dismissed EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 11, 2023 In Re: 28953061 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a satellite telecommunications provider, seeks to employ the Beneficiary as a senior 
software developer. It requests his classification as a skilled worker under the employment-based , 
third preference immigrant classification. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This category allows a U.S. employer to sponsor a 
noncitizen for lawful permanent residence to work in a position requiring at least two years of training 
or expenence. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish its ability to pay the proffered wage. The matter is now before us on appeal. 8 C .F .R. 
§ 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must obtain certification from the U.S. Department of Labor (DOL) that: there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and permanent employment of a 
noncitizen in the position would not harm wages and working conditions of U.S. workers with similar 
jobs. Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. 
§ l 154(a)(l)(F). USCIS determines whether a beneficiary meets the requirements of a DOL-certified 
position and a requested immigrant visa category. 8 C.F.R. § 204.5(1)(3)(ii)(B). In addition, USCIS 
determines whether the employer established its ability to pay the proffered wage. 8 C .F.R. 
§ 204.5(g)(2). Finally, if USCIS 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.C. 
§ 1255. 
II. ANALYSIS 
The sole issue addressed by the Director is whether the Petitioner established its ability to pay the 
offered wage. 
A petitioner must demonstrate its continuing ability to pay an offered position's proffered wage, 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 a petitioner's annual reports, 
federal tax returns, or audited financial statements. Id. 
In determining ability to pay, USCIS 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, USCIS considers whether the business 
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. Matter of Sonegawa, 
12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 1 
The proffered wage for the position of senior software engineer, as stated on the Petitioner's labor 
certification, is $112,694 annually. The petition's priority date is November 6, 2020, the date DOL 
accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d). Therefore, we 
will consider the Petitioner's continuing ability to pay since November 6, 2020. 
The Petitioner submitted copies of the Beneficiary's IRS Forms W-2, Wage and Tax Statement, for 
the years 2020 and 2021. The Petitioner paid the Beneficiary total wages of $39,875 in 2020 and 
$76,914 in 2021. Thus, based solely on the wages paid to the Beneficiary, the Petitioner has not 
demonstrated its ability to pay the proffered wage from the priority date. Nevertheless, we credit the 
Petitioner's payments to the Beneficiary. The Petitioner must demonstrate its ability to pay the 
difference between the proffered wage and the Beneficiary's wage for each year. For 2020, this 
difference is $72,819 and for 2021, the difference is $35,780. 
The record contains copies of the Petitioner's federal income tax returns for the years 2020 and 2021. 
As noted by the Director, the company's 2020 tax return shows a net loss of $513,120 and net current 
liabilities of $130,608, while the 2021 tax return reflects a net loss of $285,849 and net current 
liabilities of$370,820. The Petitioner's tax returns do not demonstrate that it had sufficient net income 
or net current assets to compensate for the difference between the proffered wage and the amount paid 
to the Beneficiary for the years 2020 and 2021. Thus, based on examinations of the Petitioner's net 
1 Federal courts have upheld our 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); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-946 (S.D. Cal. 2015); Rizvi v. Dep 't 
ofHomeland Sec., 37 F. Supp. 3d 870, 883-884 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
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income, net current assets, and wages paid to the Beneficiary, the company has not demonstrated its 
continuing ability to pay the proffered wage from the priority date. 
The Director's examination of the Petitioner's ability to pay was limited to the years 2020 and 2021 
because the company's 2022 tax return was not yet available when it responded to the RFE in June 
2022. The Petitioner emphasizes on appeal that it has been paying the Beneficiary at a rate higher 
than the proffered wage since 2022. Although the Petitioner submitted an appellate brief and 
additional evidence in June 2023, it has not provided copies of the Beneficiary's 2022 IRS Form W-2 
or its 2022 federal tax return, annual report, or audited financial statements. The record contains a 
letter from the Petitioner addressed to the Beneficiary informing him that his compensation was 
increased to $116,500 as of June 15, 2022. His earnings statement for the pay period ending June 30, 
2022, shows that he received a semi-monthly wage of $4,854.17, consistent with this new annual 
salary, and that he had year-to-date earnings of $52,979.17. The record does not contain evidence of 
his total wages in 2022; therefore, the Petitioner must establish it can pay the difference of $59,714.83 
between the proffered wage and wages paid. Because the Petitioner has not provided its 2022 federal 
tax return, annual report, or audited financial statements, we cannot conclude it had the ability to pay 
the difference between his wages paid and the proffered wage in 2022. Nor would the company's 
ability to pay the proffered wage in 2022 establish its ability to pay in prior years. See 8 e.F.R. 
§ 204.5(g)(2) (requiring a petitioner to demonstrate its ability to pay "at the time the priority date is 
established and continuing until the beneficiary obtains lawful permanent residence") ( emphasis 
added). 
As previously indicated, we may consider evidence of a petitioner's ability to pay beyond its wages 
paid, net income, and net current assets. See Matter ofSonegawa, 12 I&N Dec. at 614-615. Under 
Sonegawa, we may consider such factors as: the number of years a petitioner has conducted business; 
its number of employees; growth of its business; the occurrence of any uncharacteristic business 
expenditures or losses; its reputation in its industry; whether a beneficiary will replace a current 
employee or outsourced service; or other evidence of its ability to pay a proffered wage. In some 
cases, such as when a petitioner has one unprofitable year despite a history of profitability, these facts 
may establish a petitioner's ability to pay the proffered wage despite a shortfall in net income or net 
current assets. See generally 6 USCIS Policy Manual E.4(B)(3), https://www.uscis.gov/policy-manual 
( addressing factors users will consider when conducting an ability to pay analysis). 
The Director considered whether the Petitioner established its ability to pay based on the totality of 
the facts and circumstances presented. The Director determined that the Petitioner did not provide 
evidence of the company's historical growth or sufficient evidence of its favorable reputation in the 
industry. They also noted that the Petitioner, unlike the petitioner in Sonegawa, did not claim any 
unusual business expenditures or losses for the years in question or provide evidence to establish that 
the years 2020 and 2021 were uncharacteristically unprofitable years. 
On appeal, the Petitioner emphasizes that the Director overlooked evidence of the company's growth 
and expansion since its establishment in 2017 and failed to consider the effect of the eOVID-19 
pandemic on its ability to pay the proffered wage. The Petitioner emphasizes that where "an 
employer's inability to pay a beneficiary's wage is due to 'temporary or exceptional circumstances 
beyond its control,' users should consider evidence of financial ability prior to and after such 
circumstances." Specifically, the Petitioner asserts that its "financial records for the years preceding 
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and following the exceptional year demonstrate the company's consistent ability to pay the 
beneficiary's proffered wage." 
As noted above, the Petitioner did not show its ability to pay the proffered wage in the years 2020 and 
2021, a fact that the company attributes to temporary, pandemic-related business disruptions. The 
record contains the Petitioner's 2019 federal tax return along with a copy of the Beneficiary's 2019 
IRS Form W-2, showing that he was paid $105,000. While this figure is only $7,654 less than the 
proffered wage, the evidence reflects that the Petitioner operated at a loss that year, with a net loss of 
$1,109,682 and net current liabilities of $290,679. As noted, Petitioner has not submitted its 2022 
federal tax return or the Beneficiary's IRS Form W-2 in support of its claim that it had the ability to 
pay the proffered wage in that year. 2 
The Petitioner emphasized that "[i]n 2020 and 2021, due to COVID restrictions and sharp decline in 
sales, the company was forced to place all employees on the part time basis, to retain our employees 
while the business overcame the significant, yet temporary, loss ofrevenue." However, the referenced 
"sharp decline in sales" is not reflected in the Petitioner's tax returns. The company reported gross 
revenue of $1,073,948 in 2019, $1,025,688 in 2020, and $1,786,732 in 2021, a 66 percent increase 
over its 2019 revenue. In these same years, the Petitioner paid $325,384 in salaries and wages in 2019, 
$205,529 in 2020 and $286,839 in 2021, only a 12% decrease from its pre-pandemic 2019 payroll 
levels. Further, the Petitioner's reported losses decreased each year based on the figures reported on 
its tax returns, and the payments made to company officers increased annually, from $196,930 in 2019 
to $257,183 in 2020, and $286,839 in 2021. Therefore, the record does not support the Petitioner's 
claim that it experienced significant, but temporary, revenue loss during the COVID-19 pandemic, or 
that the economic effects of the pandemic hindered the Petitioner from demonstrating its ability to pay 
in 2020 and 2021. 
The Petitioner has also maintained that, considering the company was only established in 201 7 and 
survived through the COVID-19 pandemic, it is doing "financially exceptionally well." The Petitioner 
documented some of its long-term service contracts (including those executed before and after the 
priority date) and provided evidence that it obtained a $6.5 million promissory note to acquire a 
Spanish teleport satellite communications provider in June 2022. The record on appeal also includes 
a chart summarizing the company's current sales pipeline; payroll statements for the month of May 
2023 showing bi-weekly payments of approximately $60,000 to 14 employees over two pay periods; 
and an unaudited consolidated financial statement for the first quarter of 2023 which includes the 
financial results of the Petitioner's Spanish subsidiary. All this evidence supports the Petitioner's 
claims regarding its potential for growth, particularly with the acquisition of the Spanish company in 
2022. This factor is weighed favorably in considering its continuing ability to pay the proffered wage 
under the totality of the circumstances, but is not the only factor considered, particularly given the 
Petitioner's burden to establish its ability to pay the proffered wage from the priority date. Neither 
the Petitioner's prospective growth nor its ability to weather the pandemic as a relatively new company 
are sufficient by themselves to overcome the shortfall in net income and net current assets over 
multiple years. 
2 On appeal, the Petitioner submits an internally prepared company presentation with summarized results for the years 
2019 through 2022. and projections for the years 2023 through 2025. While this document indicates the company had 
gross sales of $2.77 million and achieved an operating profit for the first time in 2022, it cannot be accepted in lieu of a 
federal tax return. audited financial statement, or annual report. See 8 C.F.R. § 204.5(g)(2). 
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As noted, the Petitioner's primary claim on appeal is that the Director overlooked evidence 
demonstrating that the COVID-19 pandemic contributed to a "sharp decline in sales" that prevented 
the company from demonstrating its ability to pay the proffered wage in 2020 and 2021, and evidence 
demonstrating the company's growth as of 2022. While we have considered these factors, they do not 
overcome the Director's determination that the Petitioner did not establish its ability to pay the 
proffered wage from the priority date. The Petitioner has not submitted evidence demonstrating that 
other factors, such as its gross sales and revenue, number of years in business, its overall reputation in 
the industry, or its number of employees warrant a favorable determination under the totality of the 
circumstances and does not assert that the Director failed to consider any other relevant evidence. 
For the reasons discussed, the Petitioner has not shown by a preponderance of the evidence that it has 
the continuing ability to pay the proffered wage beginning on the priority date. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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