Good news — this case cleared the first bar
The AAO withdrew the Director's denial on ability-to-pay grounds, finding sufficient evidence that the petitioner paid the beneficiary the proffered wage, and remanded for the Director to assess whether the beneficiary meets at least two of the six EB-1B evidentiary criteria and, if so, to conduct a final merits determination.
A nonprofit research and education institution filed an I-140 petition to classify a bioinformatics research scientist as an outstanding professor or researcher. The Texas Service Center Director denied the petition solely on ability-to-pay grounds. On appeal, the AAO found that earnings statements, a financial officer declaration, annual reports, and audited financial statements collectively established the employer's ability to pay the $65,000 proffered wage. Because the Director had not evaluated whether the beneficiary met at least two of the six EB-1B evidentiary criteria, the AAO remanded for that determination and, if warranted, a final merits assessment of whether the beneficiary is internationally recognized as outstanding in her academic field.
What worked: The petitioner successfully overcame the ability-to-pay denial by presenting comprehensive payroll records showing actual payment of the proffered wage, a financial officer statement from the large employer, and corroborating annual reports and audited financial statements. The petitioner's long track record as a top cardiovascular research institution also bolstered the ability-to-pay analysis.
What failed: The Director did not evaluate the substantive EB-1B evidentiary criteria, so that analysis was not completed; the case was remanded rather than approved, meaning the beneficiary's qualifications as an outstanding researcher remain unresolved.
Takeaway: When filing an EB-1B petition, include payroll records covering the priority date through the filing period, a financial officer statement (for large employers), and annual reports or audited financials to proactively address ability-to-pay before it becomes a denial ground. Ensure the record also thoroughly documents the beneficiary's satisfaction of at least two of the six regulatory criteria to avoid a second remand.
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
- The petitioner successfully overcame the ability-to-pay denial by presenting comprehensive payroll records showing actual payment of the proffered wage, a financial officer statement from the large employer, and corroborating annual reports and audited financial statements
- The petitioner's long track record as a top cardiovascular research institution also bolstered the ability-to-pay analysis.
● Evidence that wasn't enough alone
- The Director did not evaluate the substantive EB-1B evidentiary criteria, so that analysis was not completed
- the case was remanded rather than approved, meaning the beneficiary's qualifications as an outstanding researcher remain unresolved.
Completed
I-140 filed
Bioinformatics research scientist
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2024-03-05
AAO decision — Remanded
The AAO withdrew the Director's denial on ability-to-pay grounds, finding sufficient evidence that the petitioner paid the beneficiary the proffered wage, and remanded for the Director to assess whether the beneficiary meets at least two of the six EB-1B evidentiary criteria and, if so, to conduct a final merits determination.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.