dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 8, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an owner and operator of a restaurant, seeks to permanently employ the Beneficiary as a 
cook specializing in Chinese cuisine. 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)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). 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 experience. 
The Director, Nebraska Service Center, denied the petition on June 22, 2015. The Director 
concluded that the record did not establish the Petitioner's continuing ability to pay the proffered 
wage from the petition's priority date onward. 
The matter is now before us on appeal. The Petitioner asserts that the Director misconstrued the 
purpose of ability-to-pay regulations and erred in discounting the personal assets of its president/sole 
shareholder.· Upon de novo review, we will dismiss the appeal. 
I. WAGES, NET INCOME, AND NET CURRENT ASSETS 
A petitioner must demonstrate its ability to pay a proffered wage from a petition's priority date until 
a beneficiary obtains lawful permanent residence. 8 C.P.R. § 204.5(g)(2). Evidence of ability to pay 
must include copies of annual reports, federal income tax returns, or audited financial statements. 
!d. 
In the instant case, the petition's priority date is July 30, 2011, the date the U.S. Department of 
Labor (DOL) accepted for processing the accompanying ETA Form 9089, Application for 
Permanent Employment Certification (labor certification). See 8 C.P.R. § 204.5(d).1 
1 The record indicates the Petitioner's timely submission of the labor certification in support of a prior, unsuccessful 
petition on behalf of the Beneficiary. See 20 C.F. R. § 656.30(b )(I) (stating that an approved labor certification granted 
after July 16, 2007 expires if not filed in support of a petition within 180 calendar days of its certification date). The 
record indicates a change in the Petitioner's ownership in April2013, after its filing of the labor certification applicat,ion 
and the prior petition. However, copies of the Petitioner's federal and state income tax returns indicate its retention of 
the same federal employer identification number (FEIN) indicated on the labor certification. The labor certification 
Matter of E, Inc. 
The accompanying labor certification states the proffered wage of the offered position of Chinese 
specialty cook as $26,000 per year. 
In determining a petitioner's ability to pay, we 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 beneficiary the 
full proffered wage each year, we examine whether it possessed sufficient annual amounts of net 
income or net current assets to pay the differences between wages paid, if any, and the proffered 
wage. If a petitioner's amounts of net income or net current assets are insufficient to demonstrate its 
ability to pay the proffered wage, we may also consider the overall magnitude of its business 
activities. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967).2 
In the instant case, the record does not indicate the Petitioner's employment of the Beneficiary. The 
record therefore does not demonstrate the Petitioner's ability to pay the proffered wage based on 
wages paid to the Beneficiary. 
The record contains copies of the Petitioner's federal income tax returns from 2011 through 2014. 
The tax returns reflect the following annual amounts of net income and net current assets: 
Year Net Income
3 Net Current Assets 
2011 $23,237 -$15,078 
2012 -$1700 -$21,040 
2013 $2825 $15,685 
2014 $12,104 -$13,564 
None of the annual amounts of net income or net current assets equal or exceed the annual proffered 
wage of $26,000. Thus, based on examinations of the wages paid to the Beneficiary by the 
Petitioner and its annual amounts of net income and net current assets, the record does not establish 
its ability to pay the proffered wage from the petition's priority date onward. 
therefore remains valid for the Petitioner. See 20 C.F.R. §§ 656.3, 656.30(c)(2) (stating that an "employer" must possess 
a valid, distinct FEIN and that a labor certification remains valid only for the particular job opportunity stated on it). 
2 Federal courts have upheld our method of determining a petitioner's ability to pay. See Tongatapu Woodcraft Haw., 
Ltd. v. Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984); see also River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 
(1st Cir. 2009); Estrada-Hernandez v. Holder,-- F. Supp. 3d--, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rivzi v. Dep't of 
Homeland Sec., S7 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), a.ff'd, --Fed. Appx. --, 2015 WL 5711445, *1 (5th Cir. 
Sept. 30, 20 15). 
3 The Petitioner files its federal income tax returns as an S corporation. S corporations with income adjustments from 
sources other than their trades or businesses report their reconciled income amounts on Schedules K of IRS Forms 1120S, 
U.S. Income Tax Returns for S Corporations. See U.S. Internal Revenue Serv., Instructions to Form 1120S, 22, at 
https://www.irs.gov/pub/irs-pdf/i 1120s.pdf (accessed Dec. 24, 20 15). Because the Petitioner reported income adjustments in 
2011 and 2013, our annual net income amounts for 20 II and 2013 refer to the reconciled income amounts on lines 18 of the 
Schedules K of the Petitioner's tax returns for those years. 
2 
(b)(6)
Matter of E, Inc. 
II. ANOTHER PENDING PETITION 
Also, U.S. Citizenship and Immigration Services (USCIS) records indicate the Petitioner's filing of a 
Form 1-140, Immigrant Petition for Alien Worker, on behalf of another beneficiary that remained 
pending after the instant petition's priority date.4 
A petitioner must demonstrate its ability to pay the proffered wage of each petition it files. See 8 
C.F.R. § 204.5(g)(2). Therefore, the instant Petitioner must demonstrate its ability to pay the 
combined proffered wages of the instant Beneficiary and the beneficiary of the other petition that 
remained pending after the instant petition's priority date. The Petitioner must demonstrate its 
ability to pay the combined proffered wages from the instant petition's priority date until the other 
beneficiary obtained lawful permanent resident status, or until the other petition was denied, 
withdrawn, or revoked. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding 
our denial · of petition where the petitioner did not demonstrate its ability to pay multiple 
beneficiaries). 
The proffered wage of the Petitioner's other pending petition is also $26,000 per year. USCIS 
records indicate that the Petitioner did not pay any wages to the other beneficiary. As previously 
discussed, the record does not demonstrate the Petitioner's ability to pay the proffered wages of the 
instant Beneficiary based on examinations of the wages it paid to the Beneficiary and its annual 
amounts of net income and net current assets. Therefore, based on the same analysis, the record also 
does not establish the Petitioner's ability to pay the combined proffered wages of the beneficiaries. 
III. THE PETITIONER'S APPEAL 
The Petitioner asserts that a demonstration of ability to pay is not intended to "guarantee" payment 
of a beneficiary's proffered wage, but rather "to provide some reasonable indicia of the good faith 
nature of the ... employer's job offer." Citing Construction & Design Co. v USCIS, 563 F.3d 593 
(7th Cir. 2009), the Petitioner argues that demonstration of ability to pay is designed to prevent 
employers from sponsoring foreign workers without intending to employ them. 
The Construction & Design decision was not issued by a U.S. court of appeals with jurisdiction over 
the area of intended employment in this matter. It therefore does not bind us in this case. See Matter 
of U Singh, 25 I&N Dec. 670, 672 (BIA 2012) (holding that an agency need not apply the law of a 
circuit in cases arising outside that jurisdiction). 
Also, Construction & Design interprets the purpose of the ability-to~pay requirement based on 
statements from a U.S. Attorney's Office. Constr. & Design, at 594 (citing Dep't of Justice, U.S. 
Atty's _Office for the S. Dist. of Iowa, "Media Release: 11 Arrested, Indicted in Multi-State 
4 USCIS records identify the receipt number of the other pending petition as 
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Matter of E, Inc. 
Operation in Targeting Visa and Mail Fraud," Feb. 12, 2009)). We do not find the statements of an 
official from another agency to be authoritative regarding the purpose of USC IS regulations. 
A review of regulatory history shows that the ability-to-pay regulation at 8 C.F.R. § 204.5(g)(2) was 
intended to implement pre-existing case law. See Proposed Rule for Employment-Based 
Immigrants, 56 Fed. Reg. 30703, 30704 (July 5, 1991) (stating that the regulations will reflect the 
case-law requirement that a petitioner demonstrate its ability to pay as of a petition's priority date). 
In Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977), the petitioner lost money in 
a 12-month period before the petition's filing, but asserted its ability to pay the proffered wage in the 
future. Id. at 143-44. However, the Acting Regional Commissioner of the former Immigration and 
Naturalization Service held that a petitioner must demonstrate its ability to pay from a petition's 
priority date. Id. at 145. "The petitioner in the instant case cannot expect to establish a priority elate 
for visa issuance for the beneficiary when at the time of making the job offer and the tiling of the 
petition with this Service he could not, in all reality, pay the salary as stated in the job offer." !d. 
The decision also cited the purpose of the Act's labor certification requirement "to provide strong 
safeguards for American labor and to provide American labor protection against an influx of aliens 
entering the United States for the purpose of performing skilled or unskilled labor where the 
economy of individual localities is not capable of absorbing them at the time they desire to enter this 
country." Id. at 144 (quoting H.R. Rep. No. 1365 (1952), reprinted in 1952 U.S.C.C.A.N. 1705). 
Thus, contrary to the Petitioner's assertion, we find Great Wall to govern the purpose of the ability­
to-pay regulations in this matter. Great Wall indicates that the ability-to-pay requirement is intended 
not merely to confirm a petitioner's intention to employ a beneficiary, but its financial ability to pay 
a specified proffered wage from a petition's priority elate onward. 
The Petitioner also asserts that USCIS erred in refusing to consider the personal assets of its 
president/sole shareholder in determining its ability to pay. The Petitioner asserts that cases cited by 
US CIS in support of its refusal are distinguishable from the instant matter. 
The Director's decision cited Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 
1980) and Sitar Restaurant v. Ashcroft, No. Civ. A. 02-30197-MAP, 2003 WL 22203713 (D. Mass. 
Sept. 18, 2003) for the proposition that USCIS cannot consider the assets of shareholders in 
determining a corporation's ability to pay a proffered wage. The Petitioner notes that ability to pay 
was not at issue in Aphrodite. It also argues that Sitar is distinguishable from the instant case 
because a corporate director in Sitar sought to guarantee a beneficiary's proffered wage "without any 
evidence that he or she had funded the applicant restaurant." 
Although Aphrodite did not involve a petitioner's ability to pay, the Director appropriately cited the 
case. The Director cited the case's specific holding that a corporation is "a separate legal entity from 
its owners or even its sole owner." Aphrodite, 17 I&N Dec. at 531. Aphrodite in tum cited Matter 
of M-, 8 I&N Dec. 24 (BIA 1958; A. G. 1958), which stated: 
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Matter of E, Inc. 
It is an elementary rule that a corporation is a legal entity entirely separate and 
distinct from its stockholders; and this is true even though one person may own all or 
nearly all of the capital stock. ... The fact that one person owns a majority or all of 
the stock in a corporation does not, of itself, make him liable for the debts of the 
corporation, and this rule applies even where an individual incorporated his business 
for the sole purpose of escaping individual liability for corporation debts. 
M-, 8 I&N Dec. at 50-51 (citations omitted). 
Thus, Aphrodite supports the Director's finding that USCIS cannot consider the personal assets of 
the Petitioner's president/sole shareholder because he lacks any legal obligation to pay the proffered 
wage on behalf of the corporation. 
Similarly, Sitar found that "[t]he regulation at 8 C.F.R. § 204.5(g)(2) does not permit the AAO to 
consider the financial resources of individuals or entities with no legal obligations to pay a proffered 
wage." Sitar, 2003 WL 22203713 at *3. Whether the corporate director who offered to pay the 
beneficiary's wage in Sitar had funded the restaurant was immaterial. The court ruled that, absent a 
legal obligation by the director to pay the proffered wage, USCIS "had no need to determine whether 
his income was sufficient to pay [the beneficiary's] salary." !d. Like the petitioner in Sitar, the 
instant Petitioner does not provide any authority to support its argument that we must consider the 
promise of its president/sole shareholder to pay the proffered wage. 
IV. TOTALITY OF THE CIRCUMSTANCES 
However, we agree with the Petitioner that we must consider factors beyond its net income and net 
current assets in determining its ability to pay to pay the proffered wage. As previously indicated, 
we may consider the overall magnitude of a petitioner's business activities in determining its ability 
to pay. See Sonegawa, 12 I&N Dec. at 614-15. 
In Sonegawa, the petitioner conducted business for more than 11 years, routinely earning a gross 
annual income of about $100,000 and employing at least four full-time workers. !d. at 612. In the 
year of the petition's filing, however, the petitioner's financial documentation did not reflect its 
ability to pay the proffered wage. !d. at 614. During that year, it relocated its business, causing it to 
pay rent on two locations for a five-month period, to incur substantial moving costs, and to briefly 
suspend its business operations. !d. Despite these setbacks, the Regional Commissioner determined 
that the petitioner would likely resume successful business operations and had established its ability 
to pay the proffered wage. !d. at 615. The record established the petitioner as a fashion designer 
whose work had been featured in national magazines. !d. Her clients included the then Miss 
Universe, movie actresses, society matrons, and women on lists of the best-dressed in California. !d. 
The record also indicated the petitioner's frequent .lectures at design and fashion shows throughout 
the United States and at California colleges and universities. !d. 
As in Sonegawa, we may consider such factors as: the number of years a petitioner has conducted 
business; the growth of its business; its number of employees; the occurrence of any uncharacteristic 
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Matter of E, Inc. 
business expenditures or losses, its reputation in its industry; whether a beneficiary will replace a 
current employee or outsourced service; or other evidence of the petitioner's ability to pay the 
proffered wage. 
In the instant case, the record indicates the Petitioner's continuous business operations since 2006. 
The Petitioner employs 12 people, although its president/sole shareholder stated that most of them 
work on a part-time basis. Its tax returns from 2010 through 2014 reflect largely stable gross annual 
revenues and costs of labor. 
The Petitioner's president/sole shareholder stated the Beneficiary's possible replacement of current 
part-time cooks. However, the proposed replacement was not definite. The Petitioner also did not 
provide evidence of the hours and wages of the cooks to be replaced. See Matter of Sojjici, 22 I&N 
Dec. 358, 365 (Comm'r 1998) (citation omitted) (finding that unsupported assertions do not meet the 
burden of proof in visa petition proceedings}. 
Unlike in Sonegawa, financial documents do not reflect the instant Petitioner's ability to pay the 
proffered wage in any relevant year. The record also does not indicate any uncharacteristic business 
expenditures or losses. Also unlike in Sonegawa, the instant Petitioner must demonstrate its ability 
to pay the combined proffered wages of two beneficiaries. Thus, assessing the totality of the 
circumstances in this individual case, the record does not establish the Petitioner's continuing ability 
to pay the proffered wage pursuant to Sonegawa. 
V. CONCLUSION 
For the foregoing reasons, the record does not establish the Petitioner's continuing ability to pay the 
proffered wage from the petition's priority date onward. We will therefore affirm the Director's 
decision and dismiss the appeal. 
In visa petition proceedings, a petitioner bears the burden of proving eligibility for the benefit 
sought. Section 291 of the Act; 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofE-, Inc., ID# 15678 (AAO July 8, 2016) 
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