dismissed EB-3 Case: Audiology

MATTER OF G-A-A- CORP 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY21,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PET!T!ON: FORM 1-!40, IMMIGRANT PET!T!ON FOR ALIEN WORKER 
The Petitioner, an audiologist office, seeks to employ the Beneficiary as an operations manager. It 
requests classification of the Beneficiary as a professional under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. 
§ 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish its continuing ability to pay the proffered wage from the priority date onward. 
On appeal, the Petitioner submits additional documentation and asserts that the evidence establishes 
its ability to pay the proffered wage. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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). See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, DOL 
certifies that there are insufticient 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 U.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)­
(II) of the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and 
Immigration Services (USC!S). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USC!S 
approves the petition, the foreign national 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. 
A petitioner must establish that it has the ability to pay the proffered wage stated on the labor 
certification. As provided in the regulation at 8 C.F.R. § 204.5(g)(2): 
Mauer ofG-A-A- Corp 
The petitiOner must demonstrate this ability at the time the pnonty date is 
established 1 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. 
II. ANALYSIS 
At issue in this case is whether the Petitioner has established its continuing ability to pay the 
proffered wage trom the priority date onward. The petition has a priority date of February 18, 2015. 
The labor certification states that the proffered wage for the job offered is $161 ,699 per year. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. If 
the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal 
to or greater than the proffered wage, the evidence is considered proof of the petitioner's ability to 
pay the proffered wage. 
In this case, there is no evidence that the Petitioner has employed the Beneficiary at any time. 
Therefore, the Petitioner cannot establish its continuing ability to pay the proffered wage based on 
wages paid to the Beneficiary since the priority date of February 18, 2015. 
If a petitioner has not paid the beneficiary an amount equal to or above the pro tiered wage from the 
priority date onward, USCIS will examine the net income and net current assets figures recorded on 
the petitioner's federal income tax return(s), annual report(s), or audited financial statements(s). If 
either of these figures, net income or net current assets, equals or exceeds the proffered wage or the 
difference between the proffered wage and the amount paid to the beneficiary in a given year, the 
petitioner would be considered able to pay the pro tiered wage during that year. 
In this case, the Petitioner has submitted a copy of its federal income tax return, Form I 120S, for the 
year 20I5. It shows that the company had net income of $I04,022 2 and net current assets of 
$45,669 3 that year. Based on its 2015 tax return, therefore, the Petitioner has not established its 
ability to pay the proffered wage of $161,699 from the priority date of February 18, 2015, onward. 
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1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied from the 
priority date onward. 
2 If an S corporation, like the Petitioner, has income exclusively from a trade or business, USCIS considers its net 
income (or loss) to be the figure for "Ordinary business income (loss)" on page I, line 21, of the Form 1120S. However, 
if there are relevant entries for additional income, credits, deductions or other adjustments from sources other than a 
trade or business, they are reported on Schedule K of the Form 1120S, and the corporation's net income or loss will be 
found in line 18 ("Income/loss reconciliation") of Schedule K. In this case, the Petitioner's net income for 2015 is the 
amount recorded on line 18 of Schedule K. 
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For a corporation net current assets (or liabilities) are the differ~nce between its current assets. entered on lines 1-6 of 
Schedule L, and its current liabilities, entered on lines 16-18 of Schedule L. 
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. Matter ofG-A-A- Corp 
On appeal the Petitioner asserts that it has "a large pool of accounts receivable" from a hearing aid 
services company, , with which the Petitioner has a profit sharing 
agreement. According to the Petitioner, is "temporaril y withholding" the revenues 
earned by the Petitioner under the profit sharing agreement "and that fund is available to pay (the 
Beneficiary's] proffered wages on a monthly basis." A letter from the Petitioner ' s certified public 
accountant asserts that when considering the money 
being held by accounts receivable 
totaled $155,538.41 for the year 2015, and $167 ,996.33 for the first nine months of2016, and that 
these figures would generate "accrual basis net profit" of $261,244.41 tor the year 20 15 and 
$267,067.57 for the first nine months of2016. Based on these calculations the Petitioner concludes 
that it had the ability to pay the proffered wage of $161,699 in both 2015 and 2016. 
The accountant's calculations, however, are not generated from, or supported by, an audited 
financial statement, as required by 8 C.F.R. § 204.5(g)(2). Moreover, the accounts receivable and 
"accrual basis net profit" figures for 2015, as calculated by the accountant in this appeal, conflict 
with the figures appearing in the Petitioner's 2015 federal income tax return, which was prepared by 
the same accounting firm. The Form 1120S Schedule L (Balance Sheets per Books) includes a line 
(2a) to enter an asset figure for trade notes and accounts receivable . That line is blank on the 
Petitioner's 2015 tax return, indicating no accounts receivable. On page 1, 
line 21, of the 
Petitioner's 2015 Form 1120S a· figure of $105,706 is entered for "ordinary business income" and 
the "income/loss reconciliation" figure on fine 18 of _Schedule K is $104,022. While the Petitioner 
asserts that is "temporarily withholding" the revenues earned 
by the Petitioner under their 
profit sharing agreement, the "service agreement" in the record makes no such provision . Moreover, 
the Petitioner has not explained why revenues earned 
but not yet paid by were not entered 
as "accounts receivable" on line 2a of Schedule L, especially since the Petitioner selected the accrual 
method of accounting 4 in its 2015 Form 1120S. In a chart displaying the alleged profit sharing 
figures between the Petitioner and in 2015, the Petitioner asserts that 
the net profit of 
$105,706 entered in its 2015 tax return was based on th'e cash method of accounting. However, this 
claim is directly contradicted by the tax return itself which states that the accrual method of 
accounting was applied . 
In addition, the Petitioner claims that it has a large inventory of hearing aid devices , "high ly liquid[] 
assets" which could be sold to obtain cash tor the Beneficiary's proffered wage. But it is noteworthy 
that the Petitioner, while claiming a large inventory of hearing aid devices which could be 
liquidated , made no dollar entry for "inventories " in Schedule L, line 3, of its 2015 Form ll20S. 
Had the Petitioner recorded this alleged inventory on its tax return, it would have been considered in 
our analysis of the Petitioner's net current assets. 
4 
Under the accrual method of accounting revenue is reported in the tax year it was earned, regardless of when payment 
is received , and expenses are reported in the year they were incurred , regardle ss of when paym ent i s made. See 
http://www. irs.gov/publications /p538 (last visited April 4, 20 18). 
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Maller ofG-A-A- Corp 
In view of the evidentiary discrepancies discussed above, we are not persuaded that the Petitioner 
had $155,538.41 ofadditiona1 funds in 2015, bas~d on accounts receivable from which it 
could have utilized to pay the proffered wage. The Petitioner's claim to have had these additional 
assets is no't reflected on its federal income tax return for 2015. As for 20 16, the alleged net profit of 
$267,067.57 for the first nine months of the year, as calculated by the Petitioner ' s accountant , is not 
derived from an audited financial statement, as required by 8 C.F.R. § 204.5(g)(2). Nor has the 
Petitioner submitted a copy of its federal income tax return for 2016, from which its net income (or 
loss) and net current assets (or liabilities) could be discerned. We conclude, therefore, that the 
material s subm itted on appeal do not establish the Petitioner's ability to pay the proffered wage in 
2015 or 20 16.5 
USCIS may also consider the totality of the Petitioner's circumstances , including the overall 
magnitud e of its business activities, in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Sonegawa, 12 l&N Dec. 612. USCIS may, at its discretion, consider evidence 
relevant to the petitioner's 
financial ability that falls outside of its net income and net current assets. 
We may consider such factors as the number of yea rs the petition er has been doing business, the 
established historical growth of the petitioner 's business, the petitioner's reputation within its 
industry, the overall number of employees, whether the beneficiar y is replacing a former employee 
or an outsourced service, the amount of compensation paid to officers, the occurrence of any 
uncharacte ristic business expenditures or losses, and any other evidence that USCIS deems relevan t 
to the petitioner 's ability to pay the proffered wage. 
The Petitioner states that it began operations in 201 0 and had four employees at the time the petition 
was filed in 2015. The Petitioner indicates that the proffered position of operations manager is new. 
Therefore , the Beneficiary would not be replacing another employee who is already being paid by 
the Petitioner. The record includes two federal income tax return s, for 2014 and 2015 , which show 
that the Petitioner's gross receipts declined from $786,093 in 2014 to $520,595 in 2015. The 
busines s figures for 2016 are incomplete and, as previously discus sed, do not derive from an audited 
financial statement as required for reliability. Thus , the evidence does not show th at the Petitioner 
has a record of extended growth or financial strength. We conclude, therefore, that the Petitioner has 
not established its continu'ing ability to pay the proffered wage from the priority date onward based 
on the totality of its circumstances, as in Sonegawa. 
5 On appeal the Petitioner also submit s monthl y bank account statements from for 2015. Bank statements are not 
among the three types of evidence , enumerated in 8 C .F.R. § 204.5(g)(2) , required to illustrate a petit ioner's ability to 
pay a proffered wage. While the regulation allows bank account records to be conside red " in approp riate cases" the 
Petitioner has not ·explained why this is such a case. The funds report ed on the Petitioner's bank statements wou ld 
ordinarily be reflected on its tax retum(s), and would thus not represent additional financial resour ces. Furthermore, 
bank statements sho w the amount in the account on a given date, and do not show the sustainable ability to pay a 
proffered wage. Accordingly, the Petitioner's account stateme nts are not persua sive evidence of its continuing 
ability to pay the proffered wage from the prior ity date onward. 
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Maller of G-A-A- Corp 
For all of the reasons discussed above, the Petitioner has not established its continuing ability to pay 
the proffered wage from the priority date of February 18,2015, onward. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered from the priority date up to 
the present. 
ORDER: The appeal is dismissed. 
Cite as Malter ofG-A-A- Corp, ID# 1041616 (AAO May 21, 2018) 
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