remanded EB-3 Case: Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 6, 2025 In Re: 37097832 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a retail business, seeks to employ the Beneficiary as a sales associate/business assistant. 
It requests classification of the Beneficiary under the third-preference, immigrant category as a skilled 
worker. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U .S.C. 
§ 1153(b)(3)(A)(i). This employment-based category allows a U.S. business to sponsor a foreign 
national for lawful permanent resident status based on a job offer requiring at least two years of 
training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary possessed the minimum education required for the offered position, or 
that it had the continuing ability to pay the proffered wage. 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 I&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. 
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. § 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 section 212(a)(5)(A)(i)(I)-(11) 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 must establish a beneficiary's possession of all the education, training, and experience 
specified on an accompanying labor certification by a petition's priority date.1 8 C.F.R. §§ 103.2(b )(1), 
(12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comrn'r 1977); 
Matter of Katigbak, 14 l&N Dec. 45, 49 (Reg'l Comrn'r 1971). Additionally, a petitioner must 
establish that it has the ability to pay the proffered wage stated on the labor certification. 8 C.F .R. 
§ 204.5(g)(2). 
With the initial filing, the Petitioner submitted evidence of the Beneficiary's education and experience. 
In an attempt to establish its ability to pay the proffered wage, the Petitioner also submitted its Internal 
Revenue Service (IRS) Form 1120S, U.S. Income Tax Return for an S Corporation, for 2022, the year 
of the priority date. 
The Director determined that the record did not include a complete copy of the Beneficiary's academic 
record or an evaluation of his foreign academic credentials stating the U.S. education equivalency. 
Additionally, the Director determined that the Petitioner 's tax return did not establish the continuing 
ability to pay the proffered wage. 
On appeal, the Petitioner asserts that the Director violated USCIS policy in not issuing a request for 
evidence (RFE) or notice of intent to deny (NOID) the petition to allow an opportunity to submit 
additional evidence. The Petitioner submits the Beneficiary 's academic records and an evaluation 
report stating the U.S. equivalency of the Beneficiary's foreign education. The Petitioner also submits 
additional tax returns. 
Upon review of the record, including evidence submitted on appeal, we conclude that the Petitioner 
has established that the Beneficiary meets the minimum requirements for the offered position as set 
forth on the labor certification. 
The petitioner bears the burden of proof to establish eligibility by a preponderance of the evidence. 
Section 291 of the Act, 8 U.S.C. § 1361. Matter of Chawathe, 25 I&N Dec. at 375. Pursuant to 8 
C.F.R. § 103 .2(b )(8), USCIS has the discretion to issue RFEs. If the petitioner has not established 
eligibility, USCIS should issue an RFE or NOID "unless the officer determines that there is no legal 
basis for the benefit request and no possibility that additional information or explanation will establish 
a legal basis for approval." 1 USCIS Policy Manual E.(6)(F)(3), www.uscis.gov/policy-manual. Here, 
the Petitioner was not given an opportunity to provide an explanation or additional evidence 
establishing eligibility , contrary to USCIS policy. Therefore, we will withdraw the decision and 
remand for further review and entry of a new decision, consistent with our discussion below 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date of the petition onward. In this case the proffered wage is 
$33,820.80 per year and the priority date is September 30, 2022. 
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). 
2 
When assessing ability to pay, USCIS 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 E.( 4 )( C)( 1 ), supra. If a petitioner did not annually pay the full proffered wage or did not pay 
a beneficiary at all, USCIS considers whether the business generated annual net income or net current 
assets sufficient to pay any differences between the proffered wage and the wages paid to a beneficiary. 
See generally 6 USCIS Policy Manual E.(4)(C)(2). If net income and net current assets are 
insufficient, USCIS may consider other factors potentially affecting a petitioner's ability to pay a 
proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967); see 
generally 6 USCIS Policy Manual E.(4)(C)(3). 2 
In this case the labor certification states that the Beneficiary has never worked for the Petitioner. 
Therefore, the Petitioner has not established its continuing ability to pay the proffered wage from the 
priority date of September 30, 2022, onward based on wages paid to the Beneficiary. 
The initial filing included a copy of the Petitioner's federal income tax return, IRS Form 1120S, for 
2022. If an S corporation, like the Petitioner, has income exclusively from a trade or business, USCIS 
considers its net income ( or loss) to be the figure for "Ordinary business income (loss)" on page 1, 
line 21, of the Form l 120S. 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 1120S, and the corporation's net income or loss will be found in line 18 of 
Schedule K ("Income/loss reconciliation"). In this case, a figure of-$57,940 is entered on page 1, line 
21, and the same figure is entered on line 18 of Schedule K. Thus, the Petitioner had a net loss of 
$57,940 in 2022. 
Net current assets ( or liabilities) are determined by calculating the difference between current assets 
and current liabilities, as recorded in lines 1-6 and lines 16-18, respectively, of Schedule L. In this 
case the Petitioner's current assets were $199,149 and its current liabilities were $216,192 in 2022, 
resulting in net current assets of-$17,043. Accordingly, the Petitioner did not have net income or net 
current assets greater than the proffered wage of $33,820.80 in 2022. 
On appeal, the Petitioner submits additional tax returns reflecting the following net income and net 
current assets: 
YEAR NET CURRENT INCOME NET CURRENT ASSETS 
2020 $179,167 $20,938 
2021 $6,244 $243,508 
2023 $6,897 $100,128 
The Petitioner requests on appeal that USCIS prorate the proffered wage for the portion of the year 
that occurred after the priority date in 2022. We will not, however, consider 12 months of income 
towards an ability to pay a lesser period of the proffered wage any more than we would consider 24 
months of income towards paying the annual proffered wage. While USCIS will prorate the proffered 
2 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); Four Holes Land & Cattle, LLC v. Rodriguez, No. 5:15-
cv-03858, 2016 WL 4708715, **4-5 (D.S.C. Sep. 9, 2016). 
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wage if the record contains evidence of net income or payment of the beneficiary's wages specifically 
covering the portion of the year that occurred after the priority date ( and only that period), such as 
monthly income statements or pay stubs, the petitioner has not submitted such evidence. 
The Petitioner also requests consideration of the totality of the circumstances pursuant to Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). The Petitioner notes that the tax returns 
immediately preceding the year of the priority date reflect significant gross revenues and net current 
income or net current assets above the proffered wage. 
We agree with the Petitioner that the Director should have considered other factors potentially 
affecting the company's ability to pay the proffered wage. Under Sonegawa, USCIS may consider 
factors such as: the number of years the Petitioner has conducted business; its number of employees; 
any business growth; its business reputation; its incurrence of any uncharacteristic losses or expenses; 
the Beneficiary's replacement of another employee or outsourced service; or other potential factors. 
See Id. at 614-15; see also 6 USCIS Policy Manual E.(4)(C)(3). 
The record indicates that the Petitioner began operations in 2018 and, at the time of the petition's filing 
in September 2022, employed 18 people. Unlike the petitioner in Sonegawa, the company has not 
established its possession of a good business reputation or its incurrence of uncharacteristic losses or 
expenses during the relevant years. The company also has not established the Beneficiary's 
replacement of an employee or outsourced service. 
The Petitioner notes its revenue of more than $3 million in the two years preceding the priority date 
in 2022. The tax returns show that the Petitioner's gross annual sales decreased slightly from 
$3,210,795 in 2020, to $3,031,114 in 2021. However, the Petitioner does not explain the significant 
decrease (more than 40%) in gross annual sales in 2022, to $1,794,420. The Petitioner does not explain 
this as an anomaly or describe the occurrence of any uncharacteristic business loss or expense, as in 
Sonegawa. Thus, the Petitioner's revenue from 2020 through 2021 does not demonstrate its ability to 
pay the proffered wage in 2022. 
The record demonstrates that the Petitioner's revenues have increased in 2023 to $1,836,708. 
However, reliance on gross annual sales is misplaced because this figure does not account for 
expenses. See Taco Especial v. Napolitano, 696 F. Supp. 2d 873, 881 (E.D. Mich. 2010), aff'd, No. 
10-1517 (6th Cir. Nov. 10, 2011) (gross profits overstate an employer's ability to pay because it ignores 
other necessary expenses). See also K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 
1985). 
As noted above, the Director did not issue an RFE allowing the Petitioner an opportunity to provide 
an explanation or additional evidence establishing eligibility. Additionally, the Director's decision 
does not mention Matter ofSonegawa or discuss the types of evidence that may be considered in the 
totality of the circumstances, precluding the Petitioner from preparing a meaningful appeal. An 
officer's written decision must fully explain the specific reasons for denying a visa petition. See 8 
C.F.R. 103.3(a)(l)(i). Absent such an explanation, a petitioner is not provided a fair opportunity to 
contest the decision. See, e.g. Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision 
must fully explain the reasons for denying a motion to allow the respondent a meaningful opportunity 
to challenge the determination on appeal). Here, because the Director's decision does not provide a 
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complete analysis of the totality of the circumstances, we will withdraw the decision and remand for 
further review and entry of a new decision. On remand, the Director may wish to issue an RFE to 
allow the Petitioner an opportunity to submit any additional evidence related to its ability to pay in the 
totality. 
III. CONCLUSION 
The Director did not fully consider and analyze evidence in the record to determine the Petitioner's 
ability to pay the proffered wage as required by 8 C.F.R. § 204.5(g)(2), and in the totality of the 
circumstances. As such, we will remand the matter for further consideration of the record, including 
claims and evidence submitted on appeal, and entry of a new decision. 
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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