remanded EB-3 Case: Cleaning

U.S. Citizenship 
and Immigration 
Services 
In Re: 00094002 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 3, 2021 
The Petitioner' seeks to employ the Beneficiary as a commercial cleaner. It requests classification of 
the Beneficiary as an unskilled worker under the third preference immigrant classification. 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 U.S .C. § 1153(b )(3)(A)(iii) . 
This employment-based immigrant classification allows a U.S. employer to sponsor a foreign national 
for lawful permanent resident status to work in a position that requires less than two years of training 
or expenence. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary met the requirements of the offered position. The Director subsequently 
denied the Petitioner's motion to reopen. The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish 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 to the Director for the entry of a new decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). 2 See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that 
employing a foreign national in the position will not adversely affect the wages and working conditions 
of domestic workers similarly employed. See id. Second, the employer files an immigrant visa petition 
with U.S. Citizenship and Immigration Services (USCIS) with the certified labor certification . See 
section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the foreign national 
1 The Petitioner was represented by counsel when the appeal was filed. However, counse l subsequently died , and a new 
Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, has not been filed by the Petitioner. 
Therefore , the Petitioner currently has no representative ofrecord in this matter. 
2 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
December 31, 2014 . See 8 C.F.R. § 204.S(d) . 
applies 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. BENEFICIARY'S QUALIFICATIONS 
A beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12); Matter o_f Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
Section H of the labor certification requires no education, training, or experience. Part H.14. of the 
labor certification requires an "[i]nitial drug screening and criminal background check." In his denial 
decision, the Director determined that the Petitioner did not submit a certified English translation of 
the Beneficiary's drug screening as required by the regulation at 8 C.F.R. § 103.2(b)(3) (requiring the 
translator to certify that the English language translation is complete and accurate, and that the 
translator is competent to translate from the foreign language into English). The Director denied the 
Petitioner's subsequent motion to reopen, finding that it did not meet the requirements of 8 C.F.R. 
§ 103.5(a)(2). 3 
Upon review of the record in this matter, including the evidence submitted on appeal, we find that the 
Petitioner has overcome the basis for the Director's denial of the visa petition. The record contains a 
valid drug screen for the Beneficiary. We will therefore withdraw the Director's decision. However, 
for the reason set forth below, we will remand the matter to the Director. 
III. ABILITY TO PAY 
The Petitioner has not established that it has the continuing ability to pay the proffered wage. The 
proffered wage is $8.05 per hour ($16,744 per year based on a 40-hour work week). The Petitioner 
must demonstrate its continuing ability to pay the proffered wage from the priority date in 2014 until 
the Beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The regulation 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." Id. The regulation farther provides that if a petitioner employs 100 
or more workers, we may accept a statement from a financial officer of the petitioner which establishes 
its ability to pay the proffered wage. Id. 
The record does not contain the Petitioner's annual reports, federal tax returns, or audited financial 
statements from the priority date in 2014 onward. Instead, it contains a letter dated October 31, 2015, 
from the Petitioner's "financial analyst" stating that the Petitioner has the ability to pay the proffered 
wage. The analyst asserts that the Petitioner employs approximately 5500 employees and that it had 
gross income of over $100 million in 2014. We decline to exercise our discretion to accept the letter 
from the Petitioner's financial analyst for several reasons. First, it is not clear that the financial analyst 
is a "financial officer" of the Petitioner as required by 8 C.F.R. § 204.5(g)(2). Next, the letter does 
not specifically identify the Beneficiary, so it is unclear whether the letter relates to the Petitioner's 
3 We note that the record also contains a combined motion to reopen and reconsider filed by the Petitioner. Although it 
references the receipt number of the cunent case, it was accompanied by evidence relating to the beneficiary of a different 
visa petition filed by the Petitioner. As the Director's denial of the combined motion reflects issues not cunently before 
us, we have not considered it in this matter. 
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ability to pay the proffered wage to the current Beneficiary. 4 Additionally, the Petitioner has filed 
hundreds of additional Form 1-140 petitions. As further detailed below, we must take into account the 
Petitioner's ability to pay the Beneficiary's wage in the context of its overall filings. Thus, the letter 
from the Petitioner's financial analyst does not establish the Petitioner's continuing ability to pay 
under 8 C.F.R. § 204.5(g)(2). 
Where a petitioner has filed Form 1-140 petitions for multiple beneficiaries, it must demonstrate that its 
job offer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to each 
beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 
2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to pay multiple 
beneficiaries). Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of the other Form 1-140 petitions that were pending or approved as of: or filed after, the 
priority date of the current petition. 5 We do not consider the other beneficiaries for any year that the 
Petitioner has paid the Beneficiary a salary equal to or greater than the proffered wage. 
The Petitioner must document the receipt numbers, names of the beneficiaries, priority dates, and 
proffered wages of the other petitions, and indicate the status of the petitions and the date of any status 
change (i.e., pending, approved, withdrawn, revoked, denied, on appeal or motion, beneficiary 
obtained lawful permanent residence). To offset the total wage burden, the Petitioner may submit 
documentation showing that it paid wages to other beneficiaries. To demonstrate that it has the ability 
to pay this Beneficiary and the other beneficiaries, the Petitioner must, for each year at issue (a) 
calculate any shortfall between the proffered wages and any actual wages paid to the primary 
Beneficiary and its other beneficiaries, (b) add these amounts together to calculate the total wage 
deficiency, and ( c) demonstrate that its net income or net current assets exceed the total wage 
deficiency. 6 Without this information, we cannot determine the Petitioner's ability to pay the combined 
proffered wages of all of its applicable beneficiaries. 
Accordingly, on remand, the Director should request evidence of the Petitioner's ability to pay the 
combined proffered wages of all of its applicable beneficiaries. The Petitioner may also submit 
additional materials in support of the factors discussed in Matter of Sonegawa, 12 l&N Dec. 612, 614-
15 (Reg'l Comm'r 1967), which permits USCIS to consider the totality of the circumstances affecting 
a petitioner's ability to pay the proffered wage. 7 
4 The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. 369, 376 (AAO 2010). 
5 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiaiy has been withdrawn, revoked, or denied without a pending 
appeal or motion; or 
• Before the priority date of the I-140 petition filed on behalfofthe other beneficiary. 
6 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
7 In determining the Petitioner's ability to pay the proffered wage, we may examine such factors as: the number of years 
the Petitioner has conducted business; its number of employees; the growth of its business; its incurrence of 
uncharacteristic losses or expenses; its reputation in its industry; the Beneficiary's replacement of a current employee or 
outsourced service; or other factors affecting the Petitioner's ability to pay. See Matter of Sonegawa, 12 l&N Dec. at 614-
15. 
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ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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