remanded EB-3 Case: Stone Fabrication

MATTER OF U-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 28, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an importer, fabricator, and installer of natural stones, seeks to employ the 
Beneficiary as a stone fabrication technician. It requests classification as a skilled worker under the 
third preference immigrant category. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This category allows a U.S. business to sponsor a 
foreign national with at least 2 years of training or experience for lawful permanent resident status. 
After initially approving the petition, the Director, Texas Service Center, revoked its approval. See 
section 205 of the Act, 8 U.S.C. § 1155 (authorizing U.S. Citizenship and Immigration Services 
(USCIS) to revoke a petition's approval "at any time" for "good and sufficient cause"). The 
Director concluded that the Petitioner did not disclose a familial relationship between the 
Petitioner's president and the Beneficiary on the accompanying ETA Form 9089, Application for 
Permanent Employment Certification (labor certification). The Director also found that the record at 
the time of the petition's approval did not establish the Petitioner's intention to employ the 
Beneficiary in the offered position. 
We dismissed the Petitioner's appeal, finding that although the familial relationship between the 
Petitioner's president and Beneficiary did not affect the bona fide nature of the job, the record did 
not establish the Petitioner's intention to employ the Beneficiary in the offered position. See Matter 
o.f U-S-, Inc., ID# 16144 (AAO) Mar. 25, 2016). We subsequently denied the Petitioner's following 
motions to reopen and reconsider. See Matter qfU-S-. Inc., ID# 8597 (AAO July 13, 2016). 
The matter is now before us again on motion to reopen and motion reconsider. Upon review, we 
will grant the motion to reopen and remand this matter to the Director for further proceedings 
consistent with the following opinion and for the entry of a new decision. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such 
as, for instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with 
the correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 
(b)(6)
Matter of U-S-, Inc. 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider is based on legal grounds and must (1) state the reasons for 
reconsideration; (2) be supported by any pertinent precedent decisions to establish that the decision 
was based on an incorrect application of law or policy; and (3) establish that the decision was 
incorrect based on the evidence of record at the time ofthe initial decision. 8 C.F.R. § 103.5(a)(3). 
II. ANALYSIS 
A. Motion to Reopen 
The Petitioner meets the requirements for a motion to reopen. Specifically, the Petitioner has 
provided evidence to overcome our appellate decision finding that the Petitioner did not intend to 
employ the Beneficiary. The Petitioner's prior motion to reopen contained an affidavit from the 
Petitioner's president explaining the Beneficiary's role in the company and stating its intention to 
employ him in the offered position. This affidavit overcomes the evidence suggesting the 
Petitioner's intention to employ the Beneficiary in a different position. We will therefore grant the 
Petitioner's motion to reopen and withdraw our appellate finding regarding the bona .fides of the job 
offer. 
Despite our withdrawal of the appeal's dismissal ground, the record does not establish the petition's 
initial approvability. As indicated in our appellate decision, the record at the time of the petition's 
approval did not demonstrate the Petitioner's ability to pay the proffered wage of $49,525 per year. 
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 include copies of annual reports, federal income tax returns, or 
audited financial statements. !d. Here, USCIS records indicate the Petitioner's filing ofthree other 
Forms I-140, Immigrant Petitions for Alien Workers, that remained 
pending at the time of this 
petition's approval on December 19, 2011.1 
A petitioner must demonstrate its ability to pay the proffered wage of each petition it files. 8 C.F.R. 
·§ 204.5(g)(2). The Petitioner must therefore demonstrate its ability to pay the combined proffered 
wages of this petition and other petitions that remained pending at that time. The Petitioner must 
demonstrate its ability to pay the combined proffered wages from this petition's priority date until 
the beneficiaries of the other petitions obtained lawful permanent residence, or until their petitions 
were denied, withdrawn, or revoked. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) 
(affirming our denial of a petition where a petitioner did not demonstrate its ability to pay the 
combined proffered wages of multiple beneficiaries). 
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1 
USCIS records identifY the three other petitions by the following receipt numbers: 
and 
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Matter of U-S-, Inc. 
With its prior motion to reopen, the Petitioner submitted information and documentation in support 
of its ability to pay its pending beneficiaries, but such evidence has not been considered by the 
Director. We will therefore remand this matter to the Director for consideration of the Petitioner's 
ability to pay the proffered wage at the time of the petition's approval. 
If the Director concludes that the record establishes the Petitioner's ability to pay the proffered 
wages of all pending beneficiaries at the time of the petition's approval, he should notify the 
Petitioner of the continued validity of this petition. However, if the Director does not so find, he 
may issue a new notice of intent to revoke (NOIR) pursuant to 8 C.F.R. § 205.2(b). A new NOIR 
may also allege any other revocation grounds supported by good and just cause. 
B. Motion to Reconsider 
As we are granting the motion to reopen and remanding the matter to the Director for entry of a new 
decision, the motion to reconsider is moot. 
III. CONCLUSION 
We will grant the Petitioner's motion to reopen and withdraw our contrary appellate finding. 
However, because the record does not establish the Petitioner's ability to pay the proffered wage at 
the time of the petition's approval, we will remand this matter to the Director for further 
consideration. 
ORDER: The motion to reopen is granted and the matter is remanded to the Director, Texas 
Service Center, for further proceedings consistent with the foregoing opinion and for 
the entry of a new decision. 
Cite as Matter of U-S-. Inc., ID# 87886 (AAO Feb. 28, 20 17) 
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