOL FAQs point to this type of arrangement as one that should be specifically 
disclosed in question C.9. Moreover, the Petitioner did disclose the Beneficiary's current position, 
and job duties at his franchises on the labor certification, which appears to have provided the DOL 
sufficient evidence to audit the recruitment process prior to certifying the labor certification. 
Without more, we cannot determine that a finding of fraud and/or willful misrepresentation 1s 
appropriate here, and we will accordingly withdraw it. 
III. ABILITY TO PAY THE PROFERRED WAGE 
The Director's decision did not address the Petitioner's 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). 
Evidence of ability to pay must generally include copies of annual reports, federal tax returns, or 
audited financial statements. Id. 
The accompanying labor certification states the proffered wage of the offered position of regional 
manager is $104,000 a year. The Petitioner does not claim to have employed the Beneficiary and did 
not submit any evidence of wages it has paid him. The petition included copies of the Petitioner's 
2019 consolidated tax return, and a 2020 quarterly tax statement. The 2019 tax document shows that 
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the Petitioner generated net income of -$1,158,197and net current assets of-$2,182,540. Therefore, 
the Petitioner has not submitted sufficient evidence to demonstrate that it has the ability to pay the 
Beneficiary the proffered wage. 
A petitioner must demonstrate its ability to pay a proffered wage "continuing until the beneficiary 
obtains lawful permanent residence." 8 C.F.R. § 204.5(g)(2). The record lacks regulatorily required 
evidence of the Petitioner's ability to pay for the years 2019, 2020, and 2021. The Petitioner therefore 
has not demonstrated its continuing ability to pay the proffered wage. 
The Director did not notify the Petitioner of these evidentiary deficiencies. We will therefore remand 
the matter. On remand, the Director should request copies the Petitioner's annual reports, federal tax 
returns, or audited financial statements for the years 2020 through 2022. The Petitioner may also 
submit additional evidence of its ability to pay in those years, including proof that it paid wages to 
applicable beneficiaries or materials supporting the factors stated in Sonegawa. See Matter of 
Sonegawa, 16 I&N Dec. at 614-15. 
IV. CONCLUSION 
Upon review of the entire record, we conclude that the Petitioner has established by a preponderance 
of the evidence that the job offered to the Beneficiary is bona fide and that the Petitioner did not 
misrepresent his relationship to the Beneficiary on the labor certification. The Petitioner, however, 
has not demonstrated its ability to pay the proffered wage. The Director should review the evidence 
to determine if there are any other grounds for denial, and provide the Petitioner a reasonable 
opportunity to respond. 
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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