remanded EB-3 Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re : 2208862 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 30, 2021 
The Petitioner, a manufacturer of frozetj I seeks to employ the Beneficiary as a 
production helper . The company requests her classification under the third-preference, immigrant visa 
category for"other workers." See Immigration and Nationality Act (the Act) section 203(b)(3)(AXiii), 
8 U.S.C. § 1153(b)(3)(A)(iii). 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner didn't demonstrate its required ability to pay the combined proffered wages of this and other 
petitions. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof) ; see also 
MatterofChawathe , 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard of proof). Upon de 
nova review, we will withdraw the Director's decision and remand the matter for entry of a new 
decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an "other," or unskilled, worker generally follows a three-step process. First, a 
prospective employer must apply to the U.S. Department of Labor (DOL) for certification that: (1) 
there are insufficient U.S. workers able, willing, qualified, and available for an offered position ; and (2) 
the employmentofa non citizen in the position won't harm wages and working conditions ofU.S. worl<:ers 
with similar jobs. See section 2 l 2(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS) . See section 204 of the Act, 8 U.S. C. § 1154. 
Among other things, USCIS determines whether a noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally , if USC IS approves a petition , a noncitizen beneficiary 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. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, federal tax 
returns, or audited financial statements. Id. 
In determining ability to pay, users examines whethera petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date onward. If a petitioner didn't annually pay the full 
proffered wage or didn't pay a beneficiary at all, users examines whether the business generated 
annual amounts of net income or net current assets sufficient to pay any differences between the 
proffered wage and wages paid. If net income and net cmrent assets are insufficient, users may 
consider other factors affecting a petitioner's ability to pay a proffered wage. See MatterofSonegmva, 
12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 1 
The accompanying labor certification states the proffered wage of the offered position of production 
helper as $8.28 an hour, or - based on a 40-hour, work week - $17,222.40 a year. The petition's 
priority date is July 31, 2017, the date DOL accepted the accompanying labor certification application 
for processing. See 8 e.F.R. § 204.5(d) ( explaining how to determine a petition's priority date). 
At the time of the appeal's filing in August 2018, regulatory required evidence of the Petitioner's 
ability to pay the proffered wage in 2018 was not yet available. For purposes of this decision, we will 
therefore consider the Petitioner's ability to pay only in 2017, the year of the petition's priority date. 
The record indicates the Beneficiary's residence inl I The Petitioner didn't claim to have 
employed her and didn't submit evidence of any wages it paid her in 2017. Thus, based solely on 
wages paid, the Petitioner didn't demonstrate its ability to pay the proffered wage in 201 7. 
As noted in the Director's request for additional evidence (RFE), because the Petitioner didn't pay 1he 
Beneficiary the full proffered wage, the company must demonstrate its ability to pay the combined 
proffered wages of this petition and any others it filed that were pending or approved as of this 
petition's priority date or filed thereafter. SeePatelv. Johnson, 2 F.Supp.3d 108, 124 (D. Mass.2014) 
( affirming our revocation of a petition's approval where, as of the filing' s grant, the petitioner didn't 
demonstrate its ability to pay the combined proffered wages of multiple petitions). 2 The Petitioner's 
RFE response included a list with information about 28 Form I-140 petitions - including this one - that 
the company had filed by the time of its RFE response in July 2018. The record indicates that all 28 
petitions offer positions as production helpers with annual proffered wages of $17,222.40. Thus, 1he 
1 Federal courts haveupheld USCIS' method of determining a petitioner's ability to pay a proffered wage. Sec, e.g., River 
St. Donuts, LLCv. Napolitano, 558F.3d 111, l l 8(lstCir.2009);FourHolcs Land& Cattlc,LLCv Rodrigucz,No. 5:15-
cv-03858, 2016 WL4 708715 (D.S.C. Sept. 9, 2016). 
2 The Petitionerneedn't demonstrate its ability to pa yprof-fored wages of petitions that it withdrew or, unless pending on 
appeal or motion, that USCIS rejected, denied, or revoked. The Petitioner also needn't demonstrate its ability to pay 
proffered wages before their petitions' corresponding priority dates or after the corresponding beneficiaries obtained lawful 
permanent residence. 
2 
Petitioner had to demonstrate its ability to pay total, combined proffered wages of $482,227.20 (28 x 
$17,222.40)in 2017. 3 
The Director concluded that the Petitioner didn't submit regulatory required evidence of its ability to 
pay the proffered wage in 201 7. The company provided copies of financial statements for that year. 
Contrary to 8 C.F.R. § 204.5(g)(2), however, the statements don't indicate that they were "audited." 
Even if they were audited, the statements reflect net income of -$1,633,737 and net cunent assets of­
$2,099,055, less than the annual proffered wage of $17,222.40. The financial statements therefore 
don't demonstrate the Petitioner's ability to pay the proffered wage in 201 7. 
The Petitioner, however, also submitted a letter from its chief financial officer (CFO). The letter 
asserts the company's ability "to pay the annual wages of all the Production Helpers we are 
sponsoring." If a petitioner employs at least 100 workers, a director "may accept" a statement from a 
financial officer of the business as proof of its ability to pay a proffered wage. 8 C.F.R. § 204.5(g)(2). 
The record indicates the Petitioner's employment of more than 100 workers. 4 
Nevertheless, the Director rejected the CFO' s letter as proof of the Petitioner's ability to pay. The 
Director stated that: 
users questions counsel's reference to the CFO statement, considering that the 
petitioner has not proven that it can, indeed, "pay the annual wages of all the Production 
Helpers we are sponsoring." Therefore, the CFO statement is insufficient to 
demonstrate its ability to pay. 
As previously indicated, a director has discretion to acceptorrejecta statement from a financial officer 
as proof of a petitioner's ability to pay a proffered wage. An abuse of discretion occurs, however, if 
a decision lacks rational explanation, inationally departs from established policies, or rests on an 
impermissible basis. M.A. v. U.S. I.NS., 899 F.2d 304,310 (4th Cir. 1990). 
The decision indicates that the Director rejected the CFO's letter as proof of the Petitioner's ability to 
pay the proffered wage because the company didn't otherwise demonstrate that ability. As the 
Petitioner argues, however, the regulation at 8 C.F.R. § 204.5 (g)(2) doesn 'trequire additional evidence 
to support a statement from a financial officer. Rather, such a statement is an exception to the 
regulation's general evidentiary requirements. Thus, the Director didn't rationally explain his 
rejection of the CFO's letter. We will therefore withdraw the decision. 
users records indicate that, after the Petitioner's submission of its RFE response, it filed additional 
Form r-140 petitions for other beneficiaries with priority dates in 2017 or thereafter. Also, regulatoiy 
required evidence of the company's ability to pay the proffered wage in 2018 and following years 
should now be available. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its ability 
to pay from a petition's priority date "and continuing until the beneficiary obtains lawful permanent 
residence"). We will therefore remand the matter. 
3 The Petitioner's list states total, combined proffered wages of $499,449.60. But the company appears to have mistakenly 
counted this petition's proffered wage twice. 
4 A later letter from the Petitioner's CFO and other evidence indicates the company's employment of about 220 full-time 
workers, including a bout 5 0 "temporary" workers whose services it contracted from staffing agencies. 
3 
On remand, the Director should instruct the Petitioner to submit copies of annual reports, federal tax 
returns, or audited financial statements for 2018, 2019, and 2020, or a statement from a financial 
officer demonstrating the company's ability to pay the combined proffered wages over the requisite 
period 
The Petitioner must also provide the proffered wages and priority dates of the additional petitions it 
has filed. The Petitioner may also submit additional evidence of its ability to pay, including proof of 
any wages it paid to applicable beneficiaries in relevant years or materials supporting the factors stated 
in Sonegawa. Unless the Director properly rejects a statement from a financial officer and the 
Petitioner omits alternate required evidence, the Director should consider other factors affecting the 
company's ability to pay under Sonegawa. 
III. THE BENEFICIARY'S QUALIFICATIONS FOR THE OFFERED POSITION 
Although unaddressed by the Director, the Petitioner also didn't establish the Beneficiaiy's 
qualifications for the offered position. 
A petitioner must demonstrate a beneficiary's possession of all DOL-ce1iified job requirements of an 
offered position by a petition's priority date. Matter o.fWing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977). In assessing a beneficiary's qualifications, USCIS must examine the 
job-offer portion of an accompanying labor certification to determine a position's minimum 
requirements. USCIS may neither ignore a certification term nor impose unlisted requirements. See, 
e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority 
for setting the content of the labor certification) ( emphasis in original). 
The labor certification states that the offered position of production helper requires neither training 
nor experience. But the certification lists educational requirements of a U.S. high school diploma or 
a foreign, educational equivalent. Also, part H.14 of the certification, "Specific skills or other 
requirements," states that the position requires a"[ d]rug test and background screening." Such pre­
employment conditions on a labor certification constitute job requirements. See, e.g., Matter of Aetna 
Life Ins. Co., 2012-PER-03011, slip op. **4-5 (BALCA Dec. 14, 2016) (citations omitted). 5 
The Petitioner submitted evidence of the Beneficiary's completion of high school in I.__ ___ __. 
Also, in a letter, the company's human resources manager stated that the firm offered the Beneficiaiy 
the position "after confirming that [she] had passed an initial drug screen and background check." But 
the letter doesn't specify when the Beneficiary passed the drug screen and background check. The 
record also lacks copies of the results of her drug screening and check. The Petitioner therefore hasn't 
demonstrated the Beneficiary's qualifications for the offered position by the petition's priority date of 
July 31, 201 7. 
5 DecisionsofDOL'sBoardofAlien LaborCertificationAppeals (BALCA)don'tbindUSCIS. See8 C.F.R. § 103.lO(b) 
(requiring USCTS employees to follow only precedent decisions of the Board ofT mmigration Appeals and the Attorney 
General in proceedings involvingsimilarissues). But USCTSmay find BALCA decisions to be persuasive orotherwise 
defer to them. SeeMartinv. OccupationalSafety&HealthReview Comm 'n,499U.S.144(1991) (requiringadministmtive 
agencies to defer to reasonable regulatory interpretations of sister agencies charged with issuing and enforcing the 
corresponding rules). 
4 
On remand, the Director should inform the Petitioner of this evidentiary deficiency and instruct the 
company to submit documentary evidence of the date and results of the Beneficiary's drug screening 
and background check. 
If supported by the record, the Director may notify the Petitioner of any other, potential grounds of 
denial. The Director, however, must afford the company a reasonable period to respond to all issues 
raised on remand. Upon receipt of a timely response, the Director should review the entire record and 
enter a new decision. 
IV. CONCLUSION 
The Director didn 'trationally explain his discretionary rejection of the letter from the Petitioner's CFO 
as proof of the company's ability to pay the combined proffered wages. The record also lacks: 
information about the Petitioner's later Form I-140 filings; updated evidence of its continuing ability 
to pay; and documentation of the Beneficiary's passage of the required drug screening and background 
check by the petition's priority date. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
5