remanded EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 23, 2023 In Re: 24443266 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
The Petitioner seeks to employ the Beneficiary as an accounting assistant. It requests classification of 
the Beneficiary as a professional under the third preference immigrant classification . Immigration and 
Nationality Act 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 Nebraska Service Center revoked the approval of the petition, concluding that the 
record did not establish that the Petitioner had the ability to pay the Beneficiary the proffered wage at 
the time of the priority date and continuing through adjudication. The Director also concluded that 
the record did not establish that there is a bona fide position available for the Beneficiary. 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 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo'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 . 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petlt10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. 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 determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage. 1 
The priority date in this matter is August 16, 2018, the date on which the Department of Labor (DOL) 
received the DOL ETA Form 9089, Application for Permanent Employment Certification, for 
processing. On the ETA Form 9089, the annual proffered wage is listed as $45,282. 
The Director initially approved the Form 1-140, Immigrant Petition for Alien Workers. In a subsequent 
notice of intent to revoke (NOIR), the Director acknowledged that the record contains a copy of the 
Petitioner's 2017 IRS Form 1120S, U.S. Income Tax Return for an S Corporation, "which established 
its ability to pay the wage offered to the [B]eneficiary in 2017." However, the NOIR, dated 2021, 
requested evidence of the Petitioner's ability to pay the Beneficiary from 2018 through adjudication 
and continuing until the Beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). 
In the decision, the Director acknowledged that additional IRS Forms 1120S submitted in response to 
the NOIR for the years 2018 and 2019 establish the Petitioner's ability to pay the Beneficiary the 
proffered wage in those years. However, the Director stated that the company bank statements for 
February, June, and December 2020, and March, May, June, and July 2021 "are not among the types 
of evidence, enumerated in 8 CFR 204.5(g)(2), which are the requisite evidence of a petitioner's ability 
to pay a proffered wage." The Director also acknowledged that the regulation permits additional 
material in appropriate cases; however, the Director found that the Petitioner "has not demonstrated 
that this required evidence is inapplicable, inaccurate, or unavailable." The Director did not address 
the factors discussed in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967), which 
permits U.S. Citizenship and Immigration Services to consider the totality of the circumstances 
affecting a petitioner's ability to pay the proffered wage. 
On appeal, the Petitioner submits new evidence material to the determination of whether the Petitioner 
had the ability to pay the proffered wage in the years 2020 and 2021. Because this new information 
is material to the basis for revocation, a remand is appropriate for the Director to have the opportunity 
to review it and address whether it may establish eligibility. 
Additionally, we note that the NOIR response contains copies of lease agreements, an explanatory 
letter, and information from the California Secretary of State that address the Director's concerns 
regarding whether there is a bona fide position available for the Beneficiary, which the Director did 
not discuss in the decision. On remand, the Director should folly evaluate this evidence. 
Based on the foregoing, we will remand the matter for the entry of a new decision. The Director may 
request any additional evidence considered pertinent to the new determination and any other issue. As 
such, we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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 of 
Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
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