sustained EB-3 Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 07408042 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 29, 2020 
The Petitioner, a music school , seeks to employ the Beneficiary as a music teacher for the blind. It 
requests skilled worker classification for the Beneficiary under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i) , 8 U.S .C. § 1153(b)(3)(A)(i) . This 
employment-based "EB-3 " immigrant classification allows a U.S. employer to sponsor a foreign 
national for lawful permanent resident status to work in a position that requires at least two years of 
training or experience. 
The Director of the Nebraska Service Center denied the petition on two grounds . The Director found 
that the Petitioner did not establish its ability to pay the proffered wage from the priority date onward. 
The Director also found that the Petitioner did not establish that it would employ the Beneficiary in a 
full-time position . 
On appeal the Petitioner submits additional documentation and asserts that the evidence of record 
establishes its ability to pay the proffered wage and its intention to employ the Beneficiary in a full­
time position . 
Upon de novo review , we will sustain the appeal. 
I. PETITIONER'S ABILITY TO PAY THE PROFFERED WAGE 
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) , "[t]he 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." As indicated in the regulation , the Petitioner must establish its continuing ability to pay 
the proffered wage from priority date I of the petition onward. In this case the proffered wage is 
$48,194 per year and the priority date is October 4, 2017. 
1 The priority date of a petition is the date the underlying labor certification was filed with the Department of Labor. 
8.C.F.R. § 204.S(d). 
In determining a petitioner's ability to pay the proffered wage, U.S. Citizenship and Immigration 
Services (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 has never been employed by the Petitioner. Therefore, 
the Petitioner cannot establish its ability to pay the proffered wage from the priority date onward based 
on wages paid to the Beneficiary. 
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 beneficiary 
in a given year, the petitioner would be considered able to pay the proffered wage during that year. 
The record indicates that the petitioner is structured as a nonprofit corporation and files its tax returns 
on IRS Form 990, Return of Organization Exempt from Income Tax. In the decision denying the 
petition the Director mistakenly referred to the Petitioner as a sole proprietorship operated by one 
person in his personal capacity, and whose gross income, personal assets, and personal liabilities must 
be taken into account in determining the Petitioner's ability to pay the proffered wage. The Petitioner, 
however, is a corporation, which means that it is a legal entity separate and apart from its owner(s) 
and thus must establish its ability to pay a proffered wage based on its own assets and liabilities without 
regard to the personal assets and liabilities of its owner( s ). 
The record includes a copy of the Petitioner's IRS Form 990-EZ, Short Form [of] Return of 
Organization Exempt from Income Tax, for each of the years 2017 and 2018. In his decision the 
Director mistakenly referred to these documents as unaudited financial statements which did not 
constitute one of the required types of documentation under 8 C.F.R. § 204.5(g)(2). These IRS forms, 
however, are the proper federal returns for a tax-exempt entity like the Petitioner. Therefore, they 
meet the requirements of 8 C.F.R. § 204.5(g)(2) and constitute a form of regulatory required evidence 
of the Petitioner's ability to pay the proffered wage. 
For tax years 2017 and 2018 the IRS Form 990-EZ recorded "Net assets or fund balances at end of 
year" on page 1, line 21. For the Petitioner those figures were recorded as $76,603 at the end of 2017 
and $55,486 at the end of 2018. Since both of these figures exceeded the proffered wage of$48,194 
per year, we find that the Petitioner has established its ability to pay the wage from the priority date 
of October 4, 201 7, onward. 
II. PROFFERED POSITION IS FOR FULL-TIME EMPLOYMENT 
Citing information provided by the Petitioner that it currently had ten teachers working as contractors, 
but no full-time employees, the Director stated that "it appears" the proffered position as well is not a 
full-time position and the Petitioner, therefore, would not be the employer of the Beneficiary. Thus, 
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the Director inferred that the Beneficiary will be another contractor rather than a full-fledged employee 
of the Petitioner. This finding is not supported by the record as a whole. The Petitioner clearly stated 
in the Form I-140 petition (Part 6, item 4) that the job of music teacher is a full-time position, both the 
labor certification and the petition state that the proffered wage of the position is a yearly salary of 
$48,194, and the Petitioner confirms on appeal that it intends to hire the Beneficiary as a full-time 
employee to accommodate the scheduling needs of its expanding student body. Accordingly, it 
appears that the Petitioner does intend to employ the Beneficiary in a full-time position. 
III. CONCLUSION 
Based on the foregoing analysis we find that the Petitioner has established its ability to pay the 
proffered wage from the priority date onward and its intention to employ the Beneficiary in a full-time 
position. 
ORDER: The appeal is sustained. 
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