remanded EB-3 Case: Construction

MATTER OF A-P-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 20, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a decorative concrete installer, seeks to employ the Beneficiary as a specialty concrete 
journeyman. It requests classification of the Beneficiary as an "other worker" under the third preference 
immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ l 153(b)(3)(A)(iii) . This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent resident status a foreign national who is capable of 
performing unskilled labor that requires less than two years of training or experience and is not of a 
temporary or seasonal nature. 
The Director of the Texas Service Center denied the petition on the ground that the Petitioner did not 
establish its ability to pay the proffered wage. On appeal the Petitioner asserts that the denial was 
erroneous because the Director did not properly analyze all of the Petitioner's evidence and the 
totality of its circumstances. 
Upon de nova review, we will withdraw the Director's decision and remand the case for further 
consideration and the issuance of a new decision. 
I. LAW 
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). See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). 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 section 
212(a)(5)(A)(i)(l)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, 
if USCIS approves the petition , the foreign national 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. 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it 
has the ability to pay the proffered wage stated in the labor certification. As provided in the 
regulation at 8 C.F.R. § 204.5(g)(2): 
Matter of A-P-S-
The petitioner must demonstrate this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence. Evidence of 
this ability shall be either in the form of copies of annual reports, federal tax returns, 
or audited financial statements. In a case where the prospective United States 
employer employs 100 or more workers, the director may accept a statement from a 
financial officer of the organization which establishes the prospective employer's 
ability to pay the proffered wage. In appropriate cases, additional evidence, such as 
profit/loss statements, bank account records, or personnel records, may be submitted 
by the petitioner or requested by [USCIS]. 
II. ANALYSIS 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date 1 of the petition onward. The priority date in this case is 
August 28, 2018. The labor certification states that the wage offered for the job of specialty concrete 
journeyman is $16.78 per hour, which amounts to $34,902.40 per year based on a standard work 
year of 2,080 hours. The Director found that the Petitioner did not establish its ability to pay the 
proffered wage based on its federal income tax return for 2017, and assorted secondary evidence. 
Since the priority date is in 2018, however, that is the first year for which the Petitioner must 
demonstrate its ability to pay. When the record was before the Director, evidence of the Petitioner's 
ability to pay the proffered wage for 2018 was unavailable. Therefore we will remand this matter to 
the Director to request regulatory required evidence, as specified in 8 C.F.R. § 204.5(g)(2), of the 
Petitioner's ability to pay the proffered wage in 2018. 
The Petitioner may also submit materials in support of the factors discussed in Matter of Sonegawa, 
12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). As the Petitioner argues and Sonegawa allows, the 
Director on remand should consider the totality of the circumstances affecting the Petitioner's ability 
to pay the proffered wage. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for farther consideration of 
the Petitioner's ability to pay the proffered wage from the priority date onward. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter of A-P-S-, ID# 5779942 (AAO Aug. 20, 2019) 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.S(d). 
2