dismissed EB-3 Case: Dry Cleaning

MATTER OF K-C-C- CORP 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a dry cleaning business, seeks to employ the Beneficiary as a dry cleaner presser. It 
requests classification of the Beneficiary as an "other worker" under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This employment-based 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 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 additional evidence and asserts that it possesses the ability to pay 
the proffered wage. 
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 of the Act, 8 U.S.C. § 1154. Third, 
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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. 
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Matter of K-C-C- Corp 
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. 
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. 
II. ANALYSIS 
The Petitioner's Form I-140, Immigrant Petition for Alien Worker, was accompanied by a cetiified 
ETA Form 9089, Application for Permanent Labor Certification (labor certification), with a priority 
date of November 3, 2015. Section G of the labor certification states that the offered wage for the 
dry cleaning presser is $16,869 per year. The labor certification did not state that the Beneficiary 
had ever been employed by the Petitioner up to November 2015, and there is no evidence in the 
record that the Beneficiary has been employed by the Petitioner since then. Accordingly, the 
Petitioner cannot establish its ability to pay the proffered wage based on wages actually paid to the 
Beneficiary. 
As evidence of its ability to pay the proffered wage the Petitioner has submitted copies of: 
• Its federal income tax 
return (Form 1120S) for the year 2015; 
• A financial report for the eight month period ofNovember 1, 2015, to June 30, 2016, which 
includes a "Report of Independent Auditors" on the letterhead of 
and associated financial statements; and 
• Monthly bank account statements for the one-year period of November 1, 2015, to 
October 31,2016 
In his decision denying the petition the Director found that this evidence did not establish the 
Petitioner's ability to pay the proffered wage. The income tax return for 2015 recorded net income 
of -$8,969 and net current assets of -$35,671. Since the Petitioner had a net loss and net current 
liabilities in 2015, it had no net income or net current assets with which to pay the proffered wage. 
As for the financial report, the Director found that it included an audited balance sheet, rather than 
an audited financial statement, which did not satisfy the requirements of 8 C.F.R. § 204.5(g)(2) and 
did not include figures for net income, current assets, or current liabilities. 
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Matter of K-C-C- Corp 
As for the bank account statements, the Director found that they were not a reliable indicator of the 
Petitioner's ability to pay the proffered wage over time, especially since there was no evidence that 
the bank account funds represented additional assets that were not reflected on the Petitioner's 
income tax return, such as cash on Schedule L? 
Finally, the Director found no circumstances under Matter qf'Sonegawa, 12 I&N Dec. 612 (Reg'l 
Comm'r 1967), which merited a finding that the Petitioner had the ability to pay the proffered wage 
despite its unprofitable year in 2015. 
On appeal the Petitioner only contests one finding by the Director. The Petitioner asserts that its 
audited financial statement included a figure for.net income ($53,571) on page 4 of the "Report of 
Independent Auditors" for the eight-month period ending on June 30, 2016. Since this figure 
exceeded the proffered wage of $16,869 and covered the first eight months after the priority date, the 
Petitioner claims that its net income establishes its continuing abili.ty to pay the proffered wage 
during the time period relevant to this petition. 
For the reasons discussed below,. we do not find the "Report of Independent Auditors" and 
associated financial statements to establish the Petitioner's ability to pay the proffered wage. 
The "Report of Financial Auditors" and associated financial statements were included m the 
Petitioner's initial evidence under a cover sheet entitled 
Financial Report for the Eight Months ended June 30, 2016 (November 1, 2016 through June 30, 
20 16)" followed by a 
Table of Contents listing a "Report of Independent Auditors" (two pages) and· 
financial statements (eight pages). It is unclear whether the cover sheet and table of contents are an 
integral part of the "Report of Independent Auditors" and financial statements that followed, or 
whether they were prepared separately by the Petitioner. 
The "Report of Independent Auditors" appears beneath the letterhead of 
which is in a different font. Yet another font appears in language directly below 
which identifies the organization as "Certified Public Accountants" and provides its 
address and contact 
information. Thus, there are three different fonts on page one of this document. 
Furthermore, there is no proper line spacing between ' and "Certified 
Public Accountants" at the top of the page. Finally, there is no personal signature at the end of the 
letter to shareholders part of the report on page 2. Instead, ' IS 
handwritten in the signature space. 
The financial statements comprise pages 3 to 6 of the report. They include a" statement of balance 
sheet" on page 3, a "statement of income" on page 4, a "statement o~ retained earnings" on page 5, 
and a "statement of cash flows" on page 6. These statements are followed by two pages entitled 
"Notes to the Financial Statements" which, instead of being numbered 7 and 8, are numbered 5 and 
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On the Petitioner's Form 1120S for 2015, the cash recorded as a current asset on line I of Schedule L- $13,776- is 
almost identical to the closing balance of the Petitioner's bank account on December 31, 2015- $I 3,782. I 7. 
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Matter of K-C-C- Corp 
6. The Petitioner has provided no explanation for this duplicative pagination, which raises further 
questions about the overall veracity of the documentation. 
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 q{Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). 
In this case, the Petitioner has not explained the issues described above with the submitted evidence. 
Accordingly, we do not find that the submitted evidence establishes the Petitioner's ability to pay the 
proffered wage. Instead, considering the financial information in the Petitioner's tax returns and the 
totality of the circumstances in this case, we conclude that the Petitioner has not established its 
ability to pay the proffered wage. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
to the present. Accordingly, we will dismiss the appeal. 
ORDER: . The appeal is dismissed. 
Cite as Matter q{ K-C-C- Corp, ID# 598180 (AAO Sept. 20, 20 17) 
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