dismissed EB-3 Case: Engineering

(b)(6)
MATTER OF A-E- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 3, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an engineering services business, seeks to employ the Beneficiary as a 
controls engineer. It requests classification of the Beneficiary as a professional under the third 
preference immigrant classification. 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 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director, Texas Service Center, denied the petition. The Director concluded that the Petitioner 
had not submitted regulatory-prescribed evidence to establish its ability to pay the proffered wage. 
The matter is now before us on appeal. The Petitioner asserts that it had submitted sufficient 
evidence to establish its ability to pay the proffered wage and that the Director erred in his 
interpretation ofUSCIS policy. Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
As required by statute, the petition is accompanied by an approved ETA Form 9089, Application for 
Permanent 
Employment Certification (labor certification), certified by the U.S. Department of Labor 
(DOL).' The priority date ofthe petition is November 6, 2014? The proffered wage in this matter is 
$56,014. 
The issue before us is whether the Petitioner has submitted the required evidence to establish its 
ability to pay the proffered wage to the Beneficiary as of the priority date and continuing onward. 
The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job 
offer is realistic. See Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 
8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USCIS requires the petitioner 
to demonstrate financial resources sufficient to .pay the beneficiary's proffered wages, although the 
1 
See Section 212(a)(5)(D) ofthe Act, 8 U.S.C. § ll82(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
2 The priority date is the date the DOL accepted the labor certification for processing . See 8 C.F.R. § 204.5(d). 
(b)(6)
Matter of A-E- Inc. 
totality of the circumstances affecting the petitioning business will be considered if the evidence 
warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
The regulation 8 C.P.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. 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 form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In this case, the Petitioner submitted copies of pay-stubs issued to the Beneficiary by the Petitioner 
in 2014 and 2015, and copies of IRS Forms W-2 issued to the Beneficiary 3 in 2014 and the 
Beneficiary's 2015 W-2 on appeal. However, the Petitioner did not submit copies of any of the 
regulatory-prescribed evidence of its ability to pay the proffered wage; that is, copies of its annual 
reports, federal tax returns, or audited financial statements as required by 8 C.P.R. § 204.5(g)(2). 
On September 18, 2015, the Director issued a request for evidence (RFE) and specifically requested 
that the Petitioner submit copies of its annual reports, federal tax returns, or audited financial 
statements. In response to the RFE, the Petitioner provided copies of additional pay-stubs and a new 
copy of the IRS Form W-2 from 2014. The Petitioner asserts that it has "adequately proven its 
ability to pay the Beneficiary 
with the evidence on record." The Petitioner cites 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 ability to pay (Yates 
~emorandum). Specifically, the Petitioner quotes: 
An applicant or petitioner must establish eligibility for the requested benefit. 8 CFR 
[§] 103.2(b)(l). If the record is complete with respect to all of the required initial 
evidence, CIS adjudicators are not required to issue an RFE to obtain further 
documentation to support a decision based on the record or establish the petitioner's 
ability to pay.4 
3 It is noted that the IRS Forms W-2 Jist as the employer, with federal employer 
identification number and "Control number" Information on the Beneficiary's pay-stubs 
matches the Control number on the W -2. The Beneficiary's pay-stubs further Jist the Petitioner at the top of the stub. 
The Petitioner submitted a copy of a Client Services Agreement between itself and which 
details the nature of the agreement between the companies , and which shows the Petitioner directed the Beneficiary's 
day-to-day duties and activities, while managed employee benefits and payroll. 
4 Memorandum from William R. Yates, Associate Director For Operations, Determination of Ability to Pay under 
8 CFR 204.5(g)(2), HQOPRD 90/ 16.45 (May 4, 2004) . 
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Matter of A-E- Inc. 
The Petitioner asserted that it had established its ability to pay the proffered wage by submitting IRS 
Forms W-2 showing it had paid the Beneficiary in excess of the proffered wage. The Director 
denied the decision on February 4, 2016. The Director no.ted that the Yates Memorandum did not 
relieve the Petitioner from submitting the evidence expressly required by regulation and concluded 
that "the record was not complete in the initial filing and the [P]etitioner failed to successfully 
address the needed primary evidence after the RFE." 
On appeal, the Petitioner submits a copy of the IRS Form W-2 issued to the Beneficiary in 2015. 
The Petitioner again asserts that it has submitted sufficient evidence to establish its ability to pay the 
proffered wage and again cites the Yates Memorandum in support of its assertion. However, the 
Petitioner's interpretation of the language in that memorandum does not comport with the plain 
language of the regulation at 8 C.F.R. § 204.5(g)(2) set forth in the memorandum as authority for the 
policy guidance therein. The Director advised the Petitioner of this regulatory requirement in the 
September 18, 2015, RFE and again in the February 4, 2016, denial of the petition. The Petitioner 
did not submit this evidence on appeal, and "concedes that it did not submit annual reports, federal 
tax returns, or audited financial statements with the original filing of the petition or with the RFE." 
As noted by the Director, the Petitioner improperly relies on the Yates Memorandum. In pertinent 
part, the Yates Memorandum states, "Required initial evidence, as specified under 8 CFR 
204.5(g)(2), includes copies of: (1) annual reports, (2) federal tax returns, or (3) audited financial 
statements. The petitioner must submit a copy of at least one of these required documents. CIS 
adjudicators are instructed to take the following steps when making a determination of a Petitioner's 
ability to pay," the memo then suggests that the Service Center should issue a request for evidence 
"i[ f] the record does not contain one of the three required documents (annual report, tax return, or 
audited financial statement)." The Director followed this guidance as the record was not complete. 
The Petitioner did not submit copies of its annual reports, federal tax returns, or audited financial 
statements for the years since the priority date as is expressly required at 8 C.F.R. § 204.5(g)(2). 
Nothing in the record explains that the Petitioner is unable to submit such documentation. Further, 
nothing in the record contains sufficient information about the company without the required tax 
return, audited financial statement, and/or annual report to conclude that the Petitioner would have 
the continuing ability to pay the proffered wage. As the Petitioner is required under 8 C.F .R. § 
204.5(g)(2) to submit evidence of its ability to pay the proffered wage continuing until the 
Beneficiary obtains permanent residence, without the Petitioner's tax returns or other financial 
documentation, we are unable to assess whether the Petitioner has made a realistic job offer and that 
the Petitioner would have the continuing ability to the pay the proffered wage from the priority date 
until the Beneficiary obtains permanent residence. 
Therefore, since the Petitioner has not submitted the regulatory required evidence, we cannot 
determine whether the Petitioner can establish its continuing ability to pay the Beneficiary the 
proffered wage from the priority date onward. 
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Matter of A-E- Inc. 
II. CONCLUSION 
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; See Matter of Brantigan, 11 I&N Dec. 493 
(BIA 1966); Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner has not met that 
burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-E- Inc., ID# 11771 (AAO Aug. 3, 2016) 
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