dismissed EB-3 Case: Electronics Repair

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-G-USA LLC 
'\ 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 23, 2019 
APPEA'L OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a repair shop servicing cell phones, electronics, and home appliances, 
seeks to employ the Beneficiary as a manager. It requests his classification under the third­
preference immigrant category as a skilled worker. Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(i), ·s U.S.C. §. 1 l 53(b)(3)(A)(i). This employment-based, "EB-3" category 
allows a U.S. business to sponsor a foreign national for lawful permanent resident status to work in a 
job requiring at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the proffered wage of the offered position. 
On appeal, the Petitioner submits additional evidence and asserts that it demonstrated its ability to 
pay on a prorated basis. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Unless seeking employment in a shortage occupation listed on Schedule A, immigration as a skilled 
worker follows a three-step process. First, to permanently fill a position in the United States with a 
foreign worker, a prospective employer must obtain certification from the .U.S. Department of Labor 
(DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § l l82(a)(5)(A)(i). DOL approval signifies 
that insufficient U.S. workers are able, willing, qualified, and available for an offered position, and that 
employment of a foreign national will not hmm wages and working conditions of U.S. workers with 
similar jobs. Id 
If the DOL approves a. position, an employer must next submit the labor certification with an 
immigrant visa petition to U.S. Citizenship and Immigrati6n Services (USCIS). See section 204 of 
the Act, 8 U .S.C. § 1154. Among other things, USCIS determines whether a petitioner demonstrates 
that it can pay a position's DOL-certified, proffered wage. If USCIS. grants a petition, a foreign 
national may finally 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. 
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Matter ofG-G-USA LLC 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay a DOL-certified proffered wage, from a 
petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must include copies of annual reports, federal tax returns, 
or audited financial statements. Id. 
In determining ability to pay, USCIS examines whether a petitioner already paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay the full 
proffered wage, USCIS considers whether it generated annual amounts of net income or net current 
assets sufficient to pay any differences between the proffered _wage and the wages paid.· If net 
income and net current assets are insufficient, USCIS may also consider other factors affecting a 
petitioner's ability to. pay. See Matter of"Sonegawa. 12 I&N Dec. 612 (Reg'] Comm'r 1967). 1 
' Here, the labor certification states the proffered wage of the offered position of manager as $63,211 
a year. The petition's priority date is August 21, 2017, the date the DOL accepted the accompanying 
labor certification application for processing. See 8 C.F.R. § 204.S(d)(explaining how to determine 
a petition's priority date). As of the appeal's filing, required evidence of the Petitioner's ability to 
pay the proffered wage in 2018 was not yet available. We will therefore consider the Petitioner's 
ability to pay only in 2017, the year of the petition's priority date. 
The record indicates that the Petitioner did not begin paying'the Beneficiary until 2018, after USCIS 
granted his application for employment authorization. See 8 C.F.R. § 274a.12(c)(9) (allowing 
applicants for adjustment of status to apply for employment authorization). Based on payments to 
the Beneficiary, the record therefore does not establish the P~titioner's ability to pay the proffered 
wage in 2017. 
Copies of the individual federal income tax returns of the Petitioner's owner indicate that, in 2017, 
the company generated net income of $33,481. 2 This amount does not exceed or equal the annual 
proffered wage of $63,211. Thus, the Petitioner's net income does not establish its ability to pay the 
proffered wage. 
The tax returns of the Petitioner's owner do not indicate the company's net current assets, and the 
record otherwise lacks evidence of them in 2017. Thus, based on net current assets, the record does 
not demonstrate the Petitioner;s ability to pay the proffered wage. Therefore, based on examinations 
1 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., 
River St. Donuts, LLC v. Napolitano, 558 F)d 111, 118 ( I st Cir. 2009); Just Bagels Mfg., Inc. v. Mayorkas, 900 F. Supp. 
2d 363, 373-76 (S.D.N.Y. 2012). 
2 In 2017, sole members of limited liability companies (LLCs) could report their LLCs' incomes on Schedules C, Profits 
or. Losses from Businesses, filed with their IRS Forms, 10.:l0, U.S. Individual Income Tax Returns. U.S. Internal 
Revenue Serv. (I RS), "2017 Instructions_ for Schedule C" C-2, https://www.irs.gov/pub/irs-prior/U 040sc--2017 .pdf (last 
visited Jan. 4, 2019). 
2. 
Matter ofG-G-USA LLC 
of wages paid, net income, and net current assets, the record does not establish the Petitioner's 
ability to pay the proffered wage. 
· On appeal, the Petitioner notes that it must demonstrate its ability to pay the proffered wage "at the 
time the priority date is established." See 8 C.F.R. § 204.5(g)(2). The ·Petitioner therefore asserts 
that it need only demonstrate its ability to pay from August 21, 2d 17, until that year's end. The 
Petitioner argues that its 2017 net income of $33,481 exceeds $23,104, the position's proffered wage 
prorated from August 21, 2017, through December 31, 2017. 
USCIS, however, does not allow petitioners to prorate proffered wages. Although we will not 
prorate the proffered wage, we will consider the effect of a short time period between the priority 
date and the end of the priority date year in the context of our totality of the circumstances analysis: 
In any event, the .Petitioner's generation of sufficient net income over the entire 12 months of 2017 
would not establish its generation of sufficient net income over the four-month part of the year 
following the petition's.priority date. The Petitioner's argument is therefore unavailing. 
As previously indicated, we may consider other factors affecting the Petitioner's ability to pay the 
proffered wage. We may consider: the number of years the Petitioner has operated; its number of 
employees; the growth of its business; its incurrence of uncharacteristic losses or expenses; its 
business reputation; the Beneficiary's replacement of an employee or outsourced service; or other 
factors affecting its ability to pay. See Maller ofSonegai,va, 12 I&N Dec. at 614-15. 
Tbe record indicates that the Petitioner has conducted business since 2013 and employs three people. 
Copies of its owner's tax returns also show that its total annual wage payments increased from 2015 
through 2017. But the returns indicate that the Petitioner's total annual wages during that period did 
not exceed $35;720 and that, from 2016 to 2017, its revenues and profits fell. Also, unlike in 
Sonegawa, the record does not demonstrate the Petitioner's incurrence of uncharacteristic losses or 
expenses, or its possession of an outstanding business reputation. In addition, the Petitioner does not 
claim the Beneficiary's replacement of an employee or outsourced service. Finally, although the 
Petitioner contends that we should prorate the proffered wage in 2017, the time period between the 
priority date and the end of the year represents a significant period of time over which the Petitioner 
must demonstrate its ability to pay: Considering the timing of the priority date with the negative 
factors discussed above, we do not find that the Petitioner has demonstrated its ability to pay the 
. proffered wage for 20 I 7 through a totality of the circumstances analysis. The Petitioner therefore 
has not demonstrated its ability to pay the proffered wage. 
III. THE REQUIRED EXPERIENCE 
Also, contrary to the Director's decision, the record does not establish that the Beneficiary has the 
minimum experience required· for the offered position. A petitioner must establish a. beneficiary's 
possession of all DOL-certified job requirements by a petition's priority date. Matter o,f Wing's Tea 
House, 16 I&N Dec. 158, 160 (Acting Reg'! Comm'r 1977). 
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Matter of G-G-USA LLC \ 
Here, the labor certification states the minimum requirements of the offered position of manager as 
two years of experience in the job offered. Part H.14 of the labor certification, "Specific skills or 
other requirements," also states that the job requires experience in "[h ]andl[ing] customer 
complaints." The position's job duties include supervising staff. On the labor certification, the 
Beneficiary attested that, by the petition's priority date, he gained rnore than three years of 
exp'erience in the job offered as a manager of a mobile phone store in Tajikistan. 
Pursuant to 8 C.F.R. § 204.5(1)(3)(ii)(A), the Petitioner supported the Beneficiary's claimed 
qualifying experience by submitting a letter from his form~r employer. The letter indicates that the 
Beneficiary managed the store for the claimed period and states his job duties. Contrary to the 
required experience listed in part H.14 of the labor certification, however, his specified duties do not 
· include handling customer complaints. Also, the record indicates that the Beneficiary would have 
been 15 years old when he began managing the mobile phone store. The Beneficiary's age casts 
doubt on his claimed qualifying experience in the supervisory role of store manager. Thus, in any 
future filings in this matter, the Petitioner must submit additional, objective evidence, establishing 
that, by the petition's priority date, the Beneficiary gained the requisite experience, including 
handling customer complaints, beginning at age 15. · 
rv. CONCLUSION 
The record on appeal does not demonstrate the Petitioner's ability to pay the position's proffered 
wage. We will therefore affirm the Director's decision.. . . 1 
ORDER: The appeal is dis~issed. 
Cite as Maller ofG-G-USA LLC, ID# 252467,1 (AAO Jan. 23, 2019) 
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