dismissed EB-3 Case: Beauty Services

MATTER OF L-C-N-A-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 16.2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a beauty salon, seeks to employ the Beneficiary as a manicurist and pedicurist. It 
requests the Beneficiary's classification as a skilled worker under the third-preference. immigrant 
category. 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, "'EB-3'" category allows a business to sponsor a foreign 
national for lawful permanent residence status in a position requiring at least two years of training or 
expenence. 
The Director of the Nebraska Service Center denied the petition. finding that the accompanying 
employment certification from the U.S. Department of Labor (DOL) did not support the requested 
classification. The Director also concluded that the Petitioner did not establish its required ability to 
pay the proffered wage. 
On appeal, the Petitioner submits additional evidence and asserts its ability to pay the protlered 
wage. 
Upon de novo review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First. an employer applies 
for certification from DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). DOL 
must determine whether the United States has able. willing. qualified, and available workers for an 
offered position, and whether employment of a foreign national would hurt the wages and working 
conditions of U.S. workers with similar jobs. !d. If DOL certifies a foreign national to permanently 
fill an offered position, an employer must next submit the ce11itication with an immigrant visa 
petition to U.S. Citizenship and Immigration Services (USCIS). S'ee section 204 of the Act. 8 U.S.C. 
§ 1154. If USCIS approves the petition. a foreign national may finally apply tor 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 qf L-C-N-A-S-
II. THE PETITIONER'S ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition· s priority 
date until a beneficiary obtains lawful permanent residence. 1 8 C.F.R. ~ 204.5(g)(2). Evidence of 
ability to pay must include copies of annual reports. federal income tax returns. or audited financial 
statements. ld 
In determining ability to pay, USCIS considers whether a petitioner paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay the full 
proffered wage, USC IS examines whether the petitioner generated annual amounts of net income or 
net current assets sufficient to pay any differences between the protTered wage and wages paid. If 
net income and net current assets are insut1icient. USCIS may also consider other factors affecting a 
petitioner's ability to pay a proffered wage. See Maller ofSonegawa. 12 l&N Dec. 612, 614-15 
(Reg'l Comm'r 1967).2 
Here, the labor certification states the proffered wage of the offered position of manicurist and 
pedicurist as $11 per hour. Based on a 40-hour work week, the annual protTered wage is $22,880. 
The Petitioner did not submit evidence that it paid the Beneficiary. The Petitioner therefore has not 
established its ability to pay the proffered wage based on wages paid. 
On appeal, the Petitioner submits a copy of the federal income tax returns of its owner for 2016. the 
year of the petition's priority date. As a sole proprietorship, the Petitioner is legally inseparable 
from its owner. See Matter (?f United lnv. Grp., 19 l&N Dec. 248, 250 (Comm 'r 1984) (holding that 
a sole proprietorship is not a separate legal entity from its owner). We therefore consider the 
personal income and assets of the Petitioner's owner to determine its ability to pay the proffered 
wage. 
The 2016 tax returns indicate that the Petitioner's owner financially supported herself and three 
children on adjusted gross income of $16,782. Thus, the returns indicate that the owner lacked 
sufficient income to pay the annual protTered wage of $22,880. 3 The Petitioner therefore has not 
established its ability to pay the protTered wage based on its owner's income. 
1 
This petition's priority date is August 22, 2016, the date the DOL received the labor certification application. See 
8 C.F.R. § 204.5(d) (explaining how to detennine a petition's priority date). 
2 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 Ill, 118 (I st Cir. 2009); Estrada- Hernandez v. Holder. I 08 F. Supp. 3d 936, 942-43 
(S.D. Cal. 20 15). 
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The Petitioner did not provide an estimate of its owner's household expenses in 2016, which USC IS would subtract 
fi'om her income and assets in order to assess the Petitioner's ability to both support herself and her dependents and pay 
the proffered wage. See Ubeda v. Palmer, 539 F. Supp. 647, 650 (N.D. Ill. 1982). aff'd, 703 F.2d 571 (7th Cir. 1983) 
(finding that a petitioner with annual net income of $13,000 could not likely support himself, his spouse, and five 
children in addition to paying a proffered wage of $6,000 a year). In any future filings in this matter, the Petitioner must 
submit an estimate and supporting documentary evidence of the 2016 living expenses of its owner and her dependent 
children. Estimated expenses should include: housing; utilities; food: transportation; clothing: and insurance. 
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Matter of L-C-N-A-S-
The Petitioner also submits evidence of assets in its business checking account from August 2016 
through March 2017. The business income stated in the tax returns of the Petitioner's owner. 
however, presumably reflected the deposits and withdrawals detailed in the monthly account 
statements for 2016. Because we likely considered these funds as part of the owner's income. we 
will not count them again as assets supporting the Petitioner's ability to pay the proffered wage. 
Also, because of the cyclical nature of many businesses. the remaining account statements for the 
first three months of 2017 do not document a sufficient period to establish the Petitioner's ability to 
pay that year. 
Moreover, the account statements do not indicate sufficient net deposits to pay the protlered wage. 
From August 2016 through March 2017, the statements reflect $114,876 in total deposits and 
$110,733.64 in total withdrawals and fees, leaving a balance of $4,142.36. The proffered \Vage. 
however, equates to $1,906.67 a month, or $15,253.33 for the eight-month period. The account 
statements therefore do not establish the Petitioner's ability to pay the protlered wage for any period 
of time. 
As previously indicated, factors beyond net income and net current assets may establish a 
petitioner's ability to pay. Under Sonegmva. we may consider: the number of years a petitioner has 
conducted business; the growth of its business; its number of employees; its incurrence of 
uncharacteristic expenses; its reputation in its industry; a beneficiary's replacement of a current 
employee or outsourced service; or other evidence of a petitioner's ability to pay a proffered wage. 
Here, the petition indicates the Petitioner's continuous business operations since 2012 and its 
employment of four people. Because the Petitioner provided financial documentation for only one 
year, however, the record does not establish growth in its business. Also, unlike the petitioner in 
Sonegawa, the record does not indicate the Petitioner's incurrence of uncharacteristic expenses or its 
possession of an outstanding reputation in its industry. The record also does not indicate the 
Beneficiary's replacement of a current employee or outsourced service. Thus. the SoneKawa factors 
do not establish the Petitioner's ability to pay the proffered wage. 
The Petitioner has not demonstrated its ability to pay the proffered wage from the petition's priority 
date onward. We will therefore affirm the petition's denial. 
III. THE LABOR CERTIFICATION AND THE REQUESTED CLASSIFICATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a petition for a skilled worker must include a 
valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). A labor certification for a skilled 
worker must state job requirements of at least two years of training or experience. 8 C.F.R. 
§ 204.5(1)(3)(ii)(B). 
To determine the minimum job requirements of an offered position, USCJS must examine the job 
offer portion of a labor certification. USCIS may neither ignore a term on a certification, nor impose 
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Matter of L-C-N-A-S-
additional requirements. See. e.g., Tongatapu Woodcrafi Haw .. Ltd. v. Feldman. 736 F.2d 1305. 
1309 (9th Cir. 1984) (holding that immigration authorities are "bound by the DOL's certification"). 
Here, the record does not establish the labor certification's requirement of at least two years of 
training or experience. The labor certification states the minimum requirements of the offered 
position of manicurist and pedicurist as "beauty school'' education and one month of experience in 
the job otTered. Contrary to the minimum criteria for skilled workers. the labor certification requires 
no training and less than two years of experience for the offered position. 
For skilled-worker classification purposes, relevant post-secondary education may qualify as 
training. 8 C.F.R. § 204.5(1)(2) (defining the term ''skilled worker"). But the labor certification here 
does not specify whether the beauty school education must be post-secondary, or the required 
amount of the education. The record therefore does not establish that the proffered position, as 
certified by DOL, requires at least two years of training. 
On appeal, the Petitioner does not address this denial ground. Therefore, as the Director found. the 
record does not establish the labor certification's support for the requested classification. 
IV. CONCLUSION 
The record on appeal does not establish the Petitioner's ability to pay the profTered wage or the labor 
certification's support for the requested classification. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
Cite as Matter ofL-C-N-A -S-, ID# 835449 (AAO Nov. 16, 20 17) 
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