dismissed EB-3 Case: Clinical Laboratory Science

MATTER OF SMAM-L- INC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 22, 2016 
PETITION: ) FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a clinical laboratory, seeks to employ the Beneficiary permanently in the United 
States as a clinical laboratory manager. It requests classification of the Beneficiary as a professional 
under the third preference immigrant classification. See Immigration and Nationality Act (the Act), 
section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director, Texas Service Center, denied the petition. The Director determined that the record did 
not establish the Petitioner's ability to pay the Beneficiary the proffered wage as of the visa 
petition's priority date. 
The matter is now before us on appeal. On appeal and in response to our notice of intent to dismiss 
and request for evidence (NOID/RFE), the Petitioner submits additional evidence of its ability to 
pay, as well as the Beneficiary's qualifications for the job opportunity. 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 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). 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, an ETA Form 9089, Application for Permanent Employment Certification 
(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)(l) of the Act. The DOL also certified 
that the employment of a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of the Act. 
Matter ofSMAM-L- Inc 
In these visa petition proceedings, USCIS 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 Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS 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 C.P.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 
C.P.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 C.F .R. § § 204.5(g)(2), 103 .2(b )(I), (12); see also Matter of Wing's Tea House, 16 
I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971). 
The regulation at 8 C.P.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petltwn 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. 
A petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of a 
labor certification application establishes a priority date for any immigrant petition later based on the 
labor certification, a petitioner must establish that the job offer was realistic as of the priority date and 
that the offer remains realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. A petitioner's ability to pay the proffered wage is an essential element in evaluating whether 
ajoboffer is realistic. See Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see 
also 8 C.F.R. § 204.5(g)(2). 
In the present case, the priority date of the visa petition is June 28, 2013, the date on which the 
Petitioner filed the labor certification with the DOL, and Part G .1. of the labor certification reflects a 
proffered wage of $68,350. Accordingly, to meet the requirements of 8 C.P.R. § 204.5(g)(2), the 
Petitioner must establish its ability to pay the Beneficiary the annual wage of $68,350 from the June 
28, 2013, priority date onward. 
To determine a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
petitioner was employing the beneficiary as of the date on which the labor certification was accepted 
for processing by DOL and whether it continues to do so. If the petitioner documents that it has 
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Matter ofSMAM-L- Inc 
employed the beneficiary at a salary equal to or greater than the proffered wage, that evidence may 
be considered prima facie proof of the petitioner's ability to pay under 8 C.F.R. § 204.5(g)(2). If the 
petitioner does not demonstrate that it employed and paid the beneficiary at an amount at least equal 
to the proffered wage during the required period, USCIS then examines the net income figure 
reflected on the petitioner's federal income tax returns, 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. Nov. 
10, 2011 ). 1 If the petitioner's net income during the required time period does not equal or exceed 
the proffered wage, or when added to any wages paid to the beneficiary does not equal or exceed the 
proffered wage, USC IS reviews the petitioner's net current assets. 
In cases where neither a petitioner's net income nor its net current assets establish its ability to pay 
the proffered wage during the required period, USCIS may also consider the overall magnitude of 
the petitioner's business activities. Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). In 
assessing the totality of a petitioner's circumstances, USCIS may consider such factors as the 
number of years it has been in business, its record of growth, the number of individuals it employs, 
abnormal business expenditures or losses, its reputation within its industry, whether the beneficiary 
is replacing a former employee or an outsourced service, or any other evidence it deems relevant. . 
Where a petitioner has filed Forms I-140 for multiple beneficiaries, it must also demonstrate that its 
job offer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to each. 
8 C.F.R. § 204.5(g)(2). See Great Wall, at 144-45; see also Patel v. Johnson, 2 F. Supp. 3d 108, 124 
(D. Mass. 2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to 
pay multiple beneficiaries). In determining whether a petitioner has established its ability to pay the 
proffered wage to multiple beneficiaries, USCIS adds together the proffered wages for each 
beneficiary for each year starting from the priority date of the petition being adjudicated, and 
analyzes the petitioner's ability to pay the combined wages. However, the wages offered to the other 
beneficiaries are not considered after the dates any beneficiary obtained lawful permanent residence, 
or after the date a Form 1-140 petition was withdrawn, revoked, or denied without a pending appeal. 
In addition, USCIS will not require a petitioner to establish the ability to pay additional beneficiaries 
for any year that the beneficiary of the petition under consideration was paid the full proffered wage. 
II. ANALYSIS 
The record contains the following evidence relating to the Petitioner's ability to pay the proffered 
wage: the Beneficiary's 2013 and 2014 Forms W-2, Wage and Tax Statements; her earning 
statements from December 2012 to January 2015; the Petitioner's 2013 Form 1120, U.S. 
Corporation Income Tax Return; the Petitioner's 2013 Form 1125-E, Compensation of Officers; its 
1 
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 Hawaii, Ltd. V Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang. v. 
Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); 
Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
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Matter ojSMAM-L-ln c 
bank statements from June 2013 through January 2015; a statement from the Petitioner confirming 
the availability of these bank funds to pay the proffered wage; the Petitioner's financial statements 
for 2013 and 2014, and the first three months of 2015; a statement from the Petitioner's financial 
officer, two statements from the Petitioner's only shareholder; 
and copies of the Petitioner's Forms 940, Employer 's Annual Federal Unemployment (FUTA) Tax 
Returns, and Forms 941, Employer's Quarterly Federal Tax Return, for 2012 through 2015. 
A. Wages Paid to the Beneficiary 
The Petitioner currently employs the Beneficiary and has submitted her Forms W-2 for 2013 and 
2014. The Beneficiary's Forms W-2 reflect that she earned $44,907.76 in 2013 and $44,827.72 in 
2014, approximately $23,500 less than the proffered wage of $68,350. Accordingly, the Petitioner 
cannot establish its ability to pay based on the wages it paid the Beneficiary in 2013 and 2014. · 
Further, subsequent to its May 26, 2016, response to our NOID/RFE, the Petitioner filed Form I-140 
petitions for two additional beneficiaries on June 13, 2016, and 
on · June 30, 20 16), and the record does not demonstrate its ability to also pay the proffered 
wages in these cases. Where a petitioner has filed Forms I-140 for multiple beneficiaries, it must 
demonstrate that its job offer to each beneficiary is realistic, and that it has the ability to pay the 
proffered wage to each. 8 C.F.R. § 204.5(g)(2). See Great Wall, at 144-45; see also Patel v. Johnson, 
2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding our denial of a petition where a petitioner did not 
demonstrate its ability to pay multiple beneficiaries). Therefore, in any future proceedings to establish 
its ability to pay the proffered wage in this case, the Petitioner should submit evidence establishing 
the priority dates for these two petitions, the proffered wages to be paid to the beneficiaries, and any 
actual wages paid them. 
B. Tax Returns and Financial Statements 
The record contains the Petitioner's Form 1120, U.S. Corporation Income Tax Return, for 2013, 
which reflects net income of $214 72 and negative net current assets of -$1,041,348 and, therefore, 
does not establish its ability to pay the proffered wage in that year. 
The Petitioner submitted evidence contending that the $214 7 in taxable . income reported on the 
return includes a non-cash depreciation expense of $276,169 that is more than sufficient to cover the' 
proffered wage. However, as previously stated, USCIS relies on the net income figure reflected on 
a 
petitioner's federal income tax return, without consideration of depreciation or other expenses. 
River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Taco Especial v. 
Napolitano, 696 F. Supp. 2d 873, 880 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. Nov. 10, 
2011). Our reasons for rejecting depreciation expenses in determining a petitioner's net income 
were noted by the court in River Street Donuts as follows: 
2 We consider the Petitioner 's net income to be the figure shown on Line 28 of the Form 1120. 
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(b)(6)
Matter ofSMAM-L- Inc 
[t]he AAO recognized that a depreciation deduction is a systematic allocation of 
the cost of a tangible long-term asset and does not represent a specific cash 
expenditure during the year claimed. Furthermore, the AAO indicated that the 
allocation of the depreciation of a long-term asset could be spread out over the 
years or concentrated into a few depending on the petitioner's choice of 
accounting and depreciation methods. Nonetheless, the AAO explained that 
depreciation represents an actual cost of doing business, which could represent 
either the diminution in value of buildings and equipment or the accumulation of 
funds necessary to replace perishable equipment and buildings. Accordingly, the 
AAO stressed that even though amounts deducted for depreciation do not 
represent current use of cash, neither does it represent amounts available to pay 
wages. 
We find that the AAO has a rational explanation for its policy of not adding 
depreciation back to net income. Namely, that the amount spent on a long term 
tangible asset is a "real" expense. 
River St. Donuts, at 118. 
Therefore, we do not find the Petitioner's 2013 Form 1120 to establish that it had sufficient net 
income or net current assets to pay the proffered wage as of the visa petition's June 28, 2013, 
priority date. 
We further note that the Petitioner has not provided its 2014 Form 1120 for the record, although we· 
requested its submission in the NOID/RFE we issued to the Petitioner following our receipt of its 
appeal. In its response to the NOID/RFE, the Petitioner did not indicate or document that it was 
unable to provide its 2014 return. Accordingly, the Petitioner has also not established its ability to 
pay the proffered wage based on its net income or net current assets in 2014. 
While the Petitioner has provided financial statements for both 2013 and 2014, and the first 3 
months of 2015, we will not consider them in determining its ability to pay in this matter. The 
regulation at 8 C.P.R. § 204.5(g)(2) requires that where a petitioner relies on financial statements to 
demonstrate its ability tq pay the proffered wage, those financial statements be audited. Here, the 
Petitioner's 2013 financial statement for the 'year ending June 30, 2013, is accompanied by a 
statement from to the Petitioner's Board of Directors, which states: [w]e have not 
audited or reviewed the accompanying financial statements." We also find no statements or letters 
to indicate that the Petitioner's 2014 financial statement (ending December 31, 2014) and its report 
for the first three months of 2015 have been audited. As a result, the submitted financial statements 
will be considered the representations of the Petitioner's management and, therefore, umeliable 
evidence of its ability to pay the proffered wage. Accordingly, the Petitioner's financial statements 
do not establish its ability to pay during the relevant period. 
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Matter of SMAM-L- Inc 
Additionally, we will not consider the Petitioner's bank statements, which cover the period June 
2013 through January 2015, as they are not among the three types of evidence that the regulation at 
8 C.F.R. § 204.5(g)(2) states may be used to illustrate a petitioner's ability to pay the proffered wage. 
While we acknowledge that the regulation allows additional material "in appropriate cases," the 
Petitioner in this matter has not asserted or established that the required documentation is inapplicable 
to its business or that such documentation provides an inaccurate picture of its financial circmnstances. 
Moreover, we find bank statements to reflect the amount in a petitioner's account on a given date, rather 
than its ability to pay a proffered wage. 
C. Officer Compensatio~ 
The record contains a July 26, 2015, statement from who claims to be the 
Petitioner's only shareholder and indicates her willingness to forego some portion of the $150,000 in 
officer compensation she earned in 2013 to cover the proffered wage.3 We note that a sole 
shareholder of a corporation has the authority to allocate the expenses of that corporation for various 
legitimate business purposes, including the reduction of the corporation's · taxable income. 
Compensation of officers is an expense category explicitly stated on the Form 1120 and a 
petitioner's compensation of its officers may, therefore, be considered an additional financial 
resource with which to pay the proffered wage. 
However, while the Petitioner's 2013 tax documentation supports claim to be its 
only shareholder and reflects that she took $150,000 in officer compensation that year, the record 
does not establish that in addition to being willing to reassign part of her 2013 annual compensation 
to cover the proffered wage, is also financially able to do so. The record contains 
insufficient evidence of personal finances and, therefore, the extent to which she 
is financially dependent on the $150,000 in officer compensation she earned in 2013. The Petitioner 
cannot meet its burden of proof in this matter simply by claiming a fact to be true, without 
supporting documentary evidence. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing A1atter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'] Comm'r 1972)); see also 
Matter ofChawathe , 25 I&N Dec. 369 (AAO 2010). The Petitioner must support assertions with 
relevant, probative, and credible evidence. Chawathe, at 369. We also note that, as the record does 
not contain the Petitioner's tax return for 2014, it does not establish compensation 
in that year as being sufficient to cover the difference between the proffered wage and the 
Beneficiary's 2014 earnings. 
The NOID/RFE we issued following our receipt of the Petitioner's appeal, notified it of the need for 
additional evidence of financial circumstances and specifically requested copies 
of its 2014 Form 1120; copies of Forms 1040, U.S. Individual Income Tax 
Returns, for 2013 and 20 14; and documentation of her monthly expenses, including any mortgage or 
loan payments. While the Petitioner did not include this evidence in its response to the NOID/RFE, 
3 The total amount of officer compensation reflected on the Petitioner 's 2013 Form 1120 is $1,550,000. Form 1125-E, 
Compensation of Officers , reflects that earned compensation in the amount of $150,000. 
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Matter ofS,o/!AM-L- Inc 
it did not indicate that it was not available or could not be readily provided. Accordingly, the 
Petitioner has not established that compensation may serve as a financial resource 
with which it may pay the proffered wage. 
D. Statement of Financial Officer 
In cases where a petitioner employs 100 or more workers, the regulation at 8 C.F.R. § 204.5(g)(2) 
allows users to accept a statement from a financial officer of that company as proof of its ability to 
pay the proffered wage. 
Here, the record contains the previously noted May 21, 2015, statement from the 
Petitioner's financial officer, who asserts that the company employs more than 100 individuals and 
has the ability to pay the proffered wage of $68,350. The Petitioner has also submitted a March 28, 
2016, letter signed by in which she states that, on the date the Petitioner filed the 
labor certification, it employed 122 individuals. In support of these statements, the Petitioner 
provides copies of its Forms 941 for all quarters of the years 2012 through 2015. Each ofthe Forms 
941 reports a workforce of more than 100 employees. This evidence is not, however, suffic.ient to 
establish the Petitioner's ability to pay the proffered wage. 
While US CIS may accept a statement from the financial officer of a petitioner that employs 100 or 
more workers as proof of its ability to pay, we are not required to do so. In the present case, the 
100+ employee totals reflected in the Petitioner's Forms 941 for '2013 and 2014, and 
claim that her company had a workforce of 122 persons at the time of the labor 
certification's filing are inconsistent with information provided by the instant labor certification, 
filed June 28, 2013, and the Form I-140, filed May 22, 2014, both of which were signed by 
as being true and correct/accurate under penalty of perjury. On both forms, 
stated that the Petitioner employed 85 workers. As no evidence in the record explains 
this discrepancy, we will not accept the above statements as proof of the Petitioner's ability to pay 
the proffered wage. Unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of the evidence submitted in support of the requested immigration benefit. ~Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). 
E. Totality of Circumstances 
The Petitioner in this matter also asserts that, pursuant to Matter of Sonegawa, the totality of its 
circumstances establishes its ability to pay the proffered wage. It points to the gross profit of 
$14,018,422 reported in its 2013 tax return; its consistent employment of more than 100 workers; the 
employment of the Beneficiary in a position she already holds; and the willingness of its only 
shareholder to use her officer compensation to cover the proffered wage. 
We acknowledge that the offered position is that of a clinical laboratory manager and that the 
Beneficiary will be employed in the position she already holds. However, the record does not, for 
the reasons already discussed, reliably establish that the Petitioner employs more than I 00 workers, 
that its sole shareholder is financially able to reassign her 2013 officer compensation to cover the 
Matter of SMAM-L- Inc 
proffered wage, or that such compensation would be available to her for this purpose in 2014. 
Moreover, the record contains insufficient evidence to establish the Petitioner's growth since its 
2001 founding. Instead, the $15,319,877 in gross profits reflected in a 2011 tax return that the 
Petitioner submitted for the record exceeds the $14,018,422 in gross profits reported ·in its 2013 
return, potentially signaling a decline in its business. The Petitioner has not indicated that this 
decrease in its gross profits was temporary, the result of uncharacteristic business expenditures or 
losses, and has not submitted evidence to establish that its income subsequently rebounded, e.g., its 
2014 tax return, audited financial statement, or annual report. Accordingly, we do not find the 
Petitioner to have provided sufficient evidence to establish that the totality of its circumstances 
demonstrates its ability to pay the proffered wage. 
III. CONCLUSION 
A petitioner must establish the elements for the approval of a visa petition at the time of filing. 
Katigbak, at 49. For the reasons noted above, the record does not establish the Petitioner's ability to 
pay the Beneficiary the proffered wage from the June, 28, 2013, priority date onward. Therefore, we 
will affirm the Director's denial of the visa petition. 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA2013). Here that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
Cite as Mqtter ofSMAM-L- Inc, ID# 16122 (AAO Aug. 22, 2016) 
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