dismissed EB-3 Case: Construction

U.S. Citizenship 
and Immigration 
Services 
In Re : 13880989 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 14, 2021 
The Petitioner, a construction contracting company established in 2011 with two employees, seeks to 
employ the Beneficiary as a construction project estimator. It requests classification of the Beneficiary 
under the third-preference, immigrant category as a skilled worker. Immigration and Nationality Act 
(the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based , "EB-3" 
category allows a U.S . business to sponsor a foreign national for lawful permanent resident status 
based on a job offer requiring at least two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish its continuing ability to pay the proffered wage to the Beneficiary from the priority date . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL) . See section 212(a)(5) of the Act, 8 U.S.C . § 1182(a)(5) . DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. IfUSCIS approves 
the petition, a foreign national may finally 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. ABILITY TO PAY THE PROFFERED WAGE 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it has 
the ability to pay the proffered wage stated on the labor certification. As provided in the regulation at 8 
C.F.R. § 204.5(g)(2): 
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 a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records may be submitted by the 
petitioner or requested by [USCIS]. 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date of the petition. 1 The priority date in this case is February 14, 
2017. The labor certification states that the wage offered for the job of construction project estimator 
is $59,738 per year. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
Absent evidence that the Petitioner has paid the Beneficiary a salary equal to or above the proffered 
wage from the priority date onward, USCIS will generally examine the net income and net current 
assets figures recorded on the petitioner's federal income tax retum(s), annual report(s), or audited 
financial statements(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage, or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, the petitioner would ordinarily be considered able to pay the proffered 
wage during that year. 
USCIS may also consider the totality of the Petitioner's circumstances, including the overall 
magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). USCIS may, at its discretion, 
consider evidence relevant to the petitioner's financial ability that falls outside of its net income and 
net current assets. We may consider such factors as the number of years the petitioner has been doing 
business, the established historical growth of the petitioner's business, the petitioner's reputation 
1 The "priority date" of a petition is the date the underlying labor ce1iification is filed with the DOL. See 8 C.F.R. 
§ 204.5( d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date. 
2 
within its industry, the overall number of employees, whether the beneficiary is replacing a former 
employee or an outsourced service, the amount of compensation paid to officers, the occurrence of 
any uncharacteristic business expenditures or losses, and any other evidence that USCIS deems 
relevant to the petitioner's ability to pay the proffered wage. 
With the initial submission, as evidence of its ability to pay the proffered wage, the Petitioner 
submitted its Internal Revenue Service (IRS) Form 1065, U.S. Return of Partnership Income for 2016. 
The Director issued a request for evidence (RFE), asking the Petitioner to submit evidence of its ability 
to pay the proffered wage for 2017, the year of the priority date. The Petitioner submitted its 2017 tax 
return in response. 
The Director then issued a notice of intent deny (NOID) the petition, noting that the Petitioner's 2017 tax 
return reflected net income of $25,250 and net current assets of$22,250 which were below the proffered 
wage. In response to the NOID the Petitioner submitted its monthly bank statements from January to 
November 2019, and copies ofIRS Forms 1099-MISC, Miscellaneous Income, it issued to contracted 
employees in 2016 and 2017. 
The Director denied the petition, concluding that the Petitioner's bank statements do not conclusively 
demonstrate its ability to pay the proffered wage. 
With the appeal the Petitioner submits an amended 201 7 tax return; its 2018 tax return; evidence that 
an extension of time to file its 2019 tax return was submitted; IRS Form W-2, Wage and Tax 
Statement, it issued to the Beneficiary in 2018 and 2019; paystubs it issued to the Beneficiary from 
January to June 2020; and additional bank statements for 2017, 2018, and 2020. 
The record before us demonstrates the following with respect to the Petitioner's continuing ability to pay 
the proffered wage: 
2017 
2018 
2019 
2020 
Net Income 
$25,250 
$21,270 
Extension filed 
Not yet available 
Net Current Assets 
$97,233 ("amended") 
$98,534 
Wages Already Paid 
$02 
$49,781.70 
$59,738.04 
$4,978.17 /month 
Therefore, the record would demonstrate that the Petitioner paid the Beneficiary the full proffered wage 
in 2019, 3 and that based on the tax return submitted, it had net income and net current assets greater than 
the difference between the proffered wage and wages already paid to the Beneficiary in 2018. 
On appeal, the Petitioner states that its accountant did not complete the Schedule L balance sheet on its 
2017 tax return, and that an amended tax return to complete Schedule L was accepted by the IRS. The 
Petitioner submitted a copy of an amended Form 1065, and Form 1065X, Amended Return, which states 
"I am submitting this Form 1065X to update information on Schedule L, Balance Sheets per Books, End 
2 The Petitioner does not claim that it employed or paid any wages to the Beneficiary in 2017. 
3 To comply with 8 C.F.R. § 204.5(g)(2), the Petitioner would need to submit either it's federal tax return, annual report, 
or audited financial statement for this year. 
3 
of tax year, cash on hand figure." The amended Schedule L reflects two changes from the Petitioner's 
initial filing: cash increased from $25,250 to $97,223, and a nonrecourse loan decreased from -$93,844 
to-$21,871. We note that the Petitioner has not submitted evidence that it amended its 2018 tax return, 
which reflects a beginning of year total assets balance of $25,250, and not $97,223 to match 2017 year 
end cash, or included a statement to explain the difference based on the amendments to the 201 7 
Schedule L. 4 Without an explanation whether the 2018 tax return must also be amended, and if 
required, an amended tax return, we cannot conclusively determine whether the Petitioner can 
establish its ability to pay the proffered wage in this year. 
Despite its statement that the amended tax return was accepted by the IRS, the record does not include 
evidence that the Petitioner's amendment was submitted to the IRS, or that it was received and 
accepted. Assertions made without supporting documentation are of limited probative value and do 
not carry the weight to satisfy the Petitioner's burden of proof See Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998). The Petitioner did not submit IRS-certified copies of the amended return 
to establish that the amended return was actually received and processed by the IRS. 
Nor does the record include a statement from the Petitioner or its accountant explaining why the 
Balance Sheet was completed inaccurately or how the error was discovered. The change of items on 
the Petitioner's Schedule L and the subsequent amended tax return, specifically with regard to the 
significant increases in the Petitioner's net current assets based on the increased cash on hand, are not 
explained. The Petitioner must resolve inconsistencies with independent, objective evidence pointing 
to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
The Petitioner asserts that its net income fluctuates greatly because of the nature of its business, stating 
that it "relies heavily on winning bids. If it is not able to win bids, there is no work to perform ... 
Thus, although [its] net income varies every year, it has continued to do business since 2011 because 
it maintains a strong cash balance every year to be able to keep up with these revenue fluctuations." 
We agree with the Director that the Petitioner's monthly bank statements do not conclusively establish 
the Petitioner's ability to pay. Bank statements show the amount in an account on a given date and 
cannot show the sustainable ability to pay an annual proffered wage. Moreover, without an 
explanation for the discrepant amounts and evidence that the 2017 amendment was accepted by the 
IRS, and explanation of whether a 2018 tax return must be filed, the Petitioner has not shown that the 
money in its bank account constitutes a financial resource separate and apart from the current assets 
as recorded in the original Schedule L of its federal income tax returns for 201 7. Further, the record 
does not support the Petitioner's assertion of great fluctuations in net income. Rather, the other tax 
return in the record (2018) reflects only a minor fluctuation ofless than $4,000. 
A petitioner must establish that a job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until a beneficiary obtains lawful permanent residence. The 
4 "Generally, total assets at the beginning of the year (Schedule L, line 14, column (b)) must equal total assets at the close 
of the prior tax year (Schedule L, line 14, column (d)). If total assets at the beginning of the year don't equal total assets 
at the close of the prior year, attach a statement explaining the difference." Internal Revenue Serv., Instructions to Form 
1065, 53, at https://www.irs.gov/pub/irs-pdf/i 1065 .pdf (last visited January 11, 2021 ). 
4 
petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer 
is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977). Further, 
pursuant to 20 C.F.R. § 656.10( c )(10), in signing the labor certification the Petitioner attested that the 
job opportunity is for full-time, permanent employment. The Petitioner's statement on appeal that 
there is no work to perform without winning bids also calls into question the permanent and full-time 
nature of the job opportunity. With any further filings, the Petitioner should submit evidence of its 
continuing business operations and intention to permanently employ the Beneficiary full-time. 5 
Here, the record lacks evidence of the Petitioner's reputation or of its historical growth over its ten 
years in business. The Petitioner has not described any uncharacteristic business expenditures or 
losses, nor explained how its 201 7 tax return paints an inaccurate financial picture. Although the 
record includes evidence of wages the Petitioner paid to contracted workers in 2017, the Petitioner 
does not provide descriptions of the work done by those contractors. Wages already paid to others 
generally are not available to prove the ability to pay the wage proffered to a beneficiary. Here, the 
Petitioner does not assert that it intended to replace any of those contracted workers with the 
Beneficiary, or that the wages already paid to contractors would otherwise be available to pay the 
Beneficiary. We find that the Petitioner has not established its ability to pay the annual proffered wage 
from the priority date based on the totality of the circumstances. 
In accord with the analysis above, the Petitioner has not established its ability to pay the proffered 
wage from the priority date as required by 8 C.F.R. § 204.5(g)(2) or in an examination of the totality 
of the circumstances. Therefore, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
5 Subsequent to this appeal, the Petitioner filed a second petition,.__ ____ ___. for the same Beneficiary and 
classification, and based on the same labor certification. That petition is currently pending. 
5