remanded EB-3 Case: Domestic Service

U.S. Citizenship 
and Immigration 
Services 
In Re : 21966077 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 27, 2022 
The Petitioner is a household that seeks to employ the Beneficiary as a nanny. 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. § 1153(B)(3)(A)(iii). This 
employment-based "EB-3" immigrant classification allows a U.S. employer to sponsor for lawful 
permanent residence 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 Nebraska Service Center denied the petition concluding that the Petitioner did not 
establish its ability to pay the proffered wage of the instant Beneficiary. On appeal the Petitioner 
asserts that the Director's decision was erroneous in fact and law. The Petitioner states that the 
evidence of record, supplemented by documents submitted on appeal, establishes its ability to pay the 
proffered wage of the Beneficiary . 
We review the questions in this matter de nova. Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 
(AAO 2015) . The Petitioner bears the burden of proof to establish eligibility for the requested benefit 
by a preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 
25 I&N Dec . 369, 375 (AAO 2010) . Upon de nova review , we will remand this case to the Director 
for further consideration. 
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) of the 
Act, 8 U.S.C. § l 182(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 section 212(a)(5)(A)(i)(l)-(11) 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, ifUSCIS 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, among 
other things, 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): 
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. In this case the proffered wage is 
$19,531 per year and the priority date is April 19, 2021. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage. 2 USCIS may also consider the totality of the petitioner's 
circumstances, including the overall magnitude of its business activities, in determining the 
Petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l 
Comm'r 1967).3 
Since there is no evidence the Petitioner has employed the Beneficiary since the priority date, the 
Petitioner must establish that its net income or net current assets are sufficient to meet its proffered 
wage obligations to the Beneficiary from the petition's priority date onward. 
1 The "priority date" of an employment-based immigrant petition is the date the underlying labor certification application 
is filed with the DOL. See 8 C.F.R. § 204.S(d). 
2 Federal courts have upheld our 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); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rizvi v. 
Dep'tofHomeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
3 USCTS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of its net 
income and net current assets. We may consider such factors as the number of years the petitioner has been doing business, 
the established historical growth of the petitioner's business, the petitioner's reputation within its industry, the overall 
number of employees, whether the beneficiary is replacing a former employee or an outsourced service, the amount of 
compensation paid to officers, the occurrence of any uncharacteristic business expenditures or losses, and any other 
evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
2 
With the initial filing, the Petitioner submitted, among other things, a breakdown of the household's 
monthly living expenses; bank statements for the company the Petitioner owns; and the 2020 Internal 
Revenue Service (IRS) Forms 1040, U.S. Individual Income Tax Return which was its most recent 
federal income tax return at the time of this petition's filing. The Director issued a request for evidence 
(RFE) to allow the Petitioner the opportunity to provide additional evidence to establish its ability to 
pay the proffered wage. In his decision, the Director reviewed the 2020 federal tax returns and noted 
that the adjusted gross income minus the monthly household living experience for the year was less 
than the proffered wage and therefore did not establish its ability to pay the proffered wage. 
On appeal, the Petitioner indicates that the ability to page the proffered wage prior to the April 19, 
2021 priority date is irrelevant, and that the 2020 federal tax returns do not cover the period from the 
priority date onward. It also submits a copy of its 2021 federal tax return. 
Because this material evidence was not before the Director when he adjudicated the petition, we will 
remand the matter so that the Director may conduct a first-line adjudication of the Petitioner's ability 
to pay the proffered wage that takes it into account. The Director may also request any other evidence 
that may be deemed necessary to determine the Petitioner's eligibility for the requested immigration 
benefit. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's eligibility for the immigration benefit it seeks on behalf of the Beneficiary. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
3