remanded EB-3 Case: Nanny

MATTER OF A-L-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 1, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a private household, seeks to employ the Beneficiary as a nanny. 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 "EB-3" 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 on the ground that the Petitioner did 
not establish its ability to pay the proffered wage to the Beneficiary. On appeal the Petitioner 
submits additional evidence and asserts that the record establishes her 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, 
if USCIS 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. 
Matter of A-L-
II. ANALYSIS 
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]. 
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 
$24,398 per year and the priority date is October 31, 2017. 
With its initial evidence the Petitioner submitted a copy of a Form 1040, U.S. Individual Income Tax 
Return, for 2017, in the names of herself and her husband, which recorded their adjusted gross 
income as $81,583, as well as a list ofrecurring household expenses totaling $4,086 per month. 
In response to a request for evidence (RFE) in which the Director requested additional 
documentation relating to the Petitioner's ability to pay the proffered wage, the Petitioner submitted, 
among other things, a different version of the 2017 Form 1040, U.S. Individual Income Tax Return, 
for herself and her husband, which recorded their adjusted gross income as $102,970. 
In denying the petition the Director cited the Petitioner's federal income tax return listing net income 
of $81,583 and found that the evidence of record regarding household expenses was incomplete, 
conflicting, and did not support the Petitioner's claim of $4,086 in monthly household expenses. 
The Director did not address the second version of the Petitioner's federal income tax return with the 
adjusted gross income figure of $102,970. 
On appeal the Petitioner submits a new list of monthly household expenses with supporting 
documentation, and asserts that the correct figure for adjusted gross income on her 201 7 federal 
income tax return is $102,970, not $81,583. According to the Petitioner, the $81,583 figure was 
entered on her draft tax return, but that the tax return actually filed had the figure of $102,970. 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.S(d). 
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Matter of A-L-
Since the Director did not consider the revised version of the Petitioner's federal income tax return 
that was submitted in response to the RFE, we will withdraw the Director's decision and remand this 
case for further consideration of that evidence, as well as the materials submitted in support of the 
appeal. At his discretion the Director may request a copy of the Petitioner's 2017 federal income tax 
return certified by the Internal Revenue Service, and if deemed necessary the same with regard to the 
2018 return. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's ability to pay the proffered wage from the priority date onward. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter of A-L-, ID# 5258025 (AAO Oct. 1, 2019) 
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