remanded EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 13, 2024 In Re: 33301927 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a provider of software development services, seeks to employ the Beneficiary as a 
senior systems analyst. The company requests her classification under the employment-based , third­
preference (EB-3) immigrant visa category as a "skilled worker." See Immigration and Nationality 
Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). Businesses may sponsor 
noncitizens for U.S. permanent residence in this category to work in jobs requiring at least two years 
of training or experience. Id. 
The Director of the Nebraska 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 states that, despite reporting uncharacteristic financial liabilities after acquiring other 
firms, a "totality of the circumstances" establishes 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 must establish its ability to pay the combined proffered wages 
of this and other petitions it filed, and that the Director must consider additional factors - including 
purported uncharacteristic acquisition-related liabilities- that may have affected its ability to pay. We 
will therefore withdraw the Director's decision and remand the matter for entry of a new decision 
consistent with the following analysis. 
I. LAW 
Immigration as a skilled 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 job 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. § 1182(a)(5)(A)(i). 
Second, an employer must submit a DOL-approved labor certification with an immigrant visa petition 
to U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act. 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), (4). 
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(a) of the Act, 8 U.S.C. § 1255(a). 
II. ANALYSIS 
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 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. If a petitioner employs at least 100 people, however, a statement 
from a financial officer may demonstrate its ability to pay. Id. 
When determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full 
proffered wage each year, beginning with the year of a petition's priority date. See generally 6 USC IS 
Policy Manual E.(4)(C)(l), www.uscis.gov/policy-manual. If a petitioner did not annually pay the 
full 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 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 ofSonegawa, 12 I&N 
Dec. 612, 614-15 (Reg'l Comm'r 1967). 1 
The Petitioner's labor certification states the proffered wage of the offered job of senior systems 
analyst as $146,682 a year. The petition's priority date is October 26, 2022, 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). 
At the time of the appeal's filing, regulatory required evidence of the Petitioner's ability to pay the 
proffered wage was not yet available for 2023. For the purposes of this decision, we will therefore 
consider the company's ability to pay only in 2022, the year of the petition's priority date. 
The Beneficiary attested on the labor certification that she began working for the Petitioner in February 
2022, before the labor certification application's filing in October 2022. The company, however, did 
not submit any evidence that it paid her. Thus, based solely on wages paid, the Petitioner has not 
demonstrated its ability to pay the proffered wage in 2022. 
The Petitioner submitted copies of its audited financial statements for 2022. The statements reflect 
net income of -$32, 168,994 and net current assets of -$309,271. These negative amounts do not equal 
or exceed the annual proffered wage of $146,682. They therefore do not demonstrate the company's 
1 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); Decor Team LLC v. McAleenan, 520 F.Supp.3d 1212, 
1223-25 (D. Ariz. 2021). 
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ability to pay the proffered wage. Thus, examinations of the wages the Petitioner paid the Beneficiary, 
its net income, and its net current assets do not establish its ability to pay in 2022. 
On appeal, the Petitioner notes that USCIS may consider other factors potentially affecting the 
company's ability to pay. See Matter of Sonegawa, 12 I&N Dec. at 614-15. The company's chief 
financial officer (CFO) argues that it incurred uncharacteristic liabilities in 2022 when it acquired 
other companies. She stated that, under generally accepted accounting principles, the Petitioner's 
financial statements for that year reflect estimates of the company's acquisition costs. The company 
also provided copies of its audited financial statements from 2015 through 2021, and the CFO argues 
that the company would have had sufficient annual amounts of net income, net current assets, or both 
to pay the proffered wage in those prior years. See Ta(vang Foods Inc. v. USCIS, 444 Fed.Appx. 115, 
115 (9th Cir. 2011) ( stating that Sonegawa applies if a failure to demonstrate ability to pay a proffered 
wage "was an anomaly amongst profitable years"); see also 6 USCIS Policy Manual E.(4)(C)(3) ("In 
some cases, such as when a petitioner has one unprofitable year despite a history of profitability, ... 
factors may establish a petitioner's ability to pay the proffered wage despite a shortfall in net income 
or net current assets.") Further, the record indicates the Petitioner's employment of about 200 people 
in the United States, and a letter from the CFO asserts the company's ability to pay the proffered wage. 
See 8 C.F.R. § 204.5(g)(2). 
USCIS records, however, indicate that, based on the Petitioner's filing of immigrant visa petitions for 
other beneficiaries, it may need to establish its ability to pay additional proffered wages. A petitioner 
must demonstrate its ability to pay the proffered wage of each petition it files. 8 C.F.R. § 204.5(g)(2). 
The Petitioner therefore must establish its ability to pay the combined proffered wages of this and any 
other petitions that were pending or approved as of this petition's October 26, 2022 priority date, or 
filed thereafter. See Patel v. Johnson, 2 F.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 petitions). 2 
USCIS records show the Petitioner's filing of at least seven other petitions that were pending or 
approved as of October 26, 2022, or filed thereafter. 3 The Director did not notify the company that it 
may need to demonstrate its ability to pay the combined proffered wages of this and these additional 
petitions. The Director also did not consider other factors that, under Sonegawa, may have affected 
the company's ability to pay. We will therefore withdraw the Director's decision and remand the 
matter. 
On remand, the Director should ask the Petitioner for information about its other petitions, including 
their priority dates and the proffered wages of their offered jobs. The Director should also ask the 
company to submit a copy of its audited financial statements or other regulatory required proof of its 
ability to pay in 2023 and 2024, if available. The Petitioner may also submit additional evidence of 
its ability to pay. Under Sonegawa, the Director should consider factors that the company asserts 
affected its ability to pay. 
2 The Petitioner need not demonstrate its ability to pay the proffered wages of petitions that it withdrew or that USCIS 
rejected, denied, or revoked. See 6 USCIS Policy Manual E.(4)(D)(2). The Petitioner also need not demonstrate its ability 
to pay proffered wages before their petitions' priority dates or after their beneficiaries obtained ermanent residence. Id. 
3 USCIS records identif the other etitions b the followin recei t numbers: 
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If supported by the record, the Director may request additional evidence on remand regarding any 
other potential denial grounds. The Director, however, must afford the Petitioner 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 
The Petitioner may need to demonstrate its ability to pay the combined proffered wages of this and 
other immigrant visa petitions it filed for other beneficiaries. Also, under Sonegawa, the Director 
must consider additional factors that potentially affected the company's ability to pay. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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