dismissed EB-3 Case: Export Groceries

MATTER OF L-I- INC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 27, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an "export groceries" business, seeks to employ the Beneficiary as an executive 
administrative assistant. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant category. 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" immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a positon that 
requires at least two years of training or experience. 
The Director of the Texas 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 asserts that it has the requisite financial resources to pay the proffered 
wage, and that it already employs the Beneficiary and pays her the proffered wage. 
Upon de novo review, we will dismiss the appeal. We find that the Petitioner has not established its 
continuing ability to pay the proffered wage from the priority date onward. In addition, we find that 
the record does not establish that the Beneficiary meets the minimum educational requirement of the 
labor certification. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification (ET A Form 9089, Application for Permanent Employment 
Certification) from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 
8 U.S.C. § 1 l 82(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 U.S. workers similarly employed. See section 2 l 2(a)(5)(A)(i)(l)-(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. § l 154. Third, if USCIS approves the 
petition, the foreign national applies 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. 
Matter <?f l-1- Inc 
II. ANALYSIS 
A. Ability to Pay the Proffered Wage 
The-regulation at 8 C.F.R. § 204.5(g)(2) provides that a petitioner must establish its ability to pay the 
proffered wage from the priority date of the petition I until the beneficiary obtains lawful permanent 
residence. In this case, the proffered wage is $60,549 per year and the priority date of the petition is 
June 15, 2017. The evidentiary requirements for a petitioner to establish its ability to pay the 
proffered wage are stated in the regulation, in pertinent part, as follows: 
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]. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether a 
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 for the time period in question, the evidence is considered proof 
of the petitioner's ability to pay.the proffered wage of that beneficiary. In this case, the evidence of 
record, including four pay statements, indicates that the Petitioner began employing the Beneficiary 
on December 30, 201 7, and paying her a gross weekly salary of $ 1, I 64.40. Allocated over a full 
year the weekly salary would amount to a gross annual salary of $60,550.80, which slightly exceeds 
the proffered wage. However, because the Petitioner did not actually pay the Beneficiary this 
amount during 2017, the Petitioner has not established its ability to pay the proffered wage from the 
priority date until the end of 201 7 based on wages 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 retum(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. 2 
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). The Petitioner must establish that all eligibility requirements for the petition have been satisfied from the 
priority date onward. 
2 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts. LLC v. Napolitano, 558 F.3d 111, 118 ( I st Cir. 2009); Tongatapu Woodcraft Haw., lid. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rizvi 
v. Dep '1 of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, -- Fed. Appx. --, 2015 WL 5711445, * I 
(5th Cir. Sept. 30, 2015). 
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Matter of L-1- Inc 
The record includes copies of the Petitioner's 2016 federal income tax return, filed on Form 1120, 
U.S. Corporation Income Tax Return. The time period covered by the return was the tax year 
beginning on September I, 2016, and ending on August 31, 2017. - The figure for net income ( or 
loss) appears on line 28 of page 1 of the return, 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 return, the Petitioner had net 
income of $18,102 and net current liabilities of $3,647,530 as of August 31, 2017. Thus, the 
Petitioner's net income in the just concluded tax year was well below the proffered wage of $60,549, 
and it had no net current assets at all. Accordingly, the Petitioner has not established its ability tci 
pay the proffered wage from the priority date until the end of 20 I 7 based on its net income 3 or net 
current assets during that year. 
On appeal the Petitioner asserts that its 2015 and 2016 federal income tax returns recorded net 
income, or net assets, of $4,720,549, and $5,265,181, respectively, amounts which far exceeded the 
proffered wage. The figures cited by the Petitioner appear on line 1 ~ of Schedule L, and were 
neither net income nor net assets, but rather total assets for the tax years ending on August 31, 2016, 
and August 31, 2017, respectively. The Petitioner's total assets, however, were balance sheet figures 
that were matched by identical figures for total liabilities and shareholders' equity appearing on line 
28 of Schedule L. Total assets recorded in Schedule L, in other words, are not a freestanding 
financial resource that can be considered separate and apart from total liabilities in determining the 
Petitioner's ability to pay the proffered wage. 
The Petitioner asserts that the previously submitted copies of its bank account balances in Wells 
Fargo from January 2017 through October 2017 showed monthly balances that consistently 
exceeded the proffered wage and represented "sufficient letl over liquid assets to pay the [proffered 
wage] on a monthly basis." While the regulation at 8 C.F.R. § 204.5(g)(2) allows for other 
documentation such as bank account records "in appropriate cases," the Petitioner has not 
demonstrated why its federal income tax return for the tax year ending on August 31, 2017 - the one 
type of required documentation it submitted for 2017 - paints an inaccurate or incomplete picture of 
its financial situation. Bank statements show an account balance on a given date, not the account 
holder's sustainable ability to pay a proffered wage. The Petitioner has not shown that the money in 
its bank account constituted an additional financial resource not reflected on its tax return as taxable 
income (income minus deductions) and/or cash listed on Schedule L. 
USCIS may 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 
3 In K.C.P. Food Co .. Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization Service, 
now USCIS. had properly relied on the petitioner's net income figure, as stated on the petitioner's corporate income tax 
returns, rather than the petitioner's gross income. The court specifically rejected the argument that USCIS should have 
considered income before expenses were paid rather than net income. See Taco Especial v. Napolilano, 696 F. Supp. 2d 
at 881 (gross profits overstate an employer's ability to pay because it ignores other necessary expenses). 
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Matter of L-1- Inc 
Maller ofSonegawa, 12 l&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. 
In this case, the Petitioner states that it began operations in 1981. The record includes a copy of the 
Petitioner's federal income tax return for 2015 ( covering the tax year beginning· on September 1, 
2015, and ending on August 31, 2016), as well as the previously discussed 2016 return ( covering the 
tax year beginning on September 1, 2016, and ending on August 31, 2017). The 2015 return 
recorded net income of $22,505, a little higher than the figure for 2016, but no net current assets. 
Instead, the 2015 return recorded net current liabilities of $2,859,528,· and indicated that the 20 I 4 
return also recorded net current liabilities in the amount of $2,547,769. Thus, net current liabilities 
rose in the three tax years of2014-2016 from just over $2.5 million to more than $3.6 million. Gross 
receipts were virtually the same - close to $10.8 million - for the tax years ending on August 31, 
2016, and August 31, 2017. No other tax returns, or annual reports, or audited financial statements 
have been submitted for earlier years. Based on the limited financial documentation in the record we 
find that the Petitioner has not demonstrated a historical pattern of growth. It is noteworthy that the 
tax returns in the record recorded expenditures for salaries and wages of just $98,122 for 2015 and 
$111,411 for 2016, though the Petitioner stated in the Form 1-140 that it had six employees at the 
time of filing and that the job at issue in this proceeding, with its proffered wage of $60,459 per year 
commanding more than half of its salary expenditures, is not a new position. The tax returns for 
2015 and 2016 also recorded "compensation of officers" totaling $302,900 and $344,225, 
respectively. While compensation of officers may be considered an additional financial resource of 
the Petitioner, no statement has been received from any officer stating that he or she was willing and 
able to utilize some, and if so, how much, of his or her officer compensation to pay the Beneficiary's 
proffered wage in 2017. For the reasons discussed above, the Petitioner has not established its 
continuing ability to pay the proffered wage from the priority date of June 15, 2017, onward based 
on the totality of its circumstances. 
B. Educational Requirements of the Labor Certification 
A beneficiary must meet all of the education, training, experience, and other requirements of the 
labor certification as of the petition's priority date. See Maller of Wing ·s Tea House, 16 I&N Dec. 
158, 159 (Acting Reg'! Comm'r 1977). In order to determine the minimum requirements of a 
proffered position, we must examine "the language of the labor certification job requirements." 
Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). USCIS must examine the certified job 
offer exactly as it is completed by the prospective employer. See Rosedale Linden Park Company v. 
Smith, 595 F.Supp. 829, 833 (D.D.C. I 984). In our interpretation of the job's requirements we must 
read and apply the plain language of the labor certification application form. Id. at 834. 
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Matter (?/ l-1- Inc 
In this case, the labor certification specifies in section H (boxes 4 and 9) that the m1mmum 
educational requirement for the job offered is a high school education, and that a foreign educational 
equivalent is not acceptable. Based on the plain language of the labor certification we find that the 
minimum educational requirement for the job offered is a U.S. high school diploma. According to 
section J (boxes 11-16) of the_ labor certification, the Beneficiary's highest level of education 
relevant to the job offered was a high school education specializing in science and handwriting 
completed in 1988 at the Instiluto San Francisco in Comayaguela, Honduras. Since the Beneficiary 
does not have a U.S. high school diploma, and a foreign educational equivalent is precluded by the 
terms of the labor certification, we find that the Beneficiary does not meet the minimum educational 
requirement to qualify for the job. 
Ill. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established its continuing ability to pay the 
proffered wage from the priority date of June 15, 2017, onward, and because the Beneficiary does not 
meet the minimum educational requirement of the labor certification. 
ORDER: The appeal is dismissed. 
Cite as Maller of L-1- Inc, ID# 2070588 (AAO Nov. 27, 2018) 
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