dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-F- , LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : AUG . 5, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a Moroccan restaurant, seeks to employ the Beneficiary as a Moroccan cook. It 
requests classification of the Beneficiary as an "other worker" under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(B)(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent resident status a foreign national who is capable of 
performing unskilled labor that requires less than two years of training or experience and is not of a 
temporary or seasonal nature. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish its continuing 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 from the priority date onward. 
Subsequent to the submission of the Petitioner's appeal brief and supporting materials we issued a 
notice of intent to dismiss (NOID) the appeal based on evidence we received from the U.S . 
Consulate in Casablanca, Morocco, indicating that the Beneficiary did not have all of the 
employment experience claimed on the labor certification and did not meet the labor certification's 
minimum requirement of 12 months of qualifying experience . The Petitioner responded to the 
NOID with a brief and additional documentation. 
Upon de nova review of the entire record we will dismiss the appeal on two grounds : (1) the 
Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
onward , and (2) the Petitioner has not established that the Beneficiary meets the minimum 
experience requirement of the labor certification , as required to qualify for unskilled "other worker" 
classification. 
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 
Matter of M-F-, LLC. 
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)(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, 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. Petitioner's Ability to Pay the Proffered Wage 
To be eligible for the immigration benefit it seeks a petitioner must establish that it has the ability to 
pay the proffered wage stated in the labor certification from the priority date 1 of the petition onward. 
As provided in the regulation at 8 C.F.R. § 204.5(g)(2), in pertinent part: 
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 [USCIS]. 
The priority date in this case is March 28, 2017. The wage offered for the job of Moroccan cook is 
$28,413 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. In this case, however, the Petitioner has not employed 
the Beneficiary at any time since the priority date. Accordingly, the Petitioner cannot establish its 
continuing ability to pay the proffered wage based on wages paid to the Beneficiary from the priority 
date onward. 
If a petitioner has not employed the beneficiary and paid 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 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.S(d). 
2 
Matter of M-F-, LLC. 
beneficiary in a given year, the petitioner would be considered able to pay the proffered wage during 
that year. 
The Petitioner is a limited liability company (LLC), an entity formed under state law by filing 
articles of organization. An LLC may be classified for federal income tax purposes as if it were a 
sole proprietorship, a partnership or a corporation. If the LLC has only one owner, it will 
automatically be treated as a sole proprietorship by the Internal Revenue Service (IRS) unless an 
election is made to be treated as a corporation. If the LLC has two or more owners, it will 
automatically be considered to be a partnership by the IRS unless an election is made to be treated as 
a corporation. If the LLC does not elect its classification, a default classification of partnership 
(multi-member LLC) or disregarded entity (taxed as if it were a sole proprietorship) will apply. See 
26 C.F.R. § 301.7701-3. The election referred to is made using IRS Form 8832, Entity 
Classification Election. 
In this case the Petitioner, an LLC formed underl I state law and wholly owned byl l I I is considered to be a sole proprietorship for federal tax purposes. An LLC, like a corporation, 
is a legal entity separate and distinct from its owners. The debts and obligations of the company 
generally are not the debts and obligations of the owners or anyone else. 2 An investor's liability is 
limited to their initial investment. As the owners and others are only liable to the extent of their initial 
investment, the total income and assets of the owners and others, and their personal ability to pay the 
company's debts and obligations, cannot be utilized to demonstrate the Petitioner's ability to pay the 
proffered wage. The Petitioner must show the ability to pay the proffered wage out of its own funds. 
For federal income tax purposes the Petitioner's income and expenses are reported on Schedule C, 
Profit or Loss from Business, of the owner's Form 1040, U.S. Individual Income Tax Return. The net 
income (or loss) is brought forward to page 1, line 12, of the Form 1040. The record includes a copy of 
the owner's federal tax return for the priority date year of 2017, which recorded net income of $8,583. 
Since this figure is well below the proffered wage of $28,413, the Petitioner has not established its 
continuing ability to pay the proffered wage in 2017 based on its net income 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. 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 USCIS deems relevant 
to the petitioner's ability to pay the proffered wage. 
2 While this general rule might be amenable to alteration pursuant to contract or otherwise, there is no evidence in the 
record to indicate that the general rule is inapplicable in this case. 
3 
Matter of M-F-, LLC. 
The Petitioner states that the restaurant began operations in April 2016 and had three employees at 
the time the petition was filed in 2018. There is evidence in the record of two employees - the 
owner and his wife - but no evidence of the third employee, whose name and position have not been 
identified. The record includes copies of the owner's federal tax returns for 2016 and 201 7, 
including Schedule C which recorded an increase in the Petitioner's gross receipts from $183,149 in 
2016 to $264,833 in 2017 (as well as improvement from a small net loss of -$1,484 in 2016 to a 
modest net income of $8,583 in 2017). The Petitioner has not been in business long enough, 
however, to interpret those two years of income tax figures as demonstrating a historical pattern of 
growth. 
The Petitioner claims that the proffered wage could have been paid from the priority date onward out 
of three separate bank accounts, including a personal account of the owner with Wells Fargo and two 
business accounts, one with Wells Fargo and the other with US Bank. The owner's personal bank 
account with Wells Fargo, however, is not an asset of the Petitioner. Accordingly, it cannot be 
utilized to demonstrate the Petitioner's ability to pay the proffered wage. 
As for the two business accounts with Wells Fargo and US Bank, the record includes monthly 
statements for each account from March 2017 through June 2018. The Petitioner asserts that the bank 
account funds are not included in Schedule C as business income and therefore represent separate and 
distinct assets available for paying the proffered wage. The Wells Fargo bank statements, however, 
show that multiple deposits from the Petitioner were received each month. Similarly, the US Bank 
statements list "customer deposits" as the primary source of monthly additions to the account balance. 
Thus, it appears that both of the business accounts were augmented regularly with business income 
from the Petitioner which would have to be reported on the owner's Schedule C in the entry for gross 
receipts or sales. Therefore, the record does not support the Petitioner's claim that the funds in the 
business accounts with Wells Fargo and US Bank were separate and distinct financial resources that 
were not included as business income in Schedule C of the owner's federal income tax return(s). 
The Petitioner asserts that positive reviews of the restaurant by customers and media critics allowed 
it to secure a $215,300 loan to open a second restaurant in the summer of 2008. According to the 
Petitioner its owner, I [ left the payroll in July 2018 to work full-time on developing the 
second restaurant, thereby freeing his salary3 for use in paying the Beneficiary's proffered wage. 
Even if I Is salary were available to pay the proffered wage as of July 2018, and the 
Petitioner's business prospects looked good going forward, that situation would not alter the fact that 
the documentation of record does not demonstrate the Petitioner's ability to pay the proffered wage 
during the time period before July 2018 going back to the priority date of March 28, 2017. 
3 The record includes a copy of the Form W-2, Wage and Tax Statement, issued by the Petitioner tol I for 2017, 
which recorded "wages, tips, other compensation" of$40,973.69 and "social security wages" of$27,251.00. 
4 
Matter of M-F-, LLC. 
Based on the foregoing analysis, we conclude that the Petitioner has not established its ability to pay 
the proffered wage of $28,413 per year from the priority date of March 28, 2017, onward based on 
the totality of its circumstances. 
B. Beneficiary's Experience 
A petition for unskilled "other worker" classification must be accompanied by evidence that the 
beneficiary meets any educational, training, experience, or other requirements of the labor 
certification. 8 C.F.R. § 204.5(1)(3)(ii)(D). In this case the labor certification requires 12 months of 
experience in making Moroccan pastries, salads, tangines, and other specialties. All requirements 
must be met by the petition's priority date. Matter of Wing's Tea House, supra. According to the 
labor certification the Beneficiary exceeded the minimum experience requirement before the priority 
date of March 28, 2017, by working: (1) as a Commis II (assistant) preparing traditional Moroccan 
dishes and pastries at.___.....,,.... _____ ___, inl IL Morocco, from December 5, 2012, to 
September 4, 2013, and (2) as a senior chef preparing traditional Moroccan dishes and pastries at 
inl l Morocco, from February 2, 2014, to March 20, 2017. 
As evidence of the Beneficiary's experience the Petitioner initially submitted a copy of a letter dated 
March 20, 2017, on the letterhead of,__ ______ ___, and purportedly signed by its Human 
Resource Manager,.__ _____ ___.stating that the Beneficiary had been employed in the position 
of senior chef since February 2, 2014. No evidence was submitted of the Beneficiary's alleged 
employment at the '-----------' 
Following the denial of the petition on the ability to pay issue and the appeal to our office, we issued 
a NOID indicating that we had received a report from the U.S. Consulate in Casablanca, Morocco, 
which cast doubt on the veracity of the Beneficiary's asserted employment experience with 
'------~---------'----'W--'--"-e-'a"'-'d'""'v_is"'"'e;..,d the Petitioner that the consulate's fraud prevention unit 
had contacted inl lby phone and was transferred to the human 
resources manager, who is not'-------~ as asserted on the employment verification letter 
submitted by the Petitioner, dated March 20, 2017. The human resources manager,! I 
stated that a search of the hotel's files and database indicated that the Beneficiary never worked for 
the hotel and that, according to the hotel's log book, no job verification certificate was issued to the 
Beneficiary on March 20, 2017. Furthermore,! I indicated that nobody by the name of 
I I had worked in human resources or any other section of the hotel during her time 
there. 
In response to the NOID the Petitioner claims that the Beneficiary did work for ~I -----~ 
I I but in an "under the table" employee status because the hotel, like many other 
businesses in Morocco, wanted to avoid liability for employment taxation, employee benefits and 
rights, and other employment-related responsibilities. The Petitioner asserts that the hotel 
management was not likely to admit its employment fraud when contacted by the U.S. Department 
of State, and therefore denied having employed the Beneficiary. The Petitioner submits a series of 
articles on business corruption in Morocco, as well as a statement from the Beneficiary, dated 
5 
Matter of M-F-, LLC. 
June 25, 2019, asserting that he worked as a senior chef for.__ __________ _.on a cash 
payment basis without regular employee status from October 20, 2015, to June 25, 2017. The 
Petitioner also submits an undated letter froml I who states that he met the Beneficiary 
when they were both new kitchen employees at I I and that he I I 
left after nine months. 
We find that the materials submitted in response to the NOID are insufficient to rebut the derogatory 
information obtained b the U.S. Consulate in Casablanca indicating that the Beneficiary never 
worked fo '--.......--------,-----' For one thing, neither the statement by the Beneficiary nor 
the letter from~ ____ __.corroborates the dates of employment claimed on the labor certification 
and in the employment verification letter from I I While the labor certification and 
the March 20, 2017, letter froml lclaim that the Beneficiary's employment as a senior chef 
by .__ __________ __.began on February 2, 2014, the Beneficiary's own statement 
indicates that his employment began on October 20, 2015, and ran until June 25, 2017. ~ 
I statement provides no starting date ( or end date) for the Beneficiary's employment by 
.__ _________ ~I and does not identify his job title or describe his job duties. Thus, the 
Petitioner and the Beneficiary make inconsistent claims about the dates and duration of the 
Beneficiary's employment with the ~-----------' 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Attempts to explain or reconcile such inconsistencies will not suffice without 
competent evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. at 591-92. 
Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of the petitioner's 
remaining evidence. See id. 
The Petitioner has not reconciled the inconsistencies discussed above concerning the Beneficiary's 
alleged dates of employment with~--------------' Moreover, the Petitioner has 
submitted no new evidence to refute the information from the U.S. Consulate in Casablanca that the 
author of the Beneficiary's employment verification letter from.__ __________ __.is not 
now, and never was, the hotel's human resource manager. The Petitioner has submitted no 
documentary evidence that corroborates I Is status as an employee of the hotel, or that he 
held the job of human resource manager in March 2017. Accordingly, we find that the letter from 
I I dated March 20, 2017, has little probative value, and does not establish that the 
Beneficiary was employed by I las a senior chef from February 2014 to 
March 2017, or for any period of time. 
In response to the NOID the Petitioner for the first time submits some evidence of the Beneficiary's 
employment by ~-----,----,-----'(which appears to be owned by I D. The 
evidence includes an "attestation of employment" from the human resources deputy director, I I 
I I stating that the Beneficiary was employed as a "Seasonal Commis II" from December 5, 
2012, to September 4, 2013. The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(A) provides that any 
experience requirements on the labor certification must be supported by letters from employers 
giving the name, address, and title of the employer's representative and a description of the 
G 
Matter of M-F-, LLC. 
experience. The attestation of employment does not appear to meet the substantive requirement of 
the regulation because, while identifying the Beneficiary's job title, it provides no description of his 
experience such as a detailed listing of his job duties. Even if we accepted the attestation as 
fulfilling the requirements of 8 C.F.R. § 204.5(1 (3 (ii (A and establishing that the Beneficiary 
gained nine months of qualifying experience at~-------~ that total is still less than the 
12 months required by the labor certification. 
Based on the foregoing analysis, we conclude that the Petitioner has not established that the 
Beneficiary meets the minimum experience requirement of the labor certification, as required to 
qualify for unskilled "other worker" classification. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
of March 28, 2017, onward. Nor has the Petitioner established that the Beneficiary meets the minimum 
experience requirement of the labor certification to qualify for unskilled "other worker" classification. 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-F-, LLC, ID# 3281755 (AAO Aug. 5, 2019) 
7