dismissed EB-3 Case: Computer Programming

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-. INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 22. 2017 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a supplier of software products, seeks to employ the Beneficiary as a computer 
programmer. It requests classification of the Beneficiary as a professional under the third preference 
immigrant category. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii). 
8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant classiJication 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 evidence of 
record did not establish that the Petitioner had the continuing ability to pay the proffered wage ti-om 
the priority date onward. 
On appeal, the Petitioner submits additional documentation and asserts that the evidence of record 
establishes its ability to pay the proffered wage. 
Upon de novo 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). 1 See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification. 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. ,'-.,'ee section 
212(a)(5)(A)(i)(l)-(ll) of the Act. Second, the employer Jiles an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 ofthe Act. 8 U.S.C. § 1154. Third. 
if USC IS 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. 
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The date the labor certification is filed is called the ·'priority date." S'ee 8 C.F.R. ~ 204.5(d). The Petitioner must 
establish that all eligibility requirements for the petition have been satisfied from the priority date onward. 
Matter qf5,'-. Inc. 
A petitioner must establish that it has the ability to pay the protTered wage, as stated on the labor 
certification, from the priority date until the beneficiary obtains lawful permanent residence. S'ee 
8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must include copies of annual reports, federal 
income tax returns, or audited financial statements. !d. 
II. ANALYSIS 
At issue in this case is whether the Petitioner has established its continuing ability to pay the 
protTered wage from the priority date onward. The Petitioner's Form I-140, Immigrant Petition for 
Alien Worker, was accompanied by a labor certification with a priority date of October 15. 2015. 
Section G of the labor certification states that the offered wage for the computer programmer 
position is $66,500 per year. 
In determining a petitioner's ability to pay the proffered wage, users first examines Vvhether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. If 
the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal 
to or greater than the profTered wage. the evidence is considered proof of the petitioner's ability to 
pay the proffered wage. 
In this case, the Petitioner indicates that it has employed the Beneficiary since 2011. It has 
submitted a copy of the Form W-2, Wage and Tax Statement it issued to the Beneficiary for 2015, 
which states that the Beneficiary received ··wages, tips, other compensation" in the amount of 
$53,460 that year. This figure was approximately $13,000 below the proffered wage. The Petitioner 
has also submitted copies of the bimonthly pay statements it issued to the Beneficiary for the pay 
periods beginning on October 1, 2015, and ending on May 31, 2016. The Petitioner asserts that it 
began paying the Beneficiary the proffered wage of $66.500 per year in mid-October 2015. and that 
it increased her salary to $69,169 in mid-April 2016. The Beneficiary's pay statements, however, do 
not state her annual salary. For the five-month period of January through May 2016 the statements 
show that the Beneficiary received ''adjusted earnings" of $28.1 12.39 and .. gross earnings" of 
$30,701.79. Without the full year of pay statements for 2016, however, we cannot to determine 
whether the Beneficiary· s pay equaled or exceeded the proffered wage in 2016. Thus. the Petitioner 
has not established its continuing ability to pay the proffered wage since the priority date of October 
15,2015, based on wages it actually paid to the Beneficiary. 
On appeal, the Petitioner asse1is that it has paid the Beneficiary the proflered wage rate since the 
priority date of October 15. 2015, and therefore according to the language in a memorandum dated 
May 4, 2004. from William R. Yates, Associate Director of Operations. United States Citizenship 
and Immigration Services (USCIS), regarding the determination of a petitioner's ability to pay, it has 
established its continuing ability to pay the proffered wage from the priority date onward. See 
Memorandum from William R. Yates, Associate Director tor Operations. USCIS. HQOPRD 
90/16.45. Determination of' Ability to Pay under R CFR 20.f.5(f!:}(2) 2 (May 4. 2004). 
http://www.uscis.gov/laws/policy-memoranda. 
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Matter ofS-. Inc. 
As we discussed above, however, the Petitioner has not established that its pay to the Beneficiary has 
equaled or exceeded the proffered wage at any time since the priority date. 
If a petitioner does not establish that it has paid the beneficiary an amount equal to or above the 
proffered wage from the priority date onward, users will examine the net income and net current 
assets figures recorded on the petitioner's federal income 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 be considered able to pay the proffered wage during 
that year. 
In this case, the Petitioner has not submitted any federal income tax returns, annual reports. or 
audited financial statements for 2015 or 2016. 2 In its response to the Director's request for evidence, 
the Petitioner stated that it had filed an extension application with the Internal Revenue Service for 
its 2015 income tax return, but did not submit any annual reports or audited financial statements for 
that year. On appeaL the Petitioner has not submitted any form of required evidence for 2015 nor 
has the Petitioner explained the absence of this documentation. Without a form of regulatory 
required evidence of its ability to pay, per 8 C.F.R. § 204.5(g)(2), for the priority date year or 
anytime thereafter, the Petitioner cannot establish 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 \vag e. 
See Maller qj' Sonegawa. 12 I&N Dec. 612. USers may, at its discretion. 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 ofticers. the occurrence of any 
uncharacteristic business expenditures or losses, and any other evidence that users deems relevant 
to the petitioner's ability to pay the proffered wage. 
However, the absence of any of the required forms of evidence identified in 8 C.F.R. § 204.5(g)(2) 
for the priority date year or any time thereafter greatly restricts out ability to consider the totality of 
the Petitioner's circumstances and precludes us from finding that the Petitioner has the ability to pay 
the proffered wage. Moreover, the historical evidence that \Vas submitted. specitically tax returns 
for 2013 and 2014. show that the Petitioner experienced net losses and had net current liabilities in 
those years. Thus, the financial documentation in the record does not establish a historical pattern of 
growth for the Petitioner. To the contrary. the documents appear to show a pattern oflosses. and the 
Petitioner does not claim that they involve uncharacteristic business expenditures or other anomalous 
2 
The record does include copies of the Petitioner's federal income tax returns for 2013 and 2014. but they preceded the 
priority date of October 15. 20 15. 
Matter olS-, Inc. 
situations. The record includes some industry publications and announcements which mention the 
Petitioner, but they do not demonstrate that the Petitioner has a reputation that stands out fi·om 
competitors in the industry. 
Considering the lack of regulatory required evidence of the Petitioner's ability to pay. along with the 
totality of the Petitioner's circumstances, we find that the Petitioner has not established its ability to 
pay the proffered wage of $66.500 per year from the priority date of October 15. 2015. onward. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
onward. 
ORDER: The appeal is dismissed. 
Cite as Matter of'S-. Inc., 10# 905871 (A/\0 Dec. 22. 20 17) 
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