dismissed EB-3 Case: Childcare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 21, 2025 In Re: 36915046 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is a limited liability company (LLC) whose sole owner wants the Beneficiary to serve 
as a nanny for his two sons. The company requests his classification under the employment-based, 
third-preference (EB-3) immigrant visa category as an "other worker." See Immigration and 
Nationality Act (the Act) section 203(b )(3)(A)(iii), 8 U.S.C. § 1153(b )(3)(A)(iii). Businesses may 
sponsor aliens for U.S. permanent residence in this category to work in jobs requiring less than two 
years of training or experience. 8 C.F.R. § 204.5(1)(2) (defining the term "other worker"). 
The Director of the Nebraska Service Center denied the petition, concluding that the petitioning LLC 
did not demonstrate its required ability to pay the offered job's proffered wage. On appeal, the 
company contends that, when determining its ability to pay, the Director should have considered its 
owner's personal finances because a state law could make him personally liable for the Beneficiary's 
wages. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that only the LLC's finances - not those of its legally separate sole owner - can 
establish its ability to pay a proffered wage. We will therefore dismiss the appeal. 
I. LAW 
Immigration as an other - or "unskilled" - worker generally follows a three-step process. First, a 
prospective employer must obtain certification from the U.S. Department of Labor (DOL) that: there 
are insufficient U.S. workers able, willing, qualified, and available for an offered job; and an alien's 
permanent employment in the position would not harm wages and working conditions of U.S. workers 
with similar jobs. Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit a DOL-approved labor certification with an immigrant visa petition 
to U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. 
§ 1154(a)(l)(F). Among other things, USCIS determines whether an alien beneficiary meets the 
requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. 
§ 204.5(1)(3)(ii)(D). 
Finally, if USCIS approves a petition, a beneficiary 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. 
II. FACTS 
The petitioning LLC, a real estate investment company, filed a labor certification application for the 
offered nanny job in September 2022. The record indicates that the job involves caring for the two 
sons of the Petitioner's sole owner, including planning and preparing meals. 
After DOL certified the labor application in September 2023, the Petitioner filed this petition in 
December 2023. In a letter accompanying the petition, the company's sole owner stated that the 
petitioning LLC: 
allows me to manage real estate investments as well as other personal and family 
business through a legal structure that offers some protection to my other enterprises 
and assets. For the purposes of this visa petition, [the Petitioner] should be understood 
as a limited liability company which serves as a sponsor for our personal household 
employees. Note that the income from this entity flows through onto o[ur] personal 
tax returns. 
In August 2024, the Director mailed a request for additional evidence (RFE) to the Petitioner. The 
RFE requested additional proof of the company's ability to pay the job's annual proffered wage of 
$27,269 and confirmation of the LLC's intent to employ the Beneficiary. 
The Petitioner's RFE response included a letter from former counsel. The letter stated: "While ... 
the business [of the company's sole owner] is real estate, we note that he uses this entity for the 
household expenses and employees." The letter challenged the RFE's statement that, when 
determining the company's ability to pay the job's proffered wage, USCIS could not consider the 
owner's personal finances. The letter stated that the LLC "is NOT treated as a separate entity [from 
its owner] for tax purposes, and there is no basis for treating it as a separate entity for ability to pay 
purposes." 
In November 2024, the Director denied the petition, concluding that the petitioning company did not 
demonstrate its ability to pay the offered job's proffered wage. 1 As to the personal finances of the 
company's owner, the decision stated: "USCIS will not consider the financial resources of individuals 
or entities who have no legal obligation to pay the wage." 
This timely appeal followed. 
1 It is unclear whether the petitioning LLC or its sole owner intends to employ the Beneficiary in the offered job. See 
section 204( a)(l )(F) of the Act (requiring a petitioner to be "desiring and intending to employ [ an alien] within the United 
States"). As the Director did not decide the petition on that basis, we need not consider the issue. See INS v. Bagamasbad, 
429 U.S. 24, 25 ( 1976) (per curiam) (holding that agencies need not make "purely advisory findings" on issues 
unnecessary to their ultimate decisions). 
2 
III. ANALYSIS 
A. Ability to Pay the Proffered Wage 
A petitioner must demonstrate its continuing ability to pay an offered job's proffered wage, from a 
petition's priority date until a beneficiary obtains U.S. permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must generally include copies of annual reports, federal tax returns, or 
audited financial statements. Id. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full 
proffered wage in relevant years, beginning with the year of a petition's priority date. See generally 
6 USCIS Policy Manual E.4(C)(l), www.uscis.gov/policy-manual. If a petitioner did not annually 
pay the full proffered wage or did not pay a beneficiary at all, USCIS considers whether the business 
generated annual amounts of net income or net current assets sufficient to pay any differences between 
the proffered wages and the wages paid. See generally 6 USCIS Policy Manual E.4(C)(2). If net 
income and net current assets are insufficient, USCIS may consider other factors potentially affecting 
a petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 
(Reg'l Comm'r 1967); see generally 6 USCIS Policy Manual E.4(C)(3). 2 
As previously indicated, the Petitioner's labor certification states the proffered wage of the offered 
nanny job as $27,269 a year. The petition's priority date is September 27, 2022, the date DOL accepted 
the accompanying labor certification application for processing. See 8 C.F.R. § 204.S(d) (explaining 
how to determine a petition's priority date). 
At the time of the appeal's filing in December 2024, required evidence of the Petitioner's ability to 
pay the proffered wage that year was not yet available. Thus, for purposes of this decision, we will 
determine the company's ability to pay only in 2022, the year of the petition's priority date, and 2023. 
The record does not indicate the Petitioner's payment of wages to the Beneficiary in 2022 or 2023. 
Thus, based solely on wages paid, the company has not demonstrated its ability to pay the proffered 
wage. 
As previously indicated, the record shows that the Petitioner is a single-member LLC. As an LLC 
with only one owner, the company need not file federal income tax returns. See U.S. Internal Revenue 
Serv. (IRS), "Single member limited liability companies," www.irs.gov/businesses/small-businesses­
self-employed/single-member-limited-liability-companies ( explaining that, for federal income tax 
purposes, the IRS may treat single-member LLCs as "disregarded entities" indistinguishable from 
their owners). Rather, the LLC's sole owner may list the business's income on Schedules C, Profits 
or Losses from Business, in his individual federal income tax returns. Id. 
The Petitioner submitted copies of its owner's federal income tax returns for 2022 and 2023. The 
Schedule C of the 2022 return reflects the LLC's business income of-$74,664. The 2023 Schedule C 
2 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See. e.g., River 
St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-
43 (S.D. Cal. 2015). 
3 
lists business income of -$44,083. Neither of these negative amounts equals or exceeds the annual 
proffered wage of $27,269. Thus, as the Director found, neither the Petitioner's wages paid nor net 
income amounts demonstrate the company's ability to pay the proffered wage in 2022 or 2023. 3 
As previously indicated, we may consider other factors potentially affecting the Petitioner's ability to 
pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. at 614-15; 6 USCIS Policy Manual 
E.4(C)(3). We may consider: the number of years the company has conducted business; its number 
of employees; growth in its business; uncharacteristic losses or costs incurred; its reputation in its 
industry; the Beneficiary's replacement of a current employee or outsourced service; or other issues 
affecting the company's ability to pay the proffered wage. Id. 
The record shows that the Petitioner has conducted business since 2019 and employs one person. 4 The 
Schedules C of the company's owner indicate that the LLC's gross annual income from 2022 to 2023 
increased from $88,250 to $106,113. Contrary to the petitioner in Sonegawa, however, the record 
does not indicate the Petitioner's incurrence of uncharacteristic business losses or costs in the relevant 
years or its possession of a good reputation in its industry. The company also has not demonstrated 
the Beneficiary's replacement of a current employee or outsourced service or any other factors 
affecting its ability to pay the proffered wage. Thus, on balance, a totality of the circumstances does 
not establish the company's ability to pay. 
On appeal, the Petitioner asserts that the Director erroneously disregarded its owner's personal 
finances. As previously indicated, the company submitted copies of the individual federal income tax 
returns of its owner for 2022 and 2023. The company also provided a list of the household living 
expenses of him, his spouse, and two sons. After subtracting the living expenses from the owner's 
adjusted gross income amounts in each year, the Petitioner argues that its owner had the ability and 
willingness to pay the job's annual proffered wage in 2022 and 2023. 
The Director, however, correctly disregarded the personal finances of the Petitioner's owner as 
evidence of the company's ability to pay the proffered wage. The applicable regulation requires "the 
prospective United States employer" to demonstrate its ability to pay the proffered wage. 8 C.F.R. 
§ 204.5(g)(2). The Petitioner's Form I-140 and accompanying labor certification clearly list the name 
and federal employer identification number of the petitioning LLC - not its owner - as the 
Beneficiary's prospective U.S. employer. 5 Thus, consideration of the owner's personal resources does 
not satisfy the regulation's evidentiary requirements. See Sitar Rest. v. Ashcroft, No.Civ.A.02-30197-
MAP, 2003 WL 22203713, *2 (D. Mass. Sept. 18, 2003) ("[N]othing in the governing regulation, 
8 C.F.R. § 204.5, permits the [immigration service] to consider the financial resources of individuals 
or entities who have no legal obligation to pay the wage.") 
3 Schedules C do not contain sufficient information to determine a petitioner's current assets and liabilities. USCIS is 
therefore unable to calculate the Petitioner's net current asset amounts in 2022 or 2023. 
4 The labor certification states the Petitioner's employment of one person. But the Form I-140, Immigrant Petition for 
Alien Worker, and the company's federal income tax returns for 2022 and 2023 do not indicate that the LCC had any 
employees. 
5 The Form 1-140 and labor certification list different worksites for the offered job. The labor certification states the 
worksite as the petitioning LLC's address. The Form 1-140 lists the worksite as the home of the company's sole owner. 
Both sites are in the same metropolitan statistical area and therefore reflect the same prevailing wage for the offered job. 
See 20 C.F.R. § 656.3 ( defining the term "area of intended employment"). 
4 
The Petitioner notes that USCIS sometimes considers individual personal finances as evidence of 
prospective employers' abilities to pay proffered wages. For example, USCIS considers the personal 
assets and liabilities of sole proprietors and individual employers of domestic workers. See generally 
6 USCIS Policy Manual E.4(B), Income and Assets of Others. But the Agency considers those 
personal finances when sole proprietors and individual domestic employers list themselves as 
prospective U.S. employers on Forms I-140 and accompanying labor certifications. As discussed 
above, the prospective U.S. employer in this case is the petitioning LLC, not its owner. Unlike sole 
proprietors and other individuals, a legal entity generally has a separate existence from its 
shareholders, members, managers, officers, or owners. See Cal. Corps. Code§ 17701.04(a) ("A limited 
liability company is an entity distinct from its members.") 
The Petitioner also notes that, although certain partnerships are separate legal entities from their 
partners, general partners are personally liable for the debts of their businesses. See generally 6 USC IS 
Policy Manual E.4(B), Income and Assets of Others. Thus, if a petitioning partnership lacks sufficient 
net income or net current assets to establish its ability to pay a proffered wage, users may consider 
whether the partnership's general partner is individually willing and able to pay the proffered wage. 
Id. As the Petitioner is an LLC, however, these exceptions for sole proprietors, other individuals, and 
general partners do not apply. A single-member LLC is not considered separate from its owner for 
federal income tax purposes. But an LLC's single member is not personally liable for the business's 
debts. 6 USCIS Policy Manual E.4(B) n15. An LLC's sole owner therefore lacks a legal obligation 
to pay a proffered wage for immigration purposes. Id. 
The Petitioner further contends that users must consider the personal finances of the company's 
owner because, under state law, courts may hold him personally liable for employees' wages. A 
California labor law states: "Any employer or other person acting on behalf of an employer who 
violates, or causes to be violated, any provision regulating minimum wages or hours or days of work 
... may be held liable as the employer for such violation." Cal. Labor Code§ 558.l(a). The law 
defines a person acting on an employer's behalf as "a natural person who is an owner, director, officer, 
or managing agent of the employer." Cal. Labor Code§ 558.l(b). California courts have interpreted 
the law to hold owners, directors, officers, and managing agents personally liable for their involvement 
in violations of certain wage and hour laws. See, e.g., Espinoza v. Hepta Run, Inc., 74 Cal.App.5th 
44, 57-58 (Cal. Ct. App. 2022). Because the Petitioner's owner might become personally liable for 
the Beneficiary's wages, the company argues that users must consider the owner's personal finances. 
The Petitioner broadly asserts that California "imposes personal liability on owners and/or certain 
corporate officers to ensure [employee] wage payments." But the company's owner would incur 
personal liability for the Beneficiary's wages only if he violated certain wage and hour laws. The 
regulation at 8 C.F.R. § 204.5(g)(2) does not allow users to consider the personal finances of the 
LLC's sole owner on the mere chance that he might violate state labor laws in the future. 
California law specifies personal liability as a potential penalty for certain labor violations. But, with 
the exception of sole proprietors, individual domestic employers, and general partners, U.S. 
immigration law does not similarly hold employers' principals personally liable for paying a proffered 
wage. The regulation requires "the prospective United States employer" - not generally its owners, 
directors, officers, or managing agents - to demonstrate ability to pay a proffered wage. 8 C.F.R. 
5 
§ 204.5(g)(2). The Director therefore properly disregarded the personal finances of the Petitioner's 
owner as evidence of its ability to pay. 
III. CONCLUSION 
The Petitioner has not demonstrated 
its required ability to pay the offered job's proffered wage. We 
will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
6