dismissed EB-3 Case: Cleaning Services

MATTER OF B-H-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
A~ministrative Appeals Office 
DATE: OCT. 31,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a cleaning services business, seeks to employ the Beneficiary as a "Supervisor, 
cleaners." It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant classification. See Immigration and Nationality Act (the Act) § 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based 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 2 years of traiQ.ing or experience. 
The Director, Texas Service Center, denied the petition, concluding that the Petitioner· had not 
established its ability to pay the proffered wage or that the Beneficiary met the minimum experience 
requirements of the ETA Form 9089, Application for Permanent Employment Certification (labor 
certification), certified by the U.S. Department of Labor (DOL). , 
The matter is now before us on appeal. The Petitioner submits several pages from the IRS website 
regarding S-corporations and two letters regarding the Beneficiary's experience. The Petitioner 
claims that it has the ability to pay the proffered wage based on the totality of the circumstances and 
that the experience letters demonstrate the Beneficiary meets the requirements of labor certific~tion. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor certification from the DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 
1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) must approve an 
immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the foreign national 
must 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. 
As required by statute, a labor certification approved by the DOL accompanies the instant 
petition. By approving the labor certification, the DOL certified that there are insufficient U.S. workers 
who are able, willing, qualified, and available for the offered position. Section 212(a)(5)(A)(i)(I) of the 
Act. The DOL also certified that the employment of a foreign national in the position will not adversely 
(b)(6)
· Matter of B-H-, Inc. 
affect the wages and working conditions of domestic workers similarly employed. Section 
212(a)(5)(A)(i)(II) ofthe Act. 
In these visa petition proceedings, USeiS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th eir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. eir. 1983) (both holding that users has authority to 
make preference classification decisions). 
The priority date of a petition is the date the DOL accepted the labor certification for processing. 
See 8 e.F.R. § 204.5(d). The priority date is used to calculate when the beneficiary of the visa 
petition is eligible to adjust his or her status to that of a lawful permanent resident. See 8 e.F .R. § 
245.l(g). A petitioner must establish the elements for the approval of the petition at the time the 
priority date is established and continuing until the beneficiary obtains lawful permanent residence. 
See 8 e.F.R. §§ 204.5(g)(2), 103.2(b)(l), (12); see also Matter~~ Wing's Tea House, 16 I&N Dec. 
158, 159 (Acting Reg' l eomm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l eomm 'r 
1971). 
In the instant case, the priority date is September 20, 2012. Therefore, the Petitioner must establish 
that all eligibility requirements for the petition have been satisfied from September 20, 2012, 
onward. 
II. ANALYSIS 
The issues on appeal are: (A) whether the Petitioner has the ability to pay the proffered wage; and 
(B) whether the Beneficiary meets the minimum requirements of the labor certification to qualify for 
the position offered. On June 21, 2016, we issued the Petitioner a request for evidence (RFE) and 
requested the following evidence: 
• The personal federal tax returns ofthe Petitioner's sole shareholder's for 2014 and 2015 and her 
Form W-2 for2015 ; 
• The Petitioner's federal tax return for 2015 and the Form W-2 issued to the Beneficiary for 
2015; 
• An explanation demonstrating how the Beneficiary's experience at supervtsmg 
employees who are using specialized equipment to clean jewelry machinery consists of 
experience in the job offered supervising personnel engaged in cleaning residences and 
commercial buildings; and 
• A copy of the signed recruitment report required by 20 e.F.R. § 656.17(g)(l), to further clarify 
the actual minimum requirements for the offered position. Specifically, we requested that the 
Petitioner provide copies of the prevailing wage determination, all online, print and additional 
recruitment conducted for the position, the job order, the posted notice of the filing of the labor 
certification, and all resumes received in response to the recruitment efforts. ( 
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Matter of B-H-, Inc. 
In response to our RFE, the Petitioner provided its federal tax return for 2015; the sole shareholder's 
personal tax return for 2015; the Form W-2 issued to the Beneficiary for 2015; the Form W-2 issued 
to the Petitioner's sole shareholder for 2014; and the sole shareholder's personal tax return for 2014. 
A. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must establish that its job offer to the beneficiary is a realistic one. The petitioner's ability 
to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See 
Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg'l eomm'r 1977). 
The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1t10n 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 this case, the labor certification was accepted on September 20, 2012, the priority date. The 
proffered wage as stated on the labor certification is $52,250 per year. 
The evidence in the record of proceeding shows that the Petitioner is structured as an S corporation. 
On the petition, the Petitioner claimed to have been established in 1996 and to employ 18 workers. 
According to the tax returns in the record, the Petitioner's fiscal year is based on a calendar year. 
In determining the petitioner's ability to pay the proffered wage during a given period, USers 
requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered 
wages, although the totality of the circumstances affecting the petitioning business will be considered if 
the evidence warrants such consideration. See Matter o.fSonegawa, 12 I&N Dec. 612 (Reg'l eomm'r 
1967). users will first examine whether the petitioner employed and paid the beneficiary during 
that period. 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 will be considered prima .facie 
proof of the petitioner's ability to pay the proffered wage. 
In the instant case, the following table indicates the amount of wages the Petitioner paid the 
Beneficiary in 2012, 2013, 2014, and 2015 as compared with the proffered wage: 
Year Proffered wage Wages paid Deficiency in wages paid 
2012 $52,250 $16,620 $35,630 
2013 $52,250 $20,150 $32,100 
2014 $52,250 $21,272 $30,978 
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Matter of B-H-, Inc. 
I 2o15 I $52,250 $25,506 
0 
$26,744 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal 
to the proffered wage during that period, USCIS will next examine the net income figure reflected 
on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Taco Especial v. 
Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 
2011). Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay 
the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. 
Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305 (9th Cir. 1984)). 
The Petitioner's tax returns demonstrate its net income as shown below: 
• In 2012, the IRS Form 1120S, U.S. Income Tax Return for an S Corporation, stated net 
income1 of$4642. 
• In 2013, the Form 1120S stated net income of$29,062. 
• The Petitioner did not submit its federal tax return, annual report, or audited financial 
statements for 2014.2 
• In 2015, the Form 1120S stated net income of -$9888. 
Therefore, for the years 2012, 2013, 2014, and 2015, the Petitioner did not establish that it had 
sufficient net income to pay the difference between the wages paid to the Beneficiary and the 
proffered wage. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS may 
review the petitioner's net current assets. Net current assets are the difference between the 
petitioner's current assets and current liabilities.3 A corporation's year-end current assets are shown 
on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. 
If the total of a corporation's end-of-year net current assets and the wages paid to the beneficiary (if 
any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the 
proffered wage using those net current assets. 
The Petitioner's tax returns demonstrate its end-of-year net current assets, as shown below: 
1 Where an S corporation's income is exclusively from a trade or business, USCIS considers net income to be the figure for 
ordinary income, shown on line 21 of page one of a petitioner's Form 1120S. 
2 The Petitioner did not submit regulatory prescribed evidence of its ability to pay the proffered wage in 2014, although 
such evidence should have been available at the time the instant appeal was filed. A petition may be denied where the 
petitioner does not submit evidence that precludes a material line of inquiry. See 8 C.F.R. § 103.2(b)(l4). 
3 According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items having (in 
most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and 
accrued expenses (such as taxes and salaries). /d. at 118. 
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Matter of B-H-, Inc. 
• 
• 
• 
• 
In 2012, the Form 1120S stated net current assets of -$29,047 . 
In 2013, the Form 1120S stated net current assets of$1201. 
The Petitioner did not submit its federal tax return, annual 
statements for 2014. 
In 2015, the Form 1120S stated net current assets of -$15,545 . 
I 
report, or audited financial 
Thus, for the years 2012, 2013, 2014, and 2015, the Petitioner did not establish that it had sufficient 
net current assets to pay the difference between the wages paid to the Beneficiary and the proffered 
wage. 
Therefore, from the date the labor certification was accepted for processing by the DOL, the 
Petitioner had not established that it had the continuing ability to pay the Beneficiary the proffered 
wage as of the priority date through an examination of wages paid to the Beneficiary, or its net 
income or net current assets. 
US CIS may consider the overall magnitude of the petitioner's business activities in its determination 
of the petitioner's ability to pay the proffered wage. See Matter, of Sonegawa, 12 I&N Dec. 612 
(Reg'l Comm'r 1967). As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to 
the petitioner's financial ability that falls outside of a petitioner's net income and net current assets. 
USC IS 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 overall number of employees, the 
occurrence of any uncharacteristic business expenditures or losses, the petitioner's reputation within 
its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any 
other evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
In the instant case, the Form I-140 states that the Petitioner has been in business since 1996 and that 
it employs 18 workers. The Petitioner's tax returns state low net income for 2012, a net loss for 
2015, and low net current assets for 2013. The record does not reflect any uncharacteristic business 
expenses from 2012 through 2015. The Forms W-2 in the record indicate that the Petitioner has paid 
the Beneficiary less than half of the proffered wage in 2012, 2013, 2014, and 2015. While we note 
that the Petitioner's tax returns indicate growth in total wages paid from 2012 to 2013 and from 2013 
to 2015, we note that the Beneficiary's annual salary increased only slightly and the Petitioner's net 
income and net current assets fluctuated greatly during this period. 
The Petitioner states on appeal that, as the sole shareholder, she would have been able to pay the 
difference in wages paid to the Beneficiary by utilizing a portion of the amount she received through 
officer compensation. Because a corporation is a separate and distinct legal entity from its owners 
and shareholders, the assets of its shareholders or of other enterprises or corporations generally 
cannot be considered in determining the petitioning corporation's ability to pay the proffered wage. 
See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 53o' (Comm'r 1980). In a similar case, the 
court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the 
governing regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of 
individuals or entities who have no legal obligation to pay the wage." However, in the case of a 
corporation with a sole shareholder, the sole shareholder has the authority to allocate expenses of the 
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Matter of B-H-, Inc. 
corporation for various legitimate business purposes. Compensation of officers Is an expense 
category explicitly stated on the Form 1120S. 
In this case, the record contains a letter from the Petitioner's sole shareholder, indicating that she is 
willing to forego a portion of her officer compensation to pay the difference between the proffered 
wage and the actual wages paid to the Beneficiary in each year. The Petitioner's sole shareholder 
was paid $114,000 in 2012, $112,000 in 2013, $119,200 in 2014 and $129,600 in 2015. She states 
that her annual household expenses are approximately $4,000 per month or $48,000 per year.4 
However, the Petitioner's sole shareholder files her tax returns jointly with her husband. There is no 
indication in the record that he would consent to paying the Beneficiary the $125,452 from their 
family's income from 2012 through 2015 that represents the total shortfall in wages paid to the 
Beneficiary for these years. The sole shareholder has not established her ability to forgo a portion of 
her officer compensation in each relevant year. Further, without regulatory-required evidence of the 
Petitioner's ability to pay the proffered wage in 2014, the petition cannot be approved. 
Therefore, the Petitioner has not established that it had the continuing ability to pay the Beneficiary 
the proffered wage as of the priority date based on the totality of the circumstances. 
B. The Beneficiary's Qualifications and the Actual Minimum Requirements 
A petitioner must establish that the beneficiary possessed all the education, training, and experience 
specified on the labor certification as of the priority date. See Matter of Wing's Tea House, 16 l&N 
Dec. 158, 159 (Acting Reg'l Comm'r 1977); see also Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l 
Comm'r 1971). In evaluating the beneficiary's qualifications, USCIS must look to the job offer 
portion of the labor certification to determine the required qualifications for the position. 
I 
In this case, the labor certification states that the offered position requires 24 months of experience 
in the position offered as a "Supervisor, cleaners." Part H.11 of the labor certification states the job 
duties of this position as follows: 
Supervise work activities of personnel engaged in cleaning residence and commercial 
buildings, assign workers' job duties and schedules, obtain feedback from clients, 
train new employees. 
The labor certification states that the Beneficiary gained the required qualifYing expenence as an 
4 While the Petitioner's sole shareholder claims $4000 in monthly expenses in a statement dated May 7, 2015, the record 
does not contain documentation supporting this amount. The Petitioner cannot meet the burden of proof simply by 
claiming a fact to be true, without supporting documentary evidence. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg'! Comm'r 1972)); see also Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support assertions with relevant, probative, and 
credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. With any further filings, the Petitioner should submit 
supporting documentary evidence of its sole shareholder's annual expenses in each year that she asserts she would 
forego officer's compensation to pay the proffered wage. 
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(b)(6)
Matter of B-H-, Inc. 
operations manager for in Ecuador from October 8, 1995, to July 31 , 1998. The 
beneficiary's claimed qualifying experience must be supported by letters from employers giving the 
name, address, and title of the employer, and a description of the beneficiary's experience. See 8 C.F.R. 
§ 204.5(1)(3)(ii)(A). 
The record contains a letter from dated December 20, 2015, which states that the 
Beneficiary was employed at as operations manager from October 8, 1995, to July 31, 1998, 
and that she supervised approximately 25 employees including janitors and machine cleaners. The 
record contains another letter from dated February 27, 2015, which states that the 
Beneficiary was employed at from March 8, 1995, to October 30, 1997. We indicated in our 
RFE to the Petitioner that these dates conflict with the dates provided in the December 20, 2015, letter 
and the dates of employment stated on the labor certification. The Petitioner did not resolve this 
discrepancy in response to our RFE. 
In' addition, we requested in the RFE that the Petitioner demonstrate how the Beneficiary's experience 
at supervising employees who used specialized equipment to clean jewelry machinery consists 
of experience in the job offered supervising personnel engaged in cleaning residences and commercial 
buildings. The Petitioner did not provide any explanation to resolve this concern in response to our 
RFE. We also note tha' the Petitioner did not submit a copy of the signed recruitment report required 
by 20 C.F .R. § 656.17(g)(l ), as we requested in our RFE, to further clarify how the actual minimum 
requirements for the offered position were conveyed to potential U.S. workers. We conclude that the 
experience letters in the record do not demonstrate that the Beneficiary gained experience supervising 
personnel in cleaning residence and commercial buildings, assigning workers' job duties and schedules, 
obtaining feedback from clients, and training new employees. Therefore, the Petitioner has not 
established that the Beneficiary met the experience requirements of the labor certification. 
III. CONCLUSION 
For the reasons stated above, the Petitioner has not established that it has the continuing ability to 
pay the proffered wage. Further, the Petitioner has not established that the Beneficiary met the 
experience requirements of the labor certification. 
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; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-H-, Inc. , ID# 78345 (AAO Oct. 31 , 20 16) 
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