This appeal was fully successful
The appeal was sustained because the Petitioner submitted audited financial statements on appeal, satisfying the regulatory requirement to demonstrate ability to pay the proffered wage of $150,000.
A lithium-ion battery materials company petitioned for its director of advanced material research as an EB-1B outstanding researcher. The Texas Service Center Director denied the petition solely because the Petitioner failed to provide one of the forms of evidence required under 8 C.F.R. § 204.5(g)(2) to demonstrate ability to pay the $150,000 proffered wage. On appeal, the Petitioner cured this deficiency by submitting audited financial statements covering the priority date, along with additional pay stubs confirming actual payment of the proffered wage. The AAO found the Beneficiary's international recognition was already sufficiently established and sustained the appeal, granting the petition.
What worked: Submitting audited financial statements on appeal directly addressed the sole basis for denial. Actual payment of the proffered wage (evidenced by W-2 and pay stubs) further corroborated the ability to pay. The Beneficiary's strong credentials — patents, highly-cited publications, and peer recognition — were not contested and supported international recognition.
What failed: The original submission relied on accountant-reviewed (but not audited) financial reports, which did not satisfy the regulatory requirement for annual reports, federal tax returns, or audited financial statements under 8 C.F.R. § 204.5(g)(2).
Takeaway: Petitioners must ensure they submit at least one of the three specifically enumerated forms of ability-to-pay evidence (annual reports, federal tax returns, or audited financial statements) at the time of initial filing; if this is overlooked, it can be remedied on appeal by submitting the missing documentation along with evidence of actual payment.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-1B criteria.
● Evidence that moved the needle
- Submitting audited financial statements on appeal directly addressed the sole basis for denial
- Actual payment of the proffered wage (evidenced by W-2 and pay stubs) further corroborated the ability to pay
- The Beneficiary's strong credentials — patents, highly-cited publications, and peer recognition — were not contested and supported international recognition.
● Evidence that wasn't enough alone
- The original submission relied on accountant-reviewed (but not audited) financial reports, which did not satisfy the regulatory requirement for annual reports, federal tax returns, or audited financial statements under 8 C.F.R
Audited financial statements covering eight months ending August 31, 2016, encompassing the July 2016 priority date
2015 IRS Form W-2 showing the Petitioner paid the Beneficiary $154,681.50
Pay stubs showing biweekly salary of $6,115.38 beginning August 2016, with over $141,000 paid through mid-November 2016
Nine U.S. patents and one European patent held by the Beneficiary
Scholarly articles garnering over 400 aggregate citations, with one article exceeding 100 citations
Service as external reviewer of Master's and Ph.D. theses in France
Letter from chair for physical chemistry describing Beneficiary's leadership in establishing a world-leading solar cell efficiency lab
Financial reports reviewed (but not audited) by an accountant submitted to the Director — these did not satisfy 8 C.F.R. § 204.5(g)(2) because they were not audited financial statements, annual reports, or federal tax returns
The Director denied the petition solely on inability to pay without addressing whether the Petitioner could cure the deficiency by submitting audited financial statements on appeal.
The Director did not consider that actual payment of the proffered wage, corroborated by W-2 and pay stubs, combined with audited financials, could satisfy 8 C.F.R. § 204.5(g)(2).
Completed
I-140 filed
Director of advanced material scale-up and synthesis at a lithium-ion battery materials and design company
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2017-08-21
AAO decision — Sustained
The appeal was sustained because the Petitioner submitted audited financial statements on appeal, satisfying the regulatory requirement to demonstrate ability to pay the proffered wage of $150,000.
Find this useful? A coffee helps keep Case Reviewer free and ad-free.
Buy me a coffee