dismissed EB-3 Case: Automotive Parts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-H-0-S-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 29,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a seller of aftermarket car parts, seeks to employ the Beneficiary as its advertising 
and promotions director. It requests classification of the Beneficiary as a professional under the 
third preference immigrant classification. 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 two grounds. The Director 
found that the Petitioner did not establish its continuing ability to pay the proffered wage from the 
priority date of the petition up to the present and did not establish that the Beneficiary had the 
specific skills required by the labor certification. 
On appeal the Petitioner asserts that the evidence of record establishes its continuing ability to pay 
the proffered wage and that the Beneficiary meets the specific skills requirement of the labor 
certification. 
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, 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 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 (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, 
if users 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. 
Matter of J-H-0-S-, LLC 
II. ANALYSIS 
A. Petitioner's Ability to Pay the Proffered Wage 
The first issue in this appeal is whether the Petitioner has established its continuing ability to pay the 
proffered wage from the priority date 1 onward. For the following reasons we conclude that it has 
not. 
The regulation at 8 C.F.R. § 204.5(g)(2) provides, in pertinent part, as follows: 
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. . . . . In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by [USCIS]. 
The priority date ofthe petition is March 24,2016. The proffered wage ofthejob offered is $78,458 
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, the Petitioner has not employed the 
Beneficiary at any time since the priority date. Accordingly, the Petitioner cannot establish its 
continuing ability to pay the proffered wage based on wages paid to the Beneficiary from the priority 
date onward. 
If a petitioner has not employed the beneficiary and paid her (or him) a salary equal to or above the 
proffered 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 proffered wage during 
that year. 
The record indicates that the Petitioner is a sole proprietorship, a business in which one person 
operates the business in his or her personal capacity, Black's Law Dictionary 1398 (7th Ed. 1999). 
1 
The "priority date" of the petition is the date the underlying labor certification application was filed with the DOL. See 
8 C.F.R. § 204.5(d). 
2 
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Matter of J-H-0-S-. LLC 
Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual 
owner. See Maller of' United Investment Group, 19 l&N Dec. 248, 250 (Comm'r 1984). Therefore 
the sole proprietor's adjusted gross income, assets, and personal liabilities are also considered as part 
of the petitioner's ability to pay. Sole proprietors report income and expenses from their businesses 
on their individual federal tax return (Form 1 040) each year. The business-related income and 
expenses are reported on Schedule C and are carried forward to the first page of the tax return. Sole 
proprietors must show that they can cover their existing business expenses as well as pay the 
proffered wage out of their adjusted gross income or other available funds. In addition, sole 
proprietors must show that they can sustain themselves and their dependents. See Ubeda v. Palmer , 
539 F. Supp. 647 (N.D. Ill. 1982), affd, 703 F.2d 571 (71h Cir. 1983). 
As initial evidence the Petitioner submitted a copy of its Schedule C (Form 1 040) for 2015 , but not 
its complete federal tax return for that year. Nor did the Petitioner submit its tax returns for the 
priority date year, 2016, or any time thereafter. The Petitioner also submitted a 
statement and a compilation report from EA (Enrolled Agent), with unaudited 
financial statements consisting of income and expenses for the period of January 1 to August 31, 
2016 , and assets and liabilities as of August 31, 2016 . 
In a request for evidence (RFE) the Director requested the submission of annual reports, complete 
federal tax returns, or audited financial statements for the years 2015 and 2016. In its response to the 
RFE the Petitioner did not submit any of the requested evidence. Instead , the Petitioner submitted 
monthly account statements from for the six-month period of January to June 
2017 and another compilation report from its EA with unaudited financial statements consisting of 
income and expenses for the period of January 1 to June 30, 2017, and assets and liabilities as of 
June 30, 2017 . 
The Director found that the above evidence did not establish the Petitioner 's ability to pay the 
proffered wage because the financial statements were not audited by a certified public accountant 
(CPA), as required by 8 C.F.R. § 204.5(g)(2), and the Petitioner had not demonstrated that this was 
an "appropriate case" under the regulation for the consideration of bank account records since it had 
not submitted any of the required evidence - either annual reports , complete federal tax returns , or 
audited financial statements - specifically requested in the RFE. 
On appeal the Petitioner has not submitted any additional evidence of its ability to pay the profiered 
wage . Thus , there is no evidence of the Petitioner's net income (or loss), or of its net current assets 
(or liabilities) , in 2016, or 2017. Accordingly, the Petitioner has not established its ability to pay the 
proffered wage based on its net income or net current assets at any time since the priority date of 
March 24, 2016 . 
The Petitioner claims that its previously submitted bank 
account records show that it could have paid 
the proffered wage at any point during the six-month period of January through June 2017, and that 
USCIS has not explained why this is not an appropriate case for considering the bank records. The 
Petitioner's claim is not persuasive. First, bank statements are not among the three types of 
3 
Matter of J-H-0-S-, LLC 
evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a 
proffered wage. While the regulation allows bank account records to be considered "in appropriate 
cases" as additional evidence, it does not allow the absence of the required documentation. Second, 
bank statements show the amount in an account on a given date, and cannot show the sustainable 
ability to pay a proffered \Vage. For the reasons discussed, the lack of regulatory prescribed 
evidence prohibits us from finding that the Petitioner has the ability to pay. 
The Petitioner acknowledges that it should have submitted an audited financial statement, but states 
that its current accountant is an EA and that it would cost a lot more to hire a epA to prepare an 
audited financial statement. While stating that it \Vas willing to spend the money on a ePA if 
necessary, the Petitioner has not submitted any audited financial statement on appeal. The regulation 
at 8 C.F.R. § 204.5(g)(2) makes clear that when 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 
unaudited financial statements submitted with the petition and in response to the RFE are not 
persuasive evidence. The EA's reports that accompanied those financial statements make clear that 
each of them was produced pursuant to a compilation rather than an audit. The EA's reports also 
state that financial statements produced pursuant to a compilation are the representations of 
management. The unsupported representations of management are not reliable evidence and are 
insufficient to demonstrate the Petitioner's ability to pay the proffered wage. 
users may also consider the totality of the Petitioner's circumstances, including the overall 
magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Sonegmva. 12 I&N Dec. 612 (Reg'l Comm'r 1967). USeiS 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 years the petitioner 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 beneficiary is replacing 
a former employee or an outsourced service, the amount of compensation paid to officers, the 
occurrence of any uncharacteristic business expenditures or losses, and any other evidence that 
users deems relevant to the petitioner's ability to pay the proffered wage. 
However, the absence of any of the required forms of evidence identified in 8 C.F.R. § 204.5(g)(2) 
greatly restricts out ability to consider the totality of the Petitioner's circumstances. The financial 
documentation in the record is weak, consisting primarily of an incomplete federal tax return from 
before the priority date year, unaudited financial statements, and six monthly bank account 
statements. These materials date exclusively from the years 2015-2017, and do not demonstrate a 
historical pattern of growth for the business since its formation in 2010. Moreover, the Petitioner 
claimed to have just one employee at the time the petition was filed. In short, the evidence of record 
does not support a finding that the totality of the Petitioner's circumstances establishes its continuing 
ability to pay the proffered wage from the priority date onward. 
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Matter ofJ-H-0-S- . LLC 
For all of the reasons discussed above, the Petitioner has not established its continuing ability to pay 
the proffered wage of $78,458 per year from the priority date of March 24, 2016, up to the present. 
B. Requirements of the Labor Certification 
The second issue in this appeal is whether the Petitioner has established that the Beneficiary has the 
specific skills required by the labor certification to qualify for the job offered. For the following 
reasons we conclude that it has not. 
A beneficiary must meet all of the education, training, experience, and other requirements of the 
labor certification as of the petition's priority date. See Matter of Wing's Tea House, 16 I&N Dec. 
158, 159 (Acting Reg ' l Comm'r 1977). In this case the labor certification states in section H.14 that, 
in addition to educational and experience requirements , the following specific skills are required: 
[S]kill in Video Creation and Editing Software such as Windows Life Video Editor , 
A VS Video Editor, Microsoft Photoshop , EASYGIG Animator , Corel Draw, Graphic 
Design , Photo Imaging and Publishing Software, Canon Professional Camera and 
Canon EOS Editor. 
No evidence was submitted with the petition that the Beneficiary had those specific skills. In the 
RFE the Director stated that the letter from attesting to the Beneficiary's work 
experience with that company did not indicate that the Beneficiary had the specific skills identified 
at section H.14 of the labor certification. The Director requested that such evidence be submitt ed. 
In response to the RFE the Petitioner asserted generally that the Beneficiary had the requisite skills, 
but did not submit persuasive evidence thereof , such as a new letter from or a prior 
employer. Accordingly , the Director found that the evidence was insufficient to establish that the 
Beneficiary acquired the specific skills required for the job offered. 
On appeal the Petitioner resubmits a copy of the letter from that was originally 
submitted with the petition. This letter, dated July 27, 2015, attested that the Beneficiary had been 
employed as advertising and promotions director since November 2011, described her job duties , 
and stated that the Beneficiar y had "special skills such as photography , Photoshop , video production , 
and social media to successfully create all new print materials. " The Petitioner also submits a new 
letter from 1 dated September 9, 2017 , which indicated that the Beneficiary was still 
an employee and described her job duties once again. Neither letter, however, confirmed whether 
the Beneficiary possessed and utilized all of the specific skills identified at section H.14 of the labor 
certification. "Photoshop" is the only specific skill identified in the first Jetter from 
that is included in the list of required skills at section H.14 of the labor certification. 
Thus, the Petitioner has not overcome the Director's finding that the record does not show that the 
Beneficiary has all of the specific skills to qualify for the proffered position under the terms of the 
labor certification . 
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Matter of J-H-0-S-, LLC 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority 
date up to the present In addition, the Petitioner has not established that the Beneficiary has all of 
the specific skills identified at section H.l4 of the labor certification to qualify for the job offered. 
ORDER: The appeal is dismissed. 
Cite as Matter c~f.J-H-0-S-. LLC, ID# 1106743 (AAO Mar. 29, 2018)