remanded EB-3 Case: Senior Care

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 13, 2024 In Re: 33383715 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner provides staffing for senior care and seeks to employ the Beneficiary as a personal care 
aide. The company requests her classification under the employment-based, third-preference (EB-3) 
immigrant visa category as an "other worker." See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). Businesses may sponsor noncitizens for U.S. 
permanent residence in this category to work in jobs requiring less than two years of training or 
experience. Id. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the offered job's proffered wage. On appeal, 
the company contends that the Director disregarded copies of its bank account statements that establish 
its ability to pay. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that the company submitted regulatory required evidence regarding its ability to 
pay the proffered wage. We will therefore withdraw the Director's contrary decision. But, because 
additional questions remain about the Petitioner's ability to pay and its intent to employ the 
Beneficiary in the offered job, we will remand the matter for entry of a new decision consistent with 
the following analysis. 
I. LAW 
Immigration as an other - or "unskilled" - worker generally follows a three-step process. First, a 
prospective employer must obtain certification from the U.S. Department of Labor (DOL) that: there 
are insufficient U.S. workers able, willing, qualified, and available for an offered job; and a noncitizen's 
permanent employment in the position would not harm wages and working conditions of U.S. workers 
with similar jobs. Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). 
Second, an employer must submit a DOL-approved labor certification with an immigrant visa petition 
to U.S. Immigration and Citizenship Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. 
§ 1154( a)( l )(F). Among other things, USCIS determines whether a noncitizen beneficiary meets the 
requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. 
§ 204.5(1)(3)(ii)(D). 
Finally, if USCIS approves a petition, a beneficiary 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. Ability to Pay the Proffered Wage 
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 permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must generally include copies of annual reports, federal tax returns, or 
audited financial statements. Id. 1 
When determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the foll 
proffered wage each year, beginning with the year of the petition's priority date. See generally 6 
USCIS Policy Manual E.( 4)(C), www.uscis.gov/policy-manual. If a petitioner did not annually pay a 
beneficiary the foll proffered wage, or did not pay a beneficiary at all, the Agency 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, USCIS 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 Comm'r 1967).2 
The Petitioner's labor certification states the proffered wage of the offered job of personal care aide 
as $23,878 a year. The petition's priority date is October 25, 2021, the date DOL accepted the labor 
certification application for processing. See 8 C.F.R. § 204.5( d) ( explaining how to determine a 
petition's priority date). 
The Petitioner did not submit evidence that it paid the Beneficiary. Thus, based solely on wages paid, 
the company has not demonstrated its ability to pay the proffered wage. 
As evidence of its ability to pay, the Petitioner's initial filing included copies of its bank account 
statements from October 2021 through November 2022. As the Director found, bank statements are 
not among regulatory required materials that a petitioner must submit. See 8 C.F.R. § 204.5(g)(2) 
(requiring a petitioner to provide "copies of annual reports, federal tax returns, or audited financial 
statements"). The Director therefore issued a request for additional evidence (RFE) of the company's 
ability to pay. 
1 If a petitioner employs at least 100 people, it may submit a statement from a financial officer establishing its ability to 
pay a proffered wage. 8 C.F.R. § 204.5(g)(2). The record does not indicate - nor does the Petitioner claim - the company's 
employment of at least 100 people. 
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, **X (D.S.C. Sept. 9, 2016). 
2 
The Petitioner's RFE response included: a letter from its owner; copies of additional bank statements 
from November 2022 through September 2023; and a copy of its owner's personal federal income tax 
return for 2021. The Director concluded that, contrary to regulation, the Petitioner had not submitted 
required evidence of its ability to pay the proffered wage. See 8 C.F.R. § 204.5(g)(2) (requiring a 
petitioner to submit "copies of annual reports, federal tax returns, or audited financial statements"). 
The 2021 tax return of the Petitioner's owner, however, effectively includes the company's federal 
income tax return for that year. The return and other evidence identifies the Petitioner's owner as the 
sole member of the limited liability company (LLC). The owner listed the LLC's 2021 financial 
activities on his individual federal income tax return at Schedule C, Profit or Loss from Business. The 
U.S. Internal Revenue Service (IRS) then treated the single-member LLC as a "disregarded entity." 
See 26 C.F.R. § 301.7701-2(a); IRS, "Single member limited liability companies," 
www.irs.gov/businesses/small-businesses-self-employed/single-member-limited-liability-companies. 
Thus, for ability-to-pay purposes, the Schedule C of the Petitioner's owner represents the company's 
2021 federal income tax return. The company therefore submitted regulatory required evidence of its 
ability to pay in 2021, the year of the petition's priority date. We will therefore withdraw the Director's 
contrary decision. 
On appeal, the Petitioner submits a copy of its owner's 2022 individual federal income tax return, 
which also includes a Schedule C for the company. That Schedule C similarly serves as the company's 
federal income tax return for 2022. 
The 2021 and 2022 Schedules C, however, do not demonstrate the Petitioner's ability to pay the 
proffered wage. Both schedules report that, each year, the company "broke even," generating neither 
a profit nor a loss. 
To demonstrate its ability to pay the proffered wage, the Petitioner points to its bank statements from 
October 2021 through September 2023. The statements bear the company's name and show monthly 
balances ranging from $59,760.09 to $132,829.04. 
Besides concluding that the bank statements do not constitute regulatory required evidence, the 
Director found the statements insufficient to establish the Petitioner's ability to pay. The Director 
stated that the documents "show only the amount in an account on a given date, and cannot show the 
sustainable ability to pay a proffered wage." The Director further stated that "no evidence was 
submitted to demonstrate that the funds reported on the petitioner's bank statements somehow reflect 
additional available funds that were not reflected on its tax returns." 
The Director's reasoning, however, does not apply to this case's facts. The Petitioner's monthly bank 
statements continuously span the period from October 2021 through September 2023. Thus, they 
indicate more than the funds available "on a given date" and potentially show a sustainable ability to 
pay the annual proffered wage of $23,878, or about $1,990 a month. Also, the Schedule Cs of the 
Petitioner's owner do not include the company's cash reserves in 2021 or 2022. Therefore, the 
schedules do not reflect the funds listed in the bank statements.3 
3 If the Petitioner wants to use its owner's Schedule Cs to demonstrate its net cmTent assets in 2021 or 2022, however, 
USCIS policy requires the company to submit an audited balance sheet listing any liabilities. 
3 
A couple of evidentiary questions remain, however. First, the record indicates that, in November 
2022, the Petitioner transferred $125,000 from its bank accounts into a "certificate of deposit" (CD) 
at another bank. A CD pays a fixed interest rate on money held for an agreed-upon period of time. 
See, e.g., Investopedia, "What is a Certificate of Deposit?" www.investopedia.com/terms/c/ 
certificateofdeposit.asp.; see also Loe. 109 Ret. Fund v. First Union Nat'! Bank, 57 F. App'x. 139, 141 
(4th Cir. 2003) (describing a CD as a bank's agreement "to repay a specified amount of money (plus 
interest)"). If CD funds are withdrawn before the end of the agreed-upon period, penalties usually 
apply. See Investopedia, supra. The record does not indicate the period for which the Petitioner's 
funds must be held or whether the company would face any early-withdrawal penalties. The company 
therefore has not demonstrated that it could maintain access to sufficient funds in the CD to pay the 
Beneficiary's wage. 
Second, USCIS records show the Petitioner's filing of Forms I-140, Immigrant Petitions for Alien 
Workers, for other beneficiaries. A petitioner must demonstrate its ability to pay the proffered wage 
of each petition it files until a beneficiary obtains U.S. permanent residence. 8 C.F.R. § 204.5(g)(2). 
This Petitioner must therefore demonstrate its ability to pay the combined proffered wages of this 
petition and any others that were pending or approved at the time of this petition's October 25, 2021 
priority date or filed thereafter. See Patel v. Johnson, 2 Fed.Supp.3d 108, 124 (D. Mass. 2014) 
( affirming our revocation of a petition's approval where a petitioner did not demonstrate its ability to 
pay the combined proffered wages of multiple Form 1-140 petitions). 4 
USCIS records indicate that, after this petition's priority date, the Petitioner filed at least four Form 1-
140 petitions for other beneficiaries. 5 The record, however, does not indicate the proffered wages or 
priority dates of these petitions. Thus, USCIS cannot determine the amount of combined proffered 
wages that the Petitioner must demonstrate its ability to pay. 
For the foregoing reasons, the Petitioner has not demonstrated its ability to pay the proffered wage. 
B. Intent to Employ in the Offered Job 
The Petitioner also has not established its continuing intent to employ the Beneficiary in the offered 
job. To petition for a noncitizen, a business must be "desiring and intending to employ [them] within 
the United States." Section 204( a)( 1 )(F) of the Act. A petitioner must demonstrate its intent to employ 
a beneficiary consistent with DOL-approved job requirements on an accompanying labor certification. 
See Matter oflzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, 
contrary to an accompanying labor certification, a petitioner did not demonstrate its intent to employ 
a beneficiary as a domestic worker on a full-time, live-in basis). 
Online government records in the Petitioner's home state list the company's business status as 
"pending inactive." See Va. State Corp. Comm'n, "Business Entity Search," cis.scc.virginia.gov/ 
4 The Petitioner need not demonstrate its ability to pay proffered wages of petitions that it withdrew or that USCIS rejected, 
denied, or revoked. See 6 USCIS Policy Manual E.(4)(D)(2). The company also need not establish its ability to pay 
proffered wages before the priority dates of corresponding petitions or after corresponding beneficiaries obtain U.S. 
permanent residence. Id. 
5 USCIS records identify the four petitions by the following receipt numbers: 
I I 
4 
EntitySearch/Index. The business status casts doubt on whether the company still conducts business 
and still intends to employ the Beneficiary in the offered job. The Petitioner therefore has not 
demonstrated its continuing intent to employ the Beneficiary in the job. 
The Director did not inform the Petitioner of the remaining evidentiary questions regarding its ability 
to pay the proffered wage or the need for additional evidence of its continuing intent to employ the 
Beneficiary in the offered job. We will therefore remand the matter. 
On remand, the Director should notify the Petitioner of these issues and afford it a reasonable 
opportunity to respond. The Director may also ask the company for evidence of its ability to pay the 
proffered wage in 2023, if available. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate 
its ability to pay "continuing until the beneficiary obtains lawful permanent residence"). 
If supported by the record, the Director may further inform the Petitioner of any additional potential 
denial grounds. The Director, however, must notify the company of all potential denial grounds and 
afford it a reasonable opportunity to respond to all issues raised on remand. Upon receipt of a timely 
response, the Director should review the entire record and enter a new decision. 
III. CONCLUSION 
Contrary to the Director's decision, the Petitioner submitted regulatory required evidence regarding 
its ability to pay the offered job's proffered wage. Evidentiary questions remain regarding the 
Petitioner's ability to pay, however, and the company has not demonstrated its continuing intent to 
employ the Beneficiary in the job. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
5