dismissed EB-3 Case: Hospitality

U.S. Citizenship 
and Immigration 
Services 
In Re: 9969501 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 3, 2020 
The Petitioner, an operator of a resort hotel, seeks to employ the Beneficiary as a housekeeper. It 
requests her classification under the third-preference, immigrant category 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). 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate 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. Section 291 of the 
Act, 8 U.S.C. 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an unskilled worker 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)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, 
qualified, and available for a position. Id. Labor certification also signifies that employment of a foreign 
national will not harm wages and working conditions of U.S. workers with similar jobs. Id. 
If DOL 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. Among other things, USCIS considers whether a beneficiary meets the job 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
a petition, a foreign national 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. 
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. If a petitioner employs more than 100 people, however, 
USCIS may accept a statement from a financial officer demonstrating the business's ability to pay a 
proffered wage. Id. 
Here, the accompanying labor certification states the proffered wage of the offered position of 
housekeeper as $12 an hour, or $24,960 a year based on a 40-hour work week. The petition's priority 
date is October 2, 2018, 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). 
At the time of the appeal's filing, evidence of the Petitioner's ability to pay the proffered wage in 2019 
was not yet available. For purposes of this decision, we will therefore consider the company's ability to 
pay only in 2018, the year of the petition's priority date.1 
The Petitioner submitted letters from its chief executive officer (CEO) asserting the company's ability 
to pay the proffered wage. The letters state the Petitioner's employment of more than 200 people and 
its generation of more than $26 million in gross revenues and $6.4 million in payroll expenses in 2017. 
Noting the Petitioner's listing of "50" employees on the labor certification, the Director questioned 
the company's claim of more than 200 workers. See Matter of Ho, 19 l&N Dec. 582, 591 (BIA 1988) 
(requiring a petitioner to resolve inconsistencies of record with independent, objective evidence 
pointing to where the truth lies). The Petitioner's CEO describes the listing of 50 employees on the 
labor certification as a "clerical error." But the record lacks sufficient documentary evidence to 
explain the large discrepancy and to establish the company's employment of at least 100 people. The 
Director therefore did not abuse his discretion in discounting the CEO's letters as proof of the 
Petitioner's ability to pay the proffered wage. 
Moreover, USCIS records indicate the Petitioner's filing of multiple Form 1-140 petitions for other 
beneficiaries. A petitioner must demonstrate its ability to pay the proffered wage of each petition it 
files from a petition's priority date onward. 8 C.F.R. § 204.5(g)(2). This Petitioner must therefore 
demonstrate its ability to pay the combined proffered wages of this petition and any others that were 
pending or approved as of this petition's priority date or filed thereafter in 2018. 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 tiling's grant, a petitioner did not demonstrate its ability to pay the combined proffered wages of 
multiple petitions). The CEO's letters lacked sufficient information to demonstrate the Petitioner's 
ability to pay the combined proffered wages of multiple petitions. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full proffered 
wage beginning in the year of a petition's priority date. If a petitioner did not pay a beneficiary at all 
or did not annually pay him or her the full proffered wage, USCIS considers whether it generated 
annual amounts of net income or net current assets sufficient to pay any difference between the 
proffered wage and actual wages paid. If net income and net current assets are insufficient, USCIS 
1 In any future filings in this matter, the Petitioner must submit copies of annual reports, federal tax returns, or audited 
financial statements for 2019. See 8 C.F .R. § 204.5(g)(2). 
2 
may consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter of 
Sonegawa, 12 l&N Dec. 612, 614-15 (Reg'I Comm'r 1967).2 
The Petitioner did not submit any evidence that it paid the Beneficiary in 2018. Thus, based solely on 
wages paid, the record does not establish the company's ability to pay the Beneficiary's proffered 
wage. 
The copy of the Petitioner's federal income tax return for 2018 reflects net current assets of about 
- $2.7 million, but net income of $581,670. The net income amount exceeds the annual proffered 
wage of $24,960. The record therefore appears to demonstrate the Petitioner's ability to pay the 
Beneficiary's individual proffered wage. As previously indicated, however, USCIS records indicate 
the Petitioner's filing of Form 1-140 petitions for multiple beneficiaries. USCIS records indicate the 
Petitioner's filing of petitions for at least 40 other beneficiaries that were pending or approved as of 
October 2, 2018, or filed thereafter in 2018. 3 The Petitioner stated that it offered all its beneficiaries 
the same annual proffered wage of $24,960. The Petitioner must therefore demonstrate its ability to 
pay combined proffered wages of $1,023,360 ($24,960 x 41) in 2018. The Petitioner also stated that 
it did not pay any 2018 wages to its beneficiaries, who all live outside the United States. 
Recall that the Petitioner's federal income tax return for 2018 reflects a significantly high negative 
amount of net current assets, -$2. 7 million, and $581,670 in net income. Both of those amounts fall 
short of the combined proffered wages of $1,023,360 by more than $400,000. Thus, based on 
examinations of wages paid, net income, and net current assets, the Petitioner has not demonstrated 
its ability to pay the combined proffered wages in 2018. 
On appeal, the Petitioner asserts that its 2018 tax return vastly understates its net current assets. The 
company submitted a 2017 appraisal of its property, valuing it at $143 million. The Petitioner argues 
that, after adding the value of its property, the company can clearly pay the combined proffered wages. 
Land and buildings, however, are not considered current assets that can be liquidated within one year. 
Joel G. Siegel & Jae K. Shim, Barron's Dictionary of Accounting Terms 378 (3d ed. 2000). We 
therefore reject the Petitioner's revised net current asset amount. 
As the Petitioner contends, however, we may consider factors beyond wages paid, net income, and net 
current assets in determining the company's ability to pay the proffered wage. Under Sonegawa, we 
may consider: how long the Petitioner has conducted business; its number of employees; growth of 
its business; its incurrence of uncharacteristic losses or expenses; its reputation in its industry; the 
Beneficiary's replacement of a current employee or outsourced service; or other factors affected the 
Petitioner's ability to pay. Matter of Sonegawa, 12 l&N Dec. at 614-15. 
The record indicates the Petitioner's continuous business operations since 2016 and, as previously 
indicated, its employment of at least 50 people. The company's federal income tax returns indicate 
2 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Rivzi v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 
883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 292 (5th Cir. 2015). 
3 The Petitioner need not demonstrate its ability to pay proffered wages of petitions that it withdrew or that USCIS rejected, 
denied, or revoked. The Petitioner also need not demonstrate its ability to pay proffered wages of petitions before their 
corresponding priority dates or after their corresponding beneficiaries obtains lawful permanent residence. 
3 
that, from 2017 to 2018, its gross annual revenues grew slightly. Unlike the petitioner in Sonegawa, 
however, the Petitioner has not documented its incurrence of uncharacteristic losses or expenses. Also 
unlike the petitioner in Sonegawa, the Petitioner must demonstrate its ability to pay the combined 
proffered wages of multiple petitions. 
The Petitioner argues that, as "a large U.S.[] hotel chain," it has an outstanding reputation in its 
industry. The record, however, lacks corroborating evidence of the company's claimed ownership or 
operation of additional hotels.4 The company therefore has not established its claimed outstanding 
reputation in the hotel industry. 
The Petitioner also asserts that the Beneficiary will effectively replace another employee as a 
housekeeper. The company states that it, like the U.S. hotel industry in general, suffers a high turnover 
rate of housekeepers and "simply cannot fill these positions fast enough. In that sense, the Beneficiary 
is being hired to replace any of a large number of people who filled identical positions and left of their 
own volition." 
The Petitioner, however, indicated on the Form 1-140 that the offered job is a "new position." The 
company also states in its appeal that its beneficiaries "do not replace any existing U.S. employees -
they only fill positions which we have been unable to fill with the existing domestic labor pool." The 
record therefore does not establish the Beneficiary's replacement of a current worker. See Matter of 
Ho, 19 l&N Dec. at 591 (requiring a petitioner to resolve inconsistencies of record). For the foregoing 
reasons, a totality of circumstances under Sonegawa does not demonstrate the Petitioner's ability to 
pay the proffered wage. 
111. CONCLUSION 
The Petitioner has not demonstrated its continuing ability to pay the proffered wage from the petition's 
priority date onward. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
4 Also, public records indicate that a contractor has alleged in federal court that the Petitioner owes it about $5 million for 
construction work, and that the Petitioner has more than $500,000 in state tax I iens against it. 
4