remanded EB-3 Case: E-Learning

U.S. Citizenship 
and Immigration 
Services 
In Re: 06894176 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 23, 2019 
The Petitioner , a learning and technology solutions business , seeks to employ the Beneficiary as a 
project leader , e-leaming projects. It requests professional classification for the Beneficiary under the 
third preference immigrant category. Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based "EB-3" immigrant 
classification allows a U.S . employer to sponsor a professional with a baccalaureate degree for lawful 
permanent resident status. 
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 Director did not properly calculate its ability to pay based on 
the documentation submitted and claims that the evidence of record establishes its ability to pay the 
proffered wage. 
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. § 1182(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)(I)-(Il) 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 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. The proffered wage in this case is 
$93,392 per year and the priority date is December 20, 2010, which was established in connection 
with an earlier Form I-140 petition filed by the Petitioner's predecessor-in-interest that was approved 
in 2011. The current petition was filed after the predecessor company was acquired by the Petitioner 
in 2018. In this petition, therefore, the Petitioner, as the successor entity, must establish its 
predecessor's ability to pay the proffered wage from the priority date until the date of transfer of 
ownership, as well as its own ability to pay the proffered wage from the date of ownership transfer 
forward. See 8 C.F.R. § 204.5(g)(2); see also Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 
481,482 (Comm'r 1986). 
The evidence of record, including copies of the predecessor entity's federal income tax returns and the 
Beneficiary's Forms W-2, Wage and Tax Statements, establishes the predecessor's ability to pay the 
proffered wage from the priority date in 2010 through 2017. For 2018, however, the record is 
incomplete. The Director found in his decision that the Beneficiary's gross earnings from the 
Petitioner and its predecessor amounted to $74,406.96 in 2018, which was less than the proffered 
wage. At the time of the Director's decision no federal income tax returns for 2018 had been filed by 
the Petitioner or its predecessor. Nor is there any evidence that annual reports or audited financial 
statements were available from either entity at that time. Thus, it was not possible to determine 
whether the Petitioner and its predecessor had sufficient net income or net current assets to cover the 
difference between their respective wage payments to the Beneficiary and their respective portions of 
the proffered wage obligation in 2018. Instead, the Director looked at the predecessor's federal income 
tax return for 2017 and from that document made a determination about the predecessor's, as well as 
the Petitioner's, inability to pay the proffered wage in 2018. 
Since no form of required evidence specified in 8 C.F .R. § 204.5(g)(2) was available for 2018 when 
the record was before the Director, we will remand this matter to the Director to request regulatory 
required evidence of the Petitioner's and its predecessor's ability to pay the proffered wage to the 
Beneficiary in 2018, as well as the proffered wages of any additional sponsored workers. 
1The "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 
The Petitioner may also submit additional materials in support of the factors discussed in Matter of 
Sonegawa, 12 I&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. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for farther consideration of 
the Petitioner's and its predecessor's ability to pay the proffered wage in 2018. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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