dismissed EB-3 Case: Assisted Living

U.S. Citizenship 
and Immi gration 
Services 
In Re: 10856943 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 19, 2020 
The Petitioner, an assisted living facilities business, seeks to employ the Beneficiary as a caregiver. It 
requests classification of the Beneficiary as an "other worker" under the third preference immigrant 
category. Immigration and Nationality Act section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(B)(3)(A)(iii). 
This employment-based "EB-3" immigrant classification allows a U.S. employer to sponsor for lawful 
permanent resident status a foreign national who is capable of performing unskilled labor that requires 
less than two years of training or experience and is not of a temporary or seasonal nature. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish its ability to pay the proffered wage. On appeal the Petitioner submits a brief and 
supporting documentation, much of which was already in the record, and asserts that the evidence 
establishes its ability to pay the proffered wage. 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the 
appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification 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)(l)-(11) of the 
Act. Second, the employer files an immigrant visa petition 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. 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it has 
the ability to pay the proffered wage stated in the labor certification. As provided in the regulation at 
8 C.F.R. § 204.5(g)(2): 
The petitioner must demonstrate this ability at the time the priority date1 is established 
and continuing until the beneficiary obtains lawful permanent residence. Evidence of 
this ability shall be either in the form of copies of annual reports, federal tax returns, or 
audited financial statements. In a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by [USCIS]. 
II. ANALYSIS 
The instant petition was filed in August 2019, accompanied by a labor certification that was filed with 
the DOL on November 14, 2018. Thus, the priority date of the petition is November 14, 2018, and 
the Petitioner must establish its continuing ability to pay the proffered wage from that date onward. 
The labor certification states that the proffered wage for the position of caregiver is $21,570 per year. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
In this case the record indicates that the Beneficiary has never been employed by the Petitioner. 
Therefore, the Petitioner cannot establish its ability to pay the proffered wage from the priority date 
of November 14, 2018, onward based on wages paid to the Beneficiary. 
If a petitioner does not establish that it has employed and paid the beneficiary an amount equal to or 
above the proffered wage from the priority date onward, USCIS will examine the net income and net 
current assets figures recorded on the petitioner's federal 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 this case the Petitioner has not submitted a copy of any annual report, federal tax return, or audited 
financial statement for the priority date year of 2018, or any other year. Therefore, the Petitioner has 
not established its abi I ity to pay the proffered wage from the priority date of November 14, 2018, 
onward based on its net income or net current assets. 
1 The priority date of a Form 1-140 petition is the date the underlying labor certification was filed with the DOL. See 
8 C.F.R. § 204.5(d). 
2 
On appeal the Petitioner asserts that its "2018 Annual Financial Report" for the period ending 
December 31, 2018, shows that its net income was sufficient to pay the proffered wage in 2018. This 
financial report is unaudited, however, and therefore does not comply with the regulatory requirement 
in 8 C.F.R. § 204.5(g)(2) that financial statements submitted as evidence of a petitioner's ability to 
pay the proffered wage be audited. The Petitioner submitted this same document with its initial 
evidence, and the Director stated in his decision that the unaudited financial report was insufficient to 
demonstrate the Petitioner's ability to pay the proffered wage. The Petitioner has not remedied this 
evidentiary deficiency on appeal by submitting an audited financial statement for the period ending 
December 31, 2018. Nor has the Petitioner submitted an annual report for 2018 or a copy of its federal 
tax return for 2018. 
Thus, the Petitioner has not submitted any type of regulatory required evidence as specified in 8 C.F.R. 
§ 204.5(g)(2) - neither an annual report, nor a federal tax return, nor an audited financial statement -
for the priority date year of 2018 (or 2019) to establish its continuing ability to pay the proffered wage 
from the priority date of November 14, 2018, onward. 
Citing the regulatory provision that bank account records may be submitted "in appropriate cases" the 
Petitioner claims that its two bank accounts withl I documented with copies of 
previously submitted account statements for the months of September to November 2019, show its 
ability to pay the proffered wage. For the same reasons discussed in the Director's decision, we do 
not agree. Aside from the fact that bank account records are not among the three types of required 
evidence identified in 8 C.F.R. § 204.5(g)(2), bank statements show an account balance on a given 
date, not the account holder's sustainable ability to pay a proffered wage over time. Moreover, the 
Petitioner has not shown that the money in its bank accounts constituted a financial resource separate 
and distinct from its current assets that would have been recorded in its federal tax return or an audited 
financial statement for the year in question, in this case 2019. Finally, as the bank account statements 
cover only three months in late 2019, they do not in any way demonstrate the Petitioner's ability to 
pay the proffered wage in the preceding priority date year of 2018, or for the majority of 2019. 
The Petitioner also claims that a letter from its president dated December 17, 2019, asserting that the 
Petitioner had 104 full- and part-time employees and referring to the gross and net income figures on 
its unaudited 2018 financial report, establishes its ability to pay the proffered wage. The Director 
rejected the evidentiary weight of this letter, noting the discrepancy between the number of employees 
claimed in the petition filed in August 2019 - 65 - and the significantly greater number claimed in the 
letter. We note that the Petitioner claimed to have 85 employees on the labor certification application 
filed in November 2018. The president's letter was accompanied by a list of 104 individuals 
ostensibly employed by the Petitioner in December 2019 and acknowledged that the Petitioner had 
trouble retaining employees due to the high turnover rate in the senior living industry. There is no 
corroborating documentation that the Petitioner actually had 104 employees in December 2019, such 
as quarterly wage statements evidencing the number of quarterly employees. Even if there were such 
documentation, we would not consider the president's letter to be persuasive evidence of the 
Petitioner's ability to pay the proffered wage because the only data it cites aside from its employee 
total are the gross and net income figures from the 2018 financial report, which are not reliable because 
the report is not an audited financial statement. The regulation at 8 C.F.R. § 204.5(g)(2) provides that 
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USCIS "may" accept a statement from an employer with 100 or more employees as evidence of its 
ability to pay the proffered wage. It does not require USCIS to do so when other evidence in the record 
does not support the employer's claim that it has 100 employees or casts doubt on its ability to pay the 
proffered wage. Since the record is unclear as to how many employees the Petitioner has and no 
regulatory required evidence as specified in 8 C.F.R. § 204.5(g)(2) or any other credible evidence of 
the Petitioner's financial situation has been submitted, we will not accept the letter from the 
Petitioner's president as persuasive evidence of its ability to pay the proffered wage from the priority 
date onward. 
USCIS may also consider the totality of the Petitioner's circumstances, including the overall 
magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Sonegawa, 12 l&N Dec. 612. At its discretion, USCIS may consider evidence relevant 
to the petitioner's financial ability that falls outside of its net income and net current assets. We may 
consider such factors as the number of years the petitioner has been doing business, the established 
historical growth of the petitioner's business, the petitioner's reputation within its industry, the overall 
number of employees, whether the beneficiary is replacing a former employee or an outsourced 
service, the amount of compensation paid to officers, the occurrence of any uncharacteristic business 
expenditures or losses, and any other evidence that USCIS deems relevant to the petitioner's ability to 
pay the proffered wage. 
The Petitioner states that it began operations in 2015. The Petitioner asserts that its employee roster 
has fluctuated from a total of 85 at the time the labor certification was filed in November 2018, to 65 
at the time the petition was filed in August 2019, to 104 full- and part-time employees at the time of 
the president's letter to USCIS in December 2019. The only documentary evidence of the Petitioner's 
finances are the unaudited financial report for the year 2018 and bank account statements for three 
months in 2019. As previously discussed, the income figures from an unaudited financial statement 
are not reliable evidence of the Petitioner's ability to pay the proffered wage. Nor are the bank account 
statements reliable evidence of the Petitioner's ability to pay the proffered wage absent evidence that 
the accounts are an independent financial resource not included as a net current asset in the Petitioner's 
federal income tax return. Moreover, since the documentation submitted by the Petitioner dates 
exclusively from 2018 and 2019, even if it were reliable evidence it does not cover a sufficient time 
period to demonstrate a historic pattern of growth. On appeal the Petitioner submits excerpts from its 
website with photographs and descriptions of its residential facilities, along with a Yelp! review. 
These materials are not substantial enough to demonstrate the Petitioner's overall reputation in the 
industry. Additionally, without a single type of required regulatory evidence from the priority date 
year of 2018, we cannot make any totality of the circumstances determination on the Petitioner's 
ability to pay the proffered wage. Based on the evidence of record we conclude that the totality of its 
circumstances does not demonstrate the Petitioner's ability to pay the proffered wage from the priority 
date of November 14, 2018, onward. 
As discussed above, the Petitioner has not submitted any of the required forms of documentation 
specified in 8 C.F.R. § 204.5(g)(2). The Director requested the submission of at least one of those 
documents - either an annual report, a federal tax return, or an audited financial statement - for the 
priority date year of 2018 in the request for evidence (RFE) sent to the Petitioner in September 2019. 
The Petitioner did not submit any one of those documents with its response to the RFE in December 
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2019 or with its appeal brief in March 2020, and has not supplemented the record since then with any 
one of those documents. The regulation at 8 C.F.R. § 103.2(b)(14) provides that the failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
111. CONCLUSION 
For the reasons discussed above, the Petitioner has not established its continuing ability to pay the 
proffered wage from the priority date of November 14, 2018, onward. The appeal will be dismissed 
for this reason. 
ORDER: The appeal is dismissed. 
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