dismissed EB-3 Case: Finance

/ 
U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 24,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a hotel, seeks to employ the Beneficiary as a finance analyst manager. It requests 
classification of the Beneficiary as a professional under the third preference immigrant classification. 
The employment-based immigrant classification for a professional allows a U.S. employer to 
sponsor a foreign national with a baccalaureate degree for lawful permanent resident status. See 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). 
The Director of the Nebraska Service Center denied the petition and invalidated the labor 
certification based on a finding that the Petitioner and the Beneficiary intentionally misrepresented 
the familial relationship bet,ween the Beneficiary and the Petitioner's owner. 
We referred the matter to the U.S. Department of Labor (DOL) for review, and DOL issued a notice 
of intent to revoke the labor certification. Following DOL's decision not to revoke the labor 
certification, we have resumed adjudication of the appeal. 
On appeal, the Petitioner claims that there was no willful misrepresentation of the familial 
relationship and the offered position constitutes a bonafide job offer. Upon de novo review, we will 
dismiss the appeal. We will also withdraw the Director's finding of material misrepresentation and 
reinstate the labor certification approval. 1 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the DOL.2 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 
1 Willful misrepresentation occurs when the petitioner or beneficiary willfully makes a false representation of a material 
fact to a U.S. government official. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N Dec. 
288 (BIA 1975). On appeal, the Petitioner established that its failure to disclose the familial relationship on the labor 
certification was an unintentional error as opposed to a willful misrepresentation. Therefore, we will withdraw the 
Director's finding on this issue. 
2 
The date the labor certification is filed, in cases such as this one, is called the "priority date." 
Matter of M-E-, Inc. 
foreign national in the position will not adversely affect the wages and working conditions of domestic 
workers similarly employed. 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, 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. 
II. ANALYSIS 
A. Bona Fide Job Offer 
Under 20 C.F.R. § 656.1 0( c )(8), the petitioner attests that a job opportunity has been and is available 
to U.S. workers. The Petitioner must be able to establish the existence of a bona fide job 
opportunity. 20 C.F.R. § 656.17(1). A relationship invalidating a bona .fide job offer may arise 
where the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or 
through friendship." Matter of Sunmart 3 7 4, 00-INA-93 (BALCA May 15, 2000); see also Keyjoy 
Trading Co., 1987-INA-592 (BALCA Dec. 15, 1987) (en bane). 
In determining whether a bona fide job opportunity exists, adjudicators consider multiple factors, 
including but not limited to, whether a beneficiary: 
• )s in a position to control or influence hiring decisions regarding the offered position; 
• Is related to corporate directors, officers, or employees; 
• Incorporated or founded the company; 
• Has an ownership interest in the company; 
• Is involved in the management ofthe company; 
• Sits on its board of directors; 
• Is one of a small group of employees; and 
• Has qualifications matching specialized or unusual job duties or requirements stated 
in the labor certification. 
"Modular Container Systems, Inc., 1989-INA-228 (BALCA Jul. 16, 1991) (en bane). The analysis in 
Modular Container has been incorporated into regulation at 20 C.F.R. § 656.17(1).3 
3 The regulation states in pertinent part: 
(I) Alien influence and control over job opportunity. If the employer is a closely held corporation or 
partnership in which the alien has an ownership interest, or if there is a familial relationship between the 
stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small 
number of employees, the employer in the event of an audit must be able to demonstrate the existence of a 
bona fide job opportunity, i.e., the job is available to all U.S. workers and must provide to the CertifYing 
Officer, the following supporting documentation: 
2 
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Matter of M-E-, Inc. 
The Petitioner's president and sole shareholder is the Beneficiary's father. The Beneficiary is the 
owner and general manager of , doing business as (a restaurant), 
which is located in the same building as the Petitioner (a hotel). In the employment letter from 
, the Beneficiary states that he "plans, organizes, directs and controls the accounting 
functions of the hotel and restaurant." Therefore, although the hotel and restaurant are two separate 
entities, they share the same building, they are owned by a father and son, and the Beneficiary 
performed the accounting work and managerial duties for both entities. 
Based on these facts, we conclude there is not a bona fide opportunity open to U.S. workers in this 
case. The Beneficiary is in a position to control or influence hiring decisions regarding the offered 
position, he is related to the owner of the Petitioner, he is involved in the management of the 
company, he is one of a small group of employees, and he has qualifications matching specialized or 
unusual job duties or requirements stated in the labor certification (namely, "hospitality accounting 
skills"). 
B. The Beneficiary's Qualifications 
The beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. See Matter of Wing ·s Tea House, 16 I&N Dec. 158, 
159 (Acting Reg'l Comm'r 1977). 
In this case, the labor certification requires a bachelor's degree in business or accounting and 24 
months of experience in the offered position as a finance analyst manager. Part H.l 0 of the labor 
certification states that experience in an alternate occupation is not acceptable. 
Part H.ll of the labor certification describes the duties of the finance analyst manager position as 
follows: 
Plan, organize, direct and control the accounting functions of the hotel. Job 
requirements include hospitality accounting skills, advanced knowledge of 
(I) A copy of the articles of incorporation, partnership agreement , business license or similar 
documents that establish the business entity; 
(2) A list of all corporate /company officers and shareholders /partners ofthe 'corporation /firm/business, 
their titles and positions in the business' structure , and a description of the relationships to each other 
and to the alien beneficiary; 
(3) The financial history of the corporation/company/partnership, including the total investment in the 
· business entity and the amount of investment of each officer, incorporator/partner and the alien 
beneficiary ; and 
(4) The name of the business' official with primary responsibility for interviewing and hiring 
applicants for positions within the organization and the name(s) of the business' official(s) having 
control or influence over hiring decisions involving the position for which labor certification is sought. 
(5) lfthe alien is one of 10 or fewer employees, the employer must document any family relationship 
between the employees and the alien. 
3 
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Matter of M-E-, Inc. 
spreadsheets, financial management software, handling yearly audits, short and long 
term financial forecasting. Work as part of the hotel's executive management team. 
The labor certification describes the Beneficiary's employment experience as follows: 
• 
• 
As a general manager for 
As an accountant/general 
July 1, 2007. 
1. Experience with 
beginning on July 1, 2007; 
manager for the Petitioner from June 1, 2005 through 
The record does not establish that the Beneficiary's experience with constituted 
qualifying experience for the position offered. The record contains a letter from the CEO of 
, doing business as stating that the Beneficiary was employed as its 
general manager frcim July 1, 2007 to present. This letter is undated, so it is unclear how much time 
is included in the date range of"July 1, 2007 to present." 
This letter states that his responsibilities included the management of the company; overseeing its 
day-to-day operations with authority to make personnel decisions; planning, organizing, directing 
and controlling the accounting functions of the hotel and restaurant; handling yearly audits, short­
and long-term financial forecasting. According to this experience letter, the Beneficiary's principal 
role in the company is as a general manager. His duties include the management of the business, 
including making personnel decisions, and overseeing the day-to-day operations of the business. 
Therefore, the record does not establish that the Beneficiary had the 24 months of experience as a 
finance analyst manager for the position offered through his ·experience with 
In addition, the letter from indicates that the Beneficiary performed the planning, 
organizing, directing and controlling the accounting functions of both the hotel and restaurant. 
Therefore, according to this letter, the Beneficiary's working for the Petitioner at the same time he 
worked for It is unclear how much time was spent doing accounting work for the 
Petitioner compared to the time spent doing accounting work for 
Thus, the Petitioner has not established that the Beneficiary gained 24 months of experience as a 
finance analyst manager with 
2. Experience with the Petitioner 
We also find that the Beneficiary's experience with the Petitioner does not constitute qualifying 
experience for the job offered. The Petitioner must establish that the Beneficiary possessed all the 
education, training, and experience specified on the labor certification as of the priority date. See 
Matter ofWing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comni'r 1977). 
4 
Matter of M-E-, Inc. 
The labor certification in this case requires two years of experience in the job offered in addition to a 
bachelor's degree in business or accounting. As evidence of the Beneficiary's employment 
experience, the record contains a letter from the Petitioner stating that the Beneficiary was'employed 
by the Petitioner from June 1, 2005 to July 1, 2007 as an accountant. 
A beneficiary may only rely upon experience gained with a petitioner if it is gained in a position that 
is not "substantially comparable" to the position offered. 20 C.F.R. § 656.17(i)(3). A "substantially 
comparable" position is "a job or position requiring performance of the same job duties more than 50 
percent of the time." 20 C.F.R. § 656.17(i)(5)(ii). This means that the Petitioner cannot rely upon 
the Beneficiary's experience with the Petitioner as an accountant to meet the job requirements for 
the finance analyst manager because this would mean that the Beneficiary obtained this experience 
in a "substantially comparable" position to that of the job offered. In other words, the Petitioner 
cannot state that the Beneficiary's experience with the Petitioner constitutes both (1) qualifying 
experience in the job offered and (2) experience in a substantially different position to the job 
offered. Therefore, the Petitioner has not established that the Beneficiary meets the experience 
requirements of the job offered as set forth on the labor certification. 
C. Ability to Pay the Proffered Wage 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority 
date. The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
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. 
Here, the Petitioner must demonstrate its continuing ability to pay the proffered wage of $42,307 
annually beginning on the priority date of December 6, 2011. 
In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether the 
petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the 
petitioner has not paid the beneficiary the full proffered wage each year, USCIS will next examine 
whether the petitioner had sufficient net income or net current assets to pay the difference between 
the wage paid, if any, and the proffered wage.4 
4 
See River Street Donuts, LLC v. Napolitano, 558 F.3d Ill (I st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 
873 (E.D. Mich. 2010), affd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). 
5 
Matter of M-E-, Inc. 
For a C corporation, USCIS considers net income to be the figure shown on Line 28 of the IRS Form 
1120, U.S. Corporation Income Tax Return. Here, the Petitioner's 2011 tax return states net income 
of_$36,625, which is insufficient to pay the Beneficiary's proffered wage. 
If the net income the petitioner demonstrates it had available during that period does not exceed 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 A corporation's year-end 
current assets are shown on Schedule L, lines 1 through 6 and include cash-on-hand. Its year-end 
current liabilities are shown on lines 16 through 18. Net current assets are the difference between 
the petitioner's current assets and current liabilities. Here, the Petitioner's 2011 tax return states net 
current assets of $27,986, which is insufficient to pay the Beneficiary's proffered wage. 
The record conta,ins unaudited financial statements as of November 30, 2012. 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. An 
audit is conducted in accordance with generally accepted auditing standards to obtain a reasonable 
assurance that the financial statements of the business are free of material misstatements. The 
unaudited financial statements that counsel submitted with the petition are not persuasive evidence. 
The accountant's report that accompanied those financial statements states that they were produced 
pursuant to a compilation rather than an audit. According to the accountant's report, financial 
statements produced pursuant to a compilation are the representations of management compiled into 
standard form. The unsupported representations of management are not reliable evidence and are 
insufficient to demonstrate the ability to pay the proffered wage. Therefore, the accountant's 
compiled financial statements are not sufficient to establish the Petitioner's ability to pay Ahe 
proffered wage for 2012. 
If the petitioner's net income or net current assets is not sufficient to demonstrate the petitioner's 
ability to pay the proffered wage, USCIS may also consider the overall magnitude of the petitioner's 
business activities, its reputation, longevity and other factors relevant to its ability to pay the 
proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). However, the 
Petitioner did not submit evidence addressing factors relevant to a Matter o[Sonegawa analysis. 
Therefore, the Petitioner has not established its continuing ability to pay the proffered wage from the 
priority date to the present. 
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 accounts payable, short-term notes payable, and 
accrued expenses (such as taxes and salaries). /d. at 118. 
6 
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Matter of M-E-, Inc. 
III. CONCLUSION 
The record does not establish that there is a bona .fide job offer, that the Beneficiary meets the 
experience requirements of the labor certification, or that the, Petitioner has the ability to pay the 
proffered wage. However, we will withdraw the Director's finding of willful misrepresentation of a 
material fact, and we will reinstate the approval of the labor certification. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The ETA Form 9089, case number . is reinstated. 
Cite as Matter of M-E-, Inc., ID# 735849 (AAO July 24, 2017)