dismissed EB-3 Case: Poultry Processing

U.S. Citizenship 
and Immigration 
Services 
In Re : 01772231 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 7, 2022 
The Petitioner, a poultry processing business , seeks to employ the Beneficiary as a poultry trimmer . 
It requests classification of the Beneficiary as an "other worker" under the third preference immigrant 
category . Immigration and Nationality Act section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(B)(3)(A)(iii). 
This employment-based "EB-3" immigrant classification allows a U .S. employer to sponsor for lawful 
permanent resident status a foreign national who is capable of performing unskilled labor that requires 
less than two years of training or experience and is not of a temporary or seasonal nature. 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish its ability to pay the Beneficiary's proffered wage as well as the proffered wages of the 
beneficiaries of all its other Form I-140 petitions. The matter is now before us on appeal. 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C . § 1361. Upon de nova review , we will dismiss the 
appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First , an employer obtains an 
approved labor certification from the U.S . Department of Labor (DOL ). See section 212( a)(5) of the 
Act, 8 U .S.C. § 1182(a)(5). By approving the labor certification , the DOL certifies that there are 
insufficient U.S. workers who are able , willing , qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U .S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154 . Third , ifUSCIS approves the petition , 
the foreign national 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. 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it has 
the ability to pay the proffered wage stated in 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]. 
II. ANALYSIS 
The issue before us is whether the Petitioner established its continuing ability to pay the proffered 
wage from the priority date of the petition onward. In this case the proffered wage is $17,202 per year, 
and the priority date is March 9, 2 0 I 7. 1 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
There is no evidence that the Beneficiary in this case has ever been employed by the Petitioner. 
Therefore, the Petitioner has not established its ability to pay the proffered wage from the priority date 
onward based on wages paid. 
If a petitioner does not establish that it has paid the beneficiary an amount equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax retum(s), annual report(s), or audited 
financial statements(s ). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the beneficiary 
in a given year, the petitioner would ordinarily be considered able to pay the proffered wage during 
that year. However, when a petitioner has filed other I-140 petitions it must establish that its job offer 
is realistic not only for the instant beneficiary, but also for the beneficiaries of its other I-140 petitions 
(I-140 beneficiaries). A petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
Comm'r 1977). Accordingly, a petitioner must demonstrate its ability to pay the combined proffered 
wages of the instant beneficiary and every other I-140 beneficiary from the priority date of the instant 
petition until the other I-140 beneficiaries obtain lawful permanent resident status. See Patel v. 
1 The priority date o fan employment-based immigrant petition is the date the underlying labor certification was filed with 
the DOL. See 8 C.F.R. § 204.S(d). 
2 
Johnson, 2 F.Supp. 3d 108, 124 (D.Mass. 2014)(upholding our denial ofa petition where a petitioner 
did not demonstrate its ability to pay multiple beneficiaries). 2 
Upon reviewing the record, the Director observed evidentiary deficiencies and issued a request for 
evidence (RFE). The Director noted that USCIS records showed numerous other I-140 petitions filed 
by the Petitioner and therefore asked that specific information about those other petitions and 
beneficiaries be submitted along with copies of the Petitioner's most recent federal income tax returns 
or audited financial statements. 3 The Director also referred to a "Private Company Financial Report," 
which was not accompanied by an audited financial statement, and a letter containing alleged income 
and employee figures for 2016 from the Petitioner's chief financial officer (CFO). The Director 
determined that neither the report nor the letter was acceptable evidence of the Petitioner's ability to 
pay the proffered wage because multiple I-140 petitions had been filed in a short period of time. 
Although the Petitioner responded with additional evidence pertaining to its other I-140 beneficiaries, 
it did not submit copies of the requested federal income tax return or audited financial statement 
Rather, the Petitioner cited to the ability to pay regulatory provisions and the Memorandum from 
William R. Yates, Associate Director For Operations, Determination of Ability to Pay under 8 CFR 
204. 5 (g)(2), HQOPRD 90/16.45, (May 4, 2004) (Yates Memorandum), in support of its assertion that 
the requested documentation is not required from a U.S. employer with 100 or more workers. The 
Petitioner also submitted a document entitled "Unemployment Insurance Tax Infmmation" with a list 
of figures for wages, taxes, and employees during the first quarter of 201 7, and a copy of the letter 
from the Petitioner's CFO and a copy of the Yates Memorandum. 
The Director denied the petition, noting that the Petitioner's RFE response did not include an annual 
report, a federal tax return, or an audited financial statement as requested and as required by 8 C.F.R 
§ 204.5(g)(2). The Director stated that although the regulation and the Yates Memorandum allow 
USCIS the discretionary authority to accept additional types of evidence, it is not obligated to do so. 
Since the Petitioner in this case had filed multiple I-140 petitions, the Director determined that 
requesting a form of regulatorily required evidence was warranted and that failure to submit such 
evidence precluded a material line of inquiry and was grounds for denying the petition pursuant to 
8 C.F.R. § 103.2(b)(14). 
On appeal the Petitioner maintains that the record establishes its ability to pay all of its proffered wage 
obligations, and resubmits copies of the Yates Memorandum, its Unemployment Insurance Tax 
Information document, and the CFO letter. The Petitioner argues that the Director should have 
accepted the CFO letter and other financial documents submitted in support of this petition as 
sufficient evidence of the Petitioner's ability to pay its proffered wage obligations. The Petitioner 
cited to 8 C.F.R. § 204.5(g)(2), which states that USCIS "may" accept a letter from an employer's 
2 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not considered: 
• Afterthe other beneficiary obtains lawfulpermanentresidence; 
• If an T-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pendingappealormotion; or 
• Before the priority date of the T-140petition filed on behalfoftheotherbeneficiary. 
3 The RFE also requestedevidencepertainingto the Petitioner's recruitmentforthe proffered position and the terms of the 
labor certification ( as well as the location of the intended employment), but these issues were not further discussed in the 
Director's denial decision. 
3 
financial officer and asserted that the employer has 100 or more workers. Therefore, the Petitioner 
claimed it has the ability to pay its proffered wage obligations, and also cited to the Yates 
Memorandum, which states that USCIS is "not required to ... request" a financial statement from an 
employer with 100 or more workers. 
We disagree. After identifying the three alternative types of required documentation, 8 C.F.R. 
§ 204.5(g)(2) provides that USCIS "may accept a statement from a financial officer" of an employer 
with 100 or more workers and/or "additional evidence, such as profit/loss statements, bank account 
records, or personnel records" as evidence of a petitioner's ability to pay the proffered wage. The 
regulation does not require USCIS to accept such evidence. In other words, it is entirely within the 
discretion ofUSCIS to decide whether a letter from the employer's CFO and/or other types of financial 
documents are sufficient to establish a petitioner's ability to pay its proffered wage obligations. 
Likewise, the Yates Memorandum states that "CIS adjudicators are not required to accept, request, or 
RFE for a financial statement from U.S. employers who employ 1 00 or more workers ... or additional 
financial evidence" to establish the employer's ability to pay its proffered wage obligations. 4 The 
Yates memorandum further emphasizes that "Acceptance of these documents by CIS is 
discretionary" and need not be accepted if the adjudicator has doubt about whether such documents 
establish an employer's ability to meet its proffered wage obligation(s). Thus, there is no merit to the 
Petitioner's contention that the Director misinterpreted the Yates Memorandum and the regulation, 
should necessarily have excused the submission of regulatorily required evidence. 
The Director specifically requested the submission of at least one type of evidence specified in the 
applicable regulation. Thus, the Petitioner could have complied with 8 C.F.R. § 204.5(g)(2) and 
addressed issues raised in the RFE by submitting its federal tax return or an audited financial statement 
for the year(s) requested. However, it chose not to do so. The Director noted the absence of such 
documentation in his decision, thereby allowing the Petitioner another opportunity to submit the 
evidence on appeal. However, the Petitioner once again chose not to do so. As previously noted, the 
regulation at 8 C.F.R. § 103 .2(b )(14) provides that failure to submit requested evidence that precludes 
a material line of inquiry shall be grounds for denying the petition. 
Since the Petitioner has not submitted the requested regulatory required evidence of its ability to meet 
its proffered wage obligations, we are precluded from reaching any determination of whether the 
Petitioner can pay all of its proffered wages based on the totality of its circumstances. See Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established its continuing ability to pay the 
proffered wage of the instant Beneficiary and the proffered wages of all its other I-140 beneficiaries 
from the priority date of March 9, 2017, onward. The appeal will be dismissed for this reason. 
ORDER: The appeal is dismissed. 
4 The Yates Memorandum also emphasizes that regardless of the number of employees a petitioner employs, USCIS 
adjudicators are not required to accept, request, or RFE for additional financial evidence outside of regulatory required 
evidence. 
4