dismissed EB-3 Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re : 4240878 
Appeal of Texas Service Center Decision 
Form I-140G, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 30, 2021 
The Petitioner, a manufacturer o~ I seeks to employ the Beneficiary as a 
production helper. The company requests her classification under the third-preference, immigrant 
category for"otherworkers ." 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 didn't demonstrate the Beneficiary's qualifications for the offered position or the company 's 
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 by a preponderance 
of evidence. See section 291 of the Act, 8 U. S.C. § 13 61 ( 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 find that the Petitioner has demonstrated the Beneficiary's qualifications for the 
offered position , but not the company's ability to pay the combined proffered wages. 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) 
the employment of a non citizen in the position won ' t harm wages and working conditions ofU.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 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally , if USCIS 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. 
II. REQUIREMENTS OF THE OFFERED POSITION 
A petitioner must establish a beneficiary's possession of all DOL-certified,job requirements of an 
offered position by a petition's priority date. Matter a/Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). 1 In evaluating a beneficiary's qualifications, USCIS must examine the 
job-offer portion of an accompanying labor certification to determine a position's minimum 
requirements. USCIS may neither ignore a certification term nor impose unlisted requirements. See, 
e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983)(holdingthat "DOL bears the authority 
for setting the content of the labor certification") ( emphasis in original). 
The accompanying labor certification states the minimum requirements of the offered position of 
production helper as a U.S. high school diploma, or a foreign educational equivalent. The labor 
certification states that the position requires neither training nor experience. But paii H.14 of the 
certification, "Special skills or other requirements," states: '"Drug test and background screening." 
Such pre-employment conditions on a labor certification constitute job requirements. See, e.g., Matter 
of Aetna Lte Ins. Co., 2012-PER-03011, slip op. **4-5 (BALCA Dec. 14, 2016) (citations omitted).2 
The Petitioner demonstrated the Beneficiary's possession of the foreign educational equivalent of a 
U.S. high school diploma. But the Director found the record devoid of evidence of the Beneficiaiy's 
successful completion of a drug test and background screening by the petition's priority date. 
As the Petitioner argues, however, the record contains proof that the Beneficiary meets the 
requirements listed in partH.14. The Petitioner's initial submission included separate results of a drug 
test and background screening, both dated the month before the petition's priority date. The results 
show no illegal drugs in the Beneficiary's system and no criminal record in her home country of China. 
A preponderance of evidence therefore demonstrates that, by the petition's priority date, the 
Beneficiary met the requirements of part H.14 of the labor certification. 
The Petitioner demonstrated the Beneficiary's qualifications for the offered position. We will 
therefore withdraw the Director's contrary finding. 
III. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must also 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 rep01is, 
federal tax returns, or audited financial statements. Id. If a petitioner employs at least 100 workers, 
1 This petition's priority date is June 14, 2017, thedateDOL acceptedtheaccompanyingla borcertification application for 
processing. Sec 8 C.F.R. § 204.5(d) ( explaining how to dete1minea petition's priority date). 
2 DecisionsofDOL'sBoardofAlien LaborCertificationAppeals (BALCA)don'tbindUSCIS. Scc8 C.F.R. § 103.lO(b) 
(requiring USCTS employees to follow only precedent decisions of the Board ofl mmigration Appeals and the Attorney 
General in proceedings involvingsimilarissues). But USCTSmay find BALCA decisions to be persuasive orotherwise 
defer to them. SeeMartinv. OccupationalSafety&HealthReview Comm 'n,499U.S.144(1991) (requiringadministmtive 
agencies to defer to reasonable regulatory interpretations of sister agencies charged with issuing and enforcing the 
corresponding rules). 
2 
however, "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." Id. 
The labor certification states the proffered wage of the offered position of production helper as $8.28 
an hour, or - based on a 40-hour, work week - $17,222.40 a year. As previously noted, the petition's 
priority date is June 14, 2017. 
The Petitioner submitted copies of financial statements for 2015 through April 2018. The Director 
evaluated the Petitioner's ability to pay in 201 7, the year of the petition's priority date, using the 
company's financial statements for that year. The statements for 2017, however, do not indicate that 
they were audited. The Petitioner's financial statements therefore do not establish its compliance with 
8 C.F.R. § 204.5(g)(2), which requires "audited financial statements." 
The Petitioner also documented its employment of more than 100 people and submitted a letter from 
its chief financial officer (CFO) asserting its ability to pay the proffered wage. The Director, however, 
properly rejected the CFO's letter as insufficient, citing the company's filing of multiple Form I-140 
petitions. As the Director noted and the Petitioner concedes, at the time of the Director's decision in 
October 2018, the company had filed more than 40 F01m I-140 petitions for other beneficiaries. 3 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). This Petitioner must 
therefore demonstrate its ability to pay the combined proffered wages of this and its other petitions 
that were pending or approved as of this petition's priority date of June 14, 201 7, or filed thereafter. 
See Patel v. Johnson, 2 F. Supp. 3d I 08, 124 (D. Mass. 2014) (affirming our revocation of a petition's 
approval where, as of the grant, a petitioner didn't demonstrate its ability to pay the combined 
proffered wages of multiple petitions). The CFO's letter asse1is the company's ability "to pay the 
annual wages of all the Production Helpers we are sponsoring." But the Petitioner's obligation to 
demonstrate its ability to pay combined proffered wages of multiple Form I-140 petitions merits 
additional scrutiny and supports the Director's discretionaryrejection of the letter. Therefore, contrary 
to 8 C.F.R. § 204.5(g)(2), the record lacks required evidence of the Petitioner's ability to pay the 
proffered wage from the petition's priority date onward. 
In response to the Director's NOID, the Petitioner argued that the former Immigration and 
Naturalization Service (INS) intended 8 C.F.R. § 204.5(g)(2) to allow a letter from a large employer 
to serve as "de facto proof'' of its ability to pay. The Petitioner noted that INS agreed to consider 
statements from financial officers of large employers after commenters objected to the agency's 
proposed rule to accept only copies of annual reports or U.S tax returns as evidence of ability to pay. 
Final Rule for Employment-Based Petitions, 56 Fed. Reg. 60897, 60898 (Nov. 29, 1991). The plain 
language of the final regulation, however, doesn't require USCIS to accept a letter from a financial 
officer as conclusive proof of a petitioner's ability to pay. Rather, 8 C.F.R. § 204.5(g)(2) states that a 
director "may accept" such a statement. This Petitioner must demonstrate its ability to pay combined 
proffered wages of multiple petitions. For this reason, the Director reasonably rejected the CFO's 
letter as proof of the company's ability to meet all its payroll obligations. The Director therefore didn't 
3 In response to the Director's notice ofintent to deny (NOTO), the Petitioneridentified4 l petitions for other beneficiaries 
that it filed in 2018. Since the NOIDresponse, USCIS records indicate the company's submission of additional Form 1-
140 petitions for other beneficiaries. In any future filings in this matter, the Petitioner must provide the proffered wages 
and priority dates ofits additional petitions. 
3 
abuse his discretion by finding the CFO' s letter insufficient to demonstrate the Petitioner's ability to 
pay. 
On appeal, the Petitioner notes that USCIS' ability-to-pay determination must generally consider other 
factors, such as: the number of years a petitioner has conducted business; its number of employees; 
the growth of its business; its incurrence of uncharacteristic losses or expenses; its reputation in its 
industry; and a beneficiary's replacement of a current worker. See Matter of Sonegawa, 12 I&N Dec. 
612, 614-15 (Reg'l Comm 'r 196 7). The Petitioner, however, didn't submit regulatory required 
evidence of its ability to pay from the petition's priority date, nor did it assert the material's 
unavailability. Thus, even if a totality of circumstances favors the Petitioner, its unexplained omission 
of required evidence bars it from demonstrating its ability to pay the proffered wage. We therefore 
needn't consider other factors affecting the Petitioner's ability to pay. 
IV. CONCLUSION 
Contrary to the Director's decision, the record establishes the Beneficiary's qualifications for the 
offered position. The Petitioner, however, hasn't demonstrated its required ability to pay the position's 
proffered wage. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
4