EB-3 Dismissed — Construction (2007): did not establish its continuing ability to pay the

Decision Summary

The appeal was dismissed because the petitioner failed to establish its continuing ability to pay the beneficiary the proffered wage from the priority date (October 22, 1998) onwards. Although the petitioner provided evidence of paying the wage in May 2004, it did not demonstrate its financial ability for the years 1998 through 2003. The petitioner's argument that funds listed as 'Other Cost' on its tax returns could be used was rejected as there was no evidence that these funds corresponded to a position the beneficiary would replace.

Criteria Discussed

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