remanded EB-3 Case: Accounting

U.S. Citizenship 
and Immi gration 
Services 
In Re: 10647942 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 19, 2020 
The Petitioner, an accounting firm, seeks to employ the Beneficiary as an accountant. 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. § 1153(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 Texas Service Center denied the petition on the ground that the Petitioner did not 
establish its ability to pay the proffered wage. 
On appeal the Petitioner asserts that the Director's decision was erroneous and that the evidence of 
record establishes its ability to pay the proffered wage. 
Upon de nova review, we will withdraw the Director's decision and remand the case for further 
consideration and the issuance of a new decision. 
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) of the 
Act, 8 U.S.C. § 1182(a)(5). 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)(l)-(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, if USCIS 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 it requests 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 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 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date1 of the petition onward. In this case the proffered wage is 
$79,934 per year and the priority date is January 3, 2019. 
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. 
The Petitioner indicates that the Beneficiary's employment as an accountant began in 2017. In 
response to a request for evidence (RFE) issued in October 2019 the Petitioner submitted a copy of 
the Beneficiary's Form W-2, Wage and Tax Statement, for the pre-priority date year of 2018 showing 
that the Beneficiary received "wages, tips, other compensation" in the amount of $34,400 that year. 
No Form W-2 for the Beneficiary was available for the uncompleted year of 2019 at the time the 
Petitioner responded to the RFE in November 2019, and no such form was submitted with the appeal 
in January 2020 or subsequent thereto. Therefore, the Petitioner has not established its ability to pay 
the proffered wage from the priority date of January 3, 2019, onward based on wages paid to the 
Beneficiary. 
If a petitioner does not establish that it has 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. 
1 The "priority date" of the petition is the date the underlying labor certification application is filed with the DOL. See 
8 C.F.R. § 204.5(d). 
2 
With its initial evidence the Petitioner submitted a copy of its federal income tax return for 2018, 
which was still the Petitioner's most recently filed return at the time of the Director's decision in 
December 2019 and the Petitioner's subsequent appeal. As the priority date of the petition is in 2019, 
however, that is the first year for which the Petitioner must demonstrate its ability to pay the proffered 
wage. Without a copy of the Petitioner's 2019 federal tax return (or an annual report or audited 
financial statement for 2019), we are unable to determine the Petitioner's ability to pay the proffered 
wage based on its net income or net current assets from the priority date of January 3, 2019, onward. 
Therefore, we will remand this case for the Director to request the submission of regulatory required 
evidence from the Petitioner, as specified in 8 C.F.R. § 204.5(g)(2), for the year 2019, and any other 
evidence the Director may deem necessary to determine the Petitioner's eligibility for the requested 
immigration benefit. 
111. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's ability to pay the proffered wage from the priority date of January 3, 2019, onward. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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