remanded EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 20477362 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 10, 2022 
The Petitioner, an information technology company, seeks to employ the Beneficiary as a software 
engineer. It requests classification of the Beneficiary as a member of the professions under the third 
preference immigrant classification. Immigration and Nationality Act (the Act) 203(b )(3)(AXii), 
8 U.S.C. § 1153(bX3XA)(ii). This employment-based immigrant classification allows a U.S. employer 
to sponsor a member of the professions for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's continuing ability to pay the Beneficiary the proffered wage, as of the priority 
date. On appeal, the Petitioner asserts that the Director miscalculated the wages it paid the Beneficiary 
during the relevant period. 
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 remand the matter to the 
Director 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 ). See section 212(a)(5) of the 
Act, 8 U.S.C. § 1182(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 noncitizen in the position will not adversely affect the wages and working conditions of 
domestic workers similarly employed. See id. Second, the employer files an immigrant visa petition 
with U.S. Citizenship and Immigration Services (USCIS) with the certified labor certification. See 
section 204 of the Act, 8 U.S.C. § 1154. Third, upon approval of the petition, a noncitizenmay apply 
for an immigrant visa abroad, or if eligible, adjust status in the United States to lawful permanent 
resident. See section 245 of the Act, 8 U.S.C. § 1255. 
II. ABILITY TOP A Y THE PROFFERED WAGE 
As noted above, the Director concluded that the record does not establish the Petitioner's continuing 
ability to pay the Beneficiary the proffered wage as of the priority date. The regulation at 8 C.F.R. 
§ 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition 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 
pe1manent residence. Evidence of this ability shall be either in the form of copies of 
annual rep01is, federal tax returns, or audited financial statements. 
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. 1 
The priority date in this matter is August 19, 2015, the date on which the DOL received the DOL ETA 
Form 9089, Application for Permanent Employment Certification, for processing. On the ETA Form 
9089, the annual proffered wage is listed as $105,000. On the Form I-140, Petition for Alien Workers, 
filed on October 27, 2020, the Petitioner stated that the annual wage is $120,500. 
When the Petitioner submitted the Form I-140 in 2020, it also submitted copies of the Beneficiary's 
earnings statements for 2020 and his IRS Forms W-2, Wage and Tax Statements, reflecting wages 
paid to him in 2015 through 2019. The Director sent the Petitioner a request for evidence (RFE), 
notifying the Petitioner that it paid the Beneficiary less than the proffered annual wage in 2015 through 
2019 and, accordingly, that the record did not establish that the Petitioner had the continuing ability 
to pay the Beneficiary the proffered wage as of the priority date. The RFE specifically requested the 
Petitioner to provide its federal income tax returns, annual reports, or audited financial statements for 
the relevant period to establish whether the Petitioner had the continuing ability to pay the Beneficiary 
the proffered wage as of the priority date. 
In response to the RFE, the Petitioner submitted its IRS F01ms 1120, U.S. Corporation Income Tax 
Returns, for 2015 through 2019 and the Beneficiary's earnings statements reflecting wages paid 
through July 15, 2021. 
In the decision, the Director found that the Petitioner paid the Beneficiary the following annual wages: 
1 Federal courts haveupheld ourmethodofdetermininga petitioner's ability to pay a proffered wage. See, e.g., RiverSt. 
Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F2d 
1305, 1309 (9th Cir. l 984);Estrada-Hcrnandczv. Holder, l 08F. Supp. 3d 936, 942-946(S.D. Cal. 2015); Rizviv. Dep 't of 
Homeland Sec., 3 7 F. Supp. 3d 870. 883-84 (S.D. Tex.2014), aff'd, 627Fed. App'x292,294-295 (5th Cir. 2015). 
2 
• 2015: $94,840 2 
• 2016: $102,117 
• 2017: $115,115 
• 2 0 18: $114,206 3 
• 2019: $118,407 
• 2020: $5,687.50 ona bimonthlybasis, or$136,500 annually 4 
• 2021: $5,916 on a bimonthly basis, or $142,000 annually 5 
The Director found that the Petitioner paid the Beneficiary a wage equal or greater to the proffered 
wage in 2020 and 2021, but that it paid the Beneficiary a wage less than the proffered wage from 2015 
through 2019. The Director then reviewed the net income figure and net current assets reflected on 
the Petitioner's federal income tax return and concluded that, although the Petitioner's net income in 
2016 and 2019 established its ability to pay the Beneficiary the proffered wage in those years, neither 
its net income nor net current assets in 2015, 2017, and 2018 established the Petitioner's ability to pay 
the Beneficiary the proffered wage in those years. Based on the foregoing, the Director concluded 
that the record did not establish the Petitioner's continuing ability to pay the proffered annual wage of 
$120,500 as of the priority date. 
On appeal, the Petitioner asserts that the annual proffered wage for the position, prior to filing the 
Form I-140 in 2020, was $105,000, as listed on the ETA Form 9089 filedin2015,ratherthan the wage 
of $120,500 indicated on the Form I-140 filed in 2020. Pursuant to 8 C.F.R. § 204.5(g)(2), the 
Petitioner must demonstrate its continuing ability to pay the proffered wage from the date the priority 
date is established. Therefore, for the relevant years at issue on appeal, we will analyze the Petitioner's 
ability to pay the proffered wage of$105,000 as listed on the ETA Form 9089. 
On appeal, the Petitioner further asserts that the Director misstated the Beneficiary's wages in 2015, 
2017, and 2018. Specifically, the Petitioner asserts that the Beneficiary's Forms W-2 establish that 
the Petitioner paid him gross wages of $104,687.48 in 2015, gross wages of$133,633.89 in 2017, and 
gross wages of $130,881.69 in 2018. The Petitioner also asserts that the Beneficiary's 2015 gross 
wages of $104,687 exceeded the prevailing wage of $104,437, listed on the ETA Form 9089. 
The gross wages reported on the Beneficiary's Forms W-2 for 2015 to 2019 in the record are as 
follows: 
• 2015: $103,218.54 
• 2016: $112,659.22 
• 2017: $131,151.21 
2 This amount, and the amounts listed by the Director for 2016 through 2019, correspond to Box I of the Beneficiaty's 
2015 Form W-2. However, Box 1 reflects net wages, tips, and other compensation, after withholdings and deductions, not 
gross wages. 
3 This amount approximately corresponds to $114,207.19, the sumofBox 1 from the Beneficiary's two 2018 Forms W-2. 
4 The amount of $5,687.50 corresponds to the "salary" pay statements for the Beneficiary in 2020, indicating that the 
Petitionerpays him on the 15th andthelast dayofeachmonth. 
5 The amount of$5,916corresponds to the "salary"paystatements for the Beneficiary in 2021, indicating that the Petitioner 
pays him on the 15th and the last day of each month. Without rounding, 24 bimonthly payments of$5,916 would total 
$141,984, not$142,000. 
3 
• 2018: $129,687.65 
• 2019: $136,848.33 
These amounts correspond to the Beneficiary's "gross pay" amounts for the respective years. 6 
Because Forms W-2 in the record establish that the Petitioner paid the Beneficiary wages equal to or 
greater than the proffered wage of $105,000 for 2016 through 2019, the Director erred by stating the 
contrary. 
The remaining issue on appeal, however, is that, in 2015, the Petitioner paid the Beneficiary gross 
wages of $103,218, which is less than the proffered annual wage provided on the ETA Form 9089. 
The regulation at 8 C.F.R. § 204.5(g)(2) requires the Petitioner to establish its ability to pay the annual 
proffered wage of$105,000. We also note that, in the decision, the Director did not address the factors 
discussed in Matter of Sonegawa, 12 r&N Dec. 612, 614-15 (Reg'l eomm'r 1967), which permits 
users to consider the totality of the circumstances affecting a petitioner's ability to pay the proffered 
wage. 7 
Moreover, users records indicate that the Petitioner has filed numerous additional Form r-140 
petitions for other beneficiaries. Where a petitioner has filed Form r-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 e.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). Thus, the Petitioner must establish its ability to pay 
this Beneficiary as well as the beneficiaries of its other Form r-140 petitions that were pending or 
approved as of, or filed after, the priority date ofthecurrentpetition,particularly in light of the Petitioner's 
frequent annual net current liabilities. Accordingly, on remand, the Director should request evidence 
of the Petitioner's ability to pay the combined proffered wages of all of its applicable beneficiaries. 
Additionally, the Director should request the Petitioner to submit the forms of evidence of ability to pay 
prescribed by regulation for the years in which the Petitioner has not already done so. See 8 e.F.R. 
§ 204.5(g)(2). The Petitioner may also submit additional materials in support of the factors discussed 
in Matter of Sonegawa, 12 r&N Dec. at 614-15. The Director may also request any additional 
documentation deemed relevant to determine the Petitioner's continuing ability to pay the proffered 
wage. 
Based on the foregoing, we will withdraw the Director's conclusion thatthe Petitioner did not establish 
its continuing ability to pay the Beneficiary the proffered wage for the reasons stated in the decision, 
and we will remand the matter for the entry of a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
6 To calculatetheBeneficiary's gross pay. we added the "wages"reportedin Box 1 and the "elective deferrals to a section 
401 (k) cash ordeferredarrangement"(code D)reportedin Box 12a or 12b ofthe F01ms W-2 for the respective years. 
7 We may consider evidence ofa 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 ofanyuncharacteristic business expenditures or losses; its reputation in its industry; whether a beneficiary will 
replace a current employee oroutsourced service; orotherevidence of its ability to pay a proffered wage. See Matter of 
Sonegawa, 12 I&NDec.at614-15. 
4