dismissed EB-3 Case: Charity

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-W-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 15, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETlTION FOR ALIEN WORKER 
The Petitioner, a charitable organization, seeks to employ the Beneficiary as its president. 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), ·g U.S.C. § I 153(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 positon that requires at least two 
years of training or experience. 
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 asserts that it has the requisite financial resources to pay the proffered 
wage. 
Upon de novo review, we will dismiss the appeal. We find that the Petitioner has not established its 
continuing ability to pay the proffered wage from the priority date onward. In addition, we find that 
the record does not establish that the Beneficiary meets the minimum educational and experience 
requirements of the labor certification. 
l. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification (ETA Form 9089, ,Application for Permanent Employment 
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 
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 USCIS approves the 
petition, the foreign national applies 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 C-W-. Inc. 
II. ANALYSIS 
A. Ability to Pay the Proffered Wage 
The regulation at 8 C.F.R. § 204.5(g)(2) provides that a petitioner must establish its ability to pay the 
proffered wage frl?m the priority date of the petition 1 until the beneficiary obtains lawful permanent 
residence {LPR). In this case, the proffered wage is $121,576 per year and the priority date of the 
petition is May 3, 2017. The· evidentiary requirements for a petitioner to establish its ability to pay 
the proffered wage are stated in the regulation, in pertinent part, as follows: 
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]. 
In determining a petitioner·s ability to pay the proffered wage, USCIS first examines whether a 
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 . for the time period in question, the evidence, when 
accompanied by regulatory required documentation, is considered proof of the petitioner's ability to 
pay the protlered w·age of that beneficiary. In this case, the record indicates that the Petitioner has 
not employed the Beneficiary. Thus, the Petitioner cannot establish its ability to pay the proffered 
wage from the priority date onward based on wages paid to the Beneficiary. 
If a petitioner does .not establish that it has paid the beneficiary an amount at least equal to the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures entered on the petitioner's foderal income tax return(s). If either of these figures 
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. 2 
The Petitioner states that it was established in 2011, and has submitted evidence showing that in 
January 2014 it was granted tax exempt status as a "public charity" under section 501(c)(3) of the 
Internal Revenue Code. Most charitable organizations are required to file an annual return - either a 
Form 990, Return of Organization Exempt from Income Tax, if its gross receipts exceed $200,000, 
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.S(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied from the 
priority date onward. 
2 Federal courts hav~ upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolilano, 558 F.3d 111. 118 (1st Cir. 2009); Tongatapu Woodcrl{/i Haw., lid v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015): Rizvi 
_v. Dep 't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), l!ff"d. -- Fed. Appx. --, 2015 WL 5711445, • 1 
(5th Cir. Sept. 30, 2015). 
2 
.
( 
Matter ofC-W- . Inc. 
or a Form 990-EZ, Short Form, if its gross receipts are under $200,000, or a Form 990-N (e­
Postcard) if its gross receipts are under $50,000 . See h11ps:l/wwwirs .gov/charities-110n-pr<dits(form-
990-series-which-:forms -do-exempt-organizatiom ·:file:filing-phase-in (last visited Dec. 20, 2018). 
On its Form I-140 the Petitioner stated that its gross annual income was $40,004, which would make 
it eligible to file a Form 990-N . However, the Petitioner did not submit a copy of its 2017 return. 
Nor did the Petitioner submit another form of regulatory required evidence, such as an annual report 
or audited financial statement. As the record lacks a form of regulatory required evidence, the 
Petitioner has not established its ability to pay the proffered wage from the priority date onward 
based on its net income or net current assets. 
On appeal the Petitioner requests that USCIS consider the totality of its circumstances, as set forth in 
Maffer <~(Sonegawa. 12 l&N Dec. 612 (Reg'I Con,m'r 1967), in determining its ability to pay the 
proffered wage . Per Mat~er ofSonegawa USCIS may, at its discretion, consider evidence relevant to 
the petitioner's financial ability that foils 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 
uncharacte~istic business expenditures or losses, and any other evidence that USCIS deems relevant 
to the petitioner 's ability to pay the proffered wage . 
While we may consider other factors in this case, the lack of any form of required evidence of the 
Petitioner's ability to pay prohibits us from fully analyzing the totality of the Petitioner ' s 
circumstances . Nevertheless , we will address the Petitioner ' s arguments . The Petitioner asserts that 
it has received an irrevocable commitment from another company in the amount of $150,000 to fund 
the Beneficiary 's salary . As evidence thereof the Petitioner has submitted a letter from the president 
of in Utah, dated May I, 2017 , 
stating that it was "irrevocably commit[ted] to donate $150 ,000 to [the Petitioner] (either directly or 
via an affiliate) for the purpose of salary for [the Petitioner's] proposed President, [the Beneficiary], 
upon approval of his immigrant visa." However, as noted by courts "nothing in the governing 
regulation , 8 C.F.R. § 204.5, pennits [USCIS] to consider the financial resources of individuals or 
entities who have no legal obligation to pay the wage. " Sitar v. Ashcr<~ft, 2003 WL 22203713 
(D.Mass . Sept. 18, 2003). Moreover , even if we _were able to consider the pledge from the 
letter indicates that would contribute the money upon the approval of the immigrant visa. 
But the regulations require the Petitioner to establish its ability to pay the proffered wage·as of the 
priority date. A pledge of money in the future would not demonstrate the Petitioner's ability to pay 
from May 3, 2017 , onward . 
The Petitioner also asserts that it could utilize the funds in its bank account with 
to pay the Beneficiar y' s proffered wage . It has submitted an account summary , printed on 
May 2, 20 I 8, which indicated a balance of $176 ,849.50 . While the regulation at 8 C .F.R .. 
§ 204.5(g)(2) allows for the submission of other evidence such as bank account records "in 
appropriate cases ," bank account records are not among the three types of required evidence 
3 
.
Maller (!/C-W-. Inc. 
identified in the regulation - annual reports, federal tax returns, or audited financial statements - to 
demonstrate a petitioner's ability to pay the proffered wage . Bank account statements show an 
account balance on a given date, not the account holder's sustainable ability to pay a proffered wage 
over time. In this case the Petitioner has not submitted any other account statements aside from the 
one dated · May 2, 2018, so there is no evidence of the account balance before and after May 2018 . 
"\ Moreover, the Petitioner has not shown that the money in its bank account constitutes a financial 
resource that could be utilized exclusively to pay the proffered wage, and would not be needed to 
pay other expenses . Thus,. the Petitioner has not established its continuing ability to pay the 
proffered wage from the priority date onward based on its account with 
The Petitioner describes itself as a "start-up" organization, though it was established back in 2011. 
The Petitioner stated on the 1-140 petition in 2017 that it had two employees and that its gross annual 
income was $40,004. Aside from the bank account statement and the letter from discussed 
above, the Petitioner has submitted no other financial documentation . Thus , there is little evidence 
of its overall financial situation, and the evidence that docs exist indicates that the Petitioner's 
· operation is quite small. The documentation of record does not show a historical pattern of growth 
for the Petitioner, or even of financial stability. 
For all of the reasons discussed above, the Petitioner has not established its continuing ability to pay 
the proffered wage from the priority date onward based on the totality of its circumstances, as in 
Matter qfSonegawa . 
B. Educational and Experience Requirements of the Labor Certification 
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 Maller <?f Wing 's Tea House, 16 l&N Dec. 
·158, 159 (Acting Reg'I Comm ' r 1977). Though not addressed by the Director in the denial, we find 
that the evidence of record in this case does not establish that the Beneficiary meets the education 
and experience requirements of the labor certification. 
1. Education 
The labor certification specifies in section H, boxes 4 and 9, that the minimum level of education 
required for the job opportunity is a U.S. high school diploma or a foreign educational equivalent. In 
section J, boxes 11-14, the Beneficiary asserts that he met the educational requirement with a high 
school diploma in 1980 from in South Africa .. 
However, the Petitioner has submitted no documentary evidence of the Beneficiary ' s alleged 
education . The Petitioner bears the burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S .C. § 1361; Matter <?f Skirba/1 Cultural Ctr., 25 I&N Dec. 799, 806 
(AAO 2012) . In this case the Petitioner has not submitted evidence that the Beneficiary has the 
requisite education to qualify for the job opportunity . 
4 
.
Maller ofC-W-. Inc.' 
2. Experience 
The labor certification specifies in section H, boxes 6, 10/10-A, I 0-B, and 14 that the experience 
requirement for the job opportunity is 48 months as a president, founder, CEO , or chairman of a 
private sector business with international operations, with "experience in private sector business, 
international business, and leading/motivating teams, including teams in other countries/cultures . . . 
involvement in the start-up of at least one company, grant-writing experience .... " In section K of 
the labor certification the Beneficiary listed two prior jobs: (I) as the acting president of 
international development with m Arizona, from 
December 15, 2005, to June 30, 2009, and (2) as the founder and CEO of 
in British Columbia , from August 1,. 1998, to December 14, 2005 . In 
order to substantiate claimed experience , the Petitioner must submit employment verification letters. 
See 8 C.F.R. § 204.5(g)(l) and (1)(3)(ii)(A). 
The Petitioner submitted a letter from the human resources manager of stating that the 
Beneficiary was employed as~ consultant of international development "responsible for establishing 
the international businesses and setting up the companies in Hong Kong, Taiwan, Australia, and 
New Zealand , as well as supporting our Canadian business," from December I, 2005, to July' 16, 
2005 . These starting and ending dates differ from those stated in the labor certification , addi~g a 
month to the Beneficiary's alleged employment with Aside from this inconsistency 
concerning the dates of employment, and regardless of which are correct, the Beneficiary would not 
meet the experience requirement of the labor certification based on employment alone 
because it lasted less than 48 months . 
There is no evidence in the record of the Petitioner's alleged employment with from 
August 1998 to December 2005. Instead , the Petitioner has submitted a letter from the president of 
m Ontario, stating that he was the general manager at 
when the Beneficiary was employed by as its COO 
(chief operating officer) from April 2001, to May 2002, and a letter from the chairman of 
in Ontario, stating that the Beneficiary was employed as vice 
president of international business development from May 2002 to July 2005 . Neither nor 
is listed on the labor certification as a company with which the Beneficiary gained 
qualifying experience, and the letters from the former general manager and the 
chairman conflict with the information on the labor certification alleging that the Beneficiary was 
employed as CEO of ___ m ___ British Columbia, during that time period. 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent 
objective evidence . Attempts to explain or reconcile such inconsistencies will not suffice without 
competent evidence pointing to where the truth lies. See Ma/fer of Ho, 19 l&N Dec . 582, 591-92 
(BIA 1988). Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of 
the petitioner's remaining evidence. See id. The Petitioner has not explained the conflicting 
information about the Beneficiary's employment history in the labor certification and the 
employment verification letters . As the letters do not confirm that the Beneficiary has 48 months of 
5 
Matter C?f C-W-. Inc. 
qualifying experience, the record does not establish that the Beneficiary has the requisite experience 
to qualify for the job opportunity. 
rn. CONCLUSION 
We will dismiss the appeal because th~ Petitioner has not established its continuing ability to pay the 
proftered wage from the .priority date of May 3, 2017, onward, and because the Petitioner has not 
established that the Beneficiary meets the minimum educational and experience requirements of the 
labor certification. 
ORDER: The appeal is dismissed. 
Cite as Matter <?f'C-W-, Inc., ID# 2396829 (AAO Jan. 15, 2019) 
i 
6