sustained EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 11244085 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 2, 2020 
The Petitioner seeks to employ the Beneficiary as a software developer. 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. § 1153(b)(3)(A)(ii). This employment­
based 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 that the evidence in the record 
did not establish that the Petitioner possessed the ability to pay the proffered wage. 
The Petitioner bears the burden of establishing eligibility for the requested immigration benefit. See 
section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will sustain the appeal. 
Immigration as a professional usually follows a three-step process. First, the prospective employer 
must obtain a labor certification approval from the U.S. Department of Labor (DOL) to establish that 
there are not sufficient U.S. workers who are available for the offered position. Section 212(a)(5) of 
the Act, 8 U.S.C. § 1182(a)(5). Second, the employer must submit the approved labor certification 
with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). Section 204 
of the Act, 8 U.S.C. § 1154. The immigrant visa petition must establish that the foreign worker 
qualifies for the offered position, that the foreign worker and the offered position are eligible for the 
requested immigrant classification, and that the employer has the ability to pay the proffered wage. 
See 8 C.F.R. § 204.5.1 Finally, if USCIS approves the immigrant visa petition, the foreign worker 
may apply for an immigrant visa abroad or, if eligible, for adjustment of status in the United States. 
Section 245 of the Act, 8 U.S.C. § 1255. 
Evidence of ability to pay must generally include annual reports, federal tax returns, or audited 
financial statements. Id. If a petitioner employs 100 or more workers, USCIS may accept a statement 
from a financial officer attesting to the petitioner's ability to pay the proffered wage. Id. In appropriate 
1 These requirements must be satisfied by the priority date of the immigrant visa petition . See 8 C.F.R. § 204.5(g)(2) , 
Matter of Wing's Tea House, 16 l&N Dec. 158, 159 (Act. Reg'I Comm'r 1977). For petitions that require a labor 
certification, the priority date is the date on which the DOL accepted the labor certification application for processing. See 
8 C.F.R. § 204.5(d). In this case, the priority date is June 28, 2019. 
cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, 
may be submitted by the petitioner or requested by USCIS. Id. 
In determining ability to pay, USCIS first determines whether the petitioner paid the beneficiary the 
full proffered wage each year from the priority date. If the petitioner did not pay the proffered wage 
in any given year, USCIS next determines whether the petitioner had sufficient net income or net 
current assets to pay the proffered wage (reduced by any wages paid to the beneficiary). 2 
If net income and net current assets are insufficient, USCIS may consider other relevant factors, such 
as the number of years the petitioner has been in business, the size of its operations, the growth of its 
business over time, its number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, its reputation within its industry, or whether a beneficiary will replace a current 
employee or outsourced service. See Matter of Sonegawa, 12 l&N Dec. 612, 614-15 (Reg'I Comm'r 
1967). 
On appeal, considering the totality of the circumstances under Matter of Sonegawa, we conclude that 
the Petitioner has established its abi I ity to pay the proffered wage by a preponderance of the evidence. 
ORDER: The appeal is sustained. 
2 If a petitioner has filed immigrant visa petitions on behalf of multiple beneficiaries, the petitioner must establish that it 
has had the ability to pay the proffered wage to each beneficiary. Petitions filed on behalf of other beneficiaries are 
considered from the priority date of each petition (not including any year prior to the priority date of the petition being 
reviewed on appeal) until the present or until the other beneficiary obtains lawful permanent residence. Petitions that have 
been withdrawn or denied are not considered in this analysis. 
2