remanded EB-3 Case: Architecture

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 01, 2024 In Re: 31681918 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, an architectural planning firm, seeks to employ the Beneficiary as an architectural 
designer. It requests his classification as a professional under the third preference immigrant 
classification. See 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. Id. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish the Petitioner's ability to pay the position's proffered wage. The matter is now before us on 
appeal pursuant to 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 of Christo 's, Inc., 26 l&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 
Immigration as a professional generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and a noncitizen's employment 
in the position would not harm wages and working conditions of U.S. workers with similar jobs. 
Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. § 
1154(a)(l)(F); 8 C.F.R. § 204.5(1)(3)(i). Among other things, USCIS determines whether a noncitizen 
beneficiary meets the requirements of a DOL-certified position and a requested immigrant visa 
category. 8 C.F.R. § 204.5(1)(3)(ii)(C). Finally, ifUSCIS approves a petition, a beneficiary 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. 
II. ABILITY TO PAY THE PROFFERED WAGE 
The sole issue before us on appeal is whether the Petitioner established its ability to pay the proffered 
wage. 
A petitioner must demonstrate its continuing ability to pay an offered job's proffered wage, from a 
petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Initial evidence of ability to pay must generally include copies of an annual report, federal tax return, 
or audited financial statements for each available year, from the year of the priority date onward. Id.; 
see generally 6 USCIS Policy Manual E.4(A), www.uscis.gov/policy-manual. If a petitioner employs 
100 or more workers, a statement from a financial officer of the organization may serve to establish 
ability to pay the proffered wage. Id. 
When determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full 
proffered wage, beginning with the year of a petition's priority date. If a petitioner did not pay a 
beneficiary the full proffered wage or did not pay a beneficiary at all during the relevant period, USCIS 
considers whether the business generated annual amounts of net income or net current assets sufficient 
to pay any differences between the proffered wage and the wages paid. Id. If net income and net 
current assets are insufficient, USCIS will consider other factors potentially affecting a petitioner's 
ability to pay a proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 
1967); see generally 6 USCIS Policy Manual, supra, at E.4(B) (stating that USCIS considers all 
evidence relevant to the petitioner's financial strength and the significance of its business activities). 1 
The Petitioner's labor certification states the proffered annual wage for the position of architectural 
designer is $56,930. The petition's priority date is April 28, 2022, the date the Petitioner filed the labor 
certification with DOL. See 8 C.F.R. § 204.5( d). The record indicates the Petitioner did not employ 
the Beneficiary on the petition's priority date or thereafter. 2 
As evidence of its ability to pay, the Petitioner provided a copy of its 2022 federal income tax return 
filed on IRS Form 1120-S, U.S. Income Tax Return for an S Corporation. The Petitioner's 2022 tax 
return reflects net income of $48,236. As noted by the Director, this amount does not meet or exceed 
the proffered wage of $56,930. 
On appeal, the Petitioner contends for the first time that its 2022 net current assets totaled $58,285, 
and therefore demonstrate its ability to pay the proffered wage. The Petitioner, however, miscalculates 
its net current assets. 
The $58,285 figure is reported on the Petitioner's 2022 Form 1120-S at Schedule L, line 14 as the 
company's year-end "Total assets." However, current asserts are calculated by adding the amounts 
reported at Schedule L, lines 1 through 6, including items such as cash, accounts receivable, 
1 Federal courts have upheld USCIS' method of detennining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts. Inc. v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Just Bagels Mfg.. Inc. v. Mayorkas, 900 F. Supp. 2d 363, 
373-76 (S.D.N.Y. 2012). 
2 The labor certification indicates at part K. that the Petitioner previously employed the Beneficiary in the proffered position 
from September 2018 until June 2021. The record on appeal contains copies of the Petitioner's IRS Forms W-2, Wage 
and Tax Statement, for 2022, which corroborate that it did not employ him during that year. 
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inventories, and "other current assets." The Petitioner reported -$5,869 in cash at line l and did not 
report any other current assets at lines 2 through 6. Therefore, the Petitioner's current assets at year­
end were -$5,869, not $58,285, as claimed on appeal. 
Further, the Petitioner must show net current asserts that are equal to or greater than the proffered 
wage to demonstrate its ability to pay. Net current assets represent current assets minus current 
liabilities. Joel G. Siegel & Jae K. Shim, Barron's Dictionary of Accounting Terms, 117-18 (3d ed. 
2000). In addition to reporting total current assets of -$5,869 at Schedule L of its 2022 IRS Form 
1120-S, the Petitioner reported "other current liabilities" of $97,496 at Schedule L, line 17, resulting 
in net current assets of -$103,365. Therefore, the Petitioner did not demonstrate its ability to pay the 
proffered wage based on its net current assets in 2022. 
As discussed above, users will consider evidence of a petitioner's ability to pay beyond its net 
income and net current assets. See Matter ofSonegawa, 12 I&N Dec. at 614-615. Under Sonegawa, 
we may consider such factors as: the number of years a petitioner has conducted business; its number 
of employees; growth of its business; the occurrence of any uncharacteristic business expenditures or 
losses; its reputation in its industry; whether a beneficiary will replace a current employee or 
outsourced service; or other evidence of its ability to pay a proffered wage. Id. In some cases, these 
factors may establish a petitioner's ability to pay the proffered wage despite a shortfall in net income 
or net current assets. users may also consider other factors, such as evidence that an officer of the 
petitioning employer is willing and able to forego compensation specifically to cover the wage. See 
generally, 6 USCIS Policy Manual, supra, at E.4(e)(3). 
Although the Director issued both a request for evidence (RFE) and a notice of intent to deny (NOID), 
neither notice advised the Petitioner of the types of evidence USeTS considers in conducting a totality 
of the circumstances analysis as part of the ability to pay determination. Further, although the Director 
indicates that the adverse decision was "[b ]ased on a totality of the circumstances," the Director did 
not conduct the type of analysis described in Sonegawa and in USeTS policy guidance. 
Rather, the Director's decision was based on the following conclusions: (1) the Petitioner's 2022 net 
income was insufficient to pay the proffered wage; (2) the Petitioner's owner submitted conflicting 
statements in addressing the company's ability to pay; and (3) the Petitioner made "contradictory 
statements" as to whether the Beneficiary was employed with the company after June 30, 2021, which 
was the last date of employment stated in the "work experience" section of the labor certification. 
As noted, the evidence in the record, including additional evidence and explanations submitted on 
appeal, demonstrates that the Petitioner did not employ the Beneficiary in 2022 when the priority date 
was established. On appeal, the Petitioner concedes that it submitted confusing or even conflicting 
statements in response to the RFE and NOID in addressing how the company's funds were allocated 
to expenses in 2022, and how those allocations impacted its reported net income. A new statement 
from the Petitioner's owner addresses and clarifies some of the information the Director found 
contradictory. 
Despite the Petitioner's acknowledged submission of confusing explanations in its response to the 
RFE and NOID, it has nevertheless articulated facts that merit further review in a totality of the 
circumstances analysis. First, the Petitioner's 2022 federal tax return indicates that its sole shareholder 
3 
received $120,000 in officer compensation in 2022. 3 The record now includes a copy of its sole 
shareholder's 2022 IRS Form W-2, as well as an explanation that resolves any prior contradiction in 
the record about how these funds were allocated. 
As noted, USCIS may consider evidence that an officer of the petitioning employer is willing and able 
to forego compensation specifically to cover the proffered wage. See generally, 6 USCIS Policy 
Manual, supra, at E.4(C)(3). Additional supporting evidence may be required, however, to 
demonstrate that the Petitioner's sole shareholder and officer was, and is, willing and able to forgo a 
portion of his officer's compensation. 
On appeal, the Petitioner's owner also asserts that the $8,694 difference between the company's net 
income and the proffered wage "could have been easily made up based on a different set of decisions 
about purchases, outlays, repayment ofloans or even how to file taxes." As an example, he asserts that 
the 2022 Form 1120-S, at Schedule L, line 18 shows that, as sole shareholder, he allocated $98,601 to 
partially repay loans he had made to the Petitioner in previously years. 4 He states that he could have 
opted to allocate a lesser amount towards repayment of the loan and instead reported a higher net income 
on the company's 2022 tax return. While the partial repayment of this loan could potentially be a 
relevant factor in evaluating the Petitioner's ability to pay in 2022, the record as presently constituted 
does not contain any supporting documentation related to the terms of the loan and its repayment. 
Considering these potentially positive factors, and the fact that the Director neither advised the Petitioner 
of additional evidence it could submit to demonstrate its ability to pay, nor conducted a totality of the 
circumstances analysis, we will withdraw the Director's decision and remand the matter for further 
consideration and entry of a new decision. 
On remand, the Director should issue an RFE to allow the Petitioner an opportunity to submit 
additional evidence relating to the factors described in Sonegawa and the USCIS Policy Manual to 
demonstrate its ability to pay the proffered wage. In addition, the Director should request the 
Petitioner's annual reports, federal tax return, or audited financial statements for 2023, and any 
available evidence of its continuing ability to pay for 2024. Finally, the Director should request 
additional evidence consistent with the foregoing discussion regarding the Petitioner's allocation of 
funds to compensation of officers and shareholder loan repayments in 2022 and in any prior or 
subsequent years. 
Because the Director must request additional evidence before evaluating whether the Petitioner can 
demonstrate, under the totality of the circumstances, its ability to pay the proffered wage, 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. 
3 While the record does not include the Petitioner's 2021 tax return, a prior year summary accompanying the Petitioner's 
copy of its 2022 tax return shows its sole shareholder received $180,000 in officer compensation in 2021. 
4 The Form 1120-S at Schedule L shows that the Petitioner reported $220,666 as "loans from shareholders" at the beginning 
of the taxable year and $122,065 at the end of the taxable year, a difference of$98,601. 
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