remanded EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 23232144 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 9, 2022 
The Petitioner seeks to employ the Beneficiary as a software developer . It requests classification of the 
Beneficiary as a professional under the third preference immigrant classification . Immigration and 
Nationality Act (the Act) 203(bX3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based 
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, concluding that the record did not 
establish that the Petitioner had the ability to pay the Beneficiary the proffered wage at the time of the 
priority date and continuing through adjudication. On appeal, the Petitioner asserts that the Director 
miscalculated its ability to pay the proffered wage because "USCIS failed to consider [the Petitioner's] 
net income based on the federal tax returns and audited financial statement as evidence of its ability 
to pay." 
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 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). 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 non citizen 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) with the certified labor certification. See 
section 204 of the Act, 8 U.S.C. § 1154. Third, upon approval of the petition, a noncitizen may apply 
for an immigrant visa abroad, or if eligible, adjust status in the United States to lawful permanent 
resident. See section 245 of the Act, 8 U.S.C. § 1255. 
II. ABILITY TOP A Y THE PROFFERED WAGE 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an off er 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 determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full 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. 1 
The priority date in this matter is November 14, 2013, the date on which DOL received the DOL ETA 
Form 9089, Application for Permanent Employment Certification, for processing. On the ETA Form 
9089, the annual proffered wage is listed as $96,616. The Director acknowledged that the Petitioner 
submitted the Beneficiary's income tax returns and IRS Forms W-2, Wage and Tax Statement, for the 
years of 2013-2021, and pay statements for the Beneficiary for the years of 2021-2022. However, the 
Director concluded that the documents did not establish the Petitioner's ability to pay the proffered 
wage to the Beneficiary from the time of the priority date continuing through adjudication because 
"[t]he highest amount the Beneficiary was paid was $77,069 in 2020." 
As noted above, the Petitioner asserts on appeal that the Director miscalculated its ability to pay the 
proffered wage because "USCIS failed to consider [the Petitioner's] net income based on the federal 
tax returns and audited financial statement as evidence of its ability to pay." 
In the decision, the Director did not address the Petitioner's financial statements and IRS Forms 1120S, 
U.S. Income Tax Return for an S Corporation, in the record for the relevant years. The Director did 
not determine whether the Petitioner demonstrated sufficient net income or net current assets to pay 
the difference between the proffered wage and the wages it paid to the Beneficiary in any relevant 
year. Additionally, the Director did not address 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. 
Moreover, USCIS records indicate that the Petitioner has filed numerous additional Form I-140 
petitions for other beneficiaries. Where a petitioner has filed Form I-140 petitions for multiple 
1 Federal courts haveupheld ourmethodofdetermininga petitioner's ability to pay a proffered wage. See, e.g., RiverSt. 
Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F2d 
1305, 1309 (9th Cir. l 984);Estrada-Hcrnandczv. Holder, l 08F. Supp. 3d 936, 942-946(S.D. Cal. 2015); Rizviv. Dep 't of 
Homeland Sec., 3 7 F. Supp. 3d 870. 883-84 (S.D. Tex.2014), aff'd, 627Fed. App'x292,294-295 (5th Cir. 2015). 
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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). Thus, the Petitioner must establish its 
ability to pay this Beneficiary as well as the beneficiaries of its other Form I-140 petitions that were 
pending or approved as of, or filed after, the priority date of the current petition, particularly in light 
of the Petitioner's frequent annual net current liabilities. Accordingly, on remand, the Director should 
request evidence of the Petitioner's ability to pay the combined proffered wages of all of its applicable 
beneficiaries. Additionally, the Director should request the Petitioner to submit the forms of evidence 
of ability to pay prescribed by regulation for the years in which the Petitioner has not already done so. 
See 8 C.F.R. § 204.5(g)(2). The Petitioner may also submit additional materials in support of the 
factors discussed in Matter of Sonegawa, 12 I&N Dec. at 614-15. The Director may also request any 
additional documentation deemed relevant to detennine the Petitioner's continuing ability to pay the 
proffered wage. 
Based on the foregoing, we will withdraw the Director's conclusion thatthe Petitioner did not establish 
its continuing ability to pay the Beneficiary the proffered wage for the reasons stated in the decision, 
and we will remand the matter for the entry of a new decision. 
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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