sustained EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 21, 2024 In Re: 33384020 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner - a provider of software development, testing, and support services - seeks to 
permanently employ the Beneficiary as a lead software engineer. The company requests his 
classification under the employment-based, third-preference (EB-3) immigrant visa category as a 
"skilled worker." See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1 l 53(b )(3)(A)(i). Businesses may sponsor noncitizens for U.S. permanent residence in this category 
to work in jobs requiring at least two years of training or experience. Id. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the offered job's proffered wage. On appeal, 
the company contends that the Director misinterpreted law and misapplied facts to law. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that the company has established its ability to pay offered job's proffered wage. 
We will therefore sustain the appeal. 
I. LAW 
Immigration as a skilled worker generally follows a three-step process. First, a prospective employer 
must obtain certification from the U.S. Department of Labor (DOL) that: there are insufficient U.S. 
workers able, willing, qualified, and available for an offered job; and a noncitizen's permanent 
employment in the job would not harm wages and working conditions of U.S. workers with similar jobs. 
Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit a DOL-approved labor certification with an immigrant visa petition 
to U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act. Among other 
things, USCIS determines whether a noncitizen beneficiary meets the requirements of a DOL-certified 
position and a requested immigrant visa category. 8 C.F.R. § 204.5(1)(3)(ii)(D), ( 4). 
Finally, if users approves a petition, a beneficiary may apply for an immigrant visa abroad or, if 
eligible, adjustment of status in the United States. See section 245(a) of the Act, 8 U.S.e. § 1255(a). 
II. ANALYSIS 
A petitioner must demonstrate its continuing ability to pay an offered job's proffered wage, from a 
petition's priority date until a beneficiary obtains permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must generally include copies of annual reports, federal tax returns, or 
audited financial statements. Id. If a petitioner employs at least 100 people, however, a statement 
from a financial officer may demonstrate its ability to pay. Id. 
When determining ability to pay, users examines whether a petitioner paid a beneficiary the full 
proffered wage each year, beginning with the year of a petition's priority date. See generally 6 USC IS 
Policy Manual E.(4)(C)(1), www.uscis.gov/policy-manual. If a petitioner did not annually pay the 
full proffered wage or did not pay a beneficiary at all, the Agency 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 a beneficiary. See generally 6 USCIS Policy Manual 
E.(4)(e)(2). If net income and net current assets are insufficient, users 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 eomm'r 1967). 1 
The Petitioner's labor certification states the proffered wage of the offered position of lead software 
engineer as at least $124,883 a year. The petition's priority date is December 20, 2022, the date DOL 
accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how 
to determine a petition's priority date). 
With the petition's filing in January 2024, the Petitioner - a publicly traded company - submitted a 
copy of its annual report for 2022, the year of the petition's priority date. The annual report reflects 
annual net income of more than $419 million. That amount obviously exceeds the annual proffered 
wage of $124,883. 
In a request for additional evidence (RFE), however, the Director found the annual report insufficient 
because the Petitioner had filed immigrant visa petitions for other beneficiaries. A petitioner must 
demonstrate its ability to pay the proffered wage of each petition it files until a beneficiary obtains 
permanent residence. 8 e.F.R. § 204.5(g)(2). The Petitioner must therefore establish its ability to pay 
the combined proffered wages of this and petitions for other beneficiaries that were pending or 
approved as of this petition's December 20, 2022 priority date, or filed thereafter. See Patel v. 
Johnson, 3 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition where the 
petitioner did not demonstrate its ability to pay combined proffered wages of multiple petitions); see 
generally 6 USCIS Policy Manual E.(4)(D)(2). 
1 Federal courts have upheld USCIS' method of determining 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); Rahman v. Chertoff, 641 F.Supp.2d 349, 351-52 (D. 
Del. 2009). 
2 
The RFE did not ask the company to provide additional information or evidence regarding its other 
petitions. Rather, the RFE asked the Petitioner to submit evidence of its ability to pay the proffered 
wage in 2023. 
The Petitioner's RFE response explained that its annual report for 2023 was not then available. The 
company submitted copies of its IRS Forms W-3, Transmittal of Wage and Tax Statements, showing 
that it paid annual total wages exceeding $600 million in both 2022 and 2023. Also, a copy of a report 
the company filed with the U.S. Securities and Exchange Commission states the company's 2023 
revenues as exceeding $4.6 billion. Further, the company submitted copies of the Beneficiary's 
payroll records from December 2022 through January 2024. 
The Petitioner has demonstrated its continuing ability to pay the offered job's proffered wage from 
the petition's priority date onward. USCIS records confirm the company's filing of immigrant visa 
petitions for other beneficiaries. But the Beneficiary's paystubs show that the company paid him more 
than the annual proffered wage in 2022 and 2023. Thus, the Petitioner need not demonstrate its ability 
to pay combined proffered wages of multiple petitions in those years. See 6 USCJS Policy Manual 
E.(4)(D)(2). 
Moreover, the Petitioner's 2022 annual report reflects sufficient net income to pay the combined 
proffered wages of its applicable petitions. On appeal, the company submits a copy of its 2023 annual 
report, which also reflects sufficient net income to pay the combined proffered wages. 
III. CONCLUSION 
The Petitioner has demonstrated its continuous ability to pay 
the offered job's proffered wage, from 
the petition's priority date onward. 
ORDER: The appeal is sustained. 
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