dismissed EB-3 Case: Carpentry

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-1-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 18, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a finish carpentry contracting business, seeks to employ the Beneficiary as a multi­
skilled carpenter. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant category. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 
8 U.S.C. § l l 53(B)(3)(A)(i). This employment-based "EB-3" 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 two years of training or experience. 
The Director of the Texas 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 requests that the petition be approved so that it can utilize the Beneficiary's 
skills to help complete a recently signed service agreement. 
Upon de nova 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 domestic workers similarly employed. See section 
212(a)(5)(A)(i)(I)-(11) 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 USCIS 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. 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it 
has the ability to pay the proffered wage stated in the labor certification. As provided in the 
regulation at 8 C.F.R. § 204.5(g)(2): 
Matter of L-1-
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]. 
II. ANALYSIS 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date 1 of the petition onward. The priority date in the case is 
September 28, 201 7, and the proffered wage is $47,549. 
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. In 
this case, the Petitioner has not employed the Beneficiary at any time since the priority date. 
Accordingly, the Petitioner cannot establish its ability to pay the proffered wage based on wages 
paid to the Beneficiary. 
If a petitioner has not employed the beneficiary and paid him (or her) 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 statement(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 includes copies of the Petitioner's federal income tax returns, Form 1120, U.S. 
Corporation Income Tax Return, for 2017 and 2018. As recorded in the tax returns, the Petitioner 
had a net loss2 of $2,138.34 and net current assets 3 of $9,052.67 in 2017, and in 2018 had net 
income of $10,769.81 and net current liabilities of $5,526.88. As these figures were all well below 
the proffered wage, the Petitioner has not established its ability to pay the proffered wage in 2017 or 
in 2018 based on its net income or net current assets in either year. 
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 as of the 
priority date. 
2 Net income (or loss) was recorded on page 1, line 30, of the Form 1120. 
3 For a corporation net current assets (or liabilities) are the difference between its current assets, entered on lines 1-6 of 
Schedule L, and its current liabilities, entered on lines 16-18 of Schedule L. 
2 
Matter of L-1-
On a eal the Petitioner submits the copy of a service contract it signed with~I ------~ 
,,__ ___ __._....,m ......... ...,n __ ary 2019 to provide carpentry and related services in a construction project at 
irport, and asserts that the Beneficiary is needed to help complete this project. 
Nothing in the service contract, however, demonstrates the Petitioner's ability to pay the proffered 
wage to the Beneficiary in 2019, much less in the two prior years of 201 7 and 2018. 
USCIS 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 Sonegawa, 12 I&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 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 USCIS deems relevant 
to the petitioner's ability to pay the proffered wage. 
In this case, the Petitioner states that it began operations in 2003, had one employee at the time the 
petition was filed in December 2018, and that the job of multi-skilled carpenter is a new position. 
The tax returns in the record, which cover the four-year period of 2015-2018, show that the 
Petitioner's gross receipts totaled $308,398.35 in 2015; $341,886.90 in 2016; $266,198.98 in 2017; 
and $407,062.94 in 2018. While those figures indicate a modest increase in gross receipts from 
2015 to 2018, they also indicate a consistently small-scale business with fluctuating revenue and do 
not support the Petitioner's ability to pay. The Petitioner also does not claim uncharacteristic 
expenses or an outstanding reputation. Moreover, since the petition indicates that the multi-skilled 
carpenter job for which the Petitioner seeks the Beneficiary's services is a new position, the 
proffered wage of $47,549 would be a new expense for the Petitioner which it has not previously 
covered. Based on the record before us we conclude that the totality of its circumstances does not 
demonstrate the Petitioner's ability to pay the proffered wage from the priority date of September 28, 
201 7, onward. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority 
date onward. The appeal will be dismissed for the above stated reason. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of L-1-, ID# 6221911 (AAO Nov. 18, 2019) 
3