remanded EB-3 Case: Caregiver

U.S. Citizenship 
and Immigration 
Services 
In Re: 10527889 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 3, 2020 
The Petitioner seeks to employ the Beneficiary as a caregiver at a residential home for elderly people. It 
requests his classification under the third-preference, immigrant category for "other workers." See 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 U.S.C. § 1153(b )(3)(A)(iii). 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not establish its required ability to pay the proffered wage of the offered position . 
The Petitioner bears the burden of establishing eligibility for the requested benefit. Section 291 of the 
Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's decision and remand the 
matter for entry of a new decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an unskilled worker generally follows a three-step process . To permanently fill a 
position in the United States with a foreign worker, a prospective employer must first obtain 
certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, 
qualified, and available for an offered position. Id. Labor certification also indicates that 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 determines whether a beneficiary meets the 
requirements of a DOL-certified position and a requested visa classification . If USCIS grants a 
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. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). If a petitioner employs less than I 00 workers, as in this case, evidence of ability to pay 
must include copies of annual reports, federal tax returns, or audited financial statements. Id. 
In determining ability to pay, users considers whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date. If a petitioner did not pay a beneficiary at all or did not 
annually pay him or her the full proffered wage, users examines whether the business generated 
enough annual amounts of net income or net cunent assets to pay any differences between an annual 
proffered wage and wages paid. If net income and net cunent assets are insufficient, users may 
consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter of Sonegawa, 
12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 1 
Here, the accompanying labor certification states the proffered wage of the offered position of 
caregiver as $24,606 a year. The petition's priority date is April 29, 2019, the date DOL accepted the 
labor certification application for processing. See 8 C.F .R. § 204.5( d) ( explaining how to determine a 
petition's priority date). 
The record indicates the Beneficiary's residency in the Philippines and lacks evidence of the 
Petitioner's employment of him. Based solely on wages paid, the Petitioner therefore has not 
demonstrated its ability to pay the proffered wage. 
At the time of the Director's decision, required evidence of the Petitioner's ability to pay in 2019, the 
year of the petition's priority date, was not yet available. On appeal, however, the Petitioner submits 
a copy of its federal income tax return for 2019. The return reflects net income of $28,684 and net 
cunent assets of $41,358. Both amounts exceed the annual proffered wage of$24,606. The Petitioner 
therefore appears to have demonstrated its ability to pay the individual proffered wage of the offered 
position. 
users records, however, indicate the Petitioner's filing of a Form I-140 pet1t10n for another 
beneficiary after this petition's filing. 2 A petitioner must demonstrate its ability to pay the proffered 
wage of each petition it files until a beneficiaiy obtains lawful pe1manent residence. 8 e.F.R 
§ 204.5(g)(2). The Petitioner here must therefore demonstrate its ability to pay the combined proffered 
wages of this and the other petition if it was pending or approved as of this petition's priority date or 
filed thereafter. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming revocation of 
a petition's approval where, as of the filing's grant, a petitioner did not demonstrate its ability to pay 
the combined proffered wages of multiple petitions). 3 
Because the Petitioner filed its other petition after this petition's priority date of April 29, 2019, it must 
demonstrate its ability to pay the combined proffered wages of both petitions. The record, however, 
1 Federal courts have upheld USC IS' 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); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-
43 (S.D. Cal. 2015). 
2 USCIS records identify the other petition by the receipt number.__ _____ _. 
3 The Petitioner need not demonstrate its ability to pay proffered wages of petitions that it withdrew, or that USCIS rejected, 
denied, or revoked. The Petitioner also need not demonstrate its ability to pay proffered wages of petitions before their 
corresponding priority dates, or after the dates their corresponding beneficiaries obtained lawful permanent residence. 
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lacks the proffered wage or priority date of the Petitioner's other petition. Also, the Director did not 
request this information from the company. We will therefore remand the matter. 
On remand, the Director should ask the Petitioner to provide the proffered wage and priority date of 
its other petition. The Petitioner may also submit additional evidence of its ability to pay the combined 
proffered wages in 2019, including evidence of any wages it paid the other beneficiary or materials 
supporting factors stated in Sonegawa. 
III. CONCLUSION 
The Petitioner has not demonstrated its ability to pay the combined proffered wages of all its applicable 
beneficiaries. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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