dismissed EB-3 Case: Childcare

U.S. Citizenship 
and Immigration 
Services 
In Re : 12567982 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 21, 2020 
The Petitioner seeks to employ the Beneficiary as a childcare center director. It requests classification 
of the Beneficiary under the third-preference, immigrant classification for professional workers. 
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" category 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, concluding that the Petitioner did not 
establish its ability to pay the proffered wage. We dismissed a subsequent appeal on the same grounds. 
The matter is now before us on a motion to reopen. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
review, we will dismiss the motion. 
A motion to reopen must state new facts and be supported by documentary evidence. See 8 C.F.R. 
§ 103.5(a)(2). 
A petitioner must establish that it has the ability to pay the beneficiary the proffered wage , as stated 
on the labor certification, from the priority date 1 onward. See 8 C.F.R. § 204.5(g)(2). 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 is established 
and continuing until the beneficiary obtains lawful permanent residence. Evidence of 
this ability shall be either in the fonn 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 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date. 
statements, bank account records, or personnel records may be submitted by the 
petitioner or requested by [USCIS]. 
The priority date in this case is July 16, 2018. As noted by the Director and in our dismissal of the 
appeal, the Petitioner did not submit regulatory prescribed evidence of its ability to pay the proffered 
wage in the year of the priority date. 
On motion, the Petitioner submits its 2018 federal income tax return; IRS Form W-2, Wage and Tax 
Statements, it issued to the Beneficiary in 2017, 2018 and 2019; and paystubs it issued to the 
Beneficiary in February and March 2020. The Petitioner asserts that it had requested an extension of 
time to file its 2018 tax return and that we should have issued a request for evidence for the tax return 
before issuing our decision on the appeal. The Petitioner cites to our Practice Manual 2 which states: 
If the evidence in the record does not establish eligibility for the requested immigration 
benefit, the AAO may: 
• Dismiss the appeal; 
• Request more information or evidence from the appellant; or 
• Notify the appellant of its intent to dismiss the appeal. 
In our previous decision, dated May 21, 2020, we noted that the Petitioner's extension to file its tax 
return was granted until November 2019. However, the Petitioner did not submit its completed tax 
return in supplement to the appeal at any time before the decision was issued. On motion, the 
Petitioner asserts that it intended to submit the tax return only upon our request. While the AAO 
Practice Manual does allow us to request additional evidence, it does not compel us to do so. 
Although the Petitioner also submits new evidence of its ability to pay the proffered wage in the form 
of Forms W-2 it issued to the Beneficiary, the Petitioner does not explain why this evidence was not 
submitted with the initial filing, in response to the Director's request for evidence (RFE), or with the 
appeal. 3 Nor does the Petitioner assert that this information was unavailable at any time. Because the 
Director notified the Petitioner of its need to provide evidence of wages paid to the Beneficiary, we 
will not accept the Forms W-2 for the first time on appeal. See, e.g., Matter of Soriano, 19 I&N Dec. 
764, 766 (BIA 1988) ( citation omitted). 
Even if we could accept this evidence, it does not demonstrate that the Petitioner paid the Beneficiary 
the full proffered wage in 2018 or 2019. The labor certification states that the wage offered for the 
job of childcare center director is $49,754 per year. In 2018, the Petitioner paid the Beneficiary 
$20,465.76. Therefore, the Petitioner would need to demonstrate its ability to pay the difference 
between the proffered wage and wages already paid, which is $29,288.24. The Petitioner's 2018 tax 
return reflects net income of $26,624, which is insufficient to pay this difference. 4 Therefore, the 
2 AAO Practice Manual, Ch. 3, https://www.uscis.gov/aao-practice-manual. 
3 In his RFE, the Director specifically requested a copy of the Beneficiary's 2018 Form W-2, ifhe was employed by the 
Petitioner in that year. The regulation at 8 C.F.R. § 103.2(6)(14) states that the failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 
4 The record does not include evidence of the Petitioner's net current assets in 2018. Part X of the Form 990 includes the 
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Petitioner has not established its ability to pay the proffered wage from the priority date and the motion 
to reopen is dismissed. 5 
ORDER: The motion to reopen is dismissed. 
Petitioner's balance sheet, listing the Petitioner's assets and liabilities in order of their liquidity, but the balance sheet does 
not indicate which assets and liabilities are cunent. Further, the Petitioner's Statement of Financial Position as of 
December 31, 2018, submitted in response to the Director's RFE, is unaudited. The regulation at 8 C.F.R. § 204.5(g)(2) 
makes clear that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, those 
financial statements must be audited. As there is no accountant's report accompanying these statements, we cannot 
conclude that they are audited statements. Unaudited financial statements are the representations of management. The 
unsupported representations of management are not reliable evidence and are insufficient to demonstrate the ability to pay 
the proffered wage. 
5 Furthermore, we note that the motion could be dismissed for failing to meet an applicable requirement. The regulation 
at 8 C.F.R. § 103.S(a)(l )(iii) lists the filing requirements for motions to reopen and motions to reconsider. Section 
103.S(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether or not the validity of the 
unfavorable decision has been or is the subject of any judicial proceeding." In this matter, the motion does not contain the 
statement required by 8 C.F.R. § I 03.S(a)(l )(iii)(C). The regulation at 8 C.F.R. § I 03.5(a)(4) states that a motion which 
does not meet applicable requirements must be dismissed. The instant motion did not meet the applicable filing 
requirements listed in 8 C.F.R. § 103.S(a)(l)(iii)(C), and may also be dismissed for this reason. 
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