dismissed EB-3 Case: Computer Science

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF Y-M-, INC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 3, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140 , IMMIGRANT PETITION FOR ALIEN WORKER 
The Petition er, 1 a hotel , seeks to employ the Beneficiary as a systems engmeer. It reque sts 
class ification o f the Beneficiary as a s killed worker under the third preference imm igrant 
classification. Immigration and Nationality Act (the Act) section 203 (b)(3)(A)( i), 8 U.S.C. 
§ 1153(b)(3)(A) (i). Thi s employment-based immigrant class ificat ion allow s a U.S. employer to 
sponso r a foreign national for lawful permanent resident status to work in a position that requires at 
leas t two yea rs of training or experience. 
The Director of the Nebraska Service Center initially denied the petition . On appeal, we withdrew 
the Director' s decision and remanded the matter to the Director. Following the issuance of two 
reque sts for evidence (RFEs), the Director again deni ed the petition , concluding that the reco rd did 
not establish that the Beneficiary posse ssed the experience required by the labor certific atio n as of 
the priority date. The Director noted unresolved inconsistencie s regarding the Beneficiary 's prior 
work experience in the record. The Director also concluded that the Petitioner did not estab lish its 
continuing ability to pay the proffered wage. 
On appeal, the Petitioner submits additional evidence and assert s tha t the evidence submitted to the 
record and on appeal overcomes the inconsistencies noted by the Dire ctor and supports the 
Beneficiary's cla ims that he possess ed the experience required by the labor certificatio n as of the 
priorit y date. The Petitioner also submits a letter from its accountant which it claims .establ ishes its 
contimiing ability to pay the proffered wage. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigr ation generally follows a three-step process . First, a n emplo yer obtains 
an approv ed labor certification from the U.S. Departme nt of Labor (DO L).2 See sectio n 
1 
According to State of Oklahoma records, was converted to on 
2009. Oklahoma Secretary of State, https://www.sos.ok.gov/corp/corplnquiryFind.aspx (last visited Mar. 
27, 20 18). 
2 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
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Maller r?f V-M-. Inc. 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § ll82(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 
otlered position and that employing a foreign national in the position will not adversely aftect the \.vages 
and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(l)-(l I) of 
the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and 
Immigration Services (USCIS). See section ~04 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. § I 255. 
II. THE BENEFICIARY'S EXPERIENCE 
The Director denied the petition, in part, because the Petitioner did not establish that the Beneficiary 
possessed the experience required by the labor certification as of the priority date. The Director 
noted multiple unresolved inconsistencies in the record pertaining to the Beneficiary's qualifying 
employment experience. 
A beneticiary must meet all of the requirements of the offered posttton set J-orth on the labor 
certification by the priority date of the petition. 8 C.F.R. § I 03.2(b)(l), {12); Muller of Wing ·s Tea 
House, 16 l&N Dec. 158, 159 (Acting Reg'! Comm'r 1977). In this case, the. labor certification 
requires an associate's degree in electronics or computer science,3 and 48 months ol experience in 
the job offered of systems engineer. No alternate combination of education and experience is 
accepted. The job duties of the offered job are listed as follows: "Designing, implementing. 
installing, and maintaining computer systems using Novell Netware with SFT III, Windows NT with 
Raid Technology, WIN XP, UNIX with creating file systems, user accounts, tuning, backup and 
administration for database." 
The labor certification states that the Beneficiary qualifies for the oftered position based on the 
following experience: 
• Systems engineer with the Petitioner from November l, 2000, to December 18, 2006 (40 
4 
hours per week); 
• Support Executive for . from October I, 1996, until October I, 
2000, supervised by ( 48 hours per week); 
• Senior Customer Engineer for _ from January I, 1993, until October 
31 , 1996, supervised by · (48 hours per week); and 
December 18, 2006. See 8 C.F.R. § 204.5(d). 
3 The Petitioner has established that the Beneficiary possesses the foreign equivalent of at least a U.S. associate's degree. 
4 
A labor certification employer cannot rely on experience that a foreign national gained with it, unless the experience was in 
a job substantially different than the offered position or the employer demonstrates the impracticality of training a U.S. 
worker for the oflered position. 20 C.F.R. § 656.l7(i)(3). For these purposes, a job is substantially different from an offered 
position if it requires performance of the same job duties less than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii). Here, 
the Beneficiary appears to have gained qualifying experience with the Petitioner in the same job. The record therefore 
does not support the Petitioner's use of experience that the Beneficiary gained with it. 
2 
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Matter of V-M-. Inc. 
• "Sr. Prod. Engineer R & D" for 
December I I, 1992, supervised by 
from April 25, 1989, until 
(48 hours per week). 
Evidence relating to qualifying experience must be in the form of a lette r from a current or former 
employer and mus t include the name, address, and title of the writer , and a speci fi c description of the 
duties performed by the benefi ciary. See 8 C.F.R. § 204.5(1)(3). Although the Petitio ner submitted 
employment letters, the Director pointed out a number of concern s about the Beneficiary 's claimed 
employment. 
The Director noted that the Beneficiary's claimed employment with and 
overlap by one month. The ·Director also noted that the Beneficiary's resume 
states that he was a system engineer for from October 
1996 until October 2000; a senior hardware engineer for from January 1993 unti l 
September 1996; and an electronics engineer in the R&D department with the Group of 
Companies from June 1988 until December 1992. The names of the employers and the 
Beneficiary's titles are different than what is stated on the labor certification. In addition, the 
Beneficiary ' s dates of emplo yment with and are not consistent between 
the resume and the labor certification. 
The Director also noted additional inconsist enc ies in the record regarding the Beneficiary's 
employment with from October 1, 1996, until October I, 2000. The 
record contains an undated letter from stating that the Beneficiary 
was employed by the company as a "Support Executive (System engineer)" from October I, 1996, 
until October I, 2000. The letter states that the Beneficiar y worked part-time for the first month of 
his employment and lists the Beneficiary's dutie s. Another undated lette r from states 
that the Beneficiary worked as a support executive for from Octobe r 1996 
until October 2000. Thi s letter does list the Beneficiary's duties as required by 8 C.F.R. 
§ 204.5(1)(3). A third undat ed letter from states that the Beneficiary " is working" for 
tor "th ree and a half yea rs" and lists his duties. The Director noted that the 
differenc e between and if any, has not been explained. 
Further, the Beneficiary's resume stat_es that he worked for from October 1996 until 
October 2000, a period ot: tour years. Therefore, the Director fo und that the letter indicating a three 
and a half year term or employm ent is inconsistent with the Benefici ary' s o ther letter s and with his 
resume. 
The record also contains an undated letter by an illegible author for 
that the Beneticiary was a Support Executive for 
" Hardwar e Maintenance Services" as part of a maintenance contract with 
stating 
providing 
since 1997. This letter is not from a former employer as required by 8 C.F.R . § 204.5(1)(3). Further, 
a 1998 letter from states 
that the Beneticiary provided "Hardware Mainten ance Services" as part of a maintenance contract 
with since last I 1 /2 yea r," where he diagnosed and resolved hardware 
problems . The Director indicated that the Beneficia ry's stated title i s inconsistent with what is stated 
3 
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Matter of V-M-. Inc. 
on the labor certificati on and r esume durin g this period , a nd there is no exp lanation of t he 
Beneficiary ' s employment with an entity named 
The Director also noted additional inconsistencies in the record regar ding t he Beneficiar y's claim ed 
empl oyment with from J anua ry l , 1993, until October 31, 1996 . A 2009 letter 
from - -· - state s that the Beneficiary was empl oye d by as a senior 
custo mer engineer workin g 48 hours per w eek from January 1, 1993 until Oct ober 3 1, 1996. A 1 996 
letter from states that t he Be neficiary worked as a senior custome r engineer from 
. January 1993 u ntil October 3 1, 1996, w here he repr esented the compa ny " in TRA INING 
PROGRAMM E organized [sic] by " The letter does not list the 
Beneficiary' s duti es or the t itle of its a uthor as requir ed b y 8 C .F.R. § 204.5 (1)(3). T he Director 
indicated that the stated dates of emplo yment are inconsistent with the Beneficiary's resume, and the 
state d duti es are incons istent with the labor certific atio n and the resume. 
The Director fu rther cited dicre panci es in the record regarding the Benefic iary' s empl oyment with 
from April 25, 1989, until Decemb er 11, 1992. A 1993 letter by an 
illegible auth or from . states that the Benefici ary work ed as a senior 
produ ction engineer from April 25, 1989 , until Dece mber 3 1, 1992 . T he letter does not l ist the 
Beneficiary' s duti es or the title of its author as requi red by 8 C.F.R. § 204.5(1)(3). Further, the stated 
dates o f empl oyme nt are inconsistent with both the resume and the labo r c ertification. A 2009 letter 
from on letterhea d states that the Beneficiary was employ ed b y 
as a n "Engineer Quality Control Electronic" from Apri l 25, 1989, to June 2 4, 
1989, and as a "Sr. Production Enginee r R & D Dept" from June 25, 1989, until Dece mber 3 1, 1992 , 
and that the author was his techni cal manager. Howe ver, the labor certificati on lists the 
Benefic iary's supervisor as and state s a di fferent employment end date . Further, the 
~ utie s of the Beneficiary do not appear to be the same as the duties of the o ffered job of system s 
engineer. 
The Director indicated that the Petiti oner had not reso lved the inconsistencies in the reco rd with 
independent , o bjective e vidence poin ting to w here the truth lies. Matter of Ho, 19 I&N Dec. 582, 
59 1-592 (BIA 1988). Unreso lved m aterial inconsistencies may lead us to reevaluate the reliability 
and sutlicien cy of other evide nce submitt ed in supp ort of the req uested imm igration bene fit. !d. 
On appeal, the Petitioner asse rts that the Direct or did not review the ev idence it s ubmitte d in 
response to the fi rst RFE. We will addr ess the Petitioner's assertions from that RFE response and on 
appea l below. · 
Regarding the Beneficiary ' s employm ent with , _the Petitioner asse rts that the Beneficiary was 
employed b y ,. part of the organ ization refere nced in all of the letters s igned 
by and further reflected in the fact that all letters from r epresentatives are sent 
from the sam e a ddre ss and w ith the same corporate logo ." However, the logos are not the same o n 
each of the letters - two have the sam e logo with the company listed as , and one has 
4 
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' 
Muller (l V-M-. Inc. 
a different logo with the company listed as The tact that the companies 
share an address does not resolve the inconsistencies in the evidence. 
The Petitioner additionally explains that the letter referring to the Beneficiary's work with 
"is clearly from a client of his employer" who explains his duties during that 
time. We agree; however, the letter i s not from a former employer as required by 8 C.F.R. 
§ 204.5(1)(3 ), the letter refers to the Beneficiary's employer as and it 
does not confirn1 the Beneficiary's full-time employment as a support executive for 
from October 1, 1996, until October 1, 2000, as stated on the labor certification. 
Even if and are the same 
entity, the Petitioner has not resolved the other inconsistencies in the record regarding this 
employment. The Petitioner asserts that the one month overlap of the Beneficiary's employment 
with "is because he started with part-time basis before transitioning to full­
time employment at the end of October 1996." However, the Beneficiary indicated on the labor 
certification that he worked full-time, 48 hours per week, for from October 1, 1996, until 
October 1, 2000. He did not indicate that the first month was part-time. Additionally, only one of 
the three letters w ritten by mentions the Beneficiary's one month of part-time 
employment, and that letter was submitted after we brought the discrepancy to the Petitioner's 
attention. The other two letters from do not mention the Beneficiary' s purpotted one 
month of part-time employment. Further, the letters from do not indicate that the 
Beneficiary worked less hours or part-time during the last month of his employment. It is unclear 
how he worked 48 hours per week for and part-time for during the period 
from October 1-31, 1996. 
The Petitioner also states that the letters from are consistent with each other regarding his 
term of employment, as the one referring to his three and a half years of employment with 
was written during his term of employment there, a nd he had not yet completed f our years o f 
employment as of that date. However, the letter is undated and, therefore, we cannot determine 
when it was written. The Petitioner further claims that the letter referring to the Beneficiary' s four 
years of employment with was written after his term of employment there. That letter, too, is 
undated. The Petitioner has not supported its assertions with independent, objective evidence. 
i\tfafler r~f Ho , 19 I&N Dec. at 591-592. 
The Petitioner also asserts on appeal that the different job titles referring to the Beneficiary's 
employment with (support executive and system engineer) are the same position with the 
same duties. It asserts that the job title is not controlling, but that we must look to the job duties. It 
states that the job duties are consistent throughout the record. The labor certification states the 
Beneficiary worked as a s upport executive for from October 1, 1996, 
until October 1, 2000. His listed duties included: computer systems installations, maintenance, 
operation and administering of computer network; install Novell Netware with SFT III, Windows 
NT with Raid Technology; Unix with creating tile system, user account, tuning back up; diagnose 
and resolve problems at LAN platform and Windows NT and Unix. 
5 
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Mafler of V-M-. Inc. 
His resum e s tates he worked as system engineer for from October 1996 until 
October 2000 . His listed duties included : primarily responsible for computer system s and printer 
installation , troubleshootin g a nd maintenance on WIN 95, WIN98 ; customer support ; small network 
installati on, admini stration for Novell 3.12/4.XX with SFT Ill , Wind ows NT with R aid Technolo gy; 
resolve hardware problems for PCS, servers and printers. 
One letter from desc ribes his employment with as follows: responsi ble for 
computer systems install ations , maintenance , opera tion and administ ering of computer network; 
install Nove ll Netware with SFT III, Windows NT with Raid Tech nology; Wind ows 98, 95, Unix 
with creating tile system, user acco unts, tu·ning, backup ; and resolving problem s at administra tive 
level on any network or platfo rm. Another letter from claimed that he moved fro m the 
position of support executive to system engin eer, indicating that they were different positions with 
different duties . His duti es as support executiv e a re not described in the letter, but his duties as 
system engineer are detail ed extensively and .include the duti es listed on the labor certificati on. 
However , the two lette rs from clients ind icated onl y t hat he diagno sed and resolv ed 
hardware problems. The y do not indicate that he had the full-range of duties listed on the labor 
certi fication , on the Benefici ary's resume , o r in the letters provided by . If he was 
working on-site for these clients during a subst antial portion of his time with it i s uncle ar 
why the clients' descriptions of the Beneficiary's duties differ from the other evidence in the record. 
The Petitioner has not resolved the inconsi stencies in the record with indep endent, object ive 
evidence, suc h as paycheck s, payst ubs, tax . record s, and emp loyme nt or personne l records 
establishing his employment with . See Mall er of Ho, 19 I&N Dec. at 591-592. Therefo re, 
the Petition er has not established that the Beneficiary' s experien ce with qualifies him for the 
offered job. 
Regardin g the Beneficiary's employment with the Petitioner states that although 
the job title differs , the duti es are cons istent throughout the record. However, the Petiti oner has not 
resolved the inconsistencies in his dates of emp loyment with independent , object ive ev ide nce such 
as paycheck s, pays tubs, tax records, and employment or personnel records estab lishing his 
emplo ymen t with See id. The labo r certification states that he wo rked as a senior 
customer engineer for from January l, 1993, until October 31, 1996. Howeve r, 
his resum e states that he work ed as a senior hardwar e engineer for f
rom January 
I 993 unt il September 1996. Further , as previou sly noted, the letters from do not 
indicate that the Beneficiary worked less hour s or part-time during the last month of his 
emplo yment. It is unclear how he worked 48 hours per week for and part-time for 
du ring the period from October 1-3 1, 1996. Therefore , based on the se unreso lved 
inconsi stencies, the Petiti oner has not establi shed that the Beneficiary's experien ce with 
qualities him for the offered job. 
Regardin g the Beneficiary' s emp loyment with the Petitione r asserts 
that "in the years smce the initial emplo yment letter was written 
became the ." While·it provides a we bsite address in support of its claim , the Petitioner 
6 
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Mafter of V-M-. Inc. 
provided no evidence to support the name change. 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 qj' Skirball 
Cultural Ctr. , 25 I&N Dec. 799, 806 (AAO 2012). The Petitioner further states that the Director's 
"attempt to create an inconsistency exaggerates the importance of the boilerplate September 15, 
1993 letter that stated [the Beneficiary] worked with through December 31, 1992." It states 
that "insistence on such fonnality is particularly unwarran ted" base
d on notes from a USCIS 
question and answer session held on January 23, 2012. However , unpublished agency decisions and 
legal opinions are not binding , .even when they are published in private publications or widely 
circulated. R. L. Inv. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), afl'd. 273 F.3d 
874 (9th Cir. 200 I). Further, as we previous ly noted, the duties of the Beneficiar y at do not 
appear to be the same as the duties of the offered job of systems engineer. The Petitioner has not 
resolved the inconsistencie s in the record with independent, objective evidence, suc h as paychecks, 
paystubs, tax records, and employment or personn el records establishing his employment with 
See Maller (?lHo, 19 I&N Dec. at 591-592. Therefore, the Petitioner has not established 
that the Beneficiary's experience with qualities him for the offered job. 
The record also. contains an evaluation of the Beneficiary's work experience prepared by· 
It concludes that of the Beneficiary ' s 11 years of work experience with 
, eight of those years qualify as experience in the occupation of sys tems 
engineering. However, it does not indicate which eight years of the Beneficiary's experience qualify 
the Beneficiary for the offered job, and it does not indicate that the experience qualities the 
Beneficiary for the offered job based on the job duties listed on the labor certification. 5 The 
evaluator states that he relied on documents provided by the Beneficiary regarding his employment 
experience to reach his conclusion. However, he does not detail the documents that were provided. 
If they are the same document s provided to the record in these proceedings, he has not resolved the 
inconsistencies noted in the Beneficiary's prior work experience. The evaluation is not independent, 
objective evidence of the Benefi ciary's prior work experience. See id. 
The Petitioner has not resolved the inconsistencies in the record with independent, objective 
evidence establishing that that the Beneficiary possessed the expe rience requ ired by the labor 
cer1itlcation as of the priority date. Thus , the · Petitioner has not established that the Bcnclkiary 
possess ed the experience required by the labor certitlcation as of the priority date. 
5 
Instead, he relics on a general description ofthe occupation of systems engineer, including designing and coordinating 
large and complex systems projects; and recommending and implementing computer system plans that meet the needs of 
a project. USC IS may treat a credentials evaluation as an advisory opinion. Mauer of Caron /nt 'l, Inc., 19 l&N Dec. 
791, 795 (Comm 'r 1988). If an evaluation is inconsistent with other evidence or "is in any way questionable," however, 
USCIS may reject it or give it lesser evidentiary weight. hi 
7 
Maller of V-M-. Inc. 
Ill. ABILITY TO PAY THE PROFFERED WAGE 
The Director denied the petition concluding, in part, that the Petitioner did not establish its 
continuing ability to pay the pro!Tered wage from the petition's priority date onward. The proffered 
wage is $48,500 per year. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petttton 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 
pem1anent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneliciary the 
full proffered wage, we next examine whether it had sutlicient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insutlicient, we may also consider other evidence of 
its ability to pay the proffered wage 6 In this case, the Director concluded that the Petitioner 
established its ability to pay the proffered wage in 2006, 2007, 2008, 2009, 20 I 0, and 20 II, but not 
in 2012, 2013, and 2014. However, because the record does not contain regulatory-prescribed 
evidence of the Petitioner's ability to pay the proffered wage in 2008, we find that it has not 
established its ability to pay in 2008 7 
The record does not demonstrate that the Petitioner paid the Beneficiary any wages in 2012, 2013, 
and 2014. The Petitioner's federal tax returns state net income 8 amounts as follows: 
• -$6,905 in 20 12; 
• $20,251 in 20 13; and 
• -$63,584 in 2014. 
6 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g, River St. 
Donuts, LLC v. Nupo/itano, 558 F.Jd Ill, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw .. Ltd v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); E1·tr<1da-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), afl'd, --Fed. Appx. --, 2015 WL 5711445, *I 
(5th Cir. Sept. 30, 20 15). 
7 Although the Petitioner established that it paid the Beneficiary more than the proffered wage in 2008. it must submit its 
annual report. federal tax return, or audited financial statement for that year to comply with 8 C.F.R. § 204.5(g)(2). 
8 Net income is shown on Line 28 of the IRS Form 1120, U.S. Corporation Income Tax Return. 
8 
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Mauer of V-M-. Inc. 
Theref ore, for the years 201 2, 20 13, and 2014 , the Petitioner did not have sufficient net income to 
pay the proffered wage. 
As an alterna te means of determining a petiti oner's ~b ility to pay the proffered wage , USCIS may 
review its net current assets. Net current assets are the diffe rence betwee n a petiti oner ' s cu rren t 
assets and current liabilitie s.9 A co rporation 's year-end curr ent asse ts a re shown on Sched ule L, 
lines I through 6. Its year- end current liabilitie s are shown on lines 16 through 18. If the total of a 
corporation 's end -of-year net curren t assets and the wages paid to the beneficiary (if any) are equal 
to or grea ter than the proffered wage, the petitioner is expe cted to be able to pay the proffered wage 
using those net curren t assets. The Petitioner ' s tax returns state end-of- year net current assets as 
· follows: 
• -$96,8 46 in 20·12; 
• -$62,138 in 2013; and 
• -$1 27,8 14 in 2014. 
Therefore , tor the years 20 12, 2013, and 2014 , the Petitioner did not have sufficient net current 
assets to pay the proffered wage. 
On appeal , the Petitioner submit s a letter from its account ant. He states that in 2012, the ent ry at line 
I 7 of the Petitioner's Schedu le L " includes $1 68,055, which was intercompany tran sac tion owned 
100
% by and it shou ld be treated as either Loan from Shareholder or Retained earnings 
and it sho uld not be considered as liabi lity [sic] since both company [sic] owned by 
However , the acco untant does not exp lain how, under the tax and acco unti ng rules, the cur rent 
liabilit yon line 17 of the Petitioner's balance sheet can be changed to a long-term liab ility. Further, 
the record does not contain evide nce of the shareholders of the other company o r name the o ther 
company . Without additi onal explanation and ev idence, we cannot accept the acco untant' s 
asserti ons and wi ll analyze the tax return as it was filed with the IRS .10 
The Petitioner ' s acco untant also asserts that other current assets are underreported by $13,31 8 on the 
2014 tax return based on accou nting record s. However, he does not provide those accou ntin g 
records , and the tax retu rn does not appear to have been amended to rel1ect a conectio n. Without 
additional exp lanation and evidence , we cannot acce pt the accountant 's asse rtion and will analyze 
the tax return as it was filed with t.he IRS. 
11 
9 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. Joel G. Siegel & Jae K. Shim, Barron ·s Dictionwy of Ac:counring Terms 11 7 (3d ed. 
2000). Current liabilities are obligations payable (in most cases) within one year, such. as accounts payable, short-term 
notes payable, and accrued expenses (such as taxes and salaries). /d. at 118. 
10 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Muller of lzummi , 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988). 
II /d. 
9 
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Maller of V-M-, Inc. 
The Peti tio ner's accountant further states that the Petitioner has paid lease payments to 
in the amounts of $272,000 in 2012, $205 ,700 in 20 13, and $172 ,200 in 2014. He states that 
because the Peti tioner and are owned by the same indi vidual , the lease payments can be 
redirected to pay the proffered wage. We disagree. First , the Petiti oner has not provided evidence to 
establish that and . are owned by the same ind ividual. Second , 
even if they are owned by the same individual, because an LLC is a separate and d istinct lega l entity 
from its members, the assets of its memb ers or of other enterprises cannot be cons idered in 
determ ining the Petitioner's ability to pay the proffered wage. See Maller of Aphrodite lnvs ., Ltd., 
17 I&N Dec. 530 (Co mm 'r 1980). In a similar case, the court in Sitar v. Ashcroft, No. Civ. A. 02-
30197-MAP, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "no thing in the governi ng 
regulation , 8 C.F. R. § 204.5 , permit s [USCIS] to conside r the fina ncia l resources of indi vidual s or 
entities who have no legal obligatio n to pay the wage." The same principal applies to corporations. 
Third , ther e is no evidence that the Petitioner could reduce the rent paid in order to pay 
the proffered wage. The Peti tione r must pay the fair rental value for the property, and usually there 
is a rental agreement betwee n the parties establ ishing the required rent and rental terms. Rents 
below fair rental value may be adjuste d by the IRS . See I.R.C. § 482. Therefo re, the Petitioner has 
not establi shed that its lease payments to could be used to pay the proffered wage. 
The Petiti oner's accountant also states that the Petitioner's "sis ter company," . owns a 
building with a net worth of $2,000,000. He appears to assert that because the Petitione r and 
are owned by the sam e individual, the value of the propert y owned by can be used 
to pay the proffered wage. We disagree, as the entities are separate and dis tinct legal entities. See 
Maller of Aphrodite lnvs .. Ltd., I 7 I&N Dec. at 530. Further , real property is not a readi ly 
liquefiable asset. It is unlikely that would sell such a sign ificant asse t t o pay the 
Benefici ary's wage. Furth er, the record doe s not establish if there are enc umbr ances on the proper ty, 
thereby red ucing the value that could be utilized by the Petiti one r to pay the proffered wage . We 
may reject a fact stated in the petition if we do not believe that fact to be true. Secti on 204(b) of the 
Act, 8 U.S.C. § I 154(b); see also Anetekhai v. I. N.S., 876 F.2d 1218, 1220 (5th Cir. 1989); fAt-Ann 
Bakel)' Shop, Inc. v. Nelson , 705 F. Supp. 7, I 0 (D. D.C. 1988); Systronic s Co17J. v. INS. 153 F. Supp. 
2d 7, 15 (D.D.C. 200 1). A petition cannot be approved at a future date after eligibili ty is estab lished 
under a new set of facts. Matter(~( Katigbak. 14 I&N Dec. 45, 49 (Co mm'r 197 1 ). The Petitioner 
has not establ ished that the value of the prop erty owned by can be used to pay the 
proffered wage. 
We may conside r evidence of a petitioner's ability to pay beyond its net income and net curren t 
asse ts, includi ng suc h factor s as: the number of yea rs it has conducted business; the growth of its 
busin ess; its number of employees; the occurrence of any unch aracteristic business expendi tures or 
losses; its reputat ion in its industry; whether a beneficiar y will replace a current employee or 
outsourced service; or other evidence of its abi lity to pay a proffered wage. See Mafler c~f 
Sonegaw a, 12I&N Dec. 612,614-615 (Reg'] Comm'r 1967). 
In this case , the record indi cates that the Petiti oner was established in Oklahoma in I 996. Its sales 
fluctu ated between 2006 and 20 14, and it has not established its historica l growth since its 
10 
Mauer of V-M-. Inc. 
establishment in 1996. The Petitioner states that it employs 27 employees on the petition and labor 
certification. However, its payroll ligures show that its payment of wages fluctuated between 2006 
and 2014, from a high of $154,479 in 2009, to a low of $76,528 in 2011. The record does not 
establish the occurrence of any uncharacteristic business expenditures or losses; its reputation in its 
industry; or whether the Beneficiary will replace a current employee or outsourced service. Thus, 
assessing the totality of circumstances in this individual case, the record does not establish the 
Petitioner's continuing ability to pay the proffered wage pursuant to Sonegawa. 
The Petitioner has not established its continuing ability to pay the proffered wage from the petition's 
priority date onward. 
IV. CONCLUSION 
The Petitioner has not resolved the inconsistencies in the record with independent, objective 
evidence establishing thai that the Beneficiary possessed the experience required by the labor 
certification as of the priority date. The Petitioner has also not established its ·continuing ability to 
pay the proffered wage. 
ORilER: The appeal is dismissed. 
Cite as Mauer ofV-M-. Inc., ID# 1038270 (AAO Apr. 3, 2018) 
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II