dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-C- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 29, 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 Greek specialty 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 experience. 
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. 
On appeal, the Petitioner submits a statement and copies of documentation already in the record. 
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). 1 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 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 ofthe Act, 8 U.S.C. ~ 1154. Third, 
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 ofthe Act, 8 U.S.C. ~ 1255. 
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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 N-C- Corp. 
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 waRe. Any pet1t10n tiled 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. 
II. ANALYSIS 
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 June 30, 2014. Section G of the labor certification stated that the offered wage for 
the specialty cook position is $33,051.00 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 primafacie 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. 
The record includes copies of the Petitioner's federal income tax returns, tiled on Form 1120, U.S. 
Corporation Income Tax Return, for 2014 and 2015.2 The figures for net income (or loss) appear on 
2 
The record also contains a copy ofthe Petitio.ner's 2013 tax return. We do not address it here because it precedes the 
priority date. 
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Matter of N-C- Corp. 
line 28 of page 1, while net current assets (or liabilities) are the difference between the Petitioner's 
current assets, entered on lines 1-6 of Schedule L, and its current liabilities, entered on lines 16-18 of 
Schedule L. As shown in the tax returns, the Petitioner's figures were as follows in 2014 and 2015: 
Year 
2014 
2015 
Net Income 
$8,169 
$5,580 
Net Current Assets 
$4,920 
($1,170) 
Thus, in both 2014 and 2015 the Petitioner's net income and net current assets figures were below 
the proffered wage of $33,051. Thus, the Petitioner cannot establish its ability to pay the proffered 
wage from the priority date onward based on either its net income or its net current assets in those 
years. 
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. 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 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 USClS deems relevant 
to the petitioner's ability to pay the proffered wage. 
In this case, the Petitioner indicates that it began operations in 2001 and was incorporated in 2010. 
In both the labor certification, filed in 2014, and the petition, filed in 2016, the Petitioner stated that 
it had six employees, though the tax returns for 2013-2015 recorded decreasing expenditures for 
salaries and wages during that time period, from $103,107 in 2013, to $85,104 in 2014. to $41,610 in 
2015. The Petitioner's gross income, as recorded in the tax returns, was $700.928 in 2013, to 
$820,293 in 2014, to $715,578 in 2015. Thus, the tax returns do not show a historical pattern of 
growth. There is also no independent evidence of the Petitioner's reputation within the restaurant 
industry. 
On appeal the Petitioner asserts that the Beneficiary will replace a current employee in the specialty 
cook position, so that no additional funds beyond those currently expended on salaries will be 
needed to pay the Beneficiary's salary. The Petitioner has not identified the employee to be 
replaced, however, nor submitted any documentary evidence confirming the Petitioner's intent to 
replace that employee by the Beneficiary and showing the wages paid to the current employee since 
the priority date. Going on record without supporting documentary evidence is not sut1icient for 
purposes of meeting the burden of proof in these proceedings. Matter (?{Soffici. 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter o_{Treasure Crafi (~{Cal[{ornia. 14 I&N Dec. 190 (Reg'! Comm'r 
1972)). 
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Matter of N-C- Corp. 
Considering the totality of the circumstances, the Petitioner has not established its ability to pay the 
protiered wage of$33,051 per year from the priority date of June 30,2014, up to the present. 
III. CONCLUSION 
We will dismiss the appeal because the Petitioner has not established its continuing ability to pay the 
proffered wage from the priority date onward. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-C- Corp., 10# 641338 (AAO Sept. 29, 2017) 
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