remanded EB-3 Case: Home Health Care

U.S. Citizenship 
and Immigration 
Services 
In Re: 8099020 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 1, 2020 
The Petitioner seeks to employ the Beneficiary as a home health aide. It requests classification of the 
Beneficiary as an unskilled worker under the third preference immigrant classification . Immigration 
and Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 U.S.C. § l l 53(b )(3)(A)(iii) . This 
employment-based immigrant classification allows a U.S. employer to sponsor a foreign national for 
lawful permanent resident status to work in a position that requires less than two years of training or 
expenence. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that it had the continuing ability to pay the proffered wage . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review , we will withdraw the Director's 
decision and remand the matter for further proceedings consistent with our opinion and for the entry 
of a new decision . 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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). 1 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)(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, ifUSCIS approves the petition, 
the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for proce ssing, which in this case is 
May 31, 2018. See 8 C.F.R. § 204.S(d) . 
II. ABILITY TO PAY THE PROFFERED WAGE 
The Director concluded that the Petitioner did not establish its continuing ability to pay the proffered 
wage. The proffered wage is $10.41 per hour ($21,652.80 per year based on a 40-hour work week). 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. 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 determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the foll 
proffered wage each year from a petition's priority date. The record here does not demonstrate that 
the Petitioner has paid the Beneficiary any wages from the priority date onward. Since the Petitioner 
did not pay the Beneficiary any wages, we next examine whether it had sufficient annual amounts of 
net income or net current assets to pay the proffered wage. 2 As noted by the Petitioner in its response 
to the Director's request for evidence (RFE) and on appeal, we may also consider evidence of a 
petitioner's ability to pay beyond its net income and net current assets, including such factors as: the 
number of years it has conducted business; the growth of its business; its number of employees; the 
occurrence of any uncharacteristic business expenditures or losses; its reputation in its industry; 
whether a beneficiary will replace a current employee or outsourced service; or other evidence of its 
ability to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 614-615 (Reg'l Comm'r 
1967). 
The Petitioner is a limited liability company (LLC) taxed as a sole proprietorship. It stated on the 
petition that it employs 130 workers. With the petition, the Petitioner submitted a letter fromJ I 
I I stating that the Petitioner had the ability to pay the proffered wage. However, as noted by the 
Director in his decision, the letter did not indicate that it was from a financial officer of the organization 
pursuant to 8 C.F.R. § 204.5(g)(2). In response to the Director's RFE, the Petitioner submitted its 
member's 2017 IRS Form 1040, Schedule C, and IRS Forms W-2 for the Petitioner's employees for 
2018. The 2017 Schedule C states net income 3 of $73,153 in 2017, which is sufficient to pay the 
proffered wage. However, the Schedule C did not indicate a business name or business address; it 
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 For an LLC taxed as a sole proprietorship, net income is reported on its member's IRS Form I 040, Schedule C, at line 
31. 
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indicated that its principal business was a "nursing home;" it stated a business code of 62300 which 
relates to nursing and residential care facilities; and it did not list the Petitioner's employer 
identification number (EIN). 4 Thus, the Director determined that the 2017 tax return did not relate to 
the Petitioner and found that the Petitioner did not establish its ability to pay the proffered wage. 
On appeal, the Petitioner submits a letter from its certified public accountant (CPA) stating that he 
inaccurately described the Petitioner's business on the 2017 Schedule C as a nursing home, when it 
should have been described as a "non-medical home health care agency." He stated that he should 
have used code 621610 relating to nursing and residential home care to describe the Petitioner's 
business. He also stated that he neglected to include the Petitioner's business name and business 
address on Schedule C, but that his oversights do not affect the materiality of the Schedule C and are 
not sufficient grounds for filing an amended tax return. However, as further detailed below, the 
Petitioner did not establish that it has the ability to pay the proffered wage from the priority date in 
2018 onward. Because the Director did not examine the Petitioner's ability to pay from 2018 onward, 
we will remand the matter to the Director for farther consideration. 
On appeal, the Petitioner submits a letter from its bookkeeper and asserts that the letter "demonstrates 
the Petitioner's ability to pay based on its net current assets." The letter states that the Petitioner does 
not have a chief financial officer and that the bookkeeper has prepared monthly financial statements 
for the Petitioner since 2016. The letter confirms the Petitioner's net assets since 2016, 5 its total 
current assets in May 2019, 6 and its net profit in May 2019. The letter also confirms the Petitioner's 
operating account balance in its bank account as of May 31, 2019. However, the letter does not 
confirm that the Petitioner had the ability to pay the proffered wage from the priority date in 2018 
onward. 
The bookkeeper's letter is supported by unaudited financial statements for the Petitioner for the five 
months ending May 2019. 7 However, where a petitioner relies on financial statements to demonstrate 
its ability to pay the proffered wage, the financial statements must be audited. 8 C.F.R. § 204.5(g)(2). 
As there is no accountant's report accompanying these statements, we cannot conclude that they are 
audited statements. Unaudited financial statements are the representations of the Petitioner's 
management and are insufficient to demonstrate the ability to pay the proffered wage. The 
bookkeeper's letter is also supported by the Petitioner's operating account bank statement for the 
month ending May 31, 2019. 8 However, bank statements are not among the three types of evidence 
listed in 8 C.F.R. § 204.5(g)(2) that are required to illustrate a petitioner's ability to pay a proffered 
wage. While this regulation allows additional material "in appropriate cases," the Petitioner has not 
demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable. Further, 
bank statements show the amount in an account on a given date and cannot show the continuing ability 
4 Instead, it listed the member's social security number. 
5 Net assets include non-current assets and liabilities and do not generally represent assets that can be liquidated during the 
course ofnonnal business. As previously noted, the Petitioner must establish that it had sufficient net income or net current 
assets to pay the proffered wage. 
6 The Petitioner's total current assets must be balanced by its total current liabilities. 
7 The statements do not cover 2018 and cover only a portion of 2019. 
8 The statement does not cover 2018 and covers only one month in 2019. 
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to pay a proffered wage. The May 2019 bank statement is insufficient to demonstrate the Petitioner's 
continuing ability to pay the proffered wage. 
The record does not contain regulatory required evidence of the Petitioner's ability to pay the proffered 
wage from the priority date in 2018 and continuing until the beneficiary obtains lawful permanent 
residence. As noted above, the regulation at 8 C.F.R. § 204.5(g)(2) requires that "[ e ]vidence of this 
ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial 
statements." Without regulatory-prescribed evidence of its ability to pay for 2018 onward, we cannot 
affirmatively find that the Petitioner has the continuing ability to pay the proffered wage from the 
priority date. On remand, the Director should request such regulatory-required evidence and allow 
the Petitioner reasonable time to respond. 9 
Additionally, where a petitioner has filed Form I-140 petitions for multiple beneficiaries, it must 
demonstrate that its job offer to each beneficiary is realistic, and that it has the ability to pay the proffered 
wage to each beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson, 2 F. Supp. 3d 108, 124 
(D. Mass. 2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to 
pay multiple beneficiaries). USCIS records show that the Petitioner filed multiple Form I-140 petitions 
for other beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of the other Form I-140 petitions that were pending or approved as o±: or filed after, the 
priority date of the current petition. 10 We do not consider the other beneficiaries for any year that the 
Petitioner has paid the Beneficiary a salary equal to or greater than the proffered wage. 
The Petitioner must document the receipt numbers, names of beneficiaries, priority dates, and 
proffered wages of these other petitions, and indicate the status of each petition and the date of any 
status change (i.e., pending, approved, withdrawn, revoked, denied, on appeal or motion, beneficiary 
obtained lawful permanent residence). To offset the total wage burden, the Petitioner may submit 
documentation showing that it paid wages to other beneficiaries. To demonstrate that it has the ability 
to pay the Beneficiary and the other beneficiaries, the Petitioner must, for each year at issue (a) 
calculate any shortfall between the proffered wages and any actual wages paid to the primary 
Beneficiary and its other beneficiaries, (b) add these amounts together to calculate the total wage 
deficiency, and ( c) demonstrate that its net income or net current assets exceed the total wage 
deficiency. 11 Without this information, we cannot determine the Petitioner's ability to pay the combined 
proffered wages of all of its applicable beneficiaries. On remand, the Director should request such 
evidence and allow the Petitioner reasonable time to respond. 
9 We note the letter from the Petitioner's CPA regarding the errors made on the Petitioner's 2017 tax return. If similar 
errors were made on the Petitioner's subsequent tax returns, and the Petitioner intends to rely on those returns to establish 
its ability to pay, the Director should request certified copies of the returns to establish that they were actually received 
and processed by the IRS. 
10 The Petitioner's ability to pay the proffered wage of one of the other T-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a pending 
appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
11 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
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ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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