dismissed EB-3 Case: Childcare

U.S. Citizenship 
and Immigration 
Services 
In Re: 08331726 
Appeal of Texas Service Center Decision 
Form I-140 , Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 21 , 2020 
The Petitioner, a child care and education business , seeks to employ the Beneficiary as a childcare 
center director. It requests professional classification for the Beneficiary under the third preference 
immigrant category . Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii) , 8 U.S.C. 
§ 1153(b )(3)(A)(ii). This employment-based "EB-3" immigrant classification allows a U.S. employer 
to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Texas 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 asserts that the evidence of 
record shows that it could pay the proffered wage based on its net current assets . 
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)(A)(i) 
of the Act, 8 U.S .C. § 1182(a)(5)(A)(i). 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)(I)-(II) 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, ifUSCIS 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 requested 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 date 1 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 February 2019, accompanied by a labor certification that was filed 
with the DOL on July 16, 2018. Thus, the priority date of the petition is July 16, 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 childcare center director is $49,754 
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. 
While the Petitioner claims to have employed the Beneficiary since June 2017, no evidence has been 
submitted of any compensation paid for his work. Therefore, the Petitioner has not established its 
ability to pay the proffered wage from the priority date ofJuly 16, 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 record includes copies of the Petitioner's federal tax return (Form 990, Return of 
Organization Exempt From Income Tax) for each of the years 2016 and 2017. Those years, however, 
preceded the priority date of July 16, 2018. No copy has been submitted of the Petitioner's federal tax 
return for 2018 or any subsequent year. Nor has an annual report or an audited financial statement 
1 The priority date of a Form T-140 petition is the date the underlying labor certification was filed with the DOL. See 
8 C.F.R. § 204.5( d). 
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been submitted for 2018 or any subsequent year. Therefore, the Petitioner has not established its 
ability to pay the proffered wage from the priority date of July 16, 2018, onward based on its net 
income or net current assets in 2018 and subsequent years. 
The Petitioner claims that its 2018 federal tax return was not available at the time the Director's 
decision was issued in July 2019. It has submitted a copy of its request for an extension of time to file 
its return until November 2019. In its appeal brief: filed in August 2019, the Petitioner stated that it 
could provide a copy of its 2018 federal tax return after it was filed. Assuming the 2018 tax return 
was duly filed in November 2019, the Petitioner has had ample time to submit a copy in support of its 
appeal. It has not done so. 
The Petitioner asserts that a statement of financial position as of December 31, 2018, allegedly 
prepared by its accountant, shows that its net current assets were sufficient to pay the proffered wage 
in 2018. This statement 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. 
Thus, the Petitioner has not submitted any type ofregulatory 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 any subsequent year, to establish its continuing ability to pay the 
proffered wage from the priority date of July 16, 2018, onward. As noted above, it has also not 
submitted any evidence that it has paid the Beneficiary despite claiming to employ the Beneficiary. 
Citing the regulatory provision that bank account records may be submitted "i~opriate cases," the 
Petitioner claims that four bank account statements recording balances atl__J Bank andl I I l totaling $45,092.80 as of December 31, 2018, show its ability to pay most of the proffered 
wage in 2018. We do not agree. Aside from the fact that bank account records are not among the 
three types ofrequired 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 at the end of 2018 
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 2018. As previously discussed, 
the Petitioner has not submitted a copy of its 2018 tax return, and the unaudited financial statement 
includes the four account balances among the Petitioner's current assets as of December 31, 2018. It 
appears more than likely, therefore, that the four bank accounts did not represent a financial resource 
that was separate and distinct from the current assets that would have been listed on the Petitioner's 
2018 federal tax return or on any audited financial statement at the end of 2018. Therefore, the 
Petitioner has not established that its I land I I Bank accounts constitute a financial 
resource which is separate and distinct from its other current assets and which independently 
establishes the Petitioner's 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 I&N Dec. 612. USCIS may, at its discretion, consider evidence relevant 
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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 1972 and had 35 U.S. employees at four different 
locations at the time the petition was filed in 2019. The tax returns in the record show that the 
Petitioner recorded gross revenue of $1,157,565 in 2015, $1,255,963 in 2016, and $1,348,670 in 2017. 
Thus, the Petitioner achieved modest growth over that three-year time period. As there is no evidence 
of the Petitioner's financial history before 2015, however, the record is insufficient to conclude that 
the Petitioner has a historic pattern of growth. No evidence has been submitted regarding the 
Petitioner's reputation in the industry, or of any uncharacteristic expenses before or after the priority 
date. Additionally, without the required evidence from the year of the priority date, we cannot make 
any totality of the circumstances determination on the Petitioner's ability to pay the proffered wage. 
Based on the record before us, therefore, 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 July 16, 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 regulation requires either an annual report, a federal tax 
return, or an audited financial statement for the priority date year of 2018 ( and any subsequent year 
USCIS might request). The Director requested the submission of at least one of those documents for 
the priority date year of 2018 in the request for evidence (RFE) sent to the Petitioner in March 2019. 
The Petitioner did not submit any one of those documents with its response to the RFE in June 2019 
or with its appeal in August 2019, and has not supplemented the record since then with any one of 
those documents. The regulation at 8 C.F.R. § 103.2(b)(l4) provides that the failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established its continuing ability to pay the 
proffered wage from the priority date of July 16, 2018, onward. The appeal will be dismissed for this 
reason. 
ORDER: The appeal is dismissed. 
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