remanded EB-3 Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 05, 2024 In Re: 30292520 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, a provider of physical therapy services, seeks to employ the Beneficiary as a physical 
therapist. It requests her classification as a professional worker under the third preference 
employment-based immigrant visa category. Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This immigrant classification allows a U.S. employer 
to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition, which also sought the position's 
designation as a physical therapist under Schedule A. 1 The Director concluded that, although the 
Petitioner documented that it provided its employees with notice of filing the labor certification 
application as required by U.S. Department of Labor (DOL) regulations, the Petitioner's notice did 
not comply with all regulatory requirements. The matter is now before us on appeal pursuant to 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
A Schedule A application must include evidence that notice of filing the labor certification application 
was provided to the bargaining representative or the employer's employees as prescribed in 20 C.F.R. 
§ 656.10( d). See 20 C.F.R. § 656.15(b )(2). Specifically, when an employer offers a non-unionized 
position to a noncitizen, it must document that it posted notice of the application's filing to employees 
1 A Schedule A occupation is an occupation codified at 20 C.F.R. § 656.5(a) for which DOL has determined that there are 
not sufficient U.S. workers who are able, willing, qualified , and available and that the wages and working conditions of 
similarly employed U.S. workers will not be adversely affected by the employment of foreign nationals in such 
occupations. Petitions for Schedule A occupations do not require a petitioner to test the labor market and obtain a certified 
labor certification from the DOL prior to filing the Form 1-140, Immigration Petition for Alien Workers, with USCIS. Instead, 
the petition is filed directly with USCIS with a duplicate uncertified labor certification, and USCIS makes a determination on 
both the petition and the accompanying labor certification application. See 8 C.F.R. § 204.5(a)(2); see also 20 C.F .R. § 656.15. 
at the proposed worksite for at least 10 consecutive business days. 20 e.F .R. § 656.10( d)(l)(ii). 2 The 
notice must: indicate that the posting stems from the filing of a labor certification application for the 
offered position; state that anyone may send documentary evidence about the application to the DOL 
certifying officer; provide the address of the appropriate DOL certifying officer; and be posted 
between 30 and 180 days before the application's filing. 20 C.F.R. § 656.10(d)(3). A notice of filing 
in a Schedule A case must also describe the job and rate of pay. 20 e.F.R. § 656.10(d)(6). 
Upon review, we conclude that the Petitioner satisfied the notice of filing requirements at 20 e.F.R. 
§ 656.10( d). Although the Petitioner has overcome the sole grounds for denial, the record as presently 
constituted contains insufficient evidence of its ability to pay the Beneficiary's proffered wage. 
Accordingly, we will withdraw the decision and remand the matter to the Director. 
A petitioner must demonstrate its continuing ability to pay an offered job's proffered wage, from a 
petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.F.R. § 204.5(g)(2). 
Initial evidence of ability to pay must generally include copies of an annual report, federal tax return, 
or audited financial statements for each available year, from the year of the priority date onward. Id.; 
see generally 6 USCIS Policy Manual E.4(A), www.uscis.gov/policy-manual. If a petitioner employs 
100 or more workers, a statement from a financial officer of the organization may serve to establish 
ability to pay the proffered wage. Id. 
When determining ability to pay, users examines whether a petitioner paid a beneficiary the full 
proffered wage, beginning with the year of a petition's priority date. See generally 6 USCIS Policy 
Manual, supra, at E.4(C)(1). If a petitioner did not pay a beneficiary the full proffered wage or did not 
pay a beneficiary at all during the relevant period, users considers whether the business generated 
annual amounts of net income or net current assets sufficient to pay any differences between the 
proffered wage and the wages paid. Id. If net income and net current assets are insufficient, the 
Agency may consider other factors potentially affecting a petitioner's ability to pay a proffered wage. 
See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967).3 
The petition's priority date is April 28, 2023, the date the Petitioner filed the Form I-140 and Schedule 
A application with users. See 8 e.F.R. § 204.5( d) ( explaining how to determine a petition's priority 
date). As evidence of its ability to pay, the Petitioner provided a copy of its 2021 federal income tax 
return. This evidence does not establish the Petitioner's ability to pay the proffered wage as of the 
priority date. 
Because the initial required evidence of the Petitioner's ability to pay as of the petition's priority date 
should now be available, we will remand the matter. On remand, the Director should ask the Petitioner 
to submit copies of its annual reports, federal tax returns, or audited financial statements for 2023. 
The company may also submit additional evidence of its ability to pay, including proof of its 
employment of the Beneficiary since the priority date or materials supporting factors stated in 
Sonegawa. If the Petitioner has filed Form 1-140 on behalf of other beneficiaries, the Director should 
2 If an offered position is unionized, the employer must notify the bargaining representative of its employees who work in 
the same occupational classification and area of intended employment. 20 C.F.R. § 656.10( d)(l )(i). 
3 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, Inc. v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Just Bagels Mfg., Inc. v. Mayorkas, 900 F. Supp. 2d 363, 
373-76 (S.D.N.Y. 2012). 
2 
determine whether this case necessitates analysis of the Petitioner's ability to pay multiple 
beneficiaries and may request additional supporting evidence. See generally 6 USCIS Policy Manual, 
supra, at 4.D(2). 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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