dismissed EB-3 Case: Maintenance And Operations Services

U.S. Citizenship 
and Immigration 
Services 
InRe : 7629718 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 16, 2022 
The Petitioner , a provider of maintenance and operations services , seeks to employ the Beneficiary as 
a packer. 1 The company requests her classification under the third-preference , immigrant visa category 
for "other workers." See Immigration and Nationality Act (the Act) section 203(b)(3)(AXiii), 8 U.S.C. 
§ 1153(bX3XA)(iii). 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval and dismissed the Petitioner's following combined motions to reopen and reconsider. The 
Director concluded that the company did not demonstrate its required intent to employ the Beneficiary 
in the offered position or its required ability to pay the combined proffered wages of this and other 
Form 1-140 petitions. 
In revocation proceedings , the Petitioner bears the burden of establishing eligibility for the requested 
benefit by a preponderance of evidence. SeeMatterofHo , 19 I&NDec . 582,589 (BIA 1988)(citation 
omitted) (discussing the burden of proof); see also Matter ofChawathe, 25 I&N Dec . 369,375 (AAO 
2010) (discussing the standard of proof). Upon de nova review, we affirm the Director's decision that 
the Petitioner did not demonstrate its ability to pay the proffered wage. We will therefore dismiss the 
appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an "other ," or "unskilled," worker 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) 
employment of a noncitizen in the position will not harm wages and working conditions of U .S. workers 
with similar jobs . See section212(a)(5) of the Act, 8 U.S.C. § 1182(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 
DOL-certified position and a requested immigrant visa category . 8 C.F.R. § 204.5(1). 
1 The record indicates thatthe position involves packing and packaging a variety of products and materials by hand . 
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. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, 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 of a petition's approval justifies 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). USeIS properly revokes a petition's approval 
if a petitioner's NOIR response does not rebut or resolve all alleged revocation grounds. Id. at 451-
52. 
II. THE PETITIONER'S 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). Evidence of ability to pay must generally include copies of annual reports, federal 
income taxes, or audited financial statements. Id. 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year, beginning with the year of a petition's priority date. If a petitioner did not annually 
pay the full proffered wage or did not pay a beneficiary at all, users examines 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. 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 of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 2 
The accompanying labor certification states the proffered wage of the offered position of packer as 
$8.20 an hour, or - based on a 40-hour, work week- $17,056 a year. The petition's priority date is 
June 24, 2016, the date DOL accepted the labor certification application for processing. See 8 C.F.R. 
§ 204.5(d) ( explaining how determine a petition's priority date). 
users approved the petition in April 2017. Thus, at the time of the petition's approval, the Petitioner 
had to demonstrate its ability to pay the proffered wage in 2016, the year of the petition's priority date, 
and 2017, the year of the petition's approval. 
The record indicates the Beneficiary's residence in Hong Kong. The Petitioner neither claims to have 
employed her nor submits evidence of payments to her. Thus, based solely on wages paid, the 
company has not demonstrated its ability to pay the proffered wage. 
2 Federal courts haveupheld USCIS' method of determining a petitioner's ability to pay a proffered wage. Sec, e.g., River 
St. Donuts, LLCv. Napolitano, 558F.3d 111, 1181 st Cir. 2009). 
2 
If a petitioner employs at least 100 people , USCIS has discretion to accept a statement from a financial 
officer as proof of the business's ability to pay a proffered wage. 8 C.F.R. § 204.5(g)(2). The 
Petitioner submitted letters from its chief financial officer (CFO) . The letters state the company's 
employment of about 5,000 people and assert its ability to pay the proffered wage . But - citing the 
Petitioner's filing of hundreds of Form I-140 petitions for other beneficiaries - the Director declined 
to accept the CFO's letter as evidence of the company 's ability to pay. The Director provided a valid 
rationale and therefore did not abuse his discretion in discounting the CFO' s letter. 
Beyond the letter , the Director found that the Petitioner did not submit regulatory required evidence 
of its ability to pay the proffered wage in 2016, the year of the petition 's priority date . See 8 C .F.R. 
§ 204 .5(g)(2) (generally requiring a petitioner to submit "copies of annual reports , federal tax returns, 
or audited financial statements") . In response to the Director's NOIR , however , the record indicates 
the Petitioner 's submission of audited financial statements for the fiscal years 2015-16 and 2016-17 . 3 
We will therefore withdraw the Director's contrary finding . 4 
The Petitioner's audited statements reflect net income amounts of $2 ,845 ,967 in 2015-16 and 
$2 ,060 ,491 in 2016-17 and, for the same corresponding periods , net current asset amounts of 
$9 ,137 ,500 and $7 ,525,347. All these amounts exceed the annual proffered wage of $17 ,056 . The 
record therefore appears to establish the Petitioner 's ability to pay the Beneficiary's individual 
proffered wage in 2016 and 2017. 
As the NOIR notes , however, the Petitioner filed multiple , Form I-140 petitions for other beneficiaries. 
A petitioner must demonstrate its ability to pay the proffered wage of each petition it files until a 
beneficiary obtains lawful permanent residence . 8 C.F.R. § 204 .5(g)(2) . The Petitionermusttherefore 
demonstrate its ability to pay the combined proffered wages of this petition and any of its others that 
were pending or approved as of this petition's priority date of June 24, 2016 or filed thereafter in 2016 
or 2017. See Patel v. Johnson, 2 Fed.Supp.3d 108, 124 (D. Mass. 2014)(affirmingourrevocation of 
a petition's approval where , as of the filing's grant , the petitioner did not demonstrate its ability to pay 
the combined proffered wages of multiple petitions) . 5 
The Petitioner's NOIR response included information about 861 Form I-140 petitions that it filed 
between 2016 and 2018 . After subtracting petitions that USCIS denied, the Director found that the 
company had to demonstrate its ability to pay the combined proffered wages of759 petitions totaling 
$ 12,995,504 in both 2016 and 201 7. Because neither the company's net income or net current asset 
amounts for those years equaled or exceeded the total combined proffere d wages, the Director properly 
concluded that the Petitioner did not demonstrate its ability to pay the proffered wage in either year. 
As previously indicated, in determining the Petitioner's ability to pay the proffered wage, we can look 
beyond the company 's wages paid , net income , and net current assets . See Matter of Son egawa, 
12 I&N Dec . at 614-15 . We may consider : the number of years the Petitioner has been doing business; 
3 The sta tement s indicate that the Petitioner's fiscal year runs from October 1 through September 3 0. 
4 The Petitioner 's motion to reopen also included copies of its audited financial statements for2015-16and2016-17. 
5 The Petitionerneed not demonstrate its ability to pay proffered wages of petitions that it withdrew or-unl ess pending on 
appeal or motion- that USCIS rejected , denied, or revoked. The Petitioner also need not demonstrate its ability to pay 
proffered wages before their petition s' correspondingprio1ity dates or after their corresponding beneficiaries obtain lawful 
permanent residence status. 
3 
the growth of its business; its number of emplo yees; its incurrence of an y uncharacteristic business 
costs or losses; its reputation in its industry ; the Beneficiary's propos ed replacement of a current 
employee or outsourced service ; or other factors affecting the Petitioner 's ability to pay the proffered 
wage . Id. 
The record indicates the Petitioner's continuous business operations since 1958. A copy of the 
company 's federal , payroll taxes for the fourth quarter of 2018 , the most recent of record , indicates 
that the Petitioner paid wages to 2,771 employees. Copies of its audited financial statements also 
show that , from 2015-16 to 201 7-18, its amount of annual net income increased. 
Unlike the business in Sonegawa , however , the Petitioner has not demonstrated its incurrence of 
uncharacteristic losses or expenses , or its possession of an outstanding business reputation. The record 
also does not establish the Beneficiary 's proposed replacement of an employee or outsourced service. 
Also unlike the business in Sonega wa, the Petitioner must establish its ability to pay combined 
proffered wages of multiple , Form I-140 petitions. A totality of circumstances therefore does not 
demonstrate the company's ability to pay the proffered wage. 
On appeal, the Petitioner asserts that, under 8 C.F.R. § 204.5(g)(2), it need only demonstrate its ability 
to pay the Beneficiary's proffered wage . By expecting the company to show its ability to pay other 
Form I-140 beneficiaries, the Petitioner contends that USCIS violated the Administrative Procedures 
Act (APA), effectively creating a new rule without complying with the APA's notice -and-comment 
requirements. See 5 U.S.C. § 553 . 
We acknowledge that 8 C.F.R. § 204 .5(g)(2) does not expressly require a petitioner to demonstrate its 
ability to pay proffered wages of multiple beneficiaries . But case law requires petitioners to establish 
that their job offers are "realistic." Matter of Great Wall, 16 I&NDec . 142, 144 (ActingReg' l Comm'r 
1977 ). Under the Petitioner's assertion, an employer with $20,000 of annual net income or net current 
assets could demonstrate its ability to pay an unlimited number of Form I-140 beneficiaries if their 
proffered wages do not exceed $20,000. Realistically, however, without demonstrating corresponding 
increases in the employer's net income or net current assets, the business may not be able to 
simultaneously employ multiple beneficiaries . See Patel, 2 Fed .Supp .3d at 122 n.15 (stating: "It is 
not unreasonable to consider the employer's ability to pay its total wage obligations as part of an 
employee -specific inquiry") . The Petitioner therefore does not persuade us of its need to demonstrate 
its ability to pay only the Beneficiary's proffered wage . 
The Petitioner further argues that it has a "reasonable expectation of future profits sufficient to pay the 
proffered wage." See Matt er of Son egawa , 12 I&N Dec. at 615 (considering "the petitioner 's 
[reasonable] expectations of continued increase in business and increasing profits"). The Petitioner 's 
CFO stated that the company has a "cost-plus ," business model , whereby customers fund workers' 
wages and costs "plus an agreed amount," so that "each worker is profitable ." 
USCIS records , however , show that the Beneficiary and most of the Petitioner 's other Form I-140 
beneficiaries reside abroad. Thus , most of the Petitioner's beneficiaries will not likely be able to enter 
the United States and begin working and generating profits for the company until they receive 
immigrant visas abroad . The Petitioner , however , must demonstrate its abili ty to pay their proffered 
wages from the years of the priority dates of their corresponding petitions . See 8 C.F.R. § 204.5(g)(2). 
4 
Because the Petitioner must demonstrate its ability to pay corresponding beneficiaries before most of 
them will begin work, the company's "cost-plus" business model does not establish the business's 
ability to pay all applicable proffered wages. 
For the foregoing reasons, the record at the time of the NOIR's issuance did not demonstrate the 
Petitioner's required ability to pay the combined proffered wages of its appliable beneficiaries. We 
will therefore affirm revocation of the petition's approval. 
The petition's revocation also rested on the Director's finding of insufficient evidence of the 
Petitioner's intent to employ the Beneficiary in the offered position. Federal agencies, however, 
generally need not decide issues unnecessary to the results the agencies reach. INS v. Bagamasbad, 
429 U.S. 24, 25-26 (1976)( citations omitted). We will therefore reserve consideration of the other 
revocation ground. 
III. CONCLUSION 
The Petitioner did not demonstrate its ability to pay the proffered wage of the offered position. We 
will therefore affirm revocation of the petition's approval. 
ORDER: The appeal is dismissed. 
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