dismissed EB-3 Case: Logistics

U.S. Citizenship 
and Immigration 
Services 
In Re : 1740254 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 15, 2022 
The Petitioner, a provider of messenger and delivery services, seeks to employ the Beneficiary as a 
logistician . The company seeks his classification under the third-preference, immigrant visa category 
for skilled workers. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). 
After the filing's initial grant , the Acting Director of the Nebraska Service Center revoked the 
petition's approval. The Acting Director concluded that the Petitioner did not demonstrate its required 
ability to pay the proffered wage of the offered position . The Acting Director also found that, on the 
accompanying certification from the U.S. Department of Labor (DOL), the Petitioner misrepresented 
the availability of the job opportunity to U.S. workers. 
In petition revocation proceedings, the Petitioner bears the burden of establishing eligibility for the 
requested benefit by a preponderance of evidence. See Matter of Ho, 19 I&N Dec. 582,589 (BIA 
1988) (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 skilled 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 DOL certification 
that: 1) insufficient U.S. workers are able, willing, qualified, and available for the position; and 2) 
employment of a non citizen 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. § 1182(aX5). 
An employer must next submit the 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 considers whether a beneficiary meets the requirements of a DOL-certified 
position and a requested immigrant visa category. 
Finally , ifUSCIS 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. 
At any time before a beneficiary obtains lawful permanent resident status, users may revoke a 
petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.e. § 1155. If 
supported by a record, the erroneous nature ofa petition's approval may justify its revocation. Matter 
of Ho, 19 I&N Dec. at 590. 
users properly issues a notice of intent to revoke (NOIR) a petition's approval if the unexplained 
and unrebutted record at the time of the NOIR's issuance would have warranted the petition's denial. 
Matter of Estime, 19 I&N Dec. 450,451 (BIA 1987). users properly revokes a petition's approval 
if a NOIR response does not rebut or resolve the alleged revocation grounds. Id. at 451-52. 
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 e.F.R. 
§ 204.5(g)(2). This petition's priority date is July 21, 2015, the date DOL accepted the labor 
certification application for processing. See 8 e.F.R. § 204.5(d) (explaining how to determine a 
petition's priority date). Evidence of ability to pay must generally include copies of annual reports, 
federal income tax returns, or audited financial statements. Id. 1 
In determining ability to pay, users examines whether a petitionerpaida beneficiary the full proffered 
wage each year, beginning with the year of a petition's priority date. If a petitioner did not pay a 
beneficiary or did not annually pay the beneficiary the full proffered wage, users considers whether 
the business generated annual amounts of net income or net current assets sufficient to pay any 
differences between the annual proffered wage and wages paid. If net income and net current assets 
are insufficient, users may consider other factors affecting a petitioner's ability to pay a proffered 
wage. SeeMatterofSonegawa, 12 I&NDec. 612, 614-15 (Reg'leomm'r 1967). 2 
The accompanying labor certification states the proffered wage of the offered position of logistician 
as $53,768 a year. users approved the petition in May 2016. Therefore, to overcome revocation of 
the petition's approval on this ground, the Petitioner must demonstrate its ability to pay the proffered 
wage in 2015, the year of the petition's priority date, and 2016, the year of the filing's approval. 
On the labor certification, the Beneficiary did not attest that he has worked for the Petitioner. Also, 
the company did not submit evidence that it ever paid him wages. Thus, based solely on wages paid, 
the record does not establish the Petitioner's ability to pay the proffered wage in 2015 or 2016. 
The petition included copies of the Petitioner's federalincome tax returns for 2013 and 2014. Contrary 
to 8 e.F.R. § 204.5(g)(2), however, the company did not submit required evidence of its ability to pay 
the proffered wage in2015 or 2016. TheActingDirectorthereforeproperlyissued theNOIR. Without 
copies of annual reports, federal tax returns, or audited financial statements for 2015 and 2016, the 
record would have warranted the petition's denial. See 8 e.F.R. § 204.5(g)(2) (stating that evidence 
1 If a petitioner employs at least I 00 people, USCTS may accept a statement from a financial officer of the business 
establishingitsabilityto pay a proffered wage. 8 C.F.R. § 204.5(g)(2). 
2 Federal courts have upheld USC IS' method of determining ability to pay a proffered wage. See, e.g., River St. Donuts, 
LLCv. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009). 
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of ability to pay "shall be either in the forms of copies of annual reports, federal tax returns, or audited 
financial statements") ( emphasis added). 
The Petitioner's NOIR response included a copy of its federal income tax return for 2016. But neither 
the company's NOIR response nor its evidence on appeal contains regulatory required evidence of its 
ability to pay in 2015. Thus, contrary to 8 C.F.R. § 204.5(g)(2), the record does not establish the 
Petitioner's ability to pay the proffered wage from the petition's priority date. 
Also, the Petitioner's federal income tax return for 2016 does not demonstrate the company's ability 
to pay the proffered wage that year. The tax return reflects net income of $48,992 and net current 
assets of $39,506. These amounts neither equal nor exceed the annual proffered wage of $53,768. As 
previously indicated, the company also did not submit any evidence that it paid wages to the 
Beneficiary in 2016. Thus, based on examinations of the Petitioner's payments to the Beneficiary, its 
net income, and its net current assets, the record does not establish its ability to pay the proffered wage 
in2015 or 2016. 
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 of Sonegawa, 12 I&N Dec. at 614-
15. But the absence of regulatory required evidence of the Petitioner's ability to pay in 2015, the year 
of the petition's priority date, renders a determination under Sonegawa moot. Even if Sonegawa 
factors indicated the company's ability to pay in the relevant years, its omission ofrequired evidence 
for 2015 would preclude a favorable determination. See 8 C.F.R. § 204.5 (g)(2) ( stating that evidence 
of ability to pay "shall be in the forms of copies of annual reports, federal tax returns, or audited 
financial statements") ( emphasis added). 
Although unaddressed by the Acting Director, USCIS records also show that, after the petition's 
priority date, the Petitioner filed a Form I-140 petition foranotherbeneficiary. 3 A petitionermust 
demonstrate its ability to pay the proffered wage of each petition it files from the petition's priority 
date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). This Petitioner 
must therefore demonstrate its ability to pay the combined proffered wages of this and its other petition 
from this petition's priority date until its approval. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. 
Mass. 2014) ( affirming our revocation of a petition's approval where, at the time of the filing' s grant, 
a petitioner did not demonstrate its ability to pay the combined proffered wages of multiple petitions).4 
For the forgoing reasons, the record on appeal does not demonstrate the Petitioner's ability to pay the 
proffered wage of the offered position, from the petition's priority date until its approval. We will 
therefore affirm the revocation of the petition's approval. 
The Director also found that the accompanying labor certification misrepresented the availability of 
the job opportunity to U.S. workers. See 20 C.F.R. § 656.1 0(c)(8) (requiring a labor certification 
employer to certify that "[t]hejob opportunity has been and is clearly open to any U.S. worker"). We 
will withdraw this revocation ground. 
3 USC IS records identify the Petitioner's other petition by the receipt number 
4 In any future filings in this matter, the Petitioner must provide the proffered wage and priority date of its other petition. 
The company may also submit additional evidence of its ability to pay the combined proffered wages of the petitions, 
including documentation ofanywages it paid the other beneficiary in 2015 or 2016. 
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III. CONCLUSION 
The Petitioner did not establish its ability to pay the proffered wage of the offered position, from the 
petition's priority date to its date of approval. We will therefore affirm revocation of the petition's 
approval. 
ORDER: The appeal is dismissed. 
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