The Petitioner, a provider of home healthcare services, seeks to employ the Beneficiary as manager, healthcare systems engineer. The company requests his classification under the employment-based, second-preference (EB-2) immigrant visa category as a member of the professions holding an "advanced degree." See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b )(2)(A). Businesses may sponsor aliens for U.S. permanent residence in this category to work in jobs requiring master's degrees or their equivalents. See 8 C.F.R. § 204.5(k)(2) (defining the term "advanced degree").
U.S. Citizenship and Immigration Services (USCIS) denied the petition. The Acting Associate Director of Service Center Operations concluded that the Petitioner did not demonstrate its required ability to pay the offered job's proffered wage. On appeal, the Petitioner contends that the Director disregarded evidence and explanations, and did not consider the company's ability to pay under a totality of the circumstances.
The Petitioner bears the burden of demonstrating eligibility for the benefit request 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 ofChristo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we conclude that a totality of the circumstances does not establish the company's ability to pay the proffered wage. We will therefore dismiss the appeal.
Law
Immigration as an advanced degree professional 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 an alien's employment in the job would not harm wages or working conditions of U.S. workers with similar jobs. See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D).
Second, an employer must submit a DOL-approved labor certification with an immigrant visa petition to USCIS. See section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). Among other things, USCIS p. 2 determines whether an alien beneficiary meets the requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(k)(3).
Finally, if USCIS 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 of the Act, 8 U.S.C. § 1255.
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 U.S. permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must generally include copies of a petitioner's annual reports, federal tax returns, or audited financial statements. Id.; see generally 6 USCIS Policy Manual E.4(A), www.uscis.gov/ policy-manual ("[T]he petition must include copies of the petitioner's annual reports, federal tax returns, or audited financial statements for each available year from the priority date.") 1 When determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full proffered wage each year, starting with the year of a petition's priority date. See generally 6 USCIS Policy Manual E.4(C)(l ). 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. See generally 6 USCIS Policy Manual E.4(C)(2). If net income and net current assets are insufficient, USCIS may consider other factors potentially affecting a petitioner's ability to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967); see generally 6 USCIS Policy Manual E.4(C)(3). 2
The Petitioner's labor certification states the proffered wage of the offered job of manager, healthcare systems engineer as $83,970 a year. The petition's priority date is January 18, 2024, 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).
At the time of the petition's denial in January 2026, regulatory required evidence of the Petitioner's ability to pay the proffered wage in 2025 was not yet available. Thus, for purposes of this decision, we will consider the company's ability to pay only in 2024, the year ofthe petition's priority date. See 6 USCIS Policy Manual E.4(A) (requiring "copies of the petitioner's annual reports, federal tax returns, or audited financial statements for each available year from the priority date") ( emphasis added). 3
The Petitioner stated that it employed the Beneficiary for part of 2024. It submitted a copy of an IRS Form W-2, Wage and Tax Statement, showing that it paid him $43,615.32 that year. That amount does not equal or exceed the annual proffered wage of $83,970. Thus, based solely on wages paid, the Petitioner has not demonstrated its ability to pay the proffered wage in 2024.
Nevertheless, we credit the Petitioner's payments to the Beneficiary. See 6 USCIS Policy Manual E.4(C)(2). To demonstrate its ability to pay the proffered wage in 2024, the company need only establish its ability to pay the difference between the $83,970 annual proffered wage and the $43,615.32 it paid the Beneficiary that year, or $40,354.68. Id.
The Petitioner provided a copy of its federal income tax return for 2024. The tax return indicates that the company lost $54,141 that year. Thus, the negative net income amount does not equal or exceed the $40,354.68 difference between the annual proffered wage and the Beneficiary's wages. Therefore, the company's net income does not demonstrate its ability to pay the proffered wage in 2024. The Petitioner's 2024 federal income tax return lacks information needed to calculate the company's net current assets that year. 4 Thus, based on examinations of the Petitioner's wages paid, net income, and net current assets, the company has not demonstrated its ability to pay the proffered wage in 2024. As previously indicated and as the Petitioner argues on appeal, USCIS may consider additional factors potentially affecting the company's ability to pay the proffered wage in 2024. See Matter of Sonegawa, 12 I&N Dec. at 614-15; see generally 6 USCIS Policy Manual E.4(C)(3). For example, USCIS may consider: the number of years the company has conducted business; historical growth of its business; occurrences of uncharacteristic business expenditures or losses from which it has since recovered; and its reputation in its industry. Id.
The Petitioner notes that the Director disregarded some of the company's arguments and evidence in its response to the Director's request for additional evidence (RFE). We agree with the company that the Director should have considered all its arguments and evidence. See Matter ofChawathe, 25 I&N Dec. at 376 (requiring USCIS adjudicators to "examine each piece ofevidence for relevance, probative value, and credibility").
The Petitioner notes that the Director disregarded some of the company's arguments and evidence in its response to the Director's request for additional evidence (RFE). We agree with the company that the Director should have considered all its arguments and evidence. See Matter ofChawathe, 25 I&N Dec. at 376 (requiring USCIS adjudicators to "examine each piece ofevidence for relevance, probative value, and credibility").
But the record shows that the Director's oversights, if any, were harmless, as the Petitioner's arguments and evidence do not demonstrate its ability to pay the proffered wage in 2024. See Hernandez-Garcia v. Barr, 930 F.3d 915, 919 (7th Cir. 2019) ( concluding that omission of a hearing's 4 Because the Petitioner reported both total assets and total receipts of under $250,000 in 2024, the tax return did not require the company to complete the balance sheet in Schedule L, Balance Sheets per Books, of the IRS Form 1120-S, U.S. Income Tax Return for an S Corporation. p. 4 time, date, and place on a notice to appear constituted harmless error); see generally Matter ofO-RE-, 28 I&N Dec. 330, 336 n.5 (BIA 2021) (citing cases regarding harmless or scrivener's errors). First, in the Petitioner's January 2026 RFE response, counsel stated:
As of 2024, [the Petitioner] has experienced a temporary interruption of business activity due to a pending Medicare ADR (Additional Document Request) that it is in the process ofresolving, which has affected its 2024 income levels. In the interim, [the company] maintains sufficient assets on hand to escalate its health services upon reaching a resolution to the ADR and has every expectation, consistent with its more than 15 years of business, that it will be able to reach its previous levels of service and revenues.
Copies of the Petitioner's federal income tax returns support counsel's statement that the company's business suffered an interruption in 2024. The tax returns report revenues of more than $1.6 million in 2022 and more than $600,000 in 2023. The 2024 tax return, however, reflects revenues of only $9,361, consisting of $9,347 in "nonmedical income" and a return of advertisement expenses worth $14.
But counsel's assertions regarding the purported Medicare ADR are not evidence.Claims not backed by documents See, e.g., Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("[S]tatements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight"). The Petitioner has not substantiated counsel's assertions with documentary evidence. Thus, the company has not sufficiently explained its revenues drop in 2024 or their presumed continued low level in 2025.
The Petitioner argues that it had enough assets to pay the $40,354.68 difference between the proffered wage and the Beneficiary's wages in 2024 and the full proffered wage in 2025. But its evidence is insufficient. The company submitted copies of bank account statements for December 2024 and December 2025. The December 2024 statement shows that the account began that month with $106,755.61 and ended it with $106,163,36. The December 2025 statement reflects that the account started that month with $176,928.91 and ended it with $176,287.91. Each of those amounts exceeds the $40,354.68 difference and the $83,970 proffered wage. But the record does not indicate whether the company designated all or parts of the bank account funds for other expenses.
Also, a single month is not a long enough period to demonstrate sufficient bank account funds to pay a proffered wage throughout that year. See Rizvi v. Dep 't ofHomeland Sec. ex rel. Johnson, 627 F. App'x 292, 294 (5th Cir.2015) ("[T]he bank statements do not make up for the shortfalls because they are mere snapshots of cash available on a given date rather than a depiction of ongoing assets."); see also 6 USCIS Policy Manual E.4(B) ("Bank statements show the amount in an account on a given date and do not identify if any funds may already be obligated for other purposes.") The Petitioner also argues that "[a] review of wages paid to the beneficiary as well as the company financials in the years immediately preceding and following the priority date demonstrate the petitioner's ability to pay the offered wage." Copies of the Beneficiary's IRS Form W-2 and the company's federal income tax return for 2022 show that the company that year paid him $63,241.98 and generated net current assets of $592,093. For 2023, his IRS Form W-2 indicates that the company p. 5 paid him $79,442.19, and the company's tax return shows that the company earned $26,268 in net current assets. Although the Petitioner did not pay the Beneficiary in 2025, the company argues that it had more than $175,000 in its bank account that year that it could have used to pay him. The company stated: "In each of the above years, the petitioner has the ability to pay the offered wage based on either wages paid to the beneficiary, net current assets, or a combination of the two." The record, however, does not support the Petitioner's arguments. First, none of the annual wage amounts the company has paid the Beneficiary since 2022 has equaled or exceeded the annual proffered wage of $83,970. Thus, the company has not demonstrated its ability to pay based solely on wages paid.
We agree that the Petitioner would have demonstrated its ability to pay the proffered wage in 2022 and 2023 based on a combination of wages paid and net current assets. But the company would not have shown its ability to pay in 2025. For that year, the Petitioner relies on the copy of its December 2025 bank account statement with beginning and ending balance amounts of more than $175,000. But, as previously explained, the record does not indicate whether the company designated all or parts of the bank account funds for other expenses. Also, a single month is not a long enough period for bank statements to demonstrate the company's ability to pay throughout that year. See Rizvi, 627 F. App'x at 294 ("[T]he bank statements do not make up for the shortfalls because they are mere snapshots of cash available on a given date rather than a depiction of ongoing assets."); see also 6 USCIS Policy Manual E.4(B) ("Bank statements show the amount in an account on a given date and do not identify if any funds may already be obligated for other purposes.") Thus, the company would not have demonstrated its ability to pay the proffered wage in 2025.
The Petitioner's RFE response also contended that the company had "an even stronger case" for the ability to pay the proffered wage than the petitioner in Sonegawa. The Petitioner submitted evidence that it had conducted business for 15 years and that, in 2022 and 2023, its federal income tax returns reported an average gross income of $1,168,436 and an average of $306,447 in wages paid to its employees. The company also argued that, since 2024, it had maintained cash of more than $100,000.
The Petitioner has demonstrated that it conducted business longer than the petitioner in Sonegawa, which had been operating about 11 years. See Matter ofSonegawa, 12 I&N Dec. at 614. But, as previously discussed, the Petitioner's bank account statements are insufficient to demonstrate that it has continuously maintained more than $100,000 in cash since 2024. Also, the petitioner in Sonegawa endured an interruption to its business of less than one year. Id. It submitted evidence that it had incurred uncharacteristic costs while relocating its operations but resumed profitable operations after the business interruption. Id. In contrast, the Petitioner indicates that it has not conducted business for more than one year. Also unlike in Sonegawa, the company has not submitted any evidence to explain its business intem1ption or to show its resumption of operations. Thus, considering a totality of the circumstances, the Petitioner has not demonstrated its continuing ability to pay the proffered wage.
Conclusion
The Petitioner has not established its continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore affirm the petition's denial.
ORDER: The appeal is dismissed.
NOTICE: This constitutes the final decision in this matter. The filing of a motion will not postpone the effect of the decision. 8 C.F.R. § 103.S(a)(l)(iv). Aliens who are not lawfully present, or who are otherwise inadmissible or deportable, may be subject to the commencement of removal proceedings under section 240 ofthe Act through the issuance of a Form I-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.