dismissed EB-3 Case: Textile Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re: 06828414 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: APR. 17, 2020 
The Petitioner , a textile distribution business, seeks to employ the Beneficiary as an international 
marketing analyst. It requests professional classification for the Beneficiary under the third preference 
immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii) , 8 U.S.C. 
§ l 153(b )(3)(A)(ii). This employment-based "EB-3" immigrant classification allows a U.S. employer 
to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish its ability to pay the proffered wage. The Petitioner filed a motion to reopen and a motion 
to reconsider along with a brief and additional documentation. The Director dismissed the combined 
motions , stating that they were not accompanied by new evidence and did not establish that the denial 
decision was incorrect based on the existing evidence of record. On appeal the Petitioner asserts that 
the Director's dismissal of the combined motions was erroneous because it did not address the new 
evidence submitted with the motions. 
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)(A)(i) 
of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). 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 requested 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 1 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 instant petition was filed in April 2018, accompanied by a labor certification that was filed with 
the DOL on November 27, 2017. Thus, the priority date of the petition is November 27, 2017, and 
labor certification states that the proffered wage for the position of international marketing analyst is 
$110,718 per year. As evidence of its ability to pay the proffered wage the Petitioner submitted a copy 
of its federal income tax return for the pre-priority date year of 2016. The Director issued a request 
for evidence (RFE) of the Petitioner's ability to pay the wage in 2017, to which the Petitioner 
responded in February 2019 with a copy of its 2017 federal income tax return. 
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. If a petitioner does not establish that it has employed 
and 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 return(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. 
Since there is no evidence that the Petitioner has ever employed and paid wages to the Beneficiary, 
the Director proceeded directly to the Petitioner's federal income tax returns in assessing its ability to 
pay the proffered wage. In his decision, issued on March 12, 2019, the Director noted that the 
Petitioner had negative net income and negative net current assets (that is, a net loss and net current 
liabilities) in 2016, the year before the priority date, and that in 2017 the Petitioner's net income and 
1 The priority date of a Form T-140 petition is the date the underlying labor certification was filed with the DOL. See 
8 C.F.R. § 204.5( d). 
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net current assets were each well below the proffered wage of $110,718. The Director concluded, 
therefore, that the Petitioner had not established its ability to pay the proffered wage. 
The Petitioner filed a motion to reopen and a motion to reconsider. The motions were accompanied 
by a brief and additional documentation consisting of six monthly statements of its business checking 
account atl I Bank, covering the months of October 2018 through March 2019, and a copy 
of the USCIS Interoffice Memorandum HQOPRD 90/16.45, Determination of Ability to Pay under 
8 CFR 204.5(g)(2) (May 4, 2004). [https:l/www.uscis.gov/legal-resourceslpolicy-memoranda.] The 
Petitioner asserted that the bank account balances were sufficient to pay the proffered wage during the 
six-month period they covered in 2018 and 2019, and that it always maintained enough cash in its 
bank account to support its ability to pay the proffered wage. The Petitioner also claimed that the 
USCIS memorandum supported its contention that it is the agency's practice to combine a petitioner's 
net income and net current assets in determining its ability to pay the proffered wage. Following that 
practice with the figures in its 2017 federal income tax return, the Petitioner asserted, would establish 
its ability to pay the proffered wage that year. 
The Director dismissed the motions in May 2019. In his decision the Director quoted from the 
regulations at 8 C.F.R. § 103.5(a)(2) and (3) which provide, in pertinent part, that a motion to reopen 
must state new facts and be supported by documentary evidence, and that a motion to reconsider must 
establish that our decision was based on an incorrect application of law or policy and that the decision 
was incorrect based on the evidence of record at that time. As grounds for dismissal the Director 
stated that the Petitioner's motions were not accompanied by any new evidence and did not establish 
that the denial decision was incorrect based on the evidence then in the record. 
On appeal the Petitioner asserts that the Director did not take any of the documentary evidence 
submitted on motion into account. The Petitioner reiterates its claim that the bank account statements 
and USCIS memorandum submitted in support of the motions to reopen and reconsider, together with 
other previously submitted evidence, establishes its ability to pay the proffered wage. 
We do not agree with the Petitioner's contentions. While the Director did not discuss the individual 
documents submitted in support of the motions, they did not address or remedy the specific evidentiary 
shortcomings that were discussed in the original decision denying the petition. In particular, the bank 
statements covered a time frame in 2018 and 2019 that did not address the Director's determination 
that the Petitioner's 201 7 federal income tax return did not establish its ability to pay the proffered 
wage that year. 2 The bank records from 2018 and 2019, in other words, were not relevant to the 
threshold question of whether the Petitioner had the ability to pay the proffered wage as of the 
petition's priority date, November 27, 2017. As for the USCIS memorandum, the Petitioner's claim 
that it established the practice in USCIS of combining a petitioner's net income and net current assets 
in determining its ability to pay a proffered wage is incorrect. The language of the memorandum is 
clear that a positive ability to pay determination is warranted if either the petitioner's net income or its 
net current assets were greater than the proffered wage. It does not authorize combining the two for 
2 Had the Petitioner submitted bank account statements covering the year 2017, they would have been material evidence 
to be considered by the Director. in conjunction with the 2017 federal income tax return, in determining whether the 
Petitioner had established its ability to pay the proffered wage in the priority date year of 2017. 
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purposes of the ability to pay determination, and there has never been any such practice at USCIS. 
The Director was correct in his denial decision, therefore, that since the Petitioner's net income and 
net current assets in 201 7 were each well below the proffered wage, neither one nor the other 
established the Petitioner's ability to pay the proffered wage that year. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority 
date of November 27, 2017, onward. The appeal will be dismissed for this reason. 
ORDER: The appeal is dismissed. 
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