remanded EB-3 Case: Closet Installation

U.S. Citizenship 
and Immigration 
Services 
In Re : 25672371 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 2, 2023 
The Petitioner provides closet installation services and seeks to permanently employ the Beneficiary 
as a custom closet installer and trainer . The company requests his classification under the third­
preference, immigrant visa category as an "other worker" requiring less than two years of training or 
experience. See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 C.F.R. 
§ 1153(b )(3)(A)(iii) . 
The Director of the Texas Service Center denied the petition, concluding that Beneficiary was not 
qualified for the position because he did not possess a valid driver's license . The matter is now before 
us on appeal. On appeal, the Petitioner argues that the Beneficiary's temporary driver's license is a 
valid driver's license. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See Matter ofChawathe, 25 l&N Dec. 369,375 (AAO 2010). We exercise de novo, 
appellate review. Matter of Christo 's, 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review , 
we agree with the Petitioner that the Director erred in concluding that the Beneficiary did not possess 
a valid driver's license. 1 We will therefore withdraw the Director's finding on this issue. However, 
because the Director did not render a determination on the Petitioner's ability to pay the proffered 
wage, we will remand the matter for entry of a new decision consistent with the following analysis . 
A petitioner must demonstrate its continuing ability to pay an offered position's proffered wage, from 
a petition's priority date until a beneficiary obtains lawful pennanent residence. 8 C.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of a business's annual reports, 
federal tax returns, or audited financial statements . Id. 
1 The Petitioner initially submitted a copy of the Beneficiary 's Florida Temporary Driver License with an expiration date 
of March 16, 2023. With the appeal, the Petitioner presents the Beneficiary's "Driver Record" from the Florida Department 
of Highway Safety and Motor Vehicles listing his current license "status" as "valid" with an issue date of August 19, 2022, 
and an expiration date of November 6, 2024. The Beneficiary 's Florida Driver Record further indicates that he has had a 
driver's license since 2016. Accordingly , the Petitioner has provided sufficient evidence demonstrating that the 
Beneficiary has a valid driver 's license. 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year, beginning with the year of a petition's priority date. If a petitioner did not annually 
pay the full proffered wage or did not pay a beneficiary at all, users 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. If net income and net current 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).2 
The Petitioner's accompanying labor certification states the proffered wage of the offered position of 
custom closet installer and trainer as $39,000.00 a year. The petition's priority date is June 8, 2021, 
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 Petitioner filed the Form I-140 on June 
28, 2022. 
For purposes of this decision, we will consider the Petitioner's ability to pay in 2021, the year of the 
petition's priority date. While the Petitioner submitted its 2020 federal income tax return, the record 
does not include evidence of its ability to pay starting in 2021. We will therefore remand the matter 
for the Director to render a determination regarding the Petitioner's ability to pay beginning with the 
year of the petition's priority date. The Director should request the Petitioner to submit additional 
evidence of its ability to pay the proffered wage starting in 2021 and thereafter. See 8 e.F.R. 
§ 204.5(g)(2) (requiring a petitioner to demonstrate their ability to pay "continuing until the 
beneficiary obtains lawful permanent residence"). 
If supported by the record, the Director may notify the Petitioner of any other potential denial grounds. 
The Director, however, must afford the Petitioner a reasonable opportunity to respond to all issues 
raised on remand. Upon receipt of a timely response, the Director should review the entire record and 
enter a new decision. 
The Petitioner has overcome the Director's sole basis for denial, but it has not established its ability 
to pay the offered position's proffered wage as of the petition's priority date and thereafter. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
2 Federal courts have upheld USCIS' 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); Four Holes Land & Cattle, LLC v Rodriguez, No. 5:15-
cv-03858, 2016 WL 4708715, *X (D.S.C. Sept. 9, 2016). 
2