dismissed EB-3 Case: Equestrian

U.S. Citizenship 
and Immigration 
Services 
In Re: 11931412 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 16, 2020 
The Petitioner seeks to employ the Beneficiary as a head groom at a horse farm. It requests 
classification of the Beneficiary under the third-preference, immigrant category as a skilled worker. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(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 based on a job offer requiring at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had the ability to pay the proffered wage. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the 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. 
II. ANALYSIS 
To be eligible for the classification requested for the beneficiary, a petitioner must establish that it has 
the ability to pay the proffered wage stated in the labor certification. As provided in the regulation at 
8 C.F.R. § 204.5(g)(2): 
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 a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. 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]. 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date of the petition onward. The priority date of a petition is the date 
the underlying labor certification is filed with the DOL, which in this case was July 2, 2018. The labor 
certification states that the wage offered for the job of head groom is $31,158 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 there is no evidence the Petitioner has ever 
employed or paid the Beneficiary. Therefore, the Petitioner cannot establish its continuing ability to 
pay the proffered wage from the priority date onward based on wages paid to the Beneficiary. 
If a petitioner does not establish that it has employed and paid the beneficiary an amount equal to or 
above the proffered wage from the priority date onward, USCIS will 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 
beneficiary in a given year, the petitioner would ordinarily be considered able to pay the proffered 
wage during that year. 
We may also consider the totality of the Petitioner's circumstances, as set forth in Matter ofSonegawa, 
12 I&N Dec. 612 (Reg'l Comm'r 1967), in determining its ability to pay the proffered wage. Per 
Matter of Sonegawa 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 
2 
or losses, and any other evidence that USCIS deems relevant to the petitioner's ability to pay the 
proffered wage. 
The Petitioner claims to be a horse farm established in 1995 with nine employees. 1 With the initial 
filing the Petitioner submitted a 2018 Profit and Loss Statement accompanied by a letter from the chief 
financial officer stating that the Petitioner is in a financial position to pay the offered annual salary of 
$31,158. The Director issued a request for evidence (RFE) advising the Petitioner that this evidence 
was not sufficient to establish its ability to pay the proffered wage because the Petitioner employed 
less than 100 workers and the Profit and Loss Statement was unaudited. 2 
In response to the RFE, the Petitioner submitted a second letter from its chief financial officer, stating 
that it is operated and fonded b The response also included a copy of 
one page of s October 2019 bank statement, and printouts from Wikipedia 
and other internet sources regarding ~---~ s net worth. 
The Director concluded that the record did not include any regulatory prescribed evidence of the 
Petitioner's ability to pay the proffered wage and denied the petition. 3 
On appeal, the Petitioner asserts that it is a partnership whose income and losses pass through its 
partners and are recorded on each partners' individual tax returns. The Petitioner states that it does 
not possess a 2018 federal income tax return, annual report or audited financial statement and submits 
copies of documents already in the record. The only additional evidence submitted on appeal is a 2014 
letter from the Petitioner's accounting firm addressed to the DOL, stating: 
A partnership must file an annual information return to report the income, deductions, 
gains, losses, etc., from its operations, but generally does not pay income tax. Instead, 
it 'passes through' any income or losses to its partners. Each partner includes his or 
her share of the partnership's income or loss on his or her tax return. There are no 
Articles of Incorporation involved in a Partnership. 
As the Petitioner's accountant notes, a partnership must file an annual information return to report its 
income and losses on IRS Form 1065, U.S. Partnership Income Tax Return. 4 The Petitioner has not 
provided its Form 1065 for any year or explained why this is unavailable. Nor has the Petitioner 
explained why audited financial statements or other regulatory prescribed evidence is unavailable. 
A general partnership consists of two or more partners. A general partner is personally liable for the 
partnership's total liabilities. As such, a general partner's personal assets may be utilized to show the 
ability to pay the proffered wage. However, a general partner's personal expenses and liabilities must 
1 The labor certification states that the Petitioner has nine employees, however, Part 5 of Form I-140, Immigrant Petition 
for Alien Worker, requesting the Petitioner's current number of U.S. employees and gross and net annual income, was left 
blank. 
2 The regulation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate 
its ability to pay the proffered wage, those financial statements must be audited. 
3 The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
See 8 C.F.R. § 103.2(b)(l4). 
4 About Form 1065, U.S. Return of Partnership Income, available at https://www.irs.gov/forms-pubs/about-form-1065. 
3 
also be examined in order to make a determination that his or her assets are truly available to pay the 
proffered wage. The Petitioner has not identified its partners or provided a copy of anyone's IRS Form 
1040, U.S. Individual Income Tax Return for any year. 5 
In its brief on appeal, counsel for the Petitioner states that the single bank statement "demonstrates ... 
that, as of October 2019, the Petitioner has the sustained ability to pay the offered wage for the next 
39 years." 6 Even ifwe accepted thatl lis a partner, although nothing in the record officially 
identifies him as one, the Petitioner has not explained how one bank statement from October 2019 
establishes its ability to pay the proffered wage from the priority date of July 2, 2018. Nor does the 
record demonstrate! ts willingness to be personally liable for paying the offered wage, or 
provide his personal expenses and liabilities for any period of time. 
While the regulation at 8 C.F.R. § 204.5(g)(2) allows for the submission of other evidence such as 
bank account records "in appropriate cases," and we may examine other relevant evidence in the 
totality of the circumstances, the Petitioner has not explained why regulatory prescribed evidence is 
unavailable and has not provided other relevant evidence to establish its ability to pay the proffered 
wage from the priority date onward. In the absence of regulatory prescribed evidence, we are also 
unable to examine the Petitioners' totality of the circumstances. 
For the reasons discussed above, we find that the Petitioner has not established its ability to pay the 
proffered wage from the priority date onward. Thus, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
5 Tt 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 T&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's evidence also reflects 
on the reliability of the petitioner's remaining evidence. See id. 
6 Assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) ( citing 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's statements must be substantiated in the record 
with independent evidence, which may include affidavits and declarations. 
4