dismissed EB-3 Case: Jewelry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 6, 2024 In Re: 29701676 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner - a manufacturer, marketer, and wholesaler of fine gems and jewelry - seeks to employ 
the Beneficiary as a marketing brand specialist. The company requests her classification under the 
employment-based, third-preference (EB-3) immigrant visa category as a "skilled worker." See 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). U.S. 
businesses may sponsor noncitizens in this category to permanently work in jobs requiring at least two 
years of training or experience. Id. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the offered job's proffered wage. On appeal, 
we withdrew the Director's decision and remanded the matter. See In Re: 20277865 (AAO July 19, 
2022). We instructed the Director to determine the availability of initial required evidence and to 
notify the company that it may need to demonstrate its ability to pay combined proffered wages of the 
Beneficiary and a beneficiary of another petition it filed. Id. 
On remand, the Petitioner timely responded to the Director's request for additional evidence (RFE). 
The Director found that the company demonstrated its ability to pay its other beneficiary. But the 
Director again denied the petition for lack of initial required evidence of the company's ability to pay 
the Beneficiary's proffered wage. 
The matter returns to us on a second appeal. The Petitioner contends that the Director erred in finding 
that it omitted initial required evidence of its ability to pay. It argues that, consistent with U.S. 
Citizenship and Immigration Services (USCIS) policy, it submitted its "available" federal income tax 
returns and that it lacked control over the delayed preparation of its returns for other relevant years. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that neither regulations nor USCIS policy allows us to excuse initial required 
evidence of the company's ability to pay the proffered wage. We will therefore dismiss the appeal. 
I. LAW 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and a noncitizen' s employment in 
the position would not harm wages and working conditions of U.S. workers with similar jobs. Section 
212(a)(5)(A)(i) of the Act, 8 U.S.e. § l 182(a)(5)(A)(i). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
users. Section 204(a)(l)(F) of the Act, 8 U.S.e. § l 154(a)(l)(F); 8 e.F.R. § 204.5(1)(3)(i). Among 
other things, users determines whether a noncitizen beneficiary meets the requirements of a DOL­
certified position and a requested immigrant visa category. 8 e.F.R. § 204.5(1)(3)(ii)(e). 
Finally, if users approves a petition, a 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.e. § 1255. 
II. ANAL YSrS 
A. The Beneficiary's Proffered Wage 
A petitioner must demonstrate its continuing ability to pay an offered job's proffered wage, from a 
petition's priority date until a beneficiary obtains U.S. permanent residence. 8 e.F.R. § 204.5(g)(2). 
When determining ability to pay, users first checks that a petitioner submitted the initial required 
evidence. This evidence must generally include copies of annual reports, federal tax returns, or audited 
financial statements for each relevant year. 1 8 e.F.R. § 204.5(g)(2) ("Evidence 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). 
If a petition contains initial required evidence, users then examines whether the petitioner paid a 
beneficiary the foll proffered wage each year, beginning with the year of the petition's priority date. 
If a petitioner did not annually pay the foll proffered wage or did not pay a beneficiary at all, users 
considers whether the business generated annual amounts of net income or net current assets sufficient 
to pay any differences between the proffered wage and the wages paid to the beneficiary. If net income 
and net current assets are insufficient, users may consider other factors affecting a petitioner's ability 
to pay a proffered wage. See Matter ofSonegawa, 19 r&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 
The Petitioner's labor certification states the proffered wage of the offered position of marketing brand 
specialist as $72,000 a year. The petition's priority date is October 4, 2019, the date DOL received 
the labor certification application for processing. See 8 e.F.R. § 204.5(d) (explaining how to 
determine a petition's priority date). 
1 At USCIS's discretion, a petitioner with at least 100 employees may - without submitting any other evidence - provide a 
letter from a financial officer to establish the business's ability to pay a proffered wage. 8 C.F.R. § 204.5(g)(2). The 
Petitioner has neither claimed nor demonstrated that it employs at least 100 people. 
2 
The Director's most recent RFE requested evidence of the company's ability to pay the proffered wage 
through 2021. Thus, for purposes of this decision, we will review the company's ability to pay from 
2019, the year of the petition's priority date, through 2021. 
The record indicates that the Petitioner's fiscal year runs from August 1 to July 31. The company 
submitted copies of its federal income tax returns for 2018-19 and 2019-20. Thus, the Petitioner 
submitted initial required evidence for 2019. 
The Petitioner states that it has not employed the Beneficiary, and the record lacks any contrary 
evidence. Thus, based solely on wages paid, the company has not demonstrated its ability to pay the 
proffered wage. 
The Petitioner's tax returns for 2018-19 and 2019-20 reflect net income amounts ($608,035 and 
$796,410, respectively) exceeding the annual proffered wage of $72,000. Thus, based on net income, 
the Petitioner has demonstrated its ability to pay the Beneficiary's proffered wage from 2019 through 
July 31, 2020. 
Contrary to 8 C.F.R. § 204.5(g)(2), however, the Petitioner has not provided initial required evidence 
covering the remainder of 2020 or all of 2021. In a letter, the Petitioner's accountant estimated that 
the company generated net income of $550,000 in 2020-21 and $950,000 in 2021-22. The 
accountant's estimates, however, do not constitute initial required evidence of the Petitioner's ability 
to pay the proffered wage, as they are not annual reports, federal tax returns, or audited financial 
statements. 
The Petitioner also provided other evidence of its annual net incomes in 2020-21 and 2021-22. The 
materials include proof of tax payments it made to the U.S. Internal Revenue Service and copies of 
monthly bank account statements. The company argues that its net income for the periods can be 
deduced from its tax payment amounts and the federal corporate tax rate of 21 %. See 26 U.S.C. 
§ 11 (b). It also states that deposits listed in its bank account statements during the periods confirm its 
net income amounts, which appear to far exceed the annual proffered wage. 
But the Petitioner's alternate proof of net income in 2020-21 and 2021-22 does not constitute initial 
required evidence. See 8 C.F.R. § 204.5(g)(2). Because the Petitioner has not provided copies of 
annual reports, federal tax returns, or audited financial statements covering the periods from August 
1, 2020 through December 31, 2021, the company has not demonstrated its continuing ability to pay 
the proffered wage from the petition's priority date onward. See 6 USCIS Policy Manual E.(4)(C)(l), 
www.uscis.gov/policy-manual (stating that, even if a petitioner could otherwise establish its ability to 
pay a proffered wage, "the petition must still contain an annual report, federal tax return, or audited 
financial statements for each year from the priority date"). 
On appeal, the Petitioner contends that the delayed filings of its federal income tax returns for 2020-
21 and 2021-22 are beyond its control. The company's accountant stated that, "due to the [COVID-
19] pandemic," his firm had fallen behind in filing customers' tax returns. The accountant also said 
that "certain financial information [ needed] to file the [Petitioner's] tax returns are not available as 
yet." 
3 
But neither the regulation at 8 e.F.R. § 204.5(g)(2) nor users policy authorizes us to excuse the 
absence of initial required evidence. We therefore cannot overlook the missing materials for 2020-21 
and 2021-22. Even if we could excuse the lack of required evidence, the Petitioner has not 
demonstrated that the circumstances are beyond its control. The company has not explained why, 
instead of tax returns, it could not submit copies of audited financial statements to meet the ability to 
pay requirement or why it did not hire a different accountant to file its tax returns more quickly. Cf 
8 e.F.R. § 103.5(a)(l )(i) (requiring a petitioner to demonstrate that a delay in filing a motion to reopen 
was reasonable and "beyond the control" of the petitioner). 
On appeal, the Petitioner maintains that it submitted all required evidence. The company notes that 
users policy states: "In 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." 6 USCIS Policy Manual E.(4)(A) (emphasis added). The Petitioner argues 
that it provided copies of its federal income tax returns for each "available" year. The company 
contends that, for reasons beyond its control, its federal tax returns for 2020-21 and 2021-22 are 
unavailable. 
As previously discussed, however, the Petitioner has not demonstrated that the absence of initial 
required evidence is beyond its control. Also, policy lacks the legal authority of a regulation. See 
USCIS Policy Manual, "About the Policy Manual, ('The Policy Manual does not create any 
substantive or procedural right or benefit that is legally enforceable by any party against the United 
States or its agencies or officers or any other person."). The regulation states: "Evidence of this ability 
[to pay a proffered wage] shall be either in the form of copies of annual reports, federal tax returns, or 
audited financial statements." 8 e.F.R. § 204.5(g)(2) (emphasis added). The regulation allows one 
exception. But, as previously noted, the exception applies to petitioners with at least 100 employees, 
and the Petitioner has not claimed or demonstrated its employment of at least 100 people. 
Further, the language of the users Policy Manual indicates that, by limiting required evidence to 
"each available year," the Agency intended to exclude such materials when timings of adjudications 
render the evidence for priority date years unavailable. The footnote at the end of the policy manual 
sentence cited by the Petitioner states: 
In the event that a tax return, annual report, or audited financial statement is not 
available for the priority date year at the time offiling, users may consider one of 
these three documents for the year before the priority date as part of the totality analysis 
[ under Sonegawa]. 
( emphasis added). Also, as previously indicated, users policy states that, even if a petitioner could 
otherwise establish its ability to pay a proffered wage, "the petition must still contain an annual report, 
federal tax return, or audited financial statements for each year from the priority date." See 6 USCIS 
Policy Manual E.(4)(e)(l). Thus, for the foregoing reasons, we interpret users policy to excuse 
initial required evidence only if a petitioner employs at least 100 people or when the timing of the 
adjudication renders the materials for the priority date year unavailable. 
The Petitioner also argues that a totality of the circumstances establishes the company's ability to pay 
the proffered wage. The company notes that, in Sonegawa, the immigration service found that a 
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petitioner demonstrated its ability to pay the proffered wage where the business's net income for a 
relevant year fell well below the proffered wage but the petitioner had been doing business for 11 
years, employed eight workers, and had an outstanding reputation. Matter ofSonegawa, 19 I&N Dec. 
at 614-615. The Petitioner contends that its circumstances are even more favorable than those of the 
petitioner in Sonegawa. The company argues that: its net income is well above the proffered wage; 
it has conducted business for about 45 years; and it employs more than 70 workers. 
But a petitioner's ability to pay under the totality of the circumstances does not suffice if the business 
employs less than 100 people and the record lacks initial required evidence. See 6 USCIS Policy 
Manual E.(4)(e)(l) (stating that, even if a petitioner otherwise establishes its ability to pay a proffered 
wage, "the petition must still contain an annual report, federal tax return, or audited financial 
statements for each year from the priority date"). Thus, the Petitioner's argument is unavailing. 
The Petitioner has not demonstrated its continuing ability to pay the offered job's proffered wage from 
the petition's priority date through 2021. We will therefore affirm the petition's denial. 
B. The Other Beneficiary's Proffered Wage 
A petitioner must demonstrate its ability to pay the proffered wage of each Form I-140, Petition for 
Alien Worker, that it files. 8 e.F.R. § 204.5(g)(2). Thus, if a petitioner has filed multiple Forms 1-
140, it must demonstrate its ability to pay the combined proffered wages of the petition and any others 
that were approved or pending from the priority date onward. See Patel v. Johnson, 2 F. Supp. 3d 108, 
124 (D. Mass. 2014) (upholding our revocation of a petition's approval where the petitioner did not 
demonstrate its ability to pay the combined proffered wages of multiple beneficiaries). 2 
The Director found that the Petitioner had a Form 1-140 pending for another beneficiary that users 
approved after this petition's priority date. The Director, however, erred in finding that the Petitioner 
demonstrated its ability to pay its other beneficiary. 
First, in these proceedings, users determines the Petitioner's ability to pay this Beneficiary. To do 
that, the company must demonstrate its ability to pay the combined proffered wages of this Beneficiary 
and the other beneficiary. But users does not separately determine the Petitioner's ability to pay the 
other beneficiary. See generally 6 USCIS Policy Manual E.(4)(D)(2). 
Second, because this petition lacks initial required evidence of the Petitioner's ability to pay the 
proffered wage, the company cannot demonstrate its ability to pay the beneficiaries' combined 
proffered wages. See 8 e.F.R. § 204.5(g)(2); see also 6 USeIS Policy Manual E.(4)(A). We will 
therefore withdraw the Director's finding that the Petitioner demonstrated its ability to pay the 
proffered wage of its other beneficiary. 
2 A petitioner need not demonstrate its ability to pay proffered wages of petitions that it withdrew or that USCTS rejected, 
denied, or revoked. Also, a petitioner need demonstrate its ability to pay proffered wages before the priority dates of their 
corresponding petitions or after corresponding beneficiaries obtained lawful permanent residence. See generally 6 USC1S 
Policy Manual 6(E)(4)(D)(2). 
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III. CONCLUSION 
Because the Petitioner did not submit all initial required evidence, the company has not demonstrated 
its continuing ability to pay the offered job's proffered wage from the petition's priority date onward. 
We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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