dismissed EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 17, 2024 In Re: 32262560 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, an accounting firm, seeks to employ the Beneficiary as a staff accountant. The 
company requests her classification under the employment-based, third-preference (EB-3) immigrant 
visa category as a "professional." See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § l 153(b)(3)(A)(ii). Businesses may sponsor noncitizens for permanent 
residence in this category to work in jobs requiring at least bachelor's degrees. Id. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the offered job's proffered wage. On appeal, 
the company contends that the Director disregarded evidence of its ability to pay. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that the company has not demonstrated its ability to pay the offered job's proffered 
wage. We will therefore dismiss the appeal. 
I. LAW 
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: there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and a noncitizen's employment in 
the position would not harm wages and working conditions of U.S. workers with similar jobs. Section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. 
§ 1154(a)(l)(F); 8 C .F.R. § 204.5(1)(3)(i). Among other things, USCIS determines whether a 
noncitizen beneficiary meets the requirements of a DOL-certified position and a requested immigrant 
visa category. 8 C.F.R. § 204.5(1)(3)(ii)(C). 
Finally, if USCIS approves a petition, a beneficiary 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 
A petitioner must demonstrate its continuing ability to pay an offered job's proffered wage, from a 
petition's priority date until a beneficiary obtains 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. 1 Id. 
When assessing ability to pay, USCIS examines whether a petitioner paid a beneficiary the full 
proffered wage, beginning with the year of a petition's priority date. See generally 6 USCIS Policy 
Manual E.(4)(C)(l), www.uscis.gov/policy-manual. If a petitioner did not annually pay the full 
proffered wage or did not pay a beneficiary at all, USCIS considers whether the business generated 
annual net income or net current assets sufficient to pay any differences between the proffered wage 
and the wages paid to a beneficiary. See generally 6 USCIS Policy Manual E.( 4)(C)(2). If net income 
and net current assets are insufficient, USCIS may consider other factors potentially affecting a 
petitioner's ability to pay a proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 
Comm'r 1967); see generally 6 USCIS Policy Manual E.(4)(C)(3). 2 
The Petitioner's labor certification states the proffered wage of the staff accountant job as $59,946 a 
year. The petition's priority date is June 14, 2021, the date DOL accepted the labor certification 
application for processing. See 8 C.F .R. § 204.5( d) ( explaining how to determine a petition's priority 
date). 
At the time of the appeal's filing, regulatory required evidence of the Petitioner's ability to pay the 
proffered wage in 2023 was not yet available. Thus, for purposes of this decision, we will consider 
the company's ability to pay only in 2021, the year of the petition's priority date, and 2022. 3 
The Petitioner has not submitted evidence that it employed the Beneficiary. Thus, based solely on 
wages paid, the company has not demonstrated its ability to pay the proffered wage. 
The Petitioner provided copies of its federal income tax returns for 2021 and 2022. The 2021 return 
reflects net income of -$1,771 and net current assets of $20,139. Neither amount meets nor exceeds 
the annual proffered wage of $59,946. The tax return therefore does not establish the Petitioner's 
ability to pay in 2021. 
The Petitioner's 2022 federal income tax return reflects net income of $2,637. Contrary to the form's 
instructions, the company did not complete the balance sheet at Schedule L of the business's IRS Form 
1 Although inapplicable here, petitioners that employ at least 100 people may submit statements from financial officers to 
demonstrate the businesses' ability to pay proffered wages. See 8 C.F.R. § 204.5(g)(2). 
2 Federal courts have upheld USCIS' method of detennining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, Inc. v. Napolitano, 558 F.3d 111,118 (1st Cir. 2009); Four Holes Land & Cattle, LLCv. Rodriguez, No. 5:15-
cv-03858, 2016 WL 4708715, **4-5 (D.S.C. Sep. 9, 2016). 
3 In any future filings in this matter, the Petitioner must submit required evidence of its ability to pay the proffered wage 
in 2023 and, if available, 2024. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its ability to pay a 
proffered wage "continuing until the beneficiary obtains lawful permanent residence"). 
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1120, U.S. Corporation Income Tax Return. The return therefore does not demonstrate the Petitioner's 
ability to pay the proffered in 2022. 
Thus, based on a review of wages paid, net income, and net current assets, the Petitioner has not 
demonstrated its ability to pay the proffered wage in 2021 or 2022. 
We agree with the Petitioner that the Director should have considered other factors potentially 
affecting the company's ability to pay the proffered wage. Under Sonegawa, USCIS may consider 
factors such as: the number of years the Petitioner has conducted business; its number of employees; 
any business growth; its business reputation; its incurrence of any uncharacteristic losses or expenses; 
the Beneficiary ' s replacement of another employee or outsourced service; or other potential factors. 
See Matter ofSonegawa , 12 I&N Dec. at 614-15; see also 6 USCJS Policy Manual E.(4)(C)(3). 
The record indicates that the Petitioner began operations in 1997 and, at the time of the petition's filing 
in April 2022, employed four people. Unlike the petitioner in Sonegawa , the company has not 
established its possession of a good business reputation or its incurrence of uncharacteristic losses or 
expenses during the relevant years. The company also has not established the Beneficiary ' s 
replacement of an employee or outsourced service. 
The Petitioner, however, notes its business growth over the last few years. Its tax returns show that 
its gross annual sales have grown from $365,025 in 2020 to $547,647 in 2022, a 50% increase. The 
company states: "Clearly, this extraordinary growth shows the employer's ability to pay the proffered 
wage." 
Over the same period, however, the Petitioner's tax returns do not show a commensurate growth in 
the company's annual amounts of net income or net current assets. The company's federal income 
tax return for 2020 also reflects insufficient amounts of net income (-$12, 112) and net current assets 
($6,549) to pay the offered job ' s annual proffered wage. Thus, the Petitioner's revenue growth from 
2020 through 2022 does not demonstrate the company's ability to pay the proffered wage. 
Quoting USCIS policy, the Petitioner notes that: 
[s ]ometimes companies operate at a loss for a period to improve their business position 
in the long run. For example, a company may not expect research and development 
costs on a product line to generate revenue for several years. In those instances, the 
documentation should fully explain the sources of funding for the entity ( or unit) and 
the expected profit potential. Whether the petitioner can demonstrate it has the ability 
to pay the beneficiary the wages described in the petition depends on the specific facts 
presented and consideration of all of the circumstances. 
6 USCIS Policy Manual E.( 4)(C)(3). 
The Petitioner states that it is expanding its business by raising fees for its services and securing new 
clients. It submitted copies of recent contracts it signed with new and existing customers. 
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The record demonstrates that the Petitioner's revenues have increased. But, contrary to USCIS policy, 
the company has not "fully explained" "the expected profit potential." See 6 USCIS Policy Manual 
E.(4)(C)(3). The Petitioner has documented its increasing revenues. But it has not disclosed whether 
its increased business will also increase its costs or explained how the additional revenue will lead to 
additional funds to pay the proffered wage. Thus, consideration of the totality of the circumstances 
under Sonegawa does not demonstrate the Petitioner's ability to pay the proffered wage. 
III. CONCLUSION 
The Petitioner has not established its required ability to pay the offered job's proffered wage. We will 
therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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