dismissed EB-3 Case: Construction

MATTER OF 1-B- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 15, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a construction company, seeks to employ the Beneficiary as a project electrical 
engineer. It requests classification of the Beneficiary as a professional under the third preference 
immigrant category. 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 of the Nebraska Service Center denied the petition on the ground that the evidence did 
not establish the Petitioner's ability to pay the proffered wage from the priority date onward. 
On appeal, the Petitioner submits additional documentation and asserts that the evidence of record 
establishes its ability to pay the proffered wage. We also issued a request for evidence (RFE), to 
which the Petitioner responded with further materials. 
Upon de novo review, we will dismiss the appeal. 
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I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
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). By approving the labor certification, DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
offered position and that employing a foreign national in the position will not adversely affect the 
wages and working conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(l)­
(II) of the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USClS 
approves the petition, the foreign national may apply for an immigrant visa abroad or, if eligible, 
adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
To be eligible for the classification requested, 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): 
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Matter of 1-B- Corp. 
The petitioner must demonst~at e this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanen t 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 pro spective 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]. 
II. ANALYSIS 
At issue in this case is whether the Petitioner has established its continuing abili ty to pay the 
proffered wage from the priority date 1 onward. The petition has a priority date of February 2, 2016. 
The labor certification states that the offered wage for the proffered position is $47,008 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 
regulatory required evidence, is considered proof of the petitioner' s ability to pay the proffered 
wage. 
In this case, the Petitioner indicat es that it has employed the Beneficiary since early February 2017. 
It has submitted a copy of the Beneti ciary 's 2017 Form W-21 Wage and Tax Statement, 
showing that he received "wages , tips, other compensation" totaling $58,658.30. Thus, the 
Beneficiar y's pay exceeded the proffered wage in 20 17. However, the Petitioner has not submitted a 
form of regulatory required evidence of its ability to pay in 2017, despit e our RFE requ est ing such 
evidence. Per 8 C.F.R. § 204.5(g)(2) , evidence of ability to pay "shall be either in the form of copies 
of annual reports, federal tax returns, or audited financial statem ents ." Although the Petitioner paid 
the Beneficiary is excess of the proffered wage in 2017, absent a form of regu latory evidence, we 
cannot affirmatively find that it had the ability to pay in that year. Further, as the Beneficia ry was 
not employed by the Petitioner in 2016, the Petitioner has not established its ability to pay the 
proffered wage based on wages paid from the priority date of February 2, 2016, until the end of that 
year. . 
If a petitioner does not establish that it has paid the benefici ary an amount equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
asse ts figures recorded on the petitioner's federal income tax retum( s), annu al repo rt(s) , or audited 
financial statements(s). If either of thes e figures, net income or net current assets , equals or exceeds 
1 The "priorit y date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R . 
§ 204.5(d). 
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Matter of 1-B- Corp. 
the proffer ed wage or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, the petitioner would be considered able to pay the proffered wage during 
that year. 
In this case , the Petitioner submitted a copy of its federal income tax retu rn, Form 1l20S, for the 
year 2016 . It shows that the company recorded a net loss of $1,890,675 and net current liabiliti es of 
$460,367 that year.2 Based on its 2016 tax return, therefore, the Petitioner has not established its 
ability to pay the proffered wage from the priority date of February 2, 2016, through the end of that 
year. Nor has the Petitioner established its ability to pay the proffered wage during that time period 
by 
mean s of an annual report or an audited financial statement for 2016, as no such documents have 
been submitted. As noted above, the record lacks a form of regulato ry required evidence for 2017, 
so we are unable to assess the Petitioner's net income or net current assets in that year. Ther efo re, in 
examining t~e wages paid, net income, and net current assets, the Petitione r has not demonstrated its 
ability to pay the proffered wage in 2016 or.2017 . 
USCIS may also consider the totality of the Petitioner's circumstances, including the overa ll 
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 ' ) Comm ' r 1967). USCIS may, at its discretio n, 
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 petition er has been 
doing business, the established historical growth of the petitioner's business, the petitioner's 
reputation within its industry , the overall numb er of employees , whether the benefici ary is replacing 
a former employee or an outsourced service, the amount of compensation paid to officers, the 
occurrence of any unchar acteristic business expenditures or losses, and any other ev idence that 
USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
On appeal the Petitioner reiterates that it has been in business since 1969 and submits a lette r from 
Contractors License Board certifying that the Petitioner is one of the oldest construction 
companies in The Petitioner cites its federal income tax returns for the ten- year period of 
2007-2016 as evidence that it has a history of financial success. In the first eight of those years, 
2007-2014; the Petitioner had substantial net income or net current assets , or both. Whil e it had net 
losses and net current liabilities in 2015 and 2016, the Petition er poin ts out that it still paid wages of 
more than $2.6 million to employees in 2016, paid close to $23 million in wages over the five years 
2012-2016, and was paying the full proffered wage to the Beneficiary in 2017. The Petitioner states 
that it is currently a subcontra ctor on a contract worth over $5 million, and that its emp loyee total 
rose from 54 to 88 between Janu ary and September 2017. According to the Petition er, the net losses 
~nd net current liabilities in 2015 and 2016 were uncharacteristic considering the company 's long 
history of business success in prior years, and the company has maintain ed its overall financial 
2 The net loss was recorded on page I, line 21 of the Form 1120S ("Ordinary Busines s Income (Loss)") . The net current 
liabilities were the difference between the current assets and the curren t liabilitie s entered on lines 1-6, and 16-18, 
respecti vely, of Schedule L 
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Matter of 1-B- Corp. 
strength. The Petitioner claims that its job offer is realistic and that it has the continuing ability to 
pay the proffered wage. 
While the record shows that the Petitioner did pay approximately $2.6 million in wages during 2016, 
that total was nearly $2 million below the wages paid the previous year, in 2015. The Petitioner's 
records show that its employee count declined steadily during the five-year period of 2012 to 2016, 
and that its wages paid fluctuated from $4.5 million to $5.7 million in the years 2012-2015, before 
declining sharply to $2.6 million in 2016. The Petitioner has submitted copies of recent business 
contracts as evidence of its ongoing construction activities, but the tax returns in the record show a 
steady decline in gross receipts since 2012. From a high of $18.2 million in 2012, gross receipts 
declined to $14.4 million in 2013, to $9.1 million in 2014, to $5.9 million in 2015, to a little over 
$3 million in 2016. Thus, gross income in 2016 was just one-sixth of the amount four years earlier 
in 2012. Despite the Petitioner's claim of continuing good health, therefore, its own records clearly 
show that 2016 was a low point in its fortunes ·after several years of declining income, employee 
totals, and wages paid. 
The Petitioner also submitted a letter from a certified public accountant (CPA) who claims to have 
prepared its tax returns and audited its financial statements for many years. The CPA discusses 
various business losses and expenses that were reflected in the Petitioner's federal income tax 
returns for 2014, 2015, and 2016, and asserts that they were one-time events. The cumulation of 
these allegedly one-time events, however, raises questions as to whether the Petitioner may continue 
to incur sizeable business losses and expenses that lead to continuing net losses and net current 
liabilities on its income tax returns and diminish the financial condition of the company overall. 
Furthermore, USCIS records indicate that the Petitioner has filed other Form 1-140, Immigrant 
Petition for Alien Worker petitions. The Petitioner must establish that its job offer is realistic not 
only for the instant Beneficiary, but also for the beneficiaries of its other petitions. A 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 l&N Dec. 142 (Acting Reg'! Comm'r 1977). Accordingly, the 
Petitioner must demonstrate its ability to pay the combined proffered wages of the instant 
Beneficiary and the beneficiaries of every other 1-140 petition from this petition's priority date of 
February 2, 2016, until the other beneficiaries obtained lawful permanent resident status. See 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). 3 
' Because the record lacked information about the other Form 1-140 beneficiaries, we sent an RFE 
requesting that the Petitioner submit a list of all the receipt numbers for its other 1-140 petitions that 
1 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; or · 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
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Matter of 1-B- Corp. 
were pending or approved as of, or filed since, the priority date of this petition. The RFE also 
requested the name and proffered wage of each beneficiary, the priority date and status of each 
petition, the wages paid to every beneficiary from the priority date of this petition or their own 
priority dates, if later, as well as documentary evidence of the wages paid. The Petitioner did not 
provide any,of this information or documentation in its response to the RFE. Instead, the Petitioner 
submitted a letter from its vice president and chief financial officer (CFO) stating that as of May 
2018 it employs 115 workers and has the financial ability to pay the Beneficiary's proffered wage of 
$47,008 per year, supplemented by an employee roster listing the names, occupations, wage rates, 
and hiring dates of each employee. The regulation at 8 C.F.R. § 204.5(g)(2) allows USCIS the 
discretion to consider a statement from a financial officer; however, given the Petitioner's failure to 
provide any of the information and evidence we requested pertaining to its other I-140 beneficiaries, 
the CFO letter has little probative value concerning the Petitioner's ability to pay the combined 
proffered wages of all its I-140 beneficiaries. Moreover, the failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. 
§ 103.2(b)(14). 
For the reasons discussed above, we conclude that the Petitioner has not established, based on the 
totality of its circumstances, its continuing ability to pay the proffered wage of $47,008 per year 
from the priority date of February 2, 2016, onward. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage of the instant 
Beneficiary, as well as the applicable proffered wages of its other Form 1-140 beneficiaries, from the 
priority date of February 2, 2016, onward. 
ORDER: The appeal is dismissed. 
Cite as Matter of 1-B- Corp., ID# 965535 (AAO June 15, 2018) 
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