remanded EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 20, 2024 In Re: 30115968 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a gas station and convenience store business, seeks to employ the Beneficiary as a 
bookkeeper. It requests classification of the Beneficiary under the third-preference, immigrant 
classification for skilled workers. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 
8 U.S.C. § 1153(b)(3)(A)(i). This employment-based category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status based on a job offer requiring at least two years 
of training or experience. 
The Texas Service Center Acting Director denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary possessed the minimum experience required for the offered position. 
The matter is 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 withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
To permanently fill a position in the United States with a foreign worker, a prospective employer must 
fust obtain certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 
8 U.S.C. § 1182(a)(5). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for a position. Id. Labor certification also indicates that the 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 certified labor application 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 considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the 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. ANALYSIS 
A petitioner must establish a beneficiary's possession of all the education, training, and experience 
specified on an accompanying labor certification by a petition's priority date. 1 8 C.F.R. §§ 103.2(b)(1), 
(12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comrn'r 1977); 
Matter ofKatigbak, 14 l&N Dec. 45, 49 (Reg'l Comrn'r 1971). The priority date in this case is April 
24, 2020. 
The underlying labor certification states that the 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 on the 
labor certification. The position's minimum requirements are 24 months of experience in the offered 
position of bookkeeper, or in the alternative, 24 months of experience in accounting. The labor 
certification further states that the offered position requires "proficiency in typing and machines, and 
strong ability to work independently and create consistent bookkeeping policies." 
Upon review of the entire record, including employment verification letters, a statement from the 
Beneficiary, payroll and income tax records, and government issued employment certifications, we 
conclude that the Petitioner has established that the Beneficiary met the minimum experience 
requirement for the offered position. However, we cannot conclude that the Petitioner has established 
eligibility for the benefit sought, as further detailed below. Upon de novo review, we will withdraw 
the Acting Director's decision and remand the matter for entry of a new decision consistent with the 
following analysis. 
To be eligible for the classification, a petitioner must establish that it has the continuing ability to pay 
the proffered wage stated on the labor certification. 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." While the record includes copies of the Petitioner's federal tax 
returns for 2019 through 2021, the record does not contain regulatory-required evidence of the 
Petitioner's continuing ability to pay the proffered wage of $48,000 per year in each year from the 
April 24, 2020 priority date. 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. 
Therefore, we will remand the matter to the Director to request additional evidence, if deemed 
appropriate, and analyze the record and determine whether the Petitioner has established its ability to 
pay the proffered wage to this Beneficiary, and the beneficiaries of its other petitions, from the priority 
date onward. On remand, the Director should request such regulatory-required evidence and allow 
the Petitioner reasonable time to respond. 
II. CONCLUSION 
The Acting Director's decision is withdrawn. However, the record does not demonstrate affirmatively 
that the Petitioner is eligible for the benefit sought, including whether the Petitioner can establish that 
it has the continuing ability to pay the proffered wage to the Beneficiary as required by 8 C.F.R. 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R.§ 
204.S(d). 
2 
§ 204.5(g)(2). Therefore, we will remand this case to the Director for further consideration of the 
Petitioner's eligibility for the requested benefit. The Petitioner bears the burden of proof to 
demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 
375-76 (AAO 2010). 
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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