remanded EB-3 Case: Poultry Processing

U.S. Citizenship 
and Immigration 
Services 
In Re: 1383889 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 3, 2021 
The Petitioner seeks to employ the Beneficiary as a poultry meat cutter. It requests classification of 
the Beneficiary as an unskilled worker under the third preference immigrant classification. 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 U.S .C. § 1153(b )(3)(A)(iii) . 
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 less than two years of training 
or expenence. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had the continuing ability to pay the proffered wage. 
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 withdraw the Director's 
decision and remand the matter to the Director for the 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) . See section 204 of the Act, 8 U.S .C. 
§ 1154. Third, if USCIS approves the petition, the foreign national applies 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
December 6, 2016 . See 8 C.F.R. § 204 .S(d). 
II. ANALYSIS 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in part: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. 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 this case, the proffered wage is $9.60 per hour ($19,968.00 per year based on a 40-hour work week). 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the foll 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
foll proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. 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. 2 Further, where a petitioner has filed Form 1-140 petitions 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). 
The Petitioner in this case has filed multiple Form 1-140 petitions for other beneficiaries. Thus, the 
Petitioner must establish its ability to pay this Beneficiary as well as the beneficiaries of the other Form 
1-140 petitions that were pending or approved as of, or filed after, the priority date of the current petition. 3 
We do not consider the other beneficiaries for any year that the Petitioner has paid the Beneficiary a 
salary equal to or greater than the proffered wage. 
The Petitioner must document the receipt numbers, names of beneficiaries, priority dates, and 
proffered wages of these other petitions, and indicate the status of each petition and the date of any 
status change (i.e., pending, approved, withdrawn, revoked, denied, on appeal or motion, beneficiary 
obtained lawful permanent residence). To offset the total wage burden, the Petitioner may submit 
documentation showing that it paid wages to other beneficiaries. To demonstrate that it has the ability 
2 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-946 (S.D. Cal. 2015); Rizvi v. Dep 't of 
Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 292, 294-295 (5th Cir. 2015). 
3 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a pending 
appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
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to pay the Beneficiary and the other beneficiaries, the Petitioner must, for each year at issue (a) 
calculate any shortfall between the proffered wages and any actual wages paid to the primary 
Beneficiary and its other beneficiaries, (b) add these amounts together to calculate the total wage 
deficiency, and ( c) demonstrate that its net income or net current assets exceed the total wage 
deficiency. 4 Without this information, we cannot determine the Petitioner's ability to pay the combined 
proffered wages of all of its applicable beneficiaries. 
The Director issued a request for evidence (RFE) to the Petitioner on August 1, 2017, requesting, in part: 
"A list of the receipt numbers for all petitions filed by the petitioner for each year as of the priority date, 
and continuing until the date of this notice, the proffered wage of each beneficiary (including the total 
amount of the proffered wage), and each beneficiary's priority date." In response to the RFE, the 
Petitioner provided a list of beneficiaries of Forms I-140 that it had filed between December 6, 2016, and 
August 1, 2017. The Director denied the petition because the Petitioner failed to provide evidence relating 
to beneficiaries of Forms I-140 that it had filed prior to December 6, 2016. The Director noted that a 
complete list of beneficiaries "that have not obtained permanent residency, or whose petitions have been 
denied, revoked, or withdrawn" is material and must be included in the Petitioner's ability to pay for each 
subsequent year. The Director cited the regulation at 8 C.F.R. § 103.2(b)(14) and stated that the failure 
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 
On appeal, the Petitioner asserts that the RFE was unclear as to the information it was expected to submit, 
as the RFE requested information regarding "all petitions filed by the petitioner for each year as of the 
priority date." The Petitioner states that "it was reasonable to surmise that the request for the pending 1-
140 list would start with the priority date of December 6, 2016." We agree that the RFE was unclear. 
We will therefore withdraw the Director's decision and remand the matter to the Director. On remand, 
the Director should request evidence of the Petitioner's ability to pay this Beneficiary as well as the 
beneficiaries of the other Form I-140 petitions that were pending or approved as of: or filed after, the 
priority date of the current petition. 5 The Director should allow the Petitioner a reasonable time to 
respond. The Petitioner may also submit additional materials in support of the factors discussed in 
Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967), which permits USCIS to 
consider the totality of the circumstances affecting a petitioner's ability to pay the proffered wage. 6 
The Director may also consider on remand the letter from the Petitioner's chief financial officer 7 and 
other documents submitted on appeal. 
Finally, the Petitioner submitted its audited financial statement for the year ending October 29, 2016. 
However, the priority date is December 6, 2016. Without annual reports, federal tax returns, or audited 
financial statements from the priority date onward, we cannot affirmatively find that the Petitioner has 
4 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
5 On appeal, the Petitioner submits a list of the Form T-140 petitions that it has filed from January 1, 2016, to August 1, 
2017. However, it is not clear that the period between January 1, 2016, and August 1, 2017, covers all relevant petitions. 
6 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 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 id. 
7 The regulation at 8 C.F.R. § 204.5(g)(2) 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. 
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the continuing ability to pay from the priority date. On remand, the Director should request the 
Petitioner's annual reports, federal tax returns, or audited financial statements from the priority date 
onward. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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