dismissed EB-3 Case: Cleaning Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 24, 2023 In Re: 28184622 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner, a cleaning company, seeks to permanently employ the Beneficiary as a window washer. 
The company requests his classification under the employment-based, third-preference (EB-3) 
immigrant visa category as an "other worker." See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). Petitioners may sponsor noncitizens for permanent 
residence in this category to work in jobs requiring less than two years of training or experience. Id. 
The Acting Director of the Texas Service Center denied the petition and dismissed the Petitioner's 
following combined motions to reopen and reconsider. The Director concluded that the company did 
not demonstrate its required ability to pay the offered position's proffered wage. 1 On appeal, the 
Petitioner contends that: its total annual wages paid demonstrate its ability to pay the proffered wage; 
it could not find any U.S. workers to fill the job; and the Beneficiary and his dependents want to 
become U.S. permanent residents and "productive, tax-paying members of society ." 
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 I&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that the company has not demonstrated its ability to pay the offered position's 
proffered wage. We will therefore dismiss the appeal. 
I. LAW 
Immigration as an "other," or unskilled, worker generally follows a three-step process. First, a 
prospective employer must obtain certification from the U.S. Department of Labor (DOL) that: there 
1 The Director also initially found insufficient evidence of the Beneficiary's qualifying education for the offered position. 
The job requires a U.S. high school diploma or a foreign equivalent. The Petitioner submitted a copy of the Beneficiary's 
three-year Ensido Media certificate from Brazil. But the Director found insufficient evidence of the credential's 
equivalency to a U.S. high school diploma. The Director's decision on the Petitioner ' s combined motions does not address 
the educational denial ground . The Petitioner ' s appeal also omits the issue. But information and samples in the Electronic 
Database for Global Education (EDGE) , an online database that federal judges have found to be a reliable source of foreign 
education equivalencies , indicate that the Beneficiary's credential equates to a U.S. high school diploma . See Am. Ass 'n 
of Collegiate Registrars & Admissions Officers (AACRAO) , " About AACRAO EDGE ," www .aacrao .org/edge/about­
edge . We therefore consider the Beneficiary to meet the offered job's educational requirements . 
are insufficient U.S. workers able, willing, qualified, and available for an offered position; and permanent 
employment of a noncitizen 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. 
§ l 154(a)(l)(F). 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)(D), (4). 
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 position's proffered wage, from 
a petition's priority date until a beneficiary obtains 
permanent residence. 8 C.F.R. § 204.5(g)(2). This 
petition's priority date is January 21, 2020, 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). The 
Petitioner's labor certification states the proffered wage of the offered position of window washer as 
$27,914 a year. 
At the time the company filed its combined motions in 2022, regulatory required evidence of its ability 
to pay that year was not yet available. Thus, for purposes of this decision, we will consider the 
Petitioner's ability to pay the proffered wage only in 2020, the year of the petition's priority date, and 
2021. 
Evidence of a petitioner's ability to pay must generally include copies of annual reports, federal tax 
returns, or audited financial statements. 8 C.F.R. § 204.5(g)(2). But, if a petitioner employs at least 
100 workers, USCIS has discretion to accept a statement from a financial officer of the business as 
proof of its ability to pay. Id. 
On its labor certification, the Petitioner stated its employment of 50 workers. But, on the Form 1-140, 
Petition for Alien Worker - which the company filed about 11 months after the labor certification 
application - the business indicated its employment of 200 people. After the Director's request for 
additional evidence (RFE) noted the differing employee numbers, the Petitioner provided a copy of its 
IRS Form W-3, Transmittal of Wage and Tax Statements, for 2020. The form indicates that, that year, 
the company issued 225 IRS Forms W-2, Wage and Tax Statements, to employees and paid wages 
totaling more than $5 million. Thus, a preponderance of the evidence demonstrates the company's 
employment of more than 100 people. Under 8 C.F.R. § 204.5(g)(2), we can therefore consider a 
financial officer's statement as proof of the Petitioner's ability to pay the proffered wage. 
The Petitioner submitted a letter from its chief operating officer, confirming the company's job offer 
to the Beneficiary. But the document does not assert or discuss the business's ability to pay the 
proffered wage. The letter therefore does not establish the company's ability to pay the proffered 
wage. 
2 
The Petitioner submitted other letters asserting its ability to pay the proffered wage. But these letters 
identify their signatory as a co-founder and chairman of a separate company that owns the Petitioner, 
and thus are not from the Petitioner. A petitioner with at least 100 employees may demonstrate its 
ability to pay with a statement from one of its financial officers. See 8 C.F.R. § 204.5(g)(2) ("In the 
case where the prospective United States employ er 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") (emphasis added). The record identifies the Petitioner 
and its purported owner as separate companies with different federal employer identification numbers . 
Thus, the record does not establish the signatory of the additional letters as a financial officer of the 
Petitioner. The letters therefore do not establish the company's ability to pay the proffered wage. 
As the Petitioner has not provided a financial officer's statement regarding its ability to pay, the 
company must submit copies of annual reports, federal tax returns, or audited financial statements to 
demonstrate its ability to pay. See 8 C.F.R. § 204.5(g)(2). When determining ability to pay, USCIS 
examines whether a petitioner paid a beneficiary the full proffered wage each year, beginning with the 
year of a petition's priority date. 6 USCIS Policy Manual E.(4)(B)(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 amounts of net income or net current assets sufficient 
to pay any differences between the proffered wage and wages paid. Id. at E.(4)(B)(2). If net income 
and net current assets are insufficient, USCIS may consider other factors affecting a petitioner 's ability 
to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967); 
6 USCIS Policy Manual E.(4)(B)(3). 2 
The Petitioner stated that it did not begin employing the Beneficiary until 2022 and therefore did not 
submit any evidence of payments to him in 2020 or 2021. Thus, based solely on wages paid, the 
company has not demonstrated its ability to pay the proffered wage. 
The Petitioner submitted copies of its IRS Forms 940, Employer's Annual Federal Unemployment 
(FUTA) Tax Returns, for 2020 and 2021. These tax returns indicate the company's total wage 
payments of $5,197,048.12 in 2020 and $5,678,462.79 in 2021. In determining ability to pay, USCIS 
may consider a petitioner's total wages paid as a factor. 6 USCIS Policy Manual E.(4)(B)(3). But the 
Petitioner's unemployment tax returns do not report the company's net income or net current asset 
amounts for the corresponding years. Thus, the returns do not constitute an acceptable form of 
required evidence under 8 C.F.R. § 204.5(g)(2) and- on their own - do not demonstrate the company's 
ability to pay the proffered wage in 2020 and 2021 . 
The Petitioner also submitted copies of its monthly bank statements for 2020. USCIS may consider 
bank account records "[i]n appropriate cases." 8 C .F.R. § 204.5(g)(2). But bank statements do not 
constitute an acceptable form ofrequired evidence. See id. (requiring petitioners who are not relying 
on a financial officer's statement to submit "copies of annual reports, federal tax returns, or audited 
financial statements") . The bank records, alone, therefore do not demonstrate the company's ability 
to pay in 2020. Because the Petitioner has not provided regulatory required evidence, the company 
has not demonstrated its ability to pay the proffered wage in 2020 or 2021 . 
2 Federal courts have upheld USCIS ' method of detennining a petitioner 's ability to pay a proffered wage. See, e.g., River 
St. Donut s, Inc. v. Napolitano , 558 F.3d 111, 118 (1st Cir. 2009) . 
3 
Also, as the Director found, users records indicate the Petitioner's filing of Form I-140 petitions for 
other beneficiaries. A petitioner must demonstrate its ability to pay the proffered wage of each petition 
it files until a beneficiary obtains permanent residence. 8 e.F.R. § 204.5(g)(2). This Petitioner must 
therefore demonstrate its ability to pay the combined proffered wages of this and its other petitions 
that were pending or approved at the time of this petition's January 21, 2020 priority date. See Patel 
v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding our revocation ofa petition's approval 
where, as of the filing's grant, the petitioner did not demonstrate its ability to pay the combined 
proffered wages of multiple petitions). 3 
The Director's RFE asked the Petitioner to provide information about the Form I-140 petitions it filed 
from 2020 to the RFE's February 3, 2022 issuance date. During that period, users records show the 
company's filing of 15 Form I-140 petitions that the Agency approved. 4 The Petitioner did not provide 
the requested proffered wage of one of the 15 petitions. 5 But the company submitted copies of IRS 
Forms W-2 indicating that it paid three of the applicable beneficiaries a total of $23,949.98 in 2021. 
Subtracting that amount and including this petition's proffered wage, the record shows that the 
Petitioner has to demonstrate its ability to pay total combined proffered wages of at least $79,436 in 
2020 and $362,540.02 in 2021. Because the company omitted regulatory required evidence for the 
applicable years, we cannot determine whether the company's ability to pay the amounts. The 
Petitioner therefore has not demonstrated its ability to pay the combined proffered wages. 
As previously indicated, users may consider other factors affecting a petitioner's ability to pay a 
proffered wage. See Matter ofSonegawa, 12 I&N Dec. at 615-15; 6 USCIS Policy ManualE.(4)(b)(3). 
But, because the Petitioner omitted regulatory required evidence of its ability to pay in 2020 and 2021, 
we need not consider additional factors. Even if other factors warranted a favorable ability-to-pay 
determination, the company's omission of regulatory required evidence would preclude such a 
conclusion. Except for a financial officer's statement from an employer of at least 100 workers, "to 
establish ability to pay, the petition must include copies of the petitioner's annual reports, federal tax 
returns, or audited financial statements for each available year from the priority date." 6 USCIS Policy 
Manual E.(4)(A). 
On appeal, the Petitioner asserts that its total wage payments of more than $5 million in both 2020 and 
2021 demonstrate its ability to pay the proffered wage. As previously indicated, users usually can 
consider a petitioner's total wages paid as a factor in determining its ability to pay the proffered wage. 
But, because this Petitioner omitted regulatory required evidence for 2020 and 2021, we will not 
consider its total wages paid. 
3 The Petitioner need not demonstrate its ability to pay the proffered wages of petitions that it withdrew or that users 
rejected, denied, or revoked. See generally 6 USCIS Policy Manual E.(4)(C)(2). The company also need not demonstrate 
its ability to pay proffered wages before their petitions' corresponding priority dates or atter the dates their corresponding 
beneficiaries became permanent residents. Id. 
4 users records identitv the 15 oetitions bv the following receiot numbers: I 
5 USeIS records identify that petition by the receipt numberl.__ _____ _.1 
4 
The Petitioner also states its inability to find a U.S. worker to fill the offered position and the wishes 
of the Beneficiary and his dependents to become permanent residents. But, despite these 
considerations, Department of Homeland Security regulations require petitioners to demonstrate their 
abilities to pay proffered wages. See 8 C.F.R. § 204.5(g)(2). Because the Petitioner did not 
demonstrate its ability to pay consistent with the regulation, we must affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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