dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 20435424 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 12, 2022 
The Petitioner, an information technology consulting company, seeks to employ the Beneficiary as a 
computer software engineer. The company requests his classification under the third-preference, 
immigrant category as a professional. Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(ii), 8 U.S.C. § l 153(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 of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
demonstrate its required ability to pay the position's proffered wage. The matter is now before us on 
appeal. 
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 
Matter of Chawathe , 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 a professional 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 
noncitizen in the position will not harm wages and working conditions of U.S. workers with similar 
jobs. See section 212(a)(5) of the Act, 8 U .S.C . § l 182(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 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, ifUSCIS approves a petition , a designated noncitizen 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 establish that it has the ability to pay the proffered wage stated on the labor 
certification. As provided in the regulation at 8 C.F.R. § 204.5(g)(2): 
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 a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. 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]. 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date of the petition onward. The priority date in this case is August 
8, 2011. 1 The labor certification states that the wage offered for the job of computer software engineer 
is $90,000 per year. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage. USCIS may also consider the totality of the petitioner's 
circumstances, including the overall magnitude of its business activities, in determining the 
Petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l 
Comm'r 1967). 
With the initial filing, the Petitioner submitted copies of four earnings statements, which demonstrated 
the wages it paid to the Beneficiary for the period from August 16, 2020, to October 15, 2020. 
Although these statements demonstrate that the Petitioner was compensating the Beneficiary at a rate 
in excess of the proffered wage, the Director determined that the evidence was not sufficient to 
establish that the Petitioner had the ability to pay the proffered wage to the Beneficiary from the 2011 
priority date onward. The Director issued a request for evidence (RFE) to allow the Petitioner the 
opportunity to provide additional evidence to establish its ability to pay the proffered wage. In 
response, the Petitioner submitted copies of Internal Revenue Service (IRS) transcripts for the 
Beneficiary's IRS Forms W-2, Wage and Tax Statements, for the tax years 2011-2019. 
In denying the petition, the Director concluded that the record did not include any 
regulatory-prescribed evidence of the Petitioner's ability to pay the proffered wage. On appeal, the 
Petitioner asserts that the previously submitted initial evidence and evidence submitted in response to 
1 The priority date of a petition is the date DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5( d). 
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the RFE demonstrates by a preponderance of the evidence that the Petitioner has the ability to pay the 
proffered wage. 2 No new evidence is submitted on appeal. 
As noted by the Director, the regulation at 8 C.F.R. § 204.5(g)(2) requires evidence of ability to pay 
to include "annual reports, federal tax returns, or audited financial statements," and the Petitioner was 
afforded the opportunity to supplement the record with such regulatory-required evidence in response 
to the RFE. 3 The Petitioner, however, declined to provide its annual reports, federal tax returns, or 
audited financial statements for any year. Further, it did not explain why this evidence was 
unavailable. Moreover, the Petitioner has not remedied this evidentiary deficiency on appeal by 
submitting any regulatory-required evidence for the post-priority date period after August 8, 2011. 4 
As previously indicated, when determining a petitioner's ability to pay, we may consider factors other 
than wages paid, net income, and net current assets. See Matter ofSonegawa, 12 I&N Dec. at 614-15. 
However, even if the Sonegawa factors indicated the company's ability to pay in the relevant years, 
which they do not, its omission of regulatory-required evidence for the period from 2011 onward 
precludes a favorable determination on appeal. See 8 C.F.R. § 204.5(g)(2). 
III. CONCLUSION 
The Petitioner has not submitted regulatory-prescribed evidence of its continuing ability to pay the 
proffered wage, and it has not explained why such evidence is unavailable. Thus, we find that the 
Petitioner has not established its ability to pay the proffered wage from the priority date onward, and 
we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
2 The Petitioner also notes that in denying the petition, the Director erroneously referred to the IRS Wage and Income 
Transcripts as documentation relating to the "Employer/Petitioner" when in fact this documentation related to the 
Beneficiary. We acknowledge the Director's erroneous observation regarding this documentation; however, the decision 
otherwise references and discusses the lack of regulatory-required evidence as the basis for the denial and, accordingly, 
we view this error as hannless. Moreover, we exercise de novo review of all issues of fact, law, policy, and discretion. Sec 
Matter ofDhanasar, 26 T&N Dec. 884 (AAO 2016). This means that we look at the record anew and are not required to 
defer to findings made in the initial decision. 
3 In a case where the prospective United States employer employs 100 or more workers, the Director may accept a statement 
from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage. 
Here, the Director advised the Petitioner that it could submit this document in the RFE if applicable, but the Petitioner 
declined to do so. 
4 The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
See 8 C.F.R. § 103.2(b)(l4). 
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