dismissed EB-3 Case: Food Distribution

· U.S. Citizenship 
and Immigration 
Services 
MATTER OF WCF-L-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 17,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a distributor of desserts and food ingredients, seeks to employ the Beneficiary as a 
sales executive. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant category. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This category allows a U.S. business to sponsor a 
foreign national with at least 2 years of training or experience for lawful permanent resident status. 
The Director, Nebraska Service Center, denied the petition. The Director concluded that the record 
did not establish the Petitioner's ability to pay the proffered wage. 
The matter is now before us on appeal. The Petitioner asserts that the Dir~ctor disregarded its 
payments to a part-time worker that ·could have funded a portion of the Beneficiary's proffered 
wage. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. The Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First, a U.S. employer must 
obtain an ETA Form 9089, Application for Permanent Employment Certification (labor 
certification), approved by the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) ofthe 
Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, the employer must file a Form I-140, Immigrant Petition for 
Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). See section 204(a) of the 
Act, 8 U.S.C. § 1154(a). Finally, ifUSCIS approves the petition, a foreign national may 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. 
Matter ofWCF-L-, Inc. 
By approving the labor certification in this case, the DOL certified that there are insufficient U.S. 
workers who are able, willing, qualified, and available for the offered position of sales executive. See 
section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified that the employment of 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)(II). 
In visa petition proceedings, USCIS must determine whether the Beneficiary meets the requirements 
of the offered position certified by the DOL. USCIS must also determine whether the Petitioner and 
the Beneficiary qualify for the requested immigrant classification. See, e.g., Tongatapu Woodcraft 
Haw., Ltd. v Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984) (holding that the immigration service 
"makes its own determination of the alien's entitlement to [the requested] preference status"). 
B. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must demonstrate its continuing ability to pay a proffered wage from a petition's 
priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Initial 
evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. !d. 
In this case, the labor certification states the proffered wage of the offered position of sales executive 
as $85,010 per year. The petition's priority date is June 4, 2014. This is the date the DOL accepted 
the labor certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to 
determine a petition: s priority date). 
The record before the Director closed on May 24, 2016, with his receipt of the Petitioner's response 
to his request for evidence (RFE). At that time, required evidence of the Petitioner's ability to pay 
the proffered wage in 2015 was unavailable. We will therefore consider the Petitioner's ability to 
pay only in 2014, the year ofthe petition's priority date. 
In determining ability to pay, we examine whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date. If a petitioner did not pay the full proffered wage 
each year, we consider whether it generated sufficient, annual amounts of net income or net current 
assets to pay any differences between the proffered wage and the wages paid. If a petitioner's net 
income or net current assets are insufficient, we may also consider the overall magnitude of its 
business activities. See Matter o.fSonegawa, 12 I&N Dec. 612,614-15 (Reg'] Comm'r 1967).1 
1 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); Estrada-Hernandez v. Holder, I 08 F. Supp. 3d 936, 942-43 
(S.D. Cal. 2015); Rivzi v. Dep 't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 20 14), aff'd, 627 Fed. App'x. 
292 (5th Cir. 20 15). 
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Matter ofWCF-L-, Inc. 
The Petitioner submitted a copy of an IRS Form 1 099, Miscellaneous Income, indicating its payment 
to the Beneficiary in 2014 of $73,450. The amount on the Form 1099 does not equal or exceed the 
annual proffered wage of $85,010. The Form 1099 therefore does not establish the Petitioner's 
ability to pay the proffered wage in 2014 based on its payments to the Beneficiary. 
The Form 1099 also conflicts with other evidence of record. A copy ofthe Petitioner's 2014 federal 
income tax return does not indicate the company's payments to any employees or contractors. Line 
8 ofthe IRS Form 1120S, U.S. Income Tax Return for an S Corporation, does not reflect any salaries 
or wages paid by the Petitioner in 2014. The accompanying IRS Form 1125-A, Costs of Goods 
Sold, also states no labor costs that year. 
The inconsistency between the information on the Form 1099 and the tax return casts doubt on the 
Petitioner's claimed payment to the Beneficiary in 2014. A petitioner bears the burden of 
establishing eligibility for a requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. The 
Petitioner must therefore explain the inconsistency regarding its claimed 2014 payment to the 
Beneficiary. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve 
inconsistencies of record by independent, objective evidence pointing to where the truth lies). 
Because of the unresolved inconsistency, the record does not establish the Petitioner's claimed 
payment to the Beneficiary in 2014. 
The Petitioner's 2014 tax return also reflects negative amounts of net income and net current assets 
in 2014. Thus, based on examinations of the Petitioner's payments to the Beneficiary and its 
amounts of net income and net current assets, the record does not establish the Petitioner's ability to 
pay the proffered wage in 2014. 
On appeal, the Petitioner asserts that, while the Beneficiary worked full-time in another position, it 
paid a part-time worker in 2014 in the offered position. A copy of another Form 1099 indicates the 
Petitioner's payment of $13,520 to an individual other than the Beneficiary. If the Beneficiary had 
replaced this part-time worker in the full-time, offered position in 2014, the Petitioner asserts that it 
could have applied the $13,520 payment to pay the $11,560 difference between the annual proffered 
wage and the wages it purportedly paid to the Beneficiary that year. 
Like the Beneficiary's Form 1099, however, the part-time worker's Fonn 1099 conflicts with 
evidence of record. As previously' discussed, the Petitioner's 2014 tax return does not reflect any 
wages paid to employees or contractors. The inconsistency between the information on the Form 
1099 and the tax return casts doubt on the Petitioner's claimed payment of $13,520 to the part-time 
worker in 2014. The record therefore does not establish the availability of the claimed $13,520 
payment to fund the proffered wage. See Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve 
inconsistencies of record by independent, objective evidence). 
Also, the Beneficiary attested on the labor certification to her full-time employment by the Petitioner 
in 2014 as a marketing manager. If the Beneficiary had replaced the part-time worker in the offered 
position in 2014, the Petitioner presumably would have needed to replace the Beneficiary in her 
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Matter of WCF-L-, Inc. 
full-time position of marketing manager. As noted, the Petitioner's 2014 tax return reflects negative 
amounts of net income and net current assets. The record therefore does not establish the 
Petitioner's ability to pay both a marketing manager and a sales executive on a full-time basis in 
2014. 
As previously indicated, we may consider a petitioner's ability to pay a proffered wage beyond its 
net income and net current assets. Under Sonegawa, we may consider such factors as: the number 
of years a petitioner has conducted business; its number of employees; growth in its business; the 
occurrence of uncharacteristic expenses or losses; its reputation in its industry; a beneficiary's 
replacement of a current employee or outsourced service; or other evidence of its ability to pay. 
Here, the record indicates the Petitioner's continuous business operations since 2009. As previously 
discussed, the Petitioner asserts that the Beneficiary will replace a part-time worker in the otiered 
position. But the record does not establish the availability of the purported part-time worker's wages 
to fund the proffered wage. Unlike in Sonegawa, the record also does not establish: the Petitioner's 
employment of any employees; the growth of its business; the occurrence of uncharacteristic 
expenses or losses; or its outstanding reputation in its industry. The totality of the circumstances in 
this case therefore does not establish the Petitioner's ability to pay the proffered wage under 
Sonegawa. 
For the foregoing reasons, the record does not establish the Petitioner's continuing ability to pay the 
proffered wage from the petition's priority date onward. We will therefore affirm the Director's 
decision and dismiss the appeal. 
C. The Bona Fides of the Job Opportunity 
Although unaddressed by the Director, the record also does not establish .the bona fides of the job 
opportunity. A labor certification employer must attest that "[t]he job opportunity has been and is 
clearly open to any U.S. worker." 20 C.F.R. § 656.10(c)(8). This attestation "infuses the 
recruitment process with the requirement of a bonafide job opportunity: not merely a test of the job 
market." Matter of Modular Container Sys., Inc., 89-INA-228, 1991 WL 223955, *7 (BALCA 
1991) (en bane) (referring to the former, identical regulation at 20 C.F.R. § 656.20(c)(8)). 
Where the alien for whom alien labor certification is sought is in a position to control 
hiring decisions or where the alien has such a dominant role in, or close personal 
relationship with, the sponsoring employer's business that it would be unlikely that 
the alien would be replaced by a qualified U.S. applicant, the question arises whether 
the employer has a bonafide job opportunity. 
!d. A relationship between a petitioner and a beneficiary triggering concerns about the bonafides of 
a job opportunity "is not only of the blood; it may also be financial, by marriage, or through 
friendship." Matter ofSunmart 374, 2000-INA-93, 2000 WL 707942, *3 (BALCA May 15, 2000). 
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(b)(6)
Matter of WCF-L-, Inc. 
To determine the bona fides of a job opportunity, we must consider multiple factors, including but 
not limited to, whether a foreign national: is in a position to control or influence hiring decisions 
regarding an offered position; is related to corporate directors, officers, or employees; incorporated 
or founded the company; has an ownership interest it; is involved in its management; 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 on an accompanying labor certification. Modular 
Container, 1991 WL 223955 at *8. We must also consider whether a foreign national's pervasive 
presence and personal attributes would likely cause a petitioner to cease operations in the foreign 
national's absence, and whether the employer complied with DOL regulations and otherwise acted in 
good faith. ld. 
By signing the labor certification in this case, the Petitioner attested to the clear availability of the 
offered position of sales executive to U.S. workers. The record, however, contains evidence that the 
job opportunity is not bonafide. 
The letters submitted in support of the Beneficiary's claimed qualifying experience appear to bear 
the signature of the Petitioner's president and identify him as the president of both of the 
Beneficiary's former employers. On the labor certification, the Beneficiary also identified the 
Petitioner's president as her supervisor at the other companies. In addition, USCIS records indicate 
that, in a prior, unsuccessful immigrant visa petition on behalf of the Beneficiary, the Petitioner 
identified one ofthe companies- -as its foreign af1iliate. 
Thus, the record indicates that business relationships between the Petitioner's president and the 
Beneficiary existed several years before this petition's priority date. Pursuant to Modular Container, 
the relationships cast doubt on the bonafides of the job opportunity. 
The record also identifies the Beneficiary as one of a small group of employees. The Form I-140 
states the Petitioner's employment of four people. As previously discussed, the Petitioner's 2014 tax 
return indicates that the company did not have any employees that year. The record therefore 
establishes the Beneficiary as one of a small group of employees, another Modular Container factor 
indicating that the job opportunity is not clearly available to U.S. workers. The record therefore 
does not establish the bona fides of the job opportunity. 
E. The Petitioner's Intention to Employ the Beneficiary on a Full-Time Basis 
The record also does not establish the Petitioner's intention to employ the Beneficiary in the offered 
position on a full-time basis. 
A U.S. business may file an immigrant visa petition iCit is "desiring and intending to employ" a 
foreign national. Section 
204(a)(1)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). A petitioner must iritend 
to employ a beneficiary pursuant to the terms and conditions of an accompanying labor certification. 
See Matter ofizdebska, 12 I&N Dec. 54, 55 (Reg'] Comm'r 1966) (affirming a petition's denial 
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Matter ofWCF-L-, Inc. 
where a petitioner did not intend to employ a beneficiary as a full-time, live-in domestic worker 
pursuant to the terms of an accompanying labor certification). 
For labor certification purposes, a job opportunity must provide "[p ]ermanent, full-time work by an 
employee for an employer other than oneself." 20 C.F.R. § 656.3 (defining the term "employment"). 
In this case, the Petitioner offered the Beneficiary the full-time, permanent position of sales 
executive. Evidence of record, however, casts doubt on the full-time nature of the job opportunity 
and the Petitioner's proposed employment. As previously discussed, the Petitioner submitted 
evidence that it paid a worker in the offered position in 2014 on a part-time basis. Because a worker 
performed the duties of the offered position on a part-time basis, the record does not establish that 
the job opportunity entails full-time employment. 
II. CONCLUSION 
The record does not establish the Petitioner's continuing ability to pay the proffered wage from the 
petition's priority date onward. We will therefore affirm the Director's decision and dismiss the 
appeal. In addition, the record does not establish the bona fides of the job opportunity, or the 
Petitioner's intention to employ the Beneficiary in the offered position on a full-time basis. 
In visa petition proceedings, a petitioner bears the burden of establishing eligibility for a requested 
benefit. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, the Petitioner did not meet that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofWCF-L-, Inc., ID# 122884 (AAO Feb. 17, 2017) 
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