remanded EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re: 10041232 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 3, 2020 
The Petitioner seeks to employ the Beneficiary as an accountant. It requests classification of the 
Beneficiary as a professional under the third preference immigrant classification. Immigration and 
Nationality Act (the Act), section 203(b)(3)(A)(ii), 8 U.S .C. § 1153(b)(3)(A)(ii). This employment­
based immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate 
degree for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary met the experience requirements for the offered position as of the priority 
date. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will remand the matter to the 
Director for further consideration and entry of a new decision . 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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). 1 See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(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)-(11) 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 applies 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 priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
October 11, 2017 . See 8 C.F.R. § 204.S(d). 
II. THE BENEFICIARY'S EXPERIENCE 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b)(l), (12); Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). Section Hof the labor certification states 
that the offered position of accountant requires a bachelor's degree in accounting or business 
administration and 12 months of experience in the job offered. Experience in an alternate occupation 
is not acceptable. 
The labor certification states that the Beneficiary qualifies for the offered job based on her full-time 
experience as an accountant wit~ I inl !Texas, from October 
11, 2013, onward. Evidence relating to qualifying experience must be in the form of a letter from a 
current or former employer and must include the name, address, and title of the writer, and a specific 
description of the duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). In response to the 
Director's request for evidence dated August 26, 2019, the Petitioner submitted a letter dated September 
10, 2019, from the COO of1 I stating that the Beneficiary worked as 
an accountant from October 11, 2013, to the date of the letter. The letter listed her duties. In response 
to a subsequent RFE, the Petitioner also submitted the Beneficiary's income tax returns; IRS Forms 
W-2, Wage and Tax Statements; pay stubs; and substantial employment documentation evidencing 
her employment witH 12 
In his denial decision, the Director quoted a letter from the Petitioner's counsel in the record which 
stated that "the beneficiary's qualifying experience was gained solely from her present employer." He 
noted that the Petitioner answered "no" on the labor certification in response to question J.21, which 
asks whether the Beneficiary gained any of the qualifying experience with the employer in a position 
substantially comparable to the job opportunity requested. A labor certification employer cannot rely on 
experience that a foreign national gained with it, unless the experience was in a job substantially different 
than the offered position or the employer demonstrates the impracticality of training a U.S. worker for the 
offered position. 20 C.F.R. § 656.17(i)(3). The Director determined that the Beneficiary did not meet 
the experience requirement for the offered position because he apparently considered counsel's letter 
to indicate that the Beneficiary gained her qualifying experience working for the Petitioner, and not 
On appeal, the Petitioner asserts that it and.__ ____________ __. are separate entities 
with different employer identification numbers. The record supports these assertions. The Petitioner 
has established by a preponderance of the evidence that the Beneficiary gained over 12 months of 
qualifying experience as an accountant with a different employer. Therefore, it has established that 
the Beneficiary met the requirements for the offered position as of the priority date. We will therefore 
withdraw the Director's decision. However, for the reason discussed below, we will remand the matter 
to the Director. 
2 The Beneficiary was employed with.__ _________ ___. in H-IB nonimmigrant status. 
2 
III. ABILITY TO PAY 
The record does not contain regulatory-required evidence of the Petitioner's ability to pay the proffered 
wage from the priority date on October 11, 2017, and continuing until the beneficiary obtains lawful 
permanent residence. 3 The regulation at 8 C.F .R. § 204.5(g)(2) requires that"[ e ]vidence of this ability 
shall be either in the form of copies of annual reports, federal tax returns, or audited financial 
statements." The regulation further states that where the Petitioner 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." 
The record contains the Petitioner's unaudited financial statements for 2017. However, where a 
petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, the 
financial statements must be audited. 8 C.F.R. § 204.5(g)(2). The unaudited financial statements are 
not regulatory-prescribed evidence of the Petitioner's ability to pay for 2017. 
Further, the labor certification and petition indicate that the Petitioner has 120 employees. The record 
contains a letter dated September 23, 2019, from its administrator stating that it has the ability to pay 
the proffered wage to the Beneficiary. However, the letter was written nearly two years after the 
priority date; it does indicate the number of workers employed by the Petitioner; and it is not clear that 
the administrator is a financial officer of the Petitioner. Therefore, we decline to accept the letter from 
the administrator as evidence of the Petitioner's ability to pay the proffered wage from the priority 
date in 201 7 onward. 
The record does not contain regulatory-prescribed evidence of the Petitioner's ability to pay for 2017. 
Without this regulatory-required evidence, we cannot affirmatively find that the Petitioner has the 
continuing ability to pay the proffered wage from the priority date. On remand, the Director should 
request such regulatory-required evidence and allow the Petitioner reasonable time to respond. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
3 The annual proffered wage is $52,811. 
3