remanded EB-3 Case: Hospitality

U.S. Citizenship 
and Immigration 
Services 
In Re: 07361027 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for an "Other Worker" 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: APR. 17, 2020 
The Petitioner, a hotel business , seeks to employ the Beneficiary as a housekeeper. It requests "other 
worker" classification for the Beneficiary 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 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 Director did not properly consider the documentation 
previously submitted and provides some additional materials . The Petitioner 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)-(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 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. In this case the proffered wage is 
$17,264 per year and the priority date is May 17, 2018. 
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, there is no evidence that the Beneficiary 
has been employed by the Petitioner at any time since the priority date. Therefore, the Petitioner 
cannot establish its ability to pay the proffered wage based on wages paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount 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 retum(s), annual report(s), or audited 
financial statements(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 ordinarily be considered able to pay the proffered wage during 
that year. However, when a petitioner has filed other 1-140 petitions it must establish that its job offer 
is realistic not only for the instant beneficiary, but also for the beneficiaries of its other 1-140 petitions 
(1-140 beneficiaries). A petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
Comm'r 1977). Accordingly, a petitioner must demonstrate its ability to pay the combined proffered 
wages of the instant beneficiary and every other 1-140 beneficiary from the priority date of the instant 
petition until the other 1-140 beneficiaries obtain lawful permanent resident status. See Patel v. 
Johnson, 2 F.Supp. 3d 108, 124 (D.Mass. 2014) (upholding our denial of a petition where a petitioner 
1 The "priority date" of the petition is the date the underlying labor certification application is filed with the DOL. See 
8 C.F.R. § 204.5( d). 
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did not demonstrate its ability to pay multiple beneficiaries). 2 In this case, therefore, since the 
Petitioner has filed other 1-140 petitions, it must establish that its net income or net current assets in a 
given year are sufficient to pay the proffered wages of the instant Beneficiary and all of its other 1-140 
beneficiaries, or the difference between their total proffered wages and the wages paid to them. 
The record includes complete or partial copies of the Petitioner's federal income tax returns for the 
years 2012-2017, all of which preceded the priority date of this petition, May 17, 2018. The 2017 
return was the most recently filed at the time of the Director's decision and the Petitioner's subsequent 
appeal. However, without the 2018 federal tax return in particular (or an annual report or audited 
financial statement for 2018) and information for 2019 if available, we would be unable to assess the 
Petitioner's ability to pay the proffered wage of the instant Beneficiary from the priority date of 
May 17, 2018, onward even if she were the Petitioner's only 1-140 beneficiary. Therefore, we will 
remand this case for the Director to request the submission of regulatory required evidence from the 
Petitioner, as specified in 8 C.F.R. § 204.5(g)(2), of its ability to pay the proffered wage from the 
priority date onward. 
USCIS records indicate that the Petitioner has filed numerous additional 1-140 petitions. The 
Petitioner has provided no information about the status of its other 1-140 petitions that were pending 
on, or filed after, the priority date of the instant petition. Nor has it provided any information about 
the proffered wages of those other beneficiaries or the wages paid to any of them. On the current 
record, therefore, it is not possible to determine the Petitioner's total proffered wage obligations to its 
other 1-140 beneficiaries. On remand, therefore, the Director shall request additional evidence from 
the Petitioner, in accord with our previous discussion, of its proffered wage obligations and wages 
paid to other 1-140 beneficiaries since May 17, 2018, the priority date of this petition. 
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 wages of this Beneficiary and all of its other 1-140 
beneficiaries from the priority date of this petition onward. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
2 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 pennanent residence; 
• If an T-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 T-140 petition filed on behalfofthe other beneficiary. 
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