remanded EB-3 Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re : 20277865 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 19, 2022 
The Petitioner seeks to employ the Beneficiary as a marketing brand specialist. It requests classification 
of the Beneficiary as a skilled worker under the third preference immigrant category. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i) , 8 U.S.C . § 1153(b)(3)(A)(i) . 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 at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition, concluding the record did not 
establish that the Petitioner had the ability to pay the proffered wage . The matter is now before us on 
appeal. On appeal, the Petitioner contends it submitted evidence to establish that it has sufficient net 
income to pay the proffered wage; or in the alternative, that it has demonstrated its ability to pay 
considering the totality of the circumstances. 
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 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) 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 foreign national 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 noncitizen may 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
October 4, 2019. See 8 C.F.R. § 204.S(d). 
II. ABILITY TO PAY THE PROFFERED WAGE 
The annual proffered wage is $72,000. The Petitioner must demonstrate its continuing ability to pay 
the proffered wage from the priority date in 2021 until the Beneficiary obtains lawful permanent 
residence. 8 C.F.R. § 204.5(g)(2). The regulation 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." Id. The regulation further provides that if a petitioner employs 100 or more workers, we 
may accept a statement from a financial officer of the petitioner which establishes its ability to pay the 
proffered wage. Id. 
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. We next examine whether it had sufficient 
annual amounts of net income or net current assets to pay the proffered wage. 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. USCIS may also consider the totality of the petitioner's circumstances, including 
the overall magnitude of its business activities, in determining the Petitioner's ability to pay the 
proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
The record does not contain the Petitioner's annual reports, federal tax returns, or audited financial 
statements from the priority date in 2021 onward. The most recent federal tax return the Petitioner 
submitted was its 2016 IRS Form 1120, U.S. Corporation Income Tax Return 2, and it indicated that it 
had filed extensions related to all subsequent annual returns. The Petitioner further provided a letter 
from its accountant explaining these extensions, stating the returns had not been filed "due to the 
pandemic." The accountant also indicated that the Petitioner's gross income in each year from 2018 
to 2020 was "approximately $14,000,000 to $19,000,000" and its net income during each year was 
"approximately $400,000 to $600,000." The accountant further noted that its current assets as of June 
2021 were "approximately $85,000,000 to $100,000,000." He also pointed to the Petitioner's IRS 
Forms 941, Employer's Quarterly Federal Tax Returns, from 2020 and 2021, including the most recent 
one from the first quarter of 2021 reflecting that it had paid 7 6 employees approximately $1.2 million 
m wages. 
As noted, the Petitioner submitted its federal tax return for 2016. However, without annual reports, 
federal tax returns, or audited financial statements for 2021 onward, we cannot affirmatively conclude 
that the Petitioner has the continuing ability to pay from the priority date. Because it is unclear whether 
these documents were available at the time of filing the appeal, we will remand the matter to the 
Director for further consideration. The Director may request any additional documentation deemed 
relevant to determine the Petitioner's continuing ability to pay the proffered wage. 
In addition, where a petitioner has filed Forms 1-140, Immigrant Petition for Alien Workers, 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). Thus, the Petitioner must establish its ability to pay 
this Beneficiary as well as any beneficiaries of other Form 1-140 petitions pending or approved as of, or 
2 The Petitioner's fiscal year on the Form 1120 was from August 1, 2016, to July 31, 2017. 
2 
filed after, the priority date of the current petition. 3 Here, USCIS records indicate that the Petitioner has 
filed Form I-140 petitions for other beneficiaries. Accordingly, on remand, the Director should request 
evidence of the Petitioner's ability to pay the combined proffered wages of all applicable beneficiaries 
for whom the Petitioner has filed Forms I-140. The Petitioner may also submit additional materials in 
support of the factors discussed in Matter ofSonegawa, 12 I&N Dec. at 614-15. 4 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
3 The Petitioner's ability to pay the proffered wage of one of the other Form 1-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• Tfan T-140 petition filed on behalfofthe 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. 
4 In determining the Petitioner's ability to pay the proffered wage, we may examine such factors as: the number of years 
the Petitioner has conducted business; its number of employees; the established historical growth of its business; its 
incurrence of uncharacteristic losses or expenses; its reputation in its industry; the Beneficiary's replacement of a current 
employee or outsourced service; or other factors affecting the Petitioner's ability to pay. See Matter of Sonegawa, 12 l&N 
Dec. at 614-15. 
3