dismissed EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-F-R- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT.31,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant, seeks to employ the Beneficiary as a cook. It requests classification of the 
Beneficiary as a skilled worker under the third preference immigrant classification. See Immigration 
and Nationality Act (the Act) section 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 two years of training or 
expenence. 
The Director of the Nebraska Service Center denied the petition on the ground that the evidence of 
record did not establish that the Petitioner had the continuing ability to pay the proffered wage from 
the priority date up to the present, and that the Beneficiary has the minimum of two years' 
experience in the occupation, as required on the labor certification. 
On appeal, the Petitioner submits a brief and additional evidence. We subsequently issued a Notice 
of Intent to Dismiss (NOID) the appeal, and the Petitioner responded. 
Upon de novo review, we will dismiss the appeal. 
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 atTect the 
wages and working conditions of domestic workers similarly employed. See section 
212(a)(5)(A)(i)(I)-(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, 
1 
The date the labor certification is filed is called the "priority date." See 8 C.F.R. § 204.5(d). The Petitioner must 
establish that all eligibility requirements for the petition have been satisfied from the priority date onward. 
Matter of P-F-R- Inc. 
if USCIS 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. 
II. ANALYSIS 
A. Ability to Pay 
A petitioner must establish that it has the ability to pay the beneficiary the proffered wage, as stated 
on the labor certification, from the priority date onward. The regulation at 8 C.F.R. § 204.5(g)(2) 
provides, in pertinent part, as follows: 
Ability of prospective employer to pay wage. Any petitiOn 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 appropriate 
cases, additional evidence, such as profit/loss statements, bank account records, or 
personnel records may be submitted by the petitioner or requested by the Service. 
The Petitioner's Form I-140, Immigrant Petition for Alien Worker, was accompanied by an ETA 
Form 9089, Application for Permanent Employment Certification (labor certification), with a 
priority date of April 14, 2014. Section G of the labor certification stated that the offered wage for 
the specialty cook position is $27,435 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. 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 is considered proof of the petitioner's ability to 
pay the proffered wage. In this case, there is no evidence that the Beneficiary has been employed by 
the Petitioner in the years since the priority date. Accordingly, the Petitioner cannot establish its 
ability to pay the proffered wage based on wages actually paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount at least equal to the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures entered on the petitioner's federal income tax return(s). If either of these figures 
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 be considered able to pay the proffered 
wage during that year. 
As the record does not establish that the Petitioner paid the Beneficiary wages in any year, we next 
examine the Petitioner's income and net current assets. On appeal, the Petitioner asserts that its 
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Matter of P-F-R- Inc. 
2014 tax returns show it has $20,332 to pay a pro-rated proffered wage of $17,146.88, and that its 
2015 tax return shows it had "an income of $41 ,095" to pay the full proffered wage. However, the 
Petitioner's federal income tax returns for 2014 and 2015 reflect the following information: 
Year 
2014 
2015 
Net Income 
-$1,9833 
$33,703 
Net Current Assets2 
-$499,464 
-$411 '111 
In this case, neither the Petitioner's net income nor net current assets for 2014 and 2015 are 
sufficient to pay the proffered wage. The record therefore does not establish the Petitioner's ability 
to pay the proffered wage in those years. Further, because the information for 2016 was not 
available, we cannot affirmatively find that the Petitioner has the ability to pay in that year. 
On appeal, the Petitioner cites to additional case law and contends that we must consider the totality 
of circumstances and the overall magnitude of its business activities in determining the Petitioner's 
ability to pay the proffered wage, rather than tax returns or another single factor. See. e.g., Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967); see also Masonry Masters. Inc. v. 
Thornburgh, 875 F.2d 898 (D.C. Cir. 1989) (criticizing USCIS, in part, for failure to specify a 
formula used in determining the proffered wage). We agree that 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 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 we 
deem relevant to the petitioner's ability to pay the proffered wage. 
Here, the Petitioner contends that it has been in business for over 15 years and that a factor to be 
considered is the Petitioner's judgment about its ability to here an employee. However, the 
Petitioner has not provided additional information regarding its operations over the 15-year period 
nor does it claim to have experienced uncharacteristic losses or expenses in the period in question. 
Moreover, the Petitioner has made inconsistent statements regarding its staffing and operations. For 
example, it submitted a letter dated December 1, 2016, in which its controller stated that the 
2 
According to Barron's Dictionary of Accounting Terms 117 (3d 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 as accounts payable, short-term notes payable, 
and accrued expenses (such as taxes and salaries). !d. at 118. 
3 
In 2014 and 2015, the Petitioner filed an IRS Form 1120S, U.S. Income Tax Return for an S Corporation. Where an 
S corporation's income is exclusively from a trade or business, USC IS considers net income to be the figure for ordinary 
income, shown on line 21 of page one of the petitioner's IRS Form 1120S. However, where an S corporation has 
income, credits, deductions, or other adjustments from sources other than a trade or business, they are reported on 
Schedule K and the net income is found on line 18 (2006-2015) of Schedule K. See Instructions for IRS Form 1120S, at 
http://www.irs.gov/pub/irs-pdf/ill20s.pdf (last visited October 17, 2017) (indicating that Schedule K is a summary 
schedule of all shareholders' shares of the corporation's income, deductions, credits, etc.). Because the Petitioner had 
additional deductions and other adjustments shown on its Schedules K in 2014 and 2015, its net income is found on 
Schedule K of its tax return. 
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Matter of P-F-R- Inc. 
Petitioner currently employs over 150 people and has since prior to 2014, but at Part 5 of the Form 
1-140, filed on February 1, 2016, the Petitioner claimed to have only 41 employees. Also, the 
Petitioner's tax returns for 2014 and 2015 recorded decreasing expenditures for salaries and wages. 
Because the Petitioner's representations about the size and nature of its operations are internally 
inconsistent and are not supported by the related evidence, it has not demonstrated that its stated 
judgment about its ability to pay to pay the proffered wage is a reliable factor. 
The Petitioner's two tax returns are not otherwise sufficient to show a historical pattern of growth, 
and there is also no independent evidence of the Petitioner's reputation within the restaurant 
industry. Considering the totality of the circumstances, the Petitioner has not established its ability 
to pay the proffered wage of$27,435 per year from the priority date up to the present. 
B. Beneficiary's Experience 
The Petitioner requests classification of the Beneficiary as a skilled worker. In order to qualify as a 
skilled worker, the Beneficiary must possess at least two years of training or experience and meet the 
"educational, training or experience, and any other requirements of the individual labor 
certification." 8 C.F.R. § 204.5(1)(3)(ii)(B). In evaluating a beneficiary's qualifications, we must 
examine the job offer portion of a labor certification to determine the minimum requirements of an 
offered position. We may neither ignore a term of the labor certification, nor impose additional 
requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983). 
The labor certification states that 24 months of experience as a cook is the minimum experience 
requirement of the job offered. The Beneficiary attested on the labor certification that he has 24 
months of full-time, qualifying experience as a cook in Rome, Italy and listed the following jobs in 
which he claims to have gained his experience: 
• About 24 months as a cook with 
December 31, 2008; and 
• About 18 months as a cook with 
January 31,2002. 
from January 1, 2007, to 
from July 1, 2000, to 
On appeal, the Petitioner provided a letter from each of the owners of the two restaurants that the 
Beneficiary listed as his former employers in Italy as required evidence of the Beneficiary's 
possession of at least 24 months of full-time, qualifying experience as a cook. 8 C.F.R. 
§ 204.5(1)(3)(ii)(A). Each restaurant owner indicated that the Beneficiary worked as a cook during 
the dates listed on the labor certification, and included a specific list of the Beneficiary's duties 
during his periods of claimed employment. Other information, however, casts doubt on the 
Beneficiary's claims and the evidence ofhis qualifying experience as a cook. 
In August 2008, the Beneficiary signed a visa application submitted to the U.S. Department of State 
(DOS), on which he stated that he was working as a financial advisor for m 
Italy. He further stated that his last two jobs were: (1) financial advisor for 
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Matter of P-F-R- Inc. 
in Italy from 2002 to 2006; and (2) retail manager director for from 
1989 to 2000. He did not list any employment as a cook or in a restaurant. 
In addition, the Beneficiary was interviewed by DOS on more than one occasion in 2013, when he 
sought to obtain an E-2 nonimmigrant treaty investor visa and then a B-1 temporary visitor visa. 
The Beneficiary initially stated that he had held several managerial positions in the banking and 
financial sector since 1988, and asserted that he was last employed as the retail banking manager for 
from 1989 to 2000. On July 29, 2013, the Beneficiary stated that he worked 
as a financial advisor and executive partner for in Italy from January 1, 
2007, to September 30, 2008, where he claimed to have been a financial advisor for mortgages and 
loans. The Beneficiary did not claim to have held any restaurant or cooking positions. 
Consequently, the nature and dates of the work experience that the Beneficiary specified in 2008 and 
2013 are only in banking and finance and for employers that are inconsistent with his claims on the 
labor certification to have worked as a cook in restaurants in from July 1, 2000, to January 31, 
2002, and again from January 1, 2007, to December 31,2008. 
We advised the Petitioner of the above contradictory information in a NOID. In response, the 
Petitioner provided a statement from the Beneficiary who confirmed that he worked in finance, and 
stated that he also engaged in overlapping work in the restaurant industry due to his great desire to 
develop his cooking skills. The Beneficiary asserted that he worked as a cook in the capacity he had 
listed on the labor certification at night after work and on Saturdays, and worked in banking during 
weekdays. The Petitioner also provided new letters from the restaurant owners of 
and Each restaurant owner stated that the Beneficiary worked as 
a cook during the dates specified on the labor certification on weeknights and Saturdays. Although 
the Beneficiary's statement and the new employment letters submitted in response to the NOID 
discuss the derogatory information, they do not resolve the contradictory evidence. For example, 
neither of the restaurants included pay stubs or other records documenting the Beneficiary's 
employment as a cook, nor did the Petitioner include evidence from the Beneficiary establishing that 
he worked as a cook at night after working as a Director for and a financial 
advisor and executive partner at during the day. A petitioner must resolve 
inconsistencies in the record such as this with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In this case, the two new 
employment letters are not sufficient to resolve the contradictory information. 
Based on the unresolved inconsistencies regarding the Beneficiary's employment history, the Petitioner 
has not submitted sufficient evidence to establish the Beneficiary has qualifying experience as a cook in 
Rome. As such, the Petitioner's evidence is not sufficient to establish that the Beneficiary has the 
qualifying experience required by the terms of the labor certification. 
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Matter of P-F-R- Inc. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
onward or that the Beneficiary has the minimum experience required by the labor certification. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-F-R- Inc., ID# 0591792 (AAO Oct. 31, 2017)