dismissed EB-3 Case: Religion

U.S. Citizenship 
and Immigration 
Services 
In Re: 8400395 
Appeal of California Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 31, 2020 
The Petitioner , a mosque, sought to employ the Beneficiary as a religious washman under the third­
preference, immigrant classification for skilled workers. 1 See Immigration and Nationality Act (the 
Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). 
The Director of the California Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the proffered wage of the offered position. 
The Petitioner bears the burden of establishing eligibility for the requested benefit. Upon de novo 
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 
certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i) . DOL approval signifies that insufficient U.S. workers are able, willing, 
qualified, and available for an offered position. Id. DOL approval also signifies that employment of a 
foreign national will not harm wages and working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, 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 determines whether a beneficiary meets the 
requirements of a DOL-certified position and a requested visa classification. If USCIS grants a 
petition, a foreign national may finally 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. 
1 The record indicates that the offered position involves performing ritual cleansings of male decedents while reciting 
Muslim funeral prayers from memory. 
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 C.F.R. 
§ 204.5(g)(2). For petitioners with less than 100 employees, as in this case, evidence of ability to 
pay must include copies of annual reports, federal tax returns, or audited financial statements. Id. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the foll 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay the foll 
proffered wage, USCIS considers whether it generated annual amounts of net income or net current 
assets sufficient to pay any differences between the proffered wage and wages paid. If net income 
and net current assets are insufficient, USCIS 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 Comm'r 
1967).2 
Here, the labor certification states the proffered wage of the offered position of religious washman as 
$504.80 a week, or $26,249.60 a year. The petition's priority date is January 2, 1998, the date an 
office within DOL's employment service system accepted the labor certification application for 
processing. See 8 C.F .R. § 204.5(g)(2) ( explaining how to determine petition priority dates). 
The Petitioner, a nonprofit, submitted copies of its state informational tax returns from July 1997 
through June 2001 and financial statements for the same period and from July 2004 through June 
2005. Contrary to 8 C.F.R. § 204.5(g)(2), however, the state tax documents do not constitute 
"federal tax returns" and the financial materials indicate that they are not "audited financial 
statements." Therefore, the record lacks required evidence of the Petitioner's ability to pay the 
proffered wage from the petition's priority date until the Director issued his decision in 2006. 
On appeal, the Petitioner argues that, as a nonprofit, it need not file federal income tax returns. 3 The 
Petitioner also contends that the cost of submitting audited financial statements would unduly burden 
it. As the Director found, however, the regulation mandates that evidence of ability to pay "shall be 
either in the form of copies of annual reports, federal tax returns, or audited financial statements." 
8 C.F.R. § 204.5(g)(2). The regulation does not include an exception for nonprofit organizations. 
Because the Petitioner's evidence does not comply with the applicable regulation, the record does 
not establish the mosque's ability to pay the proffered wage. 
Even if we could excuse the Petitioner's omission of required forms of evidence, which we cannot, 
its remaining proof would not establish its ability to pay. The record indicates that the Beneficiary 
volunteered with the Petitioner in the offered position beginning in 1994. But the Petitioner did not 
submit evidence that it paid him. Based on wages paid, the record therefore would not establish the 
2 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See. e.g., 
River St. Donuts. LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Estrada-Hernandez v. Holder, 108 F Supp 3d 936, 
942-43 (S.D. Cal. 2015). 
3 According to the U.S. Internal Revenue Service (IRS), although tax-exempt organizations need not pay federal income 
taxes, they may have to file annual federal informational returns. IRS, "Charities and Nonprofits," Annual Filings and 
Forms, https://www.irs.gov/charities-non-profits/annual-filing-and-forms (last visited Dec. 11, 2019). 
2 
Petitioner's ability to pay. The record also would lack evidence of the Petitioner's ability to pay 
from July 2001 through June 2004, and after July 2005. In addition, the Petitioner's state 
informational tax returns would not demonstrate its generation of sufficient excess revenues or net 
current assets to pay the proffered wage from July 1999 through June 2000. Absent regulatory 
required evidence, the factors stated in Sonegawa would not demonstrate the Petitioner's ability to 
pay. We therefore need not engage in a Sonegawa analysis. 
The Petitioner's appeal includes copies of its monthly bank statements from 2000 through 2006. 
The regulation at 8 C.F.R. § 204.5(g)(2) allows "bank account records" as evidence of ability to pay 
"[i]n appropriate cases." But the regulation does not authorize the substitution of such "additional 
evidence" for a required form of proof The bank statements therefore do not establish the 
Petitioner's ability to pay. 
For the foregoing reasons, the record on appeal does not establish the Petitioner's ability to pay the 
proffered wage from the petition's priority date until the Director's decision. In any future filings in 
this matter, the Petitioner must submit copies of annual reports, federal tax returns, or audited 
financial statements from the priority date onward in accordance with the regulation and also since 
the 2006 decision in support of its continuing ability to pay the proffered wage. The Petitioner may 
also submit additional evidence, such as proof of any payments to the Beneficiary from the petition's 
priority date onward or materials supporting Sonegawa factors. 
III. INTENTION TO EMPLOY IN THE OFFERED POSITION 
Although unaddressed by the Director, the record also does not establish the Petitioner's intention to 
employ the Beneficiary in the offered position. An organization may file a petition if it is "desiring 
and intending to employ [a foreign national] within the United States." Section 204(a)(l)(F) of the 
Act. A petitioner must intend to employ a beneficiary pursuant to the terms of an accompanying 
labor certification. See Matter of Izdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a 
petition's denial where, contrary to the accompanying labor certification, the petitioner did not 
intend to employ the beneficiary as a live-in, domestic worker on a foll-time basis). 
A petitioner must establish eligibility for a requested benefit as of a petition's filing and continuing 
throughout its adjudication. 8 C.F.R. § 103.2(b)(l). Upon receipt of an appeal from a petition 
denial, a USCIS officer, if deciding not to reopen or reconsider the decision, "shall promptly forward 
the appeal and the related record of proceeding" to our office. 8 C.F.R. § 103.3(a)(2)(iv). 
Here, we did not receive the appeal until a number of years after its filing. After the filing, while in 
removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a, the Beneficiary submitted a 
written motion to the Immigration Judge (IJ). The motion requested permission to voluntarily depart 
the United States at the Beneficiary's own expense before completion of the removal proceedings. 
See section 240B(a)(l) of the Act, 8 U.S.C. § 1229c(a)(l). The motion stated that the Beneficiary 
"has several family matters pending outside the United States and wishes to abandon his petition in 
order to attend to these matters." The motion farther stated the "Respondent has an appeal pending 
on his I-140 employment based immigrant petition." 
3 
The record does not explain what the Beneficiary meant by "abandoning" this pet1t10n. If he 
purported to withdraw the petition, he lacked authority to do so. Only "[ a ]n applicant or petitioner 
may withdraw a benefit request." 8 C.F.R. § 103.2(b)(6). 
If, by "abandoning" this petition, the Beneficiary meant that he no longer accepted the Petitioner's 
offer of employment, the record does not explain whether he permanently rejected the offer or 
rejected it only until resolving family matters outside the United States. Department of Homeland 
Security records show that the Beneficiary effectively removed himself from the United States in 
2008 by leaving the country after expiration of the period of voluntary departure granted by the IJ. 
See section 240B(a)(l) of the Act, 8 U.S.C. § 1229c(a)(l) (explaining voluntary departure). The 
Beneficiary, however, is eligible to apply for readmission to the United States once he remains 
outside the country 10 years. See section 212(a)(9)(A)(ii)(II) of the Act, 8 U.S.C. 
§ 1182(a)(9)(A)(ii)(II). Thus, as this appeal might retain practical significance, we decline to 
dismiss it as moot. See Matter of Luis-Rodriguez, 22 I&N Dec. 747, 753 (BIA 1999) (holding that, 
as a matter of prudence, an administrative tribunal may dismiss an appeal lacking practical 
significance as moot) ( citations omitted). 
Because of the significant delay in our receipt of this appeal, however, without any inquiry from the 
Petitioner, the record does not demonstrate the Petitioner's continuing intention to employ the 
Beneficiary in the offered position. Thus, in any future filings in this matter, the Petitioner must 
submit additional evidence that it still intends to employ the Beneficiary in the offered position. 
IV. INTENTION TO EMPLOY ON A FULL-TIME BASIS 
The record also does not establish the Petitioner's intention to employ the Beneficiary on a full-time 
basis. For labor certification purposes, employment means "[p ]ermanent, full-time work." 
20 C.F.R. § 656.3 (2004) (defining the term "employment"). 4 Full-time work generally means at 
least 35 hours a week. DOL Field Memorandum No. 48-94, "Policy Guidance on Alien Labor 
Certification Issues" (May 16, 1994 ). 
Here, the labor certification states the Petitioner's intention to permanently employ the Beneficiary 
full-time in the offered position of religious washman. In response to a written request for additional 
evidence from the Director, however, the Petitioner indicated that the offered position might not 
entail full-time employment. The Petitioner stated that the Beneficiary "is not called upon to 
perform these duties on any scheduled basis, but rather on an ad hoc basis as deaths occur in the 
primarily! I Iranian Muslim community." Also, in a letter to DOL during the labor 
certification proceedings, the Beneficiary stated that, as an unpaid volunteer in the offered position, 
he "devoted some 25 to 30 hours per week to this work." Thus, the record does not demonstrate that 
the offered position would constitute full-time employment. Any future filings in this matter by the 
Petitioner must include additional evidence establishing that the Beneficiary would work at least 35 
hours a week in the offered position. 
4 Current DOL regulations apply to labor certification applications filed on or after March 28, 2005. Final Rule for 
Applications for Permanent Labor Certification in the United States, 69 Fed. Reg. 77325, 77325 (Dec. 27, 2004). The 
Petitioner filed its labor certification application before March 28, 2005. We therefore cite to prior DOL regulations as 
they existed in 2004. 
4 
V. CONCLUSION 
The record on appeal does not establish the Petitioner's ability to pay the proffered wage of the 
offered position from the petition's priority date until the Director's decision. We will therefore 
affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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