dismissed EB-3 Case: Administrative Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 13908165 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 29, 2021 
The Petitioner, an administrative services company, 1 seeks to employ the Beneficiary as a clerk. It 
requests classification of the Beneficiary as an unskilled worker under the third preference immigrant 
classification. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C . 
§ 1153(b )(3)(A)(iii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a foreign national for lawful permanent resident status to work in a position that requires less 
than two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had the continuing ability to pay the proffered wage. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL) .2 See section 212(a)(5) of the 
Act, 8 U.S .C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that 
employing a foreign national in the position will not adversely affect the wages and working conditions 
of domestic workers similarly employed. See section 212(a)(5) of the Act. Second, the employer files 
an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 
of the Act, 8 U.S.C . § 1154. Third, ifUSCIS approves the petition, the foreign national applies for an 
1 On the petition , the Petitioner describes itself as an administrative services company . However, on its 2017 federal tax 
return, it described itself as providing consulting services, including business management solutions, event coordination 
services, property management , and IT support. The Petitioner must resolve ambiguities in the record with independent , 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In any future filings, the Petitioner must establish what services it actually provides . 
2 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
August 29, 2017. See 8 C.F.R. § 204.5(d). 
immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the 
Act, 8 U.S.C. § 1255. 
II. ABILITY TO PAY THE PROFFERED WAGE 
The Director concluded that the Petitioner did not establish its continuing ability to pay the proffered 
wage. The proffered wage is listed as $35,651 on the labor certification, and it is listed as $40,000 per 
year on the petition. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the foll 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
foll proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage. 3 
The record contains an IRS Form 1099, Miscellaneous Income, indicating that the Petitioner paid the 
Beneficiary $17,500 in 2017. It also contains a paycheck for the Beneficiary showing that the 
Petitioner paid him $33,592.68 in gross wages through November 21, 2019. The record does not 
indicate that the Petitioner paid the Beneficiary any wages in 2018. The record therefore does not 
establish the Petitioner's ability to pay the proffered wage based on the wages it paid to the 
Beneficiary. 
The Petitioner is a single-member limited liability company (LLC) taxed as a sole proprietorship. The 
Petitioner submitted its member's 2017 IRS Form 1040, Schedule C, which states a net loss4 of$9,493. 
The net loss is insufficient to pay the difference between the wages paid to the Beneficiary and the 
proffered wage in 2017. 5 Thus, the Director determined that the Petitioner did not establish its ability 
3 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano. 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-946 (S.D. Cal. 2015); Rizvi v. Dep 't of 
Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
4 For an LLC taxed as a sole proprietorship, net income/loss is reported on its member's IRS Form 1040. Schedule C, at 
line 31. 
5 Although the Director incorrectly calculated the Petitioner's net current assets in 2017, the error does not affect the 
ultimate outcome of the appeal. 
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to pay the proffered wage for 2017. The record does not contain the Petitioner's annual reports, federal 
tax returns, or audited financial statements for 2018 onward as required by 8 C.F.R. § 204.5(g)(2). 
On appeal, the Petitioner submits a letter from a certified public accountant (CPA) 6 stating that the 
Petitioner had sufficient net current assets 7 to pay the difference between the wages paid to the 
Beneficiary and the proffered wage in 2017 and 2019, and the full proffered wage of $40,000 in 2018. 
He states that the Schedule C does not contain a balance sheet to report the assets and liabilities of the 
Petitioner, and he submits an unaudited balance sheet for the Petitioner dated November 30, 2019. 
The balance sheet indicates that the Petitioner had net current assets of $51,422 in 2017 and $45,294 
in 2018. 8 The balance sheet also shows projected/estimated net current assets for the Petitioner of 
$16,879 in 2019. 9 The CPA's letter and a corresponding bank statement also confirm the Petitioner's 
$16,572.05 balance in its checking account as of November 29, 2019, and the CPA estimates that the 
Petitioner would have no current liabilities for 2019. However, as further detailed below, the Petitioner 
did not establish that it has the ability to pay from the priority date in 201 7 onward. 
As noted above, the CPA's letter is supported by an unaudited balance sheet. However, where a 
petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, the 
financial statements must be audited. 8 C.F.R. § 204.5(g)(2). The CPA's letter does not indicate that 
he audited the Petitioner's balance sheet. Unaudited financial statements are the representations of the 
Petitioner's management and are insufficient to demonstrate the ability to pay the proffered wage. 
As noted above, the CPA' s letter is also supported by the Petitioner's bank statements. However, as 
indicated by the Director in his decision, bank statements are not among the three types of evidence 
listed in 8 C.F.R. § 204.5(g)(2) that are required to illustrate a petitioner's ability to pay a proffered 
wage. While this regulation allows additional material "in appropriate cases," the Petitioner has not 
demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable. Further, 
bank statements show the amount in an account on a given date and cannot show the continuing ability 
to pay a proffered wage. The Petitioner's bank statements are insufficient to demonstrate the 
Petitioner's continuing ability to pay the proffered wage. 
On appeal, the CPA also urges us to consider the assets of the Petitioner's sole member as evidence 
of the Petitioner's ability to pay the proffered wage. As noted by the CPA, the LLC is a disregarded 
entity for tax purposes, and its activities are reflected on its member's federal tax return. However, 
because an LLC is a separate and distinct legal entity from its members, the assets of its members 
cannot be considered in determining the Petitioner's ability to pay the proffered wage. See Matter of 
Aphrodite Invs., Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar case, the court in Sitar v. Ashcroft, 
No. Civ. A. 02-30197-MAP, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the 
6 The CPA did not prepare the Petitioner's 2017 federal tax return. 
7 Net current assets are the difference between a petitioner's current assets and current liabilities. Current assets consist of 
items having (in most cases) a life of one year or less, such as cash, marketable securities, inventory, and prepaid expenses. 
Joel G. Siegel & Jae K. Shim, Barron's Dictiona,y of Accounting Terms 117 (3d ed. 2000). Current liabilities are 
obligations payable (in most cases) within one year, such as accounts payable, short-term notes payable, and accrued 
expenses (such as taxes and salaries). Id. at 118. 
8 The Petitioner's year-end bank statements for 2017 and 2018 confirm cash balances reflecting these amounts. 
9 The appeal was filed on December 20, 2019. Thus, the Petitioner's financial results for the full calendar year were not 
available on the date of filing the appeal. 
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governing regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of 
individuals or entities who have no legal obligation to pay the wage." 
Since the Petitioner did not submit audited financial statements or annual reports for 201 7 pursuant to 
the regulation at 8 C.F.R. § 204.5(g)(2), and current assets and current liabilities are not stated on the 
2017 IRS Form 1040, Schedule C, submitted by the Petitioner, the Petitioner's net current assets 
cannot be ascertained for 2017. Because the Petitioner had a net loss reflected on its federal tax return 
for 2017, it has not established its ability to pay the difference between the wages paid to the 
Beneficiary and the proffered wage in 201 7. Further, the Petitioner did not submit federal tax returns, 
audited financial statements, or annual reports for 2018 onward. Thus, it has not established its ability 
to pay the proffered wage from the priority date and continuing until the beneficiary obtains lawful 
permanent residence. 
We may consider evidence of a petitioner's ability to pay beyond its net income and net current assets, 
including such factors as: the number of years it has conducted business; the growth of its business; 
its number of employees; the occurrence of any uncharacteristic business expenditures or losses; its 
reputation in its industry; whether a beneficiary will replace a current employee or outsourced service; 
or other evidence of its ability to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 
614-615 (Reg'l Comm'r 1967). Here, the Petitioner was organized in 2010. However, it had minimal 
gross income in 201 7, and it indicated that it had no employees at the time of filing the petition. 
Further, it has not established the growth of its business, the occurrence of any uncharacteristic 
business expenditures or losses, or its reputation in its industry. Therefore, based on the totality of the 
circumstances, the Petitioner has not established its continuing ability to pay the proffered wage from 
the priority date onward. 
The appeal will be dismissed because the Petitioner did not establish its continuing ability to pay the 
proffered wage. 
III. BONA FIDE JOB OPPORTUNITY 
Although not addressed by the Director in his decision, the bona fide nature of the job opportunity is 
not clear. The Petitioner answered "No" at part C.9 of the labor certification application, which asks 
whether there is "a familial relationship between the owners, stockholders, partners, corporate officers, 
or incorporators [ of the Petitioner], and the alien." The regulation at 20 C.F.R. § 656.17(1) states that 
if there is a familial relationship between the stockholders, corporate officers, incorporators, or 
partners, and the beneficiary, the petitioner in the event of an audit must be able to demonstrate the 
existence of a bona fide job opportunity (i.e., that the job is available to all U.S. workers). 10 By signing 
the labor certification application, the Petitioner attested to the bonafides of the job opportunity. 
10 If a petitioner answers "yes" to Part C.9 of the ETA Form 9089, DOL may audit the labor certification and request the 
following documentation from the petitioner: 
( 1) A copy of the articles of incorporation, partnership agreement, business license or similar documents 
that establish the business entity; 
(2) A list of all corporate/company officers and shareholders/partners of the corporation/firm/business, 
their titles and positions in the business' structure, and a description of the relationships to each other 
and to the alien beneficiary; 
4 
Here, the sole member of the Petitioner is married tol I and the Beneficiary's mother is 
The similar names indicate a possible familial relationship between the 
Petitioner and the Beneficiary. Further, the worksite listed on the labor certification for the offered 
job is a residential home located atl I MD I I This address is 
also listed as the residential address of the Petitioner's sole member on his 2017 individual tax return 
and as the Beneficiary's address on his college transcript issued by the Universityl I in 
2016. The similar addresses indicate that the Beneficiary may have shared a residence with the 
Petitioner's sole member. Based on these facts in the record, it is not clear that the job opportunity is 
bona fide due to an undisclosed relationship between the Petitioner and the Beneficiary. 11 If the 
Beneficiary is related to the Petitioner's sole member, their relationship casts doubt on the bona fides 
of the job opportunity. 12 In any future filings, the Petitioner must establish the bona fides of the job 
opportunity and the position's availability to U.S. workers. If the Petitioner willfully misrepresented 
the bona fide nature of the job opportunity, the labor certification may be invalidated. See 20 C.F.R. 
§ 656.30(d) (authorizing USCIS to invalidate a labor certification after its issuance upon a finding of 
fraud or willful misrepresentation of a material fact). 13 
ORDER: The appeal is dismissed. 
(3) The financial history of the corporation/company/partnership, including the total investment in the 
business entity and the amount of investment of each officer, incorporator/partner and the alien 
beneficiary; and 
(4) The name of the business' official with primary responsibility for interviewing and hiring applicants 
for positions within the organization and the name(s) of the business' official(s) having control or 
influence over hiring decisions involving the position for which labor certification is sought. 
(5) If the alien is one of IO or fewer employees, the employer must document any family relationship 
between the employees and the alien. 
20 C.F.R. § 656.17(1). 
11 The Petitioner must resolve ambiguities in the record with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 l&N Dec. at 591-92. 
12 The Act and the regulations authorize USCIS to further examine the availability of an offered position to U.S. workers. 
USCIS must "investigat[ e]. .. the facts in each case" and determine "whether the facts stated in the petition are true." 
Section 204(b) of the Act 8 U.S.C. § 1154(b ). In addition, we may deny petitions accompanied by labor certifications 
that violate DOL regulations. See Matter of Sunoco Energy Dev. Co., 17 l&N Dec. 283, 284 (Reg'l Comm'r 1979) 
(affirming a petition's denial under the DOL regulation at 20 C.F.R. § 656.30(c)(2) where the labor certification did not 
remain valid for the intended geographic area of employment). 
13 A finding of willful misrepresentation of material fact against a petitioner or beneficiary requires the following elements: 
• The petitioner or beneficiary procured, or sought to procure, a benefit under U.S. immigration laws; 
• The petitioner or beneficiary made a false representation; 
• The false representation was willfully made; 
• The false representation was material; and 
• The false representation was made to a U.S. government official. 
See 8 USC1S Policy Manual J.2(B), https://www.uscis.gov/policymanual; see also Matter of Y-G-, 20 l&N Dec. 794 (BIA 
1994); Matter of Kai Hing Hui, 15 l&N Dec. 288 (BIA 1975). 
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