remanded EB-3 Case: Personal Enrichment

U.S. Citizenship 
and Immigration 
Services 
In Re: 18347258 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 22, 2021 
The Petitioner, a "personal enrichment" business, seeks to employ the Beneficiary as an Alpha Chi 
consultant. It requests classification of the Beneficiary as an "other" worker 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 residence 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 submits a brief and additional documentation and asserts that the evidence of 
record establishes its ability to pay the proffered wage. 
The AAO reviews the questions in this matter do nova. Matter of Christo 's Inc., 26 I&N Dec. 537, 
537 n.2 (AAO 2015). The Applicant bears the burden of proof to establish eligibility for the requested 
benefit by a preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
Upon de nova review, we will withdraw the Director's decision . However , the evidence of record 
does not establish that the Beneficiary qualifies for the proffered position under the terms of the labor 
certification . Accordingly, we will remand this case to the Director for further consideration of this 
issue, and any other issue the Director may deem relevant. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). See section 
212(a)(5) of the Act, 8 U.S.C. § l 182(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 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. 
II. ANALYSIS 
A. Petitioner's Ability to Pay the Proffered Wage 
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 
$23,629 per year and the priority date is May 22, 2019. 
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 the record indicates that the Petitioner has 
never employed the Beneficiary, and therefore cannot establish its ability to pay the proffered wage 
from the priority date onward 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 
1 The "priority date" of an employment-based immigrant petition is the date the underlying labor certification application 
is filed with the DOL. See 8 C.F.R. § 204.S(d). 
2 
in a given year, the petitioner would ordinarily be considered able to pay the proffered wage during 
that year. 
On appeal the Petitioner submits a copy of its 2019 federal income tax return, Form 1120S, U.S. 
Income Tax Return for an S Corporation, which had not yet been filed with the Internal Revenue 
Service at the time the Petitioner responded in May 2020 to the Director's request for evidence (RFE). 
As recorded on the 2019 tax return, the Petitioner had net income of $285,614 2 and net current assets 
of $368,048. 3 Thus, the Petitioner's net income and net current assets both greatly exceeded the 
proffered wage of $23,629 in 2019. 
Based on the evidence of record, therefore, we conclude that the Petitioner has established its ability 
to pay the proffered wage from the priority date of May 22, 2019, onward. 
B. Beneficiary's Qualifications for the Job 
A petition for unskilled "other worker" classification must be accompanied by evidence that the 
beneficiary meets any educational, training, experience, or other requirements of the labor 
certification. 8 C.F.R. § 204.5(1)(3)(ii)(D). All requirements must be met by the petition's priority 
date. Matter o_f Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
The labor certification in this case does not require any education or experience to qualify for the job 
of Alpha Chi consultant, but does require 12 months of training. As provided in the regulation at 
8 C.F.R. § 204.5(1)(3)(ii)(A): 
Any requirements of training or experience for skilled workers, professionals, or other 
workers must be supported by letters from trainers or employers giving the name, 
address, and title of the trainer or employer, and a description of the training received 
or the experience of the alien. 
The labor certification claims that the Beneficiary met the training requirement for the proffered 
position in a one-year training program for Alpha Chi Principles atl I a personal enrichment 
instruction business inl !Germany, from December 1, 2002, to December 1, 2003. As evidence 
of this training the Petitioner submitted a letter dated May 2, 2019, inl I Germany, signed by 
I I Trainer, on the letterhead ofl I which states that the Beneficiary 
"successfully passed the 12 month training period ... for Alpha Chi Consultants from December 2002 
to December 2003" and that she "demonstrated in a practical examination that she is able and qualified 
to work independently as an Alpha Chi Consultant following Alpha Chi Principles." 
2 If an S corporation, like the Petitioner, has income exclusively from a trade or business, USCTS considers its net income 
(or loss) to be the figure for "Ordinary business income (loss)" on page 1, line 21, of the Form 1120S. However. if there 
are relevant entries for additional income, credits, deductions or other adjustments from sources other than a trade or 
business, they are reported on Schedule K of the Form l 120S, and the corporation's net income or loss will be found in 
line 18 of Schedule K ("Income/loss reconciliation"). 
3 For a corporation net current assets (or liabilities) are the difference between its current assets, entered on Schedule L, 
lines 1-6, of the Form 1120S, and its current liabilities, entered on Schedule L, lines 16-18. 
3 
This letter does not meet the substantive requirements of 8 C.F.R. § 204.5(1)(3)(ii)(A), however, 
because it does not give the address of the trainer and does not adequately describe the training 
allegedly received. The I I letterhead is not accompanied by an address or any other 
identifying information about that organization, and the trainer likewise provided no personal address 
or other identifying information about herself On the basis of the letter, therefore, USCIS would have 
no way of contacting the trainer or anyone else atl I to verify that the Beneficiary completed 
the training as claimed. Furthermore, the letter from the trainer does not describe what Alpha Chi 
Principles are or otherwise illuminate the nature and content of the training the Beneficiary allegedly 
received. 
Based on the current evidence of record we conclude that the Petitioner has not established that the 
Beneficiary gained the requisite 12 months of training, as required by the labor certification, to qualify 
for the proffered position of Alpha Chi consultant. Since this issue was not previously addressed by 
the Director, we will remand this case for further consideration. The Director may issue a request for 
additional evidence of the Beneficiary's alleged training, and any other evidence that may be deemed 
relevant. After the Petitioner's response is received, or the response period expires, the Director shall 
issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further proceedings 
consistent with the foregoing analysis and for the entry of a new decision. 
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