dismissed EB-3 Case: Farm Management

MATTER OF N-M-F-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 26, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a farm, seeks to employ the Beneficiary as a farm manager. It requests classification of 
the Beneficiary as a professional under the third preference immigrant classification. See Immigration 
and Nationality Act (the Act), section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This 
employment-based immigrant classification allows a U.S. employer to sponsor a professional with a 
baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner had the ability to pay the proffered wage to the Beneficiary. 
On appeal, the Petitioner states that it has the ability to pay the proffered wage, and submits 
additional evidence. Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain 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, the 
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 may file 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 ofthe Act, 8 U.S.C. § 1255. 
II. ANALYSIS 
The issue on appeal is whether the Petitioner has established its ability to pay the proffered wage to 
the Beneficiary. 
The regulation at 8 C.F.R. § 204.5(g)(2) states that a petitiOning U.S. employer must submit 
evidence establishing its ability to pay the proffered wage. The Petitioner must demonstrate this 
Matter of N-M-F-, LLC 
ability from the priority date of the petition and continuing until the Beneficiary obtains lawful 
permanent residence. !d. The Petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'! 
Comm'r 1977). 
Here, the proffered wage is $106,000 per year and the priority date is February 13, 2015.
1 
The 
Petitioner is a multi-member limited liability company (LLC) and tiles its tax returns on Internal 
Revenue Service (IRS) Form 1065, U.S. Return of Partnership Income. The Petitioner is considered 
to be a partnership for federal tax purposes. On the petition, the Petitioner claimed to have been 
established in 1998 and to have 20 employees. The Petitioner's fiscal year is based on the calendar 
year. 
In determining a petitioner's ability to pay the proffered wage during a given period, USCIS will 
first examine whether the petitioner employed and paid the beneficiary during that period. If the 
petitioner establishes that it employed the beneficiary at a salary equal to or greater than the 
proffered wage, the evidence will be considered proof of the petitioner's ability to pay the proffered 
wage. 
In this case, 2015 was the most recent year of financial information available at the time of filing. 
The Beneficiary's salary, as reflected on his IRS Form W-2, Wage and Hour Statement, was 
$77,611.63 in 2015.2 Because the Petitioner has not employed the Beneficiary at a salary equal to or 
greater than the proffered wage, this evidence does not establish the Petitioner's ability to pay the 
proffered wage. Nevertheless we credit the wages paid to him, and the Petitioner must establish its 
ability to pay the difference between the proffered wage and the wages paid, or $28,388.37. 
If a petitioner does not establish that it employed and paid the beneficiary an amount at least equal to 
the proffered wage during that period, USCIS will next examine the net income figure reflected on 
the petitioner's federal income tax return,3 without consideration of depreciation or other expenses. 
River Street Donuts. LLC v. Napolitano, 558 F.3d Ill (1st Cir. 2009); Taco Especial v. Napolitano, 
696 F. Supp. 2d 873 (E.D. Mich. 2010), af('d, No. 10-1517 (6th Cir. filed Nov. 10, 2011).4 The 
1 The "priority date" is the date the labor certification (ETA Fonn 9089) is filed with the DOL. 
2 The Petitioner included evidence of the wages it paid the Beneficiary prior to 20 15; however, as it relates to a period of 
time before the priority date and the wages were less than the proffered wage, the evidence does not establish the 
Petitioner's ability to pay the proffered wage for purposes of this petition. 
3 Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is 
well-established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)). 
4 For an LLC taxed as a partnership, where the petitioner's income is exclusively from a trade or business, USCIS considers 
net income to be the figure shown on Line 22 of page one of the petitioner's IRS Fonn I 065. However, where the 
petitioner has income, credits, deductions, or other adjustments from sources other than a trade or business, they are reported 
on Schedule K. If the Schedule K has relevant entries for additional income or additional credits, deductions or other 
adjustments, net income is found at line I ofthe Analysis of Net Income (Loss) of Schedule K. See Instructions for Form 
I 065, at http://www.irs.gov/pub/irs-pdf/i I 065.pdf (indicating that Schedule K is a summary schedule of all owners' 
shares of the entity's income, deductions, credits, etc.). 
2 
Matter ofN-M-F-, LLC 
Petitioner's IRS Form 1065 for 2015 reflects that it had net income of $19,803. Therefore, the 
Petitioner did not establish that it had sufficient net income to pay the remaining proffered wage 
when added to the wage paid to the Beneficiary in 20 15. 
If the petitioner's net income (added to any wages paid to the beneficiary) does not meet the 
proffered wage, USCIS will review the petitioner's net current assets. Net current assets are the 
difference between the petitioner's current assets and current liabilities. 5 If the total of a 
partnership's end-of-year net current assets and the wages paid to the beneficiary (if any) are equal 
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage 
using those net current assets. In this case, the Petitioner's IRS Form 1065 tax return stated its net 
current assets in 2015 were $0.00.6 Therefore, the Petitioner did not establish that it had sufficient 
net current assets in 2015 to pay the proffered wage, when added to the wage paid to the Beneficiary 
in that year. 
Thus, the Petitioner did not establish that it had the continuing ability to pay the Beneficiary the 
proffered wage as ofthe priority date through an examination of wages paid to the Beneficiary, or its 
net income or net current assets. 
On appeal, the Petitioner asserts that one of its partners has elected to reduce his guaranteed income 
from the business so that the Petitioner can pay the proffered wage to the Beneficiary. The 
Petitioner provides a letter from the relevant partner in which he confirms his intention to retire from 
the partnership, states that he has guaranteed income and a share of the Petitioner's profits, and 
advises that he expects that his retirement will free additional funds in the future that will allow the 
Petitioner to pay the Beneficiary the proffered wage. However, the Petitioner does not assert that 
this partner would have been willing and able to forgo income in 2015, the year relevant to our 
inquiry. Moreover, although the Petitioner included a copy of its 2004 Operating Statement 
reflecting that the partner was guaranteed annual payments of $6,000, the partner's IRS Schedule 
K-1 (Form 1 065) for 2015 shows that he was issued no guaranteed payments at all that year and that 
he took a loss as his partner's share of income. Further, even if the tax returns had shown payments 
made to the partner, the operating agreement does not contain any language demonstrating, for 
example, that the partner would have been able to elect not to receive funds designated as 
"guaranteed payments to partners" such that the funds could have been reallocated to pay the 
proffered wage in 2015. 
5 
According to Barron's Dictionary of Accounting Terms 117 (3d ed. 2000), "current assets" consist of items having (in 
most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities" are obligations payable (in most cases) within one year, such as accounts payable, short-term notes payable, 
and accrued expenses (such as taxes and salaries). !d. at 118. 
6 
A partnership's year-end current assets are shown on Schedule L, lines l(d) through 6(d), and include cash-on-hand, 
inventories, and receivables expected to be converted to cash within one year. Its year-end current liabilities are shown 
on lines 15( d) through 17( d). 
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Matter of N-M-F-, LLC 
The Petitioner also submits a bank statement from the retiring partner showing that his personal 
account has a balance of $74,572.80 as of March 17, 2017, and a statement from the partner 
asserting that he "will secure" the additional $30,000 in funds required to pay the proffered wage. 
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 also be examined in order to make a 
determination that his or her assets are truly available to pay the proffered wage. Here, the Petitioner 
has not established that the partner's income or assets in 2015, when considered in light of his 
personal expenses, was such that it would have been sufficient to pay the proffered wage. 
The Petitioner also cites to Matter of Sonegawa and urges consideration of the totality of 
circumstances. Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). USCIS may consider 
the overall magnitude of the petitioner's business activities in its determination of the petitioner's 
ability to pay the proffered wage. Sonegawa, 12 I&N Dec. at 612. As in Sonegawa, USCIS may, at 
its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of a 
petitioner's net income and net current assets. USCIS 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 overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is 
replacing a former employee or an outsourced service, or any other evidence that USCIS deems 
relevant to the petitioner's ability to pay the proffered wage. 
In this case, the Form I-140 stated that the Petitioner has been in business since 1998, and has 20 
employees. According to the New York Department of State Division of Corporations, the 
Petitioner's initial filing was on May 14, 2004. The Petitioner's tax returns state that it started doing 
business on May 14, 2004. Therefore, the evidence in the record is inconsistent and does not 
establish when the Petitioner started doing business. 
The Petitioner provided its IRS Form 1065 for 2014, but has not submitted evidence that would 
establish uncharacteristic business expenses in 2014 or 2015, and the consistency in the figures of 
net income and net current assets during this time tends to show that the Petitioner did not likely 
experience unexpected expenses. Although the Petitioner claims on appeal that it has new, major 
contracts in place with large, well-known companies that will dramatically increase its revenue, 
these assertions are speculation about the Petitioner's prospective revenue rather than evidence of its 
ability to pay the proffered wage as of the priority date. The tax returns in the record do not 
establish the Petitioner's historic long-term growth in the number of employees or income. Should 
the Petitioner seek to rely on a claim of historical growth based on Sonegawa in any further filings it 
should submit documentation of such historic growth. 
The Petitioner also provides a letter from its accountant who includes evidence that USCIS approved 
a petition for 26 temporary H-2A nonimmigrant workers for 2016, and another petition for 23 H-2A 
nonimmigrant workers for 2017. The accountant asserts that because the Petitioner will employ 
fewer H-2A nonimmigrant workers in 2017, it will have a decreased payroll expenditure of 
4 
Matter of N-M-F-, LLC 
$88,557.58. The Petitioner claims that these funds can be used to pay the Beneficiary the proffered 
wage. The Petitioner's assertion that it will see reduced payroll expenses in 2017 does not 
demonstrate that it had the ability to pay the proffered wage in 2015. 
Thus, assessing the totality of the circumstances in this individual case, the Petitioner has not 
established that it had the continuing 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 onward. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fN-M-F-, LLC, ID# 591785 (AAO June, 26, 2017)