remanded EB-3 Case: Sports Training

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 25, 2024 In Re: 30375352 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, a junior golf academy offering athletic training and educational services, seeks to 
employ the Beneficiary as a business development specialist. It requests her classification as a 
professional worker under the third preference employment-based immigrant visa category. 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 8 U.S.C. § 1153(b )(3)(A)(ii). This 
immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate degree 
for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding the record did not establish 
the Petitioner's ability to pay the proffered wage. The Petitioner subsequently filed combined motions 
to reopen and reconsider, which the Director dismissed. 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. 
Any petition filed for an employment-based immigrant which requires an offer of employment must 
be accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered 
wage. A petitioner must demonstrate this ability from the petition's priority date until a beneficiary 
obtains permanent residence. 8 C.F.R. § 204.5(g)(2). Initial evidence must generally include copies 
of an annual report, federal tax return, or audited financial statements for each available year, from the 
year of the priority date onward. Id.; see generally 6 USCIS Policy Manual E.4(A), 
www.uscis.gov/policy-manual. 
When determining ability to pay, U.S. Citizenship and Immigration Services (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)(l) . If a petitioner did not pay a 
beneficiary the full proffered wage or did not pay a beneficiary at all during the relevant period, USCIS 
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, the Agency 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 record indicates that the proffered annual wage for the position of business development specialist 
is $60,000. The petition's priority date is June 14, 2021, the date the U.S. Department of Labor 
accepted the Petitioner's labor certification application for processing. See 8 C.F.R. § 204.S(d) 
(explaining how to determine a petition's priority date). 
The Petitioner has consistently claimed that it has paid the Beneficiary at a salary equal to or greater 
than the proffered wage since June 2021, but did not initially submit copies of its federal income tax 
return, audited financial statements, or annual report as required under 8 C.F.R. § 204.5(g)(2). Instead, 
it provided copies of the Beneficiary's pay vouchers and evidence that she is authorized to work for 
the Petitioner in H-lB nonimmigrant status. 
In a request for evidence (RFE) issued in April 2022, the Petitioner was notified that insufficient 
evidence was initially submitted to establish its ability to pay the proffered wage. Although the 
Petitioner responded to the RFE in June 2022 with additional documentation intended to establish that 
it had been paying the Beneficiary the proffered wage, the Director concluded that the documentation 
provided was not sufficient because it did not include, as requested, the Petitioner's income tax returns, 
audited financial statements, or annual report. The Director, citing 8 C.F.R. § 103.2(b )(2)(i), declined 
to consider other "secondary" evidence of the Petitioner's ability to pay in the absence of this required 
initial evidence, noting that the Petitioner did not explain why it could not obtain the evidence required 
by 8 C.F.R. § 204.5(g)(2) or establish that this evidence was unavailable. 
The record reflects that the Petitioner provided copies of both its 2020 and 2021 federal income tax 
returns in support of its combined motions to reopen and reconsider. 2 In the decision dismissing the 
motions, the Director did not acknowledge the Petitioner's submission of this evidence in support of 
its motion to reopen. On appeal, the Petitioner resubmits copies of these tax returns and contends that 
it established its ability to pay based on evidence that it has been paying the Beneficiary a salary equal 
to or greater than the proffered wage of $60,000 since the priority date. 
The Director has not yet reviewed the Petitioner's tax returns and other relevant evidence it submitted 
to demonstrate that it has been paying the Beneficiary the proffered wage since the priority date. We 
conclude the Director is the more appropriate party to consider the impact of this evidence on the 
Petitioner's eligibility for the benefit sought in the first instance. Accordingly, we will withdraw the 
Director's decision and remand the matter for further consideration and entry of a new decision. 
1 Federal courts have upheld USCIS' method of detennining 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); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-
44 (S.D. Cal. 2015). 
2 Based on this petition's June 2021 priority date, the earliest relevant tax return for purposes of evaluating the Petitioner's 
ability to pay is its 2021 tax return. The record indicates that the Petitioner was not required to file its 2021 tax return until 
on or before September 15, 2022. Therefore, it appears this evidence was unavailable at the time the Petitioner responded 
to the Director's RFE. 
2 
We observe that while the Petitioner has consistently emphasized that it employs the Beneficiary in 
H-1 B nonimmigrant status and states it has continuously paid her the proffered wage, the submitted 
pay vouchers indicate they were issued to the Beneficiary by "Premier Corporate Professional" rather 
than by the petitioning company. The Petitioner did not provide an explanation or supporting 
documentation demonstrating its relationship with this entity, and as noted, neither of the Director's 
decisions indicate that they previously reviewed the payroll documentation for sufficiency. Additional 
explanation and evidence will be required to support the Petitioner's claim that it has paid the 
Beneficiary the full proffered wage, beginning with the year of the petition's priority date. 
The Director should request this evidence, and any other additional evidence considered pertinent to 
the new determination on the Petitioner's ability to pay the proffered wage, and any other issue. As 
such, we express no opinion regarding the ultimate resolution of this case on remand. 
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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