remanded EB-3 Case: Service Station Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 6896575 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 10, 2020 
The Petitioner seeks to employ the Beneficiary as an assistant manager of a service station . The 
company requests his classification under the third-preference, immigrant 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). 
The Director of the Texas Service Center denied the petition. The matter is before us on the 
Petitioner's appeal. 
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. THE DENIAL GROUND 
An adverse decision must "explain in writing the specific reasons for denial." 8 C.F.R. 
§ 103.3(a)(l)(i). Here, the Director appears to have found that the Beneficiary willfully 
misrepresented his possession of the minimum employment experience required for the offered 
position. 1 But the written decision also states that "the petitioner has not established eligibility for 
the benefit sought." Thus, the decision does not specify whether the denial stems from the 
Beneficiary's alleged misrepresentation , the Petitioner's purported inability to establish his 
qualifying experience for the position, or both . We will therefore withdraw the Director's decision 
and remand the matter for entry of a new decision. 
If the Director bases his new decision on the alleged misrepresentation, the misrepresentation finding 
here alone would not warrant the petition's denial. A foreign national's misrepresentation of a 
material fact in a request for an immigration benefit renders him or her inadmissible to the United 
States . See section 212(a)(6)(C)(i) of the Act, 8 U.S .C. § 1158(a)(6)(C)(i) . An I-140 petitioner , 
however , need not establish a beneficiary's admissibility. Rather, the Act authorizes officers of the 
1 As the Petitioner notes, however , the decision also states that U.S . Citizenship and Immigration Services (USCIS) 
"intends to enter a finding of willfu l misrepresentation of a material fact against the petitioner ," rather than the 
Beneficiary . 
U.S. Departments of State and Homeland Security to make admissibility findings on applications 
for: immigrant visas at consulates, see section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A); 
admissions at ports of entry, see section 202(a)(l)(B) of the Act, 8 U.S.C. § 1152(a)(l)(B); and 
adjustments of status at USCIS offices, see section 245 of the Act, 8 U.S.C. § 1255. Thus, these 1-
140 petition proceedings are not the appropriate forum to determine the Beneficiary's admissibility. 
See Matter of 0-, 8 I&N Dec. 295, 296-98 (BIA 1959). Nor would a finding of his inadmissibility 
warrant the 1-140 petition's denial. 
An 1-140 petition denial can stem from a misrepresentation of a material fact involving a labor 
certification application. USCIS may invalidate a labor certification after its issuance upon a finding 
of fraud or willful misrepresentation of a material fact involving the certification. 20 C.F.R. § 
656.30( d). A petition for an unskilled worker generally requires a valid, individual labor 
certification. 8 C.F.R. § 204.5(1)(3)(i). Thus, a beneficiary's misrepresentation of a material fact on 
a labor certification can lead to a petition's denial for lack of a valid certification. But a director 
should cite the appropriate regulations and must explain that the denial stems from the petition's lack 
of a valid labor certification. 
If the Director's new decision denies the pet1t10n based on the Beneficiary's experience 
qualifications, the Director must clearly state that the record does not establish the Beneficiary's 
possession of the minimum experience required for the offered position and should identify whether 
the Beneficiary misrepresented his experience. The Director must also consider the Petitioner's 
evidence of the Beneficiary's claimed experience and explain why it is insufficient. 
The Director's decision does not clearly state the reasons for denial. We will therefore withdraw the 
decision and remand the matter for entry of a new decision. 
II. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record also does not establish 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). For petitioners employing less than 100 people, as in this case, 
evidence of ability to pay must include copies of annual reports, federal tax returns, or audited 
financial statements. Id. 
Here, the accompanying labor certification states the proffered wage of the offered position of 
assistant manager as $49,296 a year. The petition's priority date is September 22, 2017, the date the 
U.S. Department of Labor received the labor certification application for processing. See 8 C.F.R. 
§ 204.5(d) (explaining how to determine a petition's priority date). 
The Petitioner submitted a copy of its federal income tax return for 2016. The record, however, 
lacks required evidence of the Petitioner's ability to pay the proffered wage in 201 7, the year of the 
petition's priority date, or thereafter. Contrary to 8 C.F.R. § 204.5(g)(2), the Petitioner therefore has 
not demonstrated its ability to pay the proffered wage from the petition's priority date onward. 
2 
Also, USCIS records indicate the Petitioner's filing of an immigrant petition for another beneficiary 
after this petition's priority date of September 22, 2017. 2 A petitioner must demonstrate its ability to 
pay the proffered wage of each petition it files until a beneficiary obtains lawful permanent 
residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore demonstrate its ability to pay 
the combined proffered wages of this and the other petition that was filed after September 22, 2017. 
See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's 
approval where, as of the filing's grant, the petitioner did not demonstrate its ability to pay the 
combined proffered wages of multiple petitions). 
The record lacks information about the Petitioner's other pet1t10n. USCIS therefore cannot 
determine the total proffered wages that the Petitioner must demonstrate its ability to pay. On 
remand, the Director should notify the Petitioner that it must provide the proffered wage and priority 
date of its other petition. The Director should also ask the Petitioner to submit copies of its annual 
reports, federal tax returns, or audited financial statements for 2017, 2018, and, if available, 2019. 
The Petitioner may also submit additional evidence of its ability to pay the combined proffered 
wages in those years, including proof of any wages it paid the beneficiaries or materials supporting 
the factors stated in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
The Director should afford the Petitioner a reasonable period to gather and submit requested 
evidence. Upon receipt of a timely response, the Director should review the entire record and enter a 
new decision. 
III. CONCLUSION 
The decision does not clearly state the reasons for denial. The record also lacks required evidence of 
the Petitioner's ability to pay the proffered wage 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. The Director should certify any 
adverse decision to the Administrative Appeals Office for review. 
2 The other petition's receipt number is~-----~ 
3