remanded EB-3 Case: Software Development

MATTER OF D-T-CORP 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software developer, seeks to employ the Beneficiary as a software engineer, 
applications. It requests classification of the Beneficiary as a professional under the third preference 
immigrant classification. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 
8 U.S.C. § l 153(B)(3)(A)(ii). This employment-based "EB-3" 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 on the ground that the Petitioner did 
not establish its ability to pay the proffered wage from the priority date onward. On appeal the 
Petitioner asserts that the evidence of record establishes its ability to pay the proffered wage, and 
that the Director should not have denied the petition in any event because no federal income tax 
return was yet available for the year the labor certification was filed. 
Upon de nova review, we will withdraw the Director's decision and remand the case for further 
consideration and the issuance of a new decision. 
I. LAW 
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)(A)(i) of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). 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)-(II) 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, 
if USCIS 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. 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it 
has the ability to pay the proffered wage stated in the labor certification. As provided in the 
regulation at 8 C.F.R. § 204.5(g)(2): 
Matter of D-T- Corp 
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 a case where the prospective United States 
employer employs 100 or more workers, the director may accept a statement from a 
financial officer of the organization which establishes the prospective employer's 
ability to pay the proffered wage. In appropriate cases, additional evidence, such as 
profit/loss statements, bank account records, or personnel records, may be submitted 
by the petitioner or requested by [USCIS]. 
II. ANALYSIS 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date1 of the petition onward. The priority date in this case is 
February 2, 2017. The labor certification states that the wage offered for the job of software 
engineer, applications, is $90,000 per year. 
In determining a petitioner's 'ability to pay the proffered wage, USC IS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F .R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
In this case, the labor certification states that the Beneficiary started working for the Petitioner in 
August 2015, before the priority date. The Petitioner has submitted copies of the Form W-2, Wage 
and Tax Statement, it issued to the Beneficiary for 2017, which shows that he was paid "wages, tips, 
other compensation" totaling $85,492.68 for the year. That figure is approximately $4,500 short of 
the proffered wage. The Petitioner has also submitted three bimonthly pay statements from the 
spring of 2018 showing that the Beneficiary had received "regular" earnings totaling $35,542.10 as 
of May 31, 2018. The foregoing documentation does not establish that the Beneficiary's pay has 
equaled or exceeded the proffered wage since the priority date of February 2, 2017. 
If a petitioner has not employed the beneficiary and paid him (or her) a salary equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or audited 
financial statement(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.5(d). 
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Matter of D-T- Corp 
beneficiary in a given year, the petitioner would be considered able to pay the proffered wage during 
that year. 
In this case, the record includes a copy of the Petitioner's federal income tax return, Form 1120S, 
U.S. Income Tax Return for an S Corporation, for 2016, which was the most recent filed by the 
Petitioner at the time of the Director's decision and the subsequent appeal. However, without the 
Petitioner's 2017 federal tax return (or an annual report or audited financial statement for 2017) we 
are unable to assess the Petitioner's ability to pay the proffered wage to the Beneficiary from the 
priority date of February 2, 2017, onward. Accordingly, we will remand this matter to the Director 
to request regulatory required evidence, as specified in 8 C.F.R. § 204.5(g)(2), of the Petitioner's 
ability to pay the proffered wage in 2017. 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's ability to pay the proffered wage from the priority date onward. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter of D-T- Corp, ID# 1855624 (AAO Sept. 20, 2018) 
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