remanded EB-3 Case: Childcare

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-13-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 18,2018 
PETITION: FORM l-I40, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a working mother. seeks to employ the Beneficiary as a child monitor. She requests 
the BcneEciary's classification under 'the third-preference, immigrant category as an "other worker." 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). 
This category allows a U.S. employer to sponsor an unskilled worker to obtain lawful permanent 
resident status. 
The Director of the Texas Service Center denied the petition. The Director concluded thill the 
Petitioner did not demonstrate the required ability to pay the proffered wage. 
On appeaL the Petitioner submits additional evidence and asserts her possession of sufficient assets 
to pay the wage. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for further 
proceedings consistent with the following opinion .. 
I. EMPLOYMENT-BASED IMMIGRATION 
Einployment-based immigration generally follows a three-step process. First, to permanently till an 
alTered position in the United States with a foreign national, an employer must obtain a labor 
certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. ~ 1 I 82(a)(5)(A)(i). If the DOL certifies an offered position, an employer must next submit 
the labor certification with an immigrant visa petition to U.S. Citizenship and Immigration Services 
(USCIS). See section 204 of the Act, 8 U.S.C. '§ 1154. If USCIS approves 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. · 
Malter ofN-B-
II. ABILITY TO PAY THE PROFFERED WAGE 
A pettlioner must demonstrate her continuing ability to pay a proffered wage, from a petition's 
priority date until a bencticiary obtains lawful permanent residence.' 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. /d. 
Because the Petitioner is an individual, we consider her personal income, assets, and liabilities in 
determining her ability to pay the proffered wage. In addition to covering the proffered wage, she 
must demonstrate an ability to support herself and any dependents. See Uheda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983) (holding that an individual did not 
establish an ability to both pay the proffered wage and support himself and his family). 
Here, the accompanying labor certification states the proffered wage of the offered position of child 
monitor as $8.47 an hour, or $17,617.60 a year for a 40-hour work week. The Directorfound that 
the Petitioner established her ability to pay the protTered wage in 2006, but not in 2005, the year of 
the petition's priority date. The Director noted that the proffered wage and the Petitioner's 
household expenses in 2005 totaled $82,702.60. A copy of the Petitioner's federal income tax for 
that year stated her adjusted gross income (AGI) as $32,557. The record also established her 
possession, as of December 2005, of $32,052. I 5 in a bank account. The combined amount of AG I 
and bank funds, however, did not equal or exceed the sum of the proffered wage and expenses. 
On appeaL the Petitioner submits evidence of additional assets available to her in 2005. The 
materials indicate that, as of that year's end, she had $22,316.24 in an individual retirement account 
(IRA). Even if subject to a l 0-percent penalty for early withdrawal, see 26 U.S.C. § 72(t), the IRA 
funds would cover the additional $18,093.45 needed to meet the sum of the proffered wages and 
expenses. The record on appeal therefore demonstrates the Petitioner's ability to pay the protTered 
wage in 2005. 
As previously indicated, however, a petitioner must demonstrate her continuing ability to pay a 
pro!Tered wage until a bcncliciary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The 
record here lacks required evidence of the Petitioner's ability to pay the proffered wage beyond 
2006. We will there lore remand this matter for further consideration. 
On remand, the Director should ask the Petitioner to submit copies of annual reports, federal income 
tax returns, or audited financial statements for 2007 and following years, and afford her a reasonable 
opportunity to respond. The Petitioner may also submit additional evidence of her ability to pay 
during the relevant years. 
1 
This petition's priority date is March 2, 2005, the date an office _within the DOL's employment service system accepted 
the accompanying labor ccrtirication application for processing. See 8 C.F.R. ~ 204.5(d) (explaining how to determine a 
petition's priority date). 
2 
Mauer ofN-B-
III. LABOR CERTIFICATION SUBSTITUTION 
Although unaddressed by the Director, the record also does not establish the substitution of the 
Bcneliciary into the accompanying labor certification. 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneliciary's qualifications tor a shortage occupation, a petition tor an unskilled worker must 
include a valid, individual labor certilication. 8 C.F.R. § 204.5(1)(3)(i). A petitioner seeking to 
substitute another foreign national lor the one listed on a labor certification must submit a new Form 
ETA 750, Part B, signed by the substitute and detailing his or her qualifications for the offered 
pos!lJOn. USC IS Adjudicator ·s Field Manual, Ch. 22.2(b)(6), 
https://www.uscis.gov/sites/default/liles/ ocommlilink/0-0-0-6423.html (last visited Mar. 12, 20 18). 
Here, the Petitioner seeks to substitute the Beneficiary for the foreign national listed on the 
accompanying labor certification 2 The Petitioner, however, did not submit a new Form ETA 750, 
Part B, signed by the Beneficiary and detailing her qualifications lor the olfered position of child 
. monitor. The Petitioner there tore has not met the requirements tor the Beneliciary' s substitution 
into the labor certification. 
On remand, the Director should ask the Petitioner to submit the required, completed form before 
considering the Beneficiary's substitution into the accompanying labor certification. 
IV. INTENT TO EMPLOY IN THE OFFERED POSITION 
The record also does not establish the Petitioner's continuing intention to employ the Beneficiary in 
the offered position. 
An employer may file a petition if she is "desiring and intending to employ [a foreign national] 
within the United States." Section 204(a)(I)(F) of the Act. A petitioner must intend to employ a 
bcncliciary under the terms of an accompanying labor certification. See Maller oflzdebska, 12 I&N 
Dec. 54, 55 (Reg'! Comm'r 1966) (aflinning a denial where, contrary to the terms of an 
accompanying labor certilication, a petitioner no longer intended to employ a beneficiary as a 
domestic worker on a tull-timc, live-in basis). 
Here, the accompanying labor certi lication states the Petitioner's intention to employ the Beneficiary 
as a child monitor, caring tor the Petitioner's two children "aged II and 6." Based on the 13 years 
that have passed since the labor certification's filing, however, the Petitioner's children are now 
about 24 and 19, both over the age of majority in most U.S. states. The labor certilication indicates 
that one of the children has "special needs." But, considering the current ages of the Petitioner"s 
2 The Petitioner asked to substitute the Beneficiary into the labor certification before the DOL prohibited such requests. 
See 20 C.F.R. § 656.1\(a) (barring labor certification substitution requests after July \6, 2007). 
3 
Maller ofN-B-
children, the record does not establish her continuing intention to employ the Beneficiary 111 the 
offered position. 
On remand, the Director should ask the Petitioner to submit additional evidence of her intention to 
employ the Beneficiary in the offered position and afford her a reasonable opportunity to respond. 
Upon receipt of a timely response, the Director should review the entire record and enter a new 
decision. 
V. CONCLUSION 
The Petitioner has demonstrated her ability to pay the proffered wage in 2005 and 2006. But the 
record lacks required evidence of her continuing ability to pay in following years. The record also 
lacks evidence of the Beneficiary's substitution into the labor certification and does not demonstrate 
the Petitioner's continued intent to employ the Beneficiary in the proffered position. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter o(lv'-B-, ID# I 142307 (AAO Apr. 18, 20 18) 
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