sustained EB-3 Case: Cosmetology

U.S. Citizenship 
and Immigration 
Services 
In Re: 20272990 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JULY Y 19, 2022 
The Petitioner seeks to employ the Beneficiary as a first line supervisor of cosmetologists. It requests 
classification of the Beneficiary under the third-preference, immigrant category as a skilled worker . 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C . § l l 53(b )(3)(A)(i). This 
employment-based, "EB-3" category allows a U.S. business to sponsor a foreign national for lawful 
permanent resident status based on a job offer requiring at least two years of training or experience. 
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 of the Beneficiary. On appeal, the Petitioner asserts 
that the record before the Director established its ability to pay the Beneficiary's proffered wage . 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the 
Director 's decision and sustain the appeal. 
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) 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 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)(l)-(11) 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, ifUSCIS 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 , among 
other things, 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): 
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 
Both the Form 1-140, Immigrant Petition for Alien Worker, Part 6, item 8 and the ETA Form 9089, 
Application for Permanent Employment Certification, Part G, item 1 indicated that the Beneficiary's 
annual wage would be $42,453.00 per year. 1 In denying the petition, the Director stated that "[t]he 
Petitioner provided a copy of their 2020 IRS Form 1120-S .... On the Schedule L section of the form, 
it shows current assets of $108,000.00 dollars minus current liabilities of $108,000.00, which does not 
show equal or greater than the proffered wage of $42,453.00." 
In determining a petitioner's ability to pay the proffered wage, USCIS 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 record indicates that the Beneficiary 
worked for the Petitioner in 2018 and that she was paid $45,866.95, but her earnings preceded the 
priority date of January 27, 2020. Therefore, the Petitioner did not establish its ability to pay the 
proffered wage from the priority date onward based on 2018 wages paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount 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 statements(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 beneficiary 
in a given year, the petitioner would ordinarily be considered able to pay the proffered wage during 
that year. 
In its appeal brief, the Petitioner maintains that its net current assets for 2020 are sufficient evidence 
of its ability to pay the Beneficiary's wage. It contends that the Director mistakenly "deducted the net 
current assets from the net current assets. This is incorrect." The Petitioner points to Schedule L of 
its 2020 IRS Form 1120-S, U.S. Income Tax Return for an S Corporation, listing current assets of 
$108,000 and no current liabilities. In addition, the Petitioner provides a letter from its tax preparer, 
1 The Form 1-140 was filed on September 16, 2020, and the ETA Form 9089 was filed on January 27, 2020. The "priority 
date" of an employment-based immigrant petition is the date the underlying labor certification application (ETA Form 
9089) is filed with the DOL. See 8 C.F.R. § 204.S(d). 
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which states: "The total assets for 2020 are $108,000 .... The total liabilities and shareholder's equity 
for 2020 are zero. The balance sheet reflects net current assets of $108,000. There are no current 
liabilities. Thus, the current assets less the current liabilities are $108,000." 
Upon review, we agree with the Petitioner that the Director erred in concluding that the Petitioner did 
not have the ability to pay the Beneficiary's wage in 2020. The record reflects that the Petitioner had 
sufficient net current assets in that year to pay the proffered wage of $42,453.00. Therefore, the 
Petitioner has sufficiently demonstrated its ability to pay the Beneficiary's proffered wage, and the 
Director's determination regarding this issue is withdrawn. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has overcome the grounds for denial in the Director's 
decision. 
ORDER: The appeal is sustained. 
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