Petition: Immigrant petition for Alien Worker as a Skilled Worker or Professional - decision of the Administrative Appeals Office

Sep 4, 2026

Upload by Miles

Administrative Appeals Office decision on an appeal of a denied employment-based immigrant petition. The petitioner, operating a bakery, sought to employ the beneficiary as a baker permanently based on a certified Form ETA 9089. The core dispute concerns whether the petitioner proved the continuing ability to pay the proffered wage from the priority date through lawful permanent residence. The decision cites INA and 8 C.F.R. requirements and analyzes submitted wage, tax return, and financial evidence for compliance.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages8

Reading Time20 min

AccessFree to download

Appeal decision

Legal standards and regulatory requirements

Issue: ability to pay from priority date

Evidence in the record

Corporate ability versus owners' assets

# PUBLIC COPY B File: Office:NEBRASKA SERVICE CENTER Date:JUN 012009 LIN 0701552076 IN RE: Petitioner: Beneficiary: # Petition:Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section203(b)(3)of the Immigration and Nationality Act,8 U.S.C.§1153(b)(3) QN BEHALF OF PETITIONER: INSTRUCTIONS; This is the decision of the Administrative Appeals Office in your case.All documents have been returned tothe office that originally decided your case.Any further inquiry must be made to that office. If you believe the law was inappropriately applied or you have additional information that you wish to haveconsidered,you may file a motion to reconsider or a motion to reopen.Please refer to 8 C.F.R.§103.5 forthe specific requirements.All motions must be submitted to the office that originally decided your case byfiling a Form I-290B,Notice of Appeal or Motion,with a fee of S585.Any motion must be filed within 30days of the decision that the motion seeks to reconsider,as required by 8 C.F.R.103.5(a)(1)(i). 0 JohnF.GrissomActing Chief,Administrative Appeals Office Ww.useis.gov DISCUSSION:The preference visa petition was denied by the Director,Nebraska Service Center,and is now before the Administrative Appeals Office(AAO)on appeal.The appeal will bedismissed. The petitioner operates a bakery.It seeks to employ the beneficiary permanently in the UnitedStates as a baker.As required by statute,the petition is accompanied by a Form ETA 9089Application for Permanent Employment Certification certified by the U.S.Department of Labor(DOL).The director determined that the petitioner had not established that it had the continuingability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition.The director denied the petition accordingly. The record demonstrated that the appeal was properly filed,was timely,and made a specificallegation of error in law or fact.The procedural history in this case is documented by the recordand incorporated into the decision.Further elaboration of the procedural history will be made onlyas necessary. As set forth in the director's denial dated May 1,2007,the single issue in this case is whether or notthe petitioner has the ability to pay the proffered wage as of the priority date and continuing until thebeneficiary obtains lawful permanent residence. Section 203(b)(3)(A)(i)of the Immigration and Nationality Act (the Act),8 U.S.C.§1153(b)(3)(A)(i),provides for the granting of preference classification to qualified immigrantswho are capable,at the time of petitioning for classification under this paragraph,of performingskilled labor (requiring at least two years training or experience),not of a temporary nature,forwhich qualified workers are not available in the United States. The regulation at 8 C.F.R.§204.5(g)(2)states in pertinent part: Ability of prospective employer to pay wage.Any petition filed by orfor an employment-based immigrant which requires an offer ofemployment must be accompanied by evidence that the prospectiveUnited States employer has the ability to pay the proffered wage.Thepetitioner must demonstrate this ability at the time the priority date isestablished and continuing until the beneficiary obtains lawfulpermanent residence.Evidence of this ability shall be either in theform of copies of annual reports,federal tax returns,or auditedfinancial statements. The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on thepriority date,which is the date the Form ETA 9089 Application for Permanent EmploymentCertification was accepted for processing by the DOL national processing center.See 8 C.F.R.§204.5(d).The petitioner must also demonstrate that,on the priority date,the beneficiary had thequalifications stated on its Form ETA 9089 Application for Permanent Employment Certification as certified by the DOL and submitted with the instant petition.Matter of Wing

FAQs

What is the main issue in this appeal decision?

Whether the petitioner demonstrated the continuing ability to pay the proffered wage starting from the priority date and continuing until the beneficiary obtains lawful permanent residence.

What regulation requires evidence of the employer’s ability to pay?

8 C.F.R. § 204.5(g)(2) requires evidence, such as annual reports, federal tax returns, or audited financial statements, showing the employer’s ability to pay the proffered wage from the priority date onward.

Why can’t the petitioner rely on owners’ or shareholders’ assets?

A corporation is treated as a separate legal entity, so owners’ or other enterprises’ assets cannot be used to determine the petitioning corporation’s ability to pay the wage.

Sep 4, 2026

Upload by Miles