dismissed EB-3 Case: Hospitality

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 06, 2025 In Re: 35872308 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner, a golf course and resort, seeks to employ the Beneficiary as a guest service 
representative. It requests the Beneficiary's classification under the third preference immigrant 
classification for "other" workers. See Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(iii), 8 U.S.C. § 1153(b )(3)(A)(iii). This employment-based immigrant classification 
allows a U.S. employer to sponsor a noncitizen for lawful permanent resident status to work in a 
position that requires less than two years of training or experience. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish the Petitioner's ability to pay the proffered wage. Specifically, the Director emphasized the 
Petitioner did not submit required initial evidence in the form of annual reports, federal tax returns or 
audited financial statements, or demonstrate that such evidence was unavailable. The matter is now 
before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). lfDOL 
approves a position, an employer must next submit the certified labor application with an immigrant 
visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 
U.S.C. § 1154. USCIS must determine, among other eligibility requirements, whether a beneficiary 
meets the requirements of a certified position and a requested immigrant visa classification. If USCIS 
approves the petition, a noncitizen may finally 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. 
TI. ANALYSIS 
The sole issue addressed by the Director is whether the Petitioner demonstrated 
its ability to pay the 
proffered wage. 
Any petition filed for an employment-based immigrant which requires an offer of employment must 
be accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered 
wage. A petitioner must demonstrate this ability from the petition's priority date until a beneficiary 
obtains permanent residence. 8 C.F.R. § 204.5(g)(2). As provided in the regulation, evidence of a 
petitioner's ability to pay "shall be either in the form of copies of annual reports, federal tax returns, 
or audited financial statements." Id. In a case where the prospective U.S. employer employs 100 or 
more workers, USCIS may accept a statement from a financial officer of the organization which 
establishes the prospective employer's ability to pay the proffered wage. Id. In appropriate cases, 
additional evidence, such as profit/loss statements, bank account records, or personnel records, may 
be submitted by the petitioner or requested by USCIS. Id. 
The priority date of a petition is the date the underlying labor certification is filed with the DOL, which 
in this case was March 29, 2022. The labor certification states that the wage for the offered position 
of guest service representative is $9.50 per hour. The Petitioner states the annual offered wage is 
$17,920, based on a 35-hour work week. 
As evidence of its ability to pay, the Petitioner initially submitted: (1) copies of the Beneficiary's IRS 
Forms W-2CM, Wage and Tax Statement, showing it paid her $31,691.54 in 2022 and $36,992.62 in 
2023; (2) copies of the Beneficiary's pay statements for January, February and March 2024, showing 
a biweekly pay rate of $1,407.69; and (3) copies of its IRS Forms 941-SS, Employer's Quarterly 
Federal Tax Return, for all four quarters of 2023. The record reflects that the Petitioner has employed 
the Beneficiary, who holds E-2 nonimmigrant status, since 2011. 
In a request for evidence (RFE), the Director instructed the Petitioner to provide additional 
documentation of its ability to pay in the form of annual reports, federal tax returns or audited financial 
statements, as required by 8 C.F.R. § 204.5(g)(2). The Director also informed the Petitioner it could 
submit any additional evidence of its ability to pay, such as bank account records, personnel records, 
or evidence of wages paid to the Beneficiary. The Director advised that the Petitioner "may not submit 
additional evidence in place of initial evidence" unless it demonstrated that the initial evidence does 
not exist or that the Petitioner cannot obtain it. 
In response, the Petitioner maintained that it established its ability to pay because "the Beneficiary has 
been employed by the Petitioner since 2011 and has consistently earned a wage higher than the proffered 
amount from the priority date onward." The Petitioner resubmitted copies of the Beneficiary's IRS 
Forms W-2CM for 2022 and 2023, paystubs from 2024, and evidence of her nonimmigrant status. 
The Director concluded that the record did not include any regulatory prescribed evidence of the 
Petitioner's ability to pay the proffered wage and denied the petition. 
On appeal, the Petitioner acknowledges that the plain language of the regulation at 8 C.F.R. 
§ 204.5(g)(2) provides that evidence of the U.S. employer's ability to pay "shall be either in the form 
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of copies of annual reports, federal tax returns, or audited financial statements." However, the 
Petitioner maintains, as it did in its response to the RFE, that "per USCIS policy ... adjudicators 
should make a positive determination if credible and verifiable evidence demonstrates that the 
Petitioner is employing and remunerating the Beneficiary at or above the proffered wage." 
In support of its claim that the previously provided evidence of the Beneficiary's wages is sufficient 
to meet its burden of proof, the Petitioner relies on a 2004 USCIS memorandum. See Memorandum 
from William R. Yates, Assoc. Dir. for Ops., USCIS, HQOPRD 90/16.45, Determination ofAbility to 
Pay under 8 C.F.R. 204.5(g)(2) (May 4, 2004). The Petitioner also asserts that "[t]he AAO and federal 
courts have consistently rnled that a petitioner can demonstrate ability to pay by showing ongoing 
employment and salary payments equal to or exceeding the proffered wage." The Petitioner provides 
copies of the 2004 Yates Memorandum, two unpublished AAO decisions, and Especial v. Napolitano, 
696 F.Supp. 2d 873 (E.D. Mich. 2010) in support of the appeal. 
For the reasons provided below, we conclude the Petitioner has not demonstrated its ability to pay the 
proffered wage under 8 C.F.R. § 204.5(g)(2). 
Turning first to the Petitioner's policy-related arguments and reliance on the 2004 Yates 
Memorandum, we note that, for petitions filed on or after March 15, 2023, USCTS policy guidance on 
evaluating a petitioning employer's ability to pay is found at 6 USCIS Policy Manual E.4, 
https://www.uscis.gov/policy-manual. The guidance contained in the USCIS Policy Manual is 
controlling and supersedes any related prior guidance, including the 2004 memorandum cited by the 
Petitioner. See Policy Alert PA-2023-08, Certain Petitioning Employers' Ability to Pay the Proffered 
Wage to Prospective Employee Beneficiaries (Mar. 15, 2023), https://www.uscis.gov/policy­
manual/updates. 
This guidance provides that "[i]n order 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," with a citation to 8 C.F.R. § 204.5(g)(2). See generally 6 USCIS Policy 
Manual, supra, at E.4(A). The sole exception to this evidentiary requirement applies to U.S. 
employers with l 00 or more workers, which may instead include a financial officer statement. 
A petitioner may establish its ability to pay by providing "documentary evidence that it has paid the 
beneficiary a salary equal to or greater than the proffered wage for each year from the priority date." See 
generally 6 USCIS Policy Manual, supra, at E.4(C)(l). However, the USCIS Policy Manual states that 
"[ e ]ven if the petitioner establishes that it has paid the beneficiary a salary that meets or exceeds the 
proffered wage, the petition must still contain an annual report, federal tax return, or audited financial 
statements for each year from the priority date, or, for petitioners who employ 100 or more workers, a 
financial officer statement," because this evidence is expressly required by the regulation at 8 C.F.R. 
§ 204.5(g)(2). Id. Therefore, the Petitioner's assertion that it can satisfy its burden to demonstrate its 
ability pay based solely on documentary evidence of salary payments it made to the Beneficiary since 
the priority date is not supported by the applicable regulations or by USCIS policy. 
The Petitioner's reliance on unpublished AAO decisions and the U.S. district court decision in 
Especial v. Napolitano, 696 F.Supp. 2d 873 (E.D. Mich. 2010) is similarly unpersuasive. The 
referenced AAO decisions were not published as a precedent and therefore do not bind USCTS officers 
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in future adjudications. See 8 C.F.R. § 103.3( c ). Further, in contrast to the broad precedential authority 
of the case law of a U.S. circuit court, we are not bound to follow the published decision of a U.S. 
district court in cases arising within the same district. Matter ofK-S-, 20 I&N Dec. 715 (BIA 1993). 
The reasoning underlying a district judge's decision will be given due consideration when it is properly 
before us but does not have to be followed as a matter oflaw. Id. at 719. Regardless, neither the non­
precedent AAO decisions nor the U.S. district court's decision in Especial v. Napolitano support the 
Petitioner's assertions that a U.S. employer can demonstrate its ability to pay without providing the 
initial evidence required by 8 C.F.R. § 204.5(g)(2). The facts in these cases can be distinguished from 
the fact presented here, as the petitioners in the cited matters provided the types of evidence prescribed 
by the regulations. As discussed, a petitioner's submission of documentary evidence that it employed 
the beneficiary at a salary equal to or greater than the proffered wage for the time period in question 
may be considered proof of the petitioner's ability to pay the proffered wage, but only if such evidence 
is accompanied by the annual reports, federal tax returns, or audited financial statements required by 
8 C.F.R. § 204.5(g)(2). 
Finally, the Petitioner maintains on appeal, that "under Matter of Sonegawa, USCTS should have 
considered the totality of the Petitioner's financial circumstances, including the documented history 
of paying the Beneficiary a higher wage, which establishes its financial capability." 
We may consider the totality of the Petitioner's circumstances, as set forth in Matter ofSonegawa, 12 
I&N Dec. 612 (Reg'l Comm'r 1967), in determining its ability to pay the proffered wage. Per Matter of 
Sonegawa USCTS may, at its discretion, consider evidence relevant to a petitioner's financial ability that 
falls outside of its net income and net current assets. See 12 I&N Dec. at 614-15. Matter ofSonegawa 
pre-dates the 1991 final rule implementing the regulation at 8 C.F.R. § 204.5(g)(2), which expressly 
requires the Petitioner to submit a copy of its annual reports, federal tax returns, or audited financial 
statements as initial evidence to establish its ability to pay the proffered wage. It therefore does not 
create, as claimed by the petitioner, an alternate method of demonstrating ability to pay where, as here, 
a petitioner simply declines to provide the initial evidence required by regulation. 
While the regulation at 8 C.F.R. § 204.5(g)(2) allows for the submission of other evidence such as 
bank account and personnel records "in appropriate cases," and we may examine other relevant 
evidence in the totality of the circumstances, the Petitioner has not explained why it cannot obtain the 
evidence required by regulation or established that this evidence is unavailable. 1 We will not consider 
the totality of the circumstances where, as here, the record lacks the required initial evidence. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established its ability to pay the proffered wage 
from the priority date onward. Accordingly, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
1 We note that on the Form 1-140, Immigrant Petition for Alien Workers, the Petitioner reported its latest gross and net 
annual income figures and stated that these figures were derived from its 2022 tax return. 
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