dismissed EB-3 Case: Food Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 2000657 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 2, 2021 
The Petitioner, a manufacturer of frozen foods, seeks to employ the Beneficiary as a production helper. 
The company requests her classification under the third-preference, immigrant category as an "other 
worker." Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii) , 8 U.S.C . 
§ 1153(b)(3)(A)(iii). 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner didn't establish its required ability to pay the combined proffered wages of this and other 
petitions . 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also 
MatterofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard of proof) . Upon de 
nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an "other," or "unskilled," worker generally follows a three-step process. First, a 
prospective employer must apply to the U.S. Department of Labor (DOL) for certification that: ( 1) 
there are insufficient U.S. workers able, willing, qualified, and available for an offered position; and (2) 
the employment of a noncitizenin the position won't harm wages and working conditions ofU .S. wo.rkers 
with similar jobs . See section212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. 
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). 
Finally, if USCIS approves a petition, a noncitizen 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. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, federal tax 
returns, or audited financial statements. Id. 
The accompanying labor certification states the proffered wage of the offered position of production 
helper as $8.28 an hour, or - based on a 40-hour, work week - $17,222.40 a year. The petition's 
priority date is June 14,201 7, 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). 
In response to the Director's request for additional evidence, the Petitioner submitted copies of 
financial statements for 2015 through April 30, 2018. Contrary to the Director's request and 8 C.F.R 
§ 204.5(g)(2), however, the financial statements for 2017 and 2018 don't indicate that they were 
"audited." 1 The record therefore lacks required evidence of the Petitioner's ability to pay the proffered 
wage from the petition's priority date onward. 
The petition included a letter from the Petitioner's chief financial officer (CFO). The letter states the 
company's employment of more than 200 workers and asserts its ability to pay the proffered wage. 
A statement from a financial officer "may" establish a petitioner's ability to pay if the business, like 
the Petitioner here, employs at least 100 workers. 8 C.F.R. § 204.5(g)(2). But the Director didn't 
abuse his discretion by finding the CFO's letter insufficient. Because USCIS records indicate the 
company's filing of multiple Form I-140 petitions, the Director properly required the company to 
submit additional evidence of its ability to pay the proffered wage. 
As previously indicated, a petitioner must demonstrate its ability to pay the proffered wage of each 
petition it files until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The 
Petitioner here must therefore demonstrate its ability to pay the combined proffered wages of this and 
its other petitions that were pending or approved as of this petition's priority date of June 14, 2017 or 
filed thereafter. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our 
revocation of a petition's approval where, as of the filing's grant, a petitioner didn't demonstrate its 
ability to pay the combined proffered wages of multiple petitions). 2 
The record lacks the proffered wages and priority dates of the Petitioner's other petitions. Thus, 
USCIS can't calculate the total proffered wages that the company must demonstrate its ability to pay. 
The record therefore doesn't establish the Petitioner's ability to pay the proffered wages of all 
applicable petitions. 
1 The financial statements for 2018 also don't cover a long enough period to reliably demonstrate the Petitioner's ability 
to pay that year. 
2 The Petitionerneedn't demonstrate its ability to pa yprof-fored wages of petitions that it withdrew or, unless pending on 
appeal or motion, that USCIS rejected. denied, or revoked. The Petitioner also needn't demonstrate its ability to pay 
proffered wages after corresponding beneficiaries obtained lawful permanent residence, or before petitions' corresponding 
priority dates. 
2 
On appeal, the Petitioner argues that USCIS erred by not considering other factors affecting its ability 
to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm 'r 1967). 
The Petitioner contends, for example, that its beneficiaries will replace some of its current, temporaty 
employees in the offered position, saving the company substantial money. 
But, where USCIS rejects a letter from a petitioner's financial officer as insufficient, the petitioner 
must submit other regulatory required evidence to establish its ability to pay. See 8 C.F.R. § 
204.5(g)(2) (stating that "[e]vidence of this ability [to pay] shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements") ( emphasis added). In the absence 
of USCIS' s acceptance of a statement from a financial officer or other regulatory required evidence, 
Sonegawa factors don't establish a petitioner's ability to pay. 
The record lacks required evidence of the Petitioner's ability to pay the combined proffered wages 
from the petition's priority date onward. Thus, the Petitioner hasn't demonstrated its ability to pay the 
proffered wage. We will therefore affirm the petition's denial. 
III. DRUG TEST AND BACKGROUND SCREENING 
Although unaddressed by the Director, the record also doesn't establish the Beneficiary's satisfaction 
of the drug test and background screening requirements of the offered position. A petitioner must 
establish a beneficiary's possession of all DOL-certified job requirements by a petition's priority date. 
Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). 
The labor certification states that, besides a U.S. high school diploma or a foreign educational 
equivalent, the offered position requires a"[ d]rug test and background screening." See, e.g .. Matter 
ofHoneywell Int'l, Inc., 2016-PER-00434, 2018 WL 3232449 *2 (BALCA June 27, 2018) (holding 
that a pre-employment drug test and background check listed on a labor certification application 
constitute job requirements) ( citation omitted). 3 As previously indicated, the petition's priority date 
is June 14, 2017. 
The Petitioner's RFE response included a letter from its human resources manager. The letter states 
that, before the company offered the Beneficiary the position, she "passed an initial drug screen and 
background check." The company letter, however, doesn't constitute independent evidence of the 
Beneficiary's satisfaction of the job requirements. A petitioner may submit a letter containing biased 
information, but the partiality will affect the weight accorded the evidence. Matter of D-R-, 25 I&N 
Dec. 445,461 (BIA2011) ( citations omitted). Thus, in any future filings in this matter, the Petitioner 
must submit objective evidence of the Beneficiary's successful completion of the drug test and 
background screening requirements by the petition's priority date ofJune 14, 2017. 
3 Decisions ofDOL's Board of Alien Labor Certification Appeals (BALCA) don't bind USCIS in cases involvingthesame 
issues. See 8 C.F.R. § I 03. I O(b) (requiring USC IS employees to follow precedent decisions of the U.S. Attorney General 
and Board of Immigration Appeals). USCIS, however, may find BALCA decisions persuasive. See Martin v. 
Occupational Safety&HcalthRcvicw Comm 'n, 499U.S. 144, 157-58 (1991) (holdingthatadrninistrativeagencies should 
defer to reasonable, regulatory interpretations of sister agencies that Congress authorized to enforce the rules a tissue). 
3 
IV. CONCLUSION 
The Petitioner hasn't demonstrated its ability to pay the combined proffered wages of this and other 
petitions from this petition's priority date onward. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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