dismissed EB-3 Case: Soccer

U.S. Citizenship 
and Immigration 
Services 
In Re: 7235133 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC. 30, 2019 
The Petitioner seeks to employ the Beneficiary as director of staff development at its soccer 
academy. The company requests his classification under the third-preference, immigrant category 
for "other workers." See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 
U.S.C. § 1 l 53(b )(3)(A)(iii). 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not establish the Beneficiary's possession of the minimum education credentials 
required for the offered position. The Director also found that the company did not demonstrate its 
required ability to pay the job's proffered wage. 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 
of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an unskilled 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 certification also indicates 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. 
II. THE REQUIRED EDUCATION 
A petition for an unskilled worker must include evidence that a beneficiary meets any educational, 
training, experience, or other requirements of an accompanying labor certification. 8 C.F.R. 
§ 204.5(1)(3)(ii)(D). A petitioner must demonstrate a beneficiary's possession of a job's 
requirements by a petition's priority date. 1 Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). When evaluating a beneficiary's qualifications, USCIS must examine 
the job-offer portion of a labor certification. USCIS may neither ignore a certification term, nor 
impose additional requirements. See, e.g., Madany v. Smith, 696 F.3d 1008, 1015 (D.C. Cir. 1983) 
(holding that "DOL bears the authority for setting the content of the labor certification") ( emphasis 
in original). 
Here, the labor certification states the minimum education requirements of the offered position of 
director of staff development as a U.S. associate's degree, or a foreign equivalent degree, in sports 
science or a "closely related field." On the labor certification, the Beneficiary attested that, by the 
petition's priority date, a university in the United Kingdom (UK) awarded him an associate's degree 
in sports science. 
The Petitioner submitted copies of the Beneficiary's post-secondary diploma and transcripts, 
indicating that the UK university granted him a bachelor of science degree in sports science. The 
Petitioner also submitted an independent evaluation of the Beneficiary's foreign educational 
credentials. The evaluation concludes that his UK bachelor's degree equates to at least a U.S. 
associate of science degree in sports science. 
The Director, however, noted that part of the Beneficiary's university diploma was written in Latin. 
As stated in the Director's written request for additional evidence, an English translation must 
accompany documentary evidence containing foreign language. 8 C.F.R. § 103.2(b)(3). A 
translation must also include a translator's certification that he or she is competent to translate, and 
that the translation is complete and accurate. Id. Because the Beneficiary's diploma lacked a 
certified English translation, the Director concluded that the Petitioner did not establish the 
Beneficiary's qualifying education for the offered position. 
On appeal, the Petitioner notes that the English language on the university diploma states the 
Beneficiary's receipt of a bachelor of science degree in sports science. The Petitioner therefore 
argues that the diploma "was never in need of a certified English translation." The regulation, 
however, requires "a full English translation" of "[a]ny document containing foreign language." 
8 C.F.R. § 103.2(b)(3). The Beneficiary's diploma contains foreign language. Thus, in the absence 
of a certified English translation of the diploma's foreign language, the Director properly rejected 
the document as evidence. The Petitioner also argues that USCIS previously accepted the diploma 
as evidence of the Beneficiary's educational qualifications for employment-based, nonimmigrant 
visa classifications. We are not required, however, to accept evidence that does not meet regulatory 
requirements merely because of prior acceptances that may have been erroneous. See Matter of 
1 This petition's priority date is September 6, 2017, the date DOL accepted the accompanying labor ce1iification 
application for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date). 
2 
Church Scientology Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). We are also not bound to follow contradictory 
decisions of service centers. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at 
*3 (E.D. La. 2000), affd, 248 F.3d 1139 (5th Cir. 2001). 
The record, however, contains other evidence of the Beneficiary's educational qualifications. The 
copy of his university transcript states - in English - that the school awarded him a bachelor of 
science degree in sports science in July 2000. Cf 8 C.F.R. § 204.5(1)(3)(ii)(C) (for purposes of 
qualifying for the professional visa category, requiring evidence of a bachelor's degree "in the form 
of an official college or university record showing the date the baccalaureate degree was awarded 
and the area of concentration of study"). A preponderance of evidence therefore demonstrates the 
Beneficiary's possession of the foreign equivalent of a U.S. associate's degree in sports science. 
For the foregoing reasons, the record on appeal establishes the Beneficiary's possession of the 
minimum education required 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). For a petitioner employing less than 100 people, 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 examines whether it generated annual amounts of net income or net current 
assets sufficient to pay any difference 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 the 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 director of staff 
development as $48,127 a year. As previously noted, the petition's priority date is September 6, 
201 7. As of the appeal's filing, the Petitioner was not yet required to submit its federal income tax 
return for 2018. We will therefore consider the company's ability to pay only in 2017, the year of 
the petition's priority date. 
2 Federal courts have upheld USCTS' 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); Rahman v. Chertoff, 641 F.Supp.2d 349, 351-52 
(D. Del. 2009). 
3 
The Petitioner submitted a copy of an IRS Form W-2, Wage and Tax Statement, indicating that the 
Beneficiary received $26,455.20 in 2017. The Form W-2, however, indicates the Beneficiary's 
payment by a company other than the Petitioner. On appeal, the Petitioner also submits payroll 
records indicating that the other company paid the Beneficiary in 2017. The Petitioner identifies the 
other entity as its "sister company." Even if related to the Petitioner, however, the company listed 
on the Form W-2 and payroll records is a separate entity with its own federal employer identification 
number. The Form W-2 and payroll records therefore do not constitute evidence of the Petitioner's 
ability to pay in 2017. See 8 e.F.R. § 204.5(g)(2) (requiring "evidence that the prospective United 
States employer has the ability to pay the proffered wage") ( emphasis added). Thus, based solely on 
wages paid, the record does not establish the Petitioner's ability to pay the proffered wage. 
A copy of the Petitioner's federal income tax return for 2017 reflects net current assets of $8,551 and 
a negative amount of net income. Neither amount equals or exceeds the annual proffered wage of 
$48,127. Thus, based on examinations of wages paid, net income, and net current assets, the record 
does not establish the Petitioner's ability to pay the proffered wage in 2017. 
On appeal, the Petitioner submits evidence that it has paid the Beneficiary as a nonimmigrant 
pursuant to U.S. immigration regulations since 2006. The Petitioner argues: 
This lengthy employment history between the petitioner and beneficiary as evidenced 
by the accumulation of pay stubs should serve as ongoing proof that the petitioner has 
already been remunerating the beneficiary at a rate equal to or greater than the 
proffered wage. 
The Petitioner's evidence, however, does not indicate that it has ever paid the Beneficiary as much 
as $48,127 in a single year. Moreover, the Petitioner's payments to the Beneficiary in prior years 
does not demonstrate its ability to pay the proffered wage "at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence." See 8 e.F.R. 
§ 204.5(g)(2). 
The Petitioner also contends that users "fixated" on the company's net income in 2017, 
disregarding its gross income that year of more than $1.8 million. users, however, focuses on net 
income because gross income does not reflect costs of doing business, such as rent, salaries, wages, 
taxes, and licenses. If a company must spend nearly all of its gross income on business costs, the 
gross income constitutes little evidence of its ability to pay an additional proffered wage. Net 
income, which measures earnings after expense deductions, more meaningfully measures a 
company's ability to pay. 
As previously indicated, however, we can consider factors beyond wages paid, net income, and net 
current assets in determining the Petitioner's ability to pay the proffered wage. Under Sonegawa, we 
may consider: how many years the Petitioner has conducted business; its number of employees; 
growth of its business; its incurrence of uncharacteristic losses or expenses; its reputation in its 
industry; the Beneficiary's replacement of a current employee or outsourced service; or other factors 
affecting its ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. at 614-15. 
4 
Here, the record indicates the Petitioner's continuous business operations since 1991 and its 
employment of seven people. Copies of its tax returns, however, indicate that, from 2016 to 2017, 
its annual revenues decreased, and wages paid to its workers dropped $400,000. The record also 
does not establish that the Beneficiary would replace an existing employee or outsourced service. In 
addition, unlike the petitioner in Sonegawa, the Petitioner here has not demonstrated its incurrence 
of uncharacteristic losses or expenses, or its possession of an outstanding reputation in its industry. 
Thus, a totality of the circumstances under Sonegawa does not demonstrate the Petitioner's ability to 
pay the proffered wage. 
IV. CONCLUSION 
Contrary to Director's decision, the record on appeal establishes the Beneficiary's possession of the 
minimum education required for the offered position. The Petitioner, however, has not demonstrated 
its ability to pay the proffered wage from the petition's priority date onward. 
ORDER: The appeal is dismissed. 
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