dismissed EB-3 Case: Apparel Manufacturing

MATTER OF N-M- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 22, 2016 
PETITION: FORM 1-140, IMMIGRANTPETITION FOR ALIEN WORKER 
The Petitioner, an apparel manufacturing company, seeks to employ the Beneficiary as an alteration 
tailor. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 
8 U.S.C. § 1153(b)(3)(A)(i). 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 at least 2 years of training or experience. 
The Director, Texas Service Center, approved the petition on April 7, 2010. On August 12, 2014, 
the Director issued a notice of intent to revoke (NOIR) the approval of the petition, and a notice of 
revocation (NOR) was issued on December 23, 2014. The Director determined that the Petitioner 
had not established its continuing ability to pay the proffered wage. The Director denied a 
subsequent motion to reopen and motion to reconsider. The matter is now before us on appeal. The 
Petitioner asserts that the Director erred in not accepting that it had the ability to pay the proffered 
wage because it paid the proffered wage in 2014. The Petitioner alternatively asserts that it has the 
ability to pay the proffered wage based on the totality of the circumstances of its business. Upon de 
novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) 
must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the 
foreign national must 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. 
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), approved by the DOL, accompanies the instant petition. By approving the labor 
certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, 
and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified 
that the employment of a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of the Act. 
Matter of N-M- Corp. 
In these visa petition proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that the immigration 
service has authority to make preference classification decisions). 
The priority date of this petition, which is the date the DOL accepted the labor certification for 
processing, is June 19, 2009. See 8 C.F.R. § 204.5(d). The priority date is used to calculate when 
the beneficiary of the visa petition is eligible to adjust his or her status to that of a lawful permanent 
resident. See 8 C.F.R. § 245.1(g). A petitioner must establish the elements for the approval of the 
petition at the time the priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. See 8 C.F.R; §§ 204.5(g)(2), 103.2(b )(1), (12); see also Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971). 
After granting a petition, users may revoke the petition's approval "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S. C. § 115 5. If supported by the record, a director's 
realization that a petition was erroneously approved may justify revocation. Matter of Ho, 19 I&N 
Dec. 582, 590 (BIA 1988). ( 
In these proceedings, we must decide whether the Director properly revoked the petition's approval. 
Good and sufficient cause exists to issue a notice of intent to revoke where the record at the time of 
the notice's issuance, if unexplained or unrebutted, would have warranted the petition's denial. 
Matter of Estime, 19 I&N Dec .. 450, 451 (BIA 1987). Similarly, revocation is proper if the record at 
the time of the decision, including any explanation or rebuttal evidence provided by a petitioner, 
warranted a petition's denial. /d. at 452. 
In the instant case, good and sufficient cause supported the Director's issuance of NOIR. As the 
NOIR indicated, the record at the time of the notice's issuance did not establish the Petitioner's 
continuing ability to pay from the petition's priority date onward. 
·If unexplained or unrebutted, the record at the time of the NOIR's issuance would have warranted 
the petition's denial. The Director therefore properly issued the NOIR. 
A. Ability to P~y the Proffered Wage 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in part: 
2 
Matter of N-M- Corp. 
Ability of prospective employer to pay wage. Any petitiOn 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. 
The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job 
offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 
8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USeiS requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality 
of the circumstances affecting the petitioning business will be considered if the evidence warrants such 
consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS will 
first examine whether the petitioner employed and paid the beneficiary during that period. If the 
petitioner does not establish that it employed the beneficiary at a salary equal to or greater than the 
proffered wage, users will consider whether a petitioner has established its ability~to pay the 
proffered wage to multiple beneficiaries by adding together the proffered wages for each beneficiary 
for each year starting from . the priority date of the instant petition.1 users will examine the net 
income figure reflected on the petitioner's federal income tax return, without consideration of 
depreciation or other expenses, in determining if there were sufficient funds to pay each beneficiary? 
If the petitioner's net income is insufficient, users will review the petitioner's net current assets? 
Net current assets are the difference between the petitioner's current assets and current liabilities.4 
I 
. 1 However, the wages offered to the other beneficiaries are not considered after the dates the beneficiaries obtained lawful 
permanent residence (LPR), or after the dates their Form I-140 petitions have been withdrawn (WID), revoked, or denied 
without a pending appeal. In addition, USCIS will not consider a petitioner's ability to pay additional beneficiaries for each 
year that the Beneficiary of the instant petition was paid the full proffered wage. 
2 Where an S corporation's income is exclusively from a trade or business, USCIS considers net income to be the figure for 
ordinary income, shown on line 21 of page 1 of the Petitioner's IRS Form 1120S, U.S. Income Tax Return for an S 
Corporation. However, where an S corporation has income, credits, deductions or other adjustments from sources other than 
a trade or business, they are reported on Schedule K. If the Schedule K has relevant entries for additional income, credits, 
deductions or other adjustments, net income is found on line 18 of Schedule K. See Instructions for Form 1120S, at 
http://www.irs.gov/pub/irs-pdf/i1120s.pdf (last visited Dec. 16, 2016) (indicating that Schedule K is a summary 
schedule of all shareholders' shares of the corporation's income, deductions, credits, etc.). In 2009, 2010, 2011, 2012, 
and 2015, the Petitioner's net income is found on Schedule K. In 2013, it is found on line 21 of page 1. The Director 
used the net income figures in line 21 of page 1 of the tax returns for all of the years at issue, but that error does not 
affect the ultimate outcome of the appeal. 
3 Federal courts have upheld our method of determining a petitioner's ability to pay. See 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, 942-43 (S.D. Cal. 2015); Rivzi v. Dep 't of Homeland Sec., 37 F. Supp. 3d 
870, 883-84 (S.D. Tex. 2014), aff'd, --Fed. Appx. --, 2015 WL 5711445, *1 (5th Cir. Sept. 30, 2015). 
4 According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "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. "Current liabilities" are 
3 
Matter of N-M- Corp. 
On the ETA Form 9089, the Beneficiary does not claim to have worked for the Petitioner. The 
proffered wage as stated on the ETA Form 9089 is $29,868.80 per year (based on a 40-hour work 
week). 
The record of proceedings only contains the Beneficiary's 2014 Internal Revenue Service (IRS) 
Form W-2 reflecting payment of $22,976. Therefore, the Petitioner has established that it paid 
partial wages to the Beneficiary in 2014 and must establish that it had the ability to pay the 
difference between the proffered wage and the actual wages paid in 2014. The Petitioner must also 
establish its ability to pay the full proffered wage to the Beneficiary in 2009 through 2013 and from 
2015 onward. 
On appeal, the Petitioner asserts that since it is currently paying the Beneficiary the proffered wage, 
according to the language in a memorandum dated May 4, 2004, from William R. Yates, Associate 
Director of Operations, USCIS, regarding the determination of ability to pay (Yates Memorandum), 
it has established its continuing ability to pay the proffered wage beginning on the priority date. See 
Memorandum from William R. Yates, Associate Director for Operations, USCIS, HQOPRD 
90/16.45, Determination of Ability to Pay under 8 CFR 204.5(g)(2) 2 (May 4, 2004), 
http://www.uscis.gov/laws/policy-memoranda. The Yates Memorandum provides guidance to 
adjudicators5 to review a record of proceedings and make a positive determination of a petitioner's 
ability to pay if, in the context of the beneficiary's employment, "[t]he record contains credible 
verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or 
currently is paying the proffered wage." The regulation at 8 C.F.R. § 204.5(g)(2) requires that a 
petitioner demonstrate its continuing ability to pay the proffered wage beginning on the priority date, 
which in this case is June 19, 2009. Thus, the Petitioner must show its ability to pay the proffered 
wage not only from 2014, when the Petitioner claims it actually began paying the proffered wage 
rate, but it must also show its continuing ability to pay the proffered wage from June 19, 2009, to the 
date the Beneficiary obtains permanent residence. 
As shown below, the Petitioner's tax returns reflect its net income and net current assets as follows:6 
obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and accrued expenses 
~such as taxes and salarie:)· !d. ~t 118. . . . . . . . 
· USCIS memoranda articulate mternal gmdehnes for USCIS personnel; they do not estabhsh JUdtctally enforceable nghts. 
An agency's internal personnel guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon 
which [they] may rely." Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 
1262, 1264 (5th Cir.1987)). 
6 The Petitioner did not submit its 2014 tax return. The Petitioner submitted compiled financial statements for the year ending 
2014. The regulation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements to 
demonstrate its ability to pay the proffered wage, those financial statements must be audited. An audit is conducted in 
accordance with generally accepted auditing standards to obtain a reasonable assurance that the financial statements of the 
business are free of material misstatements. The accountant's report that accompanied the compiled financial statements 
makes clear that they were produced pursuant to a compilation rather than an audit. Financial statements produced pursuant 
to a compilation are the representations of management compiled into standard form and are insufficient to demonstrate the 
ability to pay the proffered wage. The CPA notes on the compilation report that the Petitioner elected to omit substantially all 
4 
(b)(6)
Matter of N-M- Corp. 
Net Current 
Year · Net Income Assets 
2009 $107,819.00 $9,203.00 
2010 $86,837.00 $19,093.00 
2011 $72,722.00 $12,719.00 
2012 $71,336.00 -$25,061.00 
2013 $46,174.00 -$3,764.00 
2015 $50,086.00 $32,797.00 
While the Petitioner's IRS Forms 1120S indicate that it had sufficient net income in 2009, 2010, 
2011, 2012, 2013, and 2015 to pay the instant Beneficiary's wages for those years, USCIS records 
reflect that the Petitioner has -filed at least 51 other Forms I-140 on behalf of other beneficiaries. A 
petitioner must show that it had the ability to pay the proffered wage to each of these individuals up 
to the date on which they became lawful permanent residents. See Patel v. Johnson, 2 F.Supp.3d 108 
(D. Mass. 2014); Matter ofGreat Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977). 
Despite requests for such documentation below, the Petitioner has submitted incomplete information 
on all of the beneficiaries:7 
LPR; DENIAL; 
Petition Receipt # Priority Date Name Proffered Wage W/D;NOR 
1/10/1999 
4/30/2001 
J 4/30/2001 I 
I 1/11/2002 I 
I 2/27/2002 I 9/1/2010 
I_ 6/10/2002 I 4/22/2011 
I_ 6/10/2002 9/1/2010 
6/10/2002 81712012 
6/13/2002 I 4/1/2013 
I 8/5/2002 I 10/28/2015 
I 12/1/2002 I 4/1/2010 
I 1/10/2003 I 
I 5/6/2003 7/2/2013 
I 6/6/2003 
of the disclosures required by generally accepted accounting principles. The complied statements are not regulatory-required 
evidence of the Petitioner's ability to pay the proffered wage in 2014. 
7 
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
See 8 C.F.R. § 103.2(b)(14). 
5 
(b)(6)
Matter of N-M- Corp. 
I 12/15/2003 9/14/2010 
I 9/23/2004 9/1/2010 
I 11/16/2004 I 10/5/2010 
I 12/17/2004 I 
I 2/11/2005 5/2l/20 11 
I 3/23/2005 3/26/2012 
I 10/24/2005 I 9/1/2011 
I 11/3/2005 I 11/2/2011 
12/12/2005 I 11/1/2012 
1/6/2006 I 3/18/2013 
I 2!6!2006 I 
I 7/12/2013 
I 1/3/2007 
I 11/23/2007 I 10/9/2013 
I 3/21/2008 I 
I 4/1/2008 I 6/12/20 14 
I 4/2/2008 I 
I 4/13/2008 
I 7/10/2008 ' 
9/9/2008 I 
10/28/2008 I 
I 1/26/2009 
I 3/13/2009 $23,192.00 
I 7/17/2009 I $24,440.00 
11/19/2009 I 
1/13/2010 I 
I 1/8/2014 
9/29/2010 I ~31 ,200.00 9/6/2013 
6/24/2011 I $30,368.00 
I 3/28/2011 I $27,955 .20 
I I 
I 12/21/2012 I $28,849.60 
I I 
I 6/28/2013 I 
I 9/17/2013 I 10/2/2015 
I 11/19/2013 _I 
The Petitioner submitted only partial information regarding its other beneficiaries, as reflected in the 
chart above, therefore rendering us unable to adjudicate whether it actually paid the full proffered 
wage to each of the beneficiaries, and whether it had sufficient net income or net current assets to 
pay the remaining proffered wages. The Petitioner has the burden of proof to establish eligibility for 
6 
(b)(6)
Matter of N-M- Corp. 
the requested immigration benefit. Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966); Matter 
of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner has not met its burden in this case. 
USCIS may also . consider the overall magnitude of the petitioner's business activities in its 
determination of the petitioner's ability to pay the proffered wage. See Matter of Sonegawa , 12 I&N 
Dec. 612 (Reg'l Comm'r 1967). USCIS may consider such factors as the number of years the 
petitioner has been doing business, the established historical growth of the petitioner's business, the 
overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, 
the petitioner's reputation within its industry, whether the beneficiary is replacing a former employee 
or an outsourced service, or any other evidence that USCIS deems relevant to the petitioner's ability 
to pay the proffered wage. 
The record of proceedings contains letters from the Petitioner's President stating that it was founded 
in 1989 as incorporated in 1993, and has grown since then with increased sales 
volume, production capacity and a much larger workforce, consisting of 40-50 people in the past. 
However, the quarterly employment reports for the Petitioner reflect that it did not employ more than 
31 workers from 2009 through 2013. The President's letter also states that the company meets its 
obligations and is poised to expand its operations further. He states that the instant Beneficiary and 
other beneficiaries have enabled the business to increase its production by more than 25% and that it 
has the ability to pay the proffered wage to all of its employees. However, the Petitioner's gross 
receipts decreased by $534,000 from 2009 to 2013. While the Petitioner asserts that it experienced a 
downturn between 2010-2013 due to five major vendors closing in succession, this does not appear 
to be a one-time or uncharacteristic loss, as the losses occurred over a span of many years and 
involved numerous clients. Although the Petitioner's net income has rebounded slightly since 2013, 
it is still less than half of what it was in 2009. And its gross receipts, while rebounding slightly in 
2015, are still less they were during 2010, 2011, and 2012. 
The record contains several bank statements for the Petitioner. However, bank statements are not 
among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), 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 or otherwise paints an inaccurate financial picture of the Petitioner. 
Further, bank statements show the amount in an account on a given date, and cannot show the 
sustainable ability to pay a proffered wage. Additionally, no evidence was submitted to demonstrate 
that the funds reported on the Petitioner's bank statements somehow reflect additional available 
funds that were not reflected on its tax returns, such as the Petitioner's taxable income (income 
minus deductions) or the cash specified on Schedule L that was considered in determining the 
Petitioner's net current assets. 
On the Form I-140 filed in March 2010, the Petitioner claimed to have been established in 1993, 
have $859,099 in gross receipts and to employ 25 workers. The Commonwealth of Virginia's online 
records indicate that a company bearing the same name as the Petitioner was incorporated in 1992. 
See Entity Search, Commonwealth of Virginia, Office of the Clerk, 
(b)(6)
Matter of N-M- Corp. 
www.scc.virginia.gov/index.aspx (last visited Dec. 16, 2016). However, this company is inactive 
and was involuntarily dissolved in 1997: The Commonwealth of Virginia's records indicate that the 
Petit'ioner was incorporated on August 22, 2006. The Petitioner must resolve any inconsistencies in 
the record with independent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. at 591-92. We therefore cannot conclude that the Petitioner was established in 1989 as 
claimed by the Petitioner's President. 
In considering the factors under Sonegawa, the Petitioner is missing vitalinformation regarding its 
other beneficiaries, and there is insufficient evidence to establish the number of years the Petitioner 
has been doing business, the historical growth of the Petitioner's business, the Petitioner's reputation 
within its industry, or whether the Beneficiary is replacing a former employee or an outsourced 
service. The record does not contain the required regulatory evidence of the Petitioner's ability to 
pay the proffered wage in 2014. 
The record at the time of the revocation of the petition's approval did not establish the Petitioner's 
ability to pay the proffered wage from the priority date onward. The petition's approval was 
properly revoked for this reason. We will therefore affirm the revocation and dismiss the appeal. 
'> 
B. Beneficiary Qualifications. 
Although not addressed by the Director, we find that the Petitioner has not established that the 
Beneficiary meets the minimum requirements of the labor certification. The beneficiary must meet 
all of the requirements of the offered position set forth on the labor certification by the priority date 
of the petition. 8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. at 159; 
see also Matter of Katigbak, 14 I&N Dec. at 49. 
In the instant case, the labor certification states that the minimum requirements for the proffered 
position ar~ 24 months of experience as an alteration tailor. Part K of the labor certification states 
that the Beneficiary qualifies for the offered position based on experience as an alteration tailor with 
Korea, from February 1, 2005, to November 15, 2007. 
The regulation at 8 C.F.R. § 204.5(1)(3) provides: 
(ii) Other documentation-
(A) General. Any requirements of training or experience for skilled workers , 
profession~als, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
A March 23, 2009, certificate of employment from President, states 
that the Beneficiary was employed as an alteration tailor from February 1, 2005, to November 15, 
2007. However, the letter does not contain a signature. Therefore, the letter cannot be determined to 
8 
(b)(6)
Matter of N-M- Corp. 
be from the Beneficiary's former employer as required by 8 C.P.R. § 204.5(1)(3) (ii)(A).8 The record 
at the time of the revocation of the petition's approval did not establish that the Beneficiary has 24 
months of experience as an alteration tailor as required by the labor certification. For this additional 
reason, we will affirm the revocation and dismiss the appeal. 
II. CONCLUSION 
The record at the time of the revocation of the petition's approval did not establish that the Petitioner 
had the continuing ability to pay the proffered wage from the priority date onwards. Further, the 
record did not establish the Beneficiary's possession of the experience required for the offered 
position. 
The petition's approval will remain revoked for the reasons stated above, with each considered an 
independent and alternate ground of revocation. In visa petition proceedings, it is the petitioner's 
burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U .S.C. § 
1361; Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966); Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met: 
ORDER: The appeal is dismissed. 
Cite as Matter of N-M- Corp., ID# 78418 (AAO Dec. 22, 2016) 
8 users contacted by telephone on June 22, 2016. She refused to confirm the Beneficiary's employment at 
9