remanded EB-3 Case: Farming

MATTER OF S-M-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 9, 2018 
PETITION: FORM J-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a ranch, seeks to employ the Beneficiary as a farmworker-horses. 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)(ii), 8 U.S.C. § 1153(B)(3)(A)(ii). 
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 in 2017 and 2018. On appeal the Petitioner asserts that 
the evidence of record establishes its ability to pay the proffered wage, and that the Director should 
not have denied the petition in any event because no federal income tax returns were available at the 
time of the decision for the years 2017 or 2018. 
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)-(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 requested 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 S-M-, LLC 
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 I of the petition onward. The priority date in this case is 
January 13, 2017. The labor certification states that the wage offered for the job of farmworker­
horses is $28,000 per year. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
In this case the record indicates that the Beneficiary worked for the Petitioner during part of the 
priority date year of 2017. According to a Form W-2, Wage and Tax Statement, issued to him by the 
Petitioner, the Beneficiary received "wages, tips, other compensation" of$13,331.06 in 2017. The 
Petitioner has also submitted a chart of payments to its employees during the first three months of 
2018 showing that the Beneficiary received gross pay totaling $8,400 by the end of March 2018. 
The foregoing documentation does not establish that the Beneficiary's pay has equaled or exceeded 
the proffered wage since the priority date of January 13, 2017. 
If a petitioner has not employed the beneficiary and paid him (or her) a salary equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or audited 
financial statement(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, the petitioner would be considered able to pay the proffered wage during 
that year. 
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 
Matter of S-M-, LLC 
In this case the Director issued a request for evidence (RFE) in February 2018 in which the 
Petitioner was requested to submit at least one of the types of evidence - either an annual report, or a 
federal income tax return, or an audited financial statement - required by the regulation at 8 C.F.R. 
§ 204.5(g)(2) for each of the years 2017 and 2018. 2 In its response to the RFE, submitted to USC IS 
on May 3, 2018, the Petitioner stated that no federal income tax return for 2017 was yet available 
because it had requested and received a filing extension.3 Nevertheless, the Director issued a 
decision on May 17, 2018, denying the petition. The Petitioner filed a timely appeal, followed by a 
brief and additional evidence which includes a copy of its 2017 federal income tax return bearing a 
date by the preparer of June 15, 2018. Since the federal income tax return was evidently not 
available at the time the denial decision was issued, we will remand this matter to the Director for 
further consideration of the Petitioner's ability to pay the proffered wage and the issuance of a new 
decision. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further 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 ofS-M. LLC, ID# 1864482 (AAO Nov. 9, 2018) 
2 The request for an annual report, or a federal tax return, or an audited financial statement for 2018 was clearly mistaken 
because no such documents could be prepared and submitted before the end of that year. 
3 The record indicates that the application was granted and the filing deadline extended to October 15, 2018. 
,.,