dismissed EB-3 Case: Food Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 3626739 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 23, 2021 
The Petitioner, a meat supplier, seeks to employ the Beneficiary as a food technologist. The company 
requests his classification under the third-preference, immigrant category as a professional. 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. The Director concluded that the 
Petitioner didn't demonstrate its required ability to pay the position's proffered wage. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also 
Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010) (discussing the standard of proof). Upon de 
nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process. First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and (2) the employment of a 
noncitizen in the position won't harm wages and working conditions of U.S. workers with similar jobs. 
See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 
Second, an employer must submit an approved labor certification 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 determines whether a noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, if USCIS approves a petition, a designated noncitizen 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. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, federal tax 
returns, or audited financial statements. Id. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date onward. If a petitioner didn't annually pay the full 
proffered wage or didn't pay a beneficiary at all, USCIS considers whether the business generated 
annual amounts of net income or net current assets sufficient to pay any differences between the 
proffered wage and the wages paid. If net income and net current assets are insufficient, USCIS may 
consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter of Sonegawa, 
12 l&N Dec. 612, 614-15 (Reg'I Comm'r 1967).1 
The accompanying labor certification states the proffered wage of the offered position of food 
technologist as $41,683 a year. The petition's priority date is July 28, 2017, the date 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). 
At the time of the appeal's filing, regulatory required evidence of the Petitioner's ability to pay the 
proffered wage in 2018 and thereafter was not yet available. For purposes of this decision, we will 
therefore consider the company's ability to pay only in 2017, the year of the petition's priority date.2 
The Petitioner didn't submit evidence that it paid the Beneficiary wages in 2017. Based solely on 
wages paid, the record therefore doesn't establish the company's ability to pay the proffered wage. 
The Petitioner submitted an accountants' report containing the company's financial statements for 
2017. Contrary to 8 C.F.R. § 204.5(g)(2), however, the report doesn't indicate that it was "audited." 
Also, its pages are stamped "Draft," indicating that its financial information may not be final or 
accurate. The Director issued a request for additional evidence (RFE). Consistent with 8 C.F.R. 
§ 204.5(g)(2), the RFE instructs the Petitioner to submit copies of an annual report, federal tax return, 
or audited financial statements for 2017. 
The Petitioner's RFE response included another version of the accountants' report containing the 
company's financial statements for 2017. This version's pages are not stamped "Draft." But the 
revised report describes the accountants' review of the Petitioner's financial data as "substantially less 
in scope than an audit." Because the financial statements don't indicate that they were audited, they 
don't constitute regulatory required evidence of the Petitioner's ability to pay the proffered wage. See 
1 Federal courts have upheld USCIS' 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 (1st Cir. 2009). 
2 In any future filings in this matter, the Petitioner must submit copies of annual reports, federal tax returns, or audited 
financial statements for 2018, 2019, and 2020. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its ability 
to pay from a petition's priority date "and continuing until the beneficiary obtains lawful permanent residence"). The 
Petitioner may also submit additional evidence of its ability to pay, including proof of any wages it paid the Beneficiary 
in relevant years or materials supporting factors stated in Sonegawa. See Matter of Sonegawa, 12 l&N Dec. at 614-15. 
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8 C.F.R. § 204.5(g)(2) (requiring evidence of ability to pay to include "annual reports, federal tax 
returns, or audited financial statements") (emphasis added). 
On appeal, the petitioning limited liability company (LLC) submits a copy of the 2017 federal income 
tax return of another LLC. A petition must demonstrate the ability to pay of "the prospective United 
States employer." 8 C.F.R. § 204.5(g)(2). Thus, a petitioner generally can't establish its ability to pay 
by submitting the financial data of a separate, legal entity. See Sitar Rest. v. Ashcroft, No. Civ.A.02-
30197-MAP, 2003 WL 22203713, *2 (D. Mass. Sep. 18, 2003) (holding that "nothing in the governing 
regulation ... permits the [immigration service] to consider the financial resources of individuals or 
entities who have no legal obligation to pay the wage"). 
A copy of the Petitioner's 2014 operating agreement, however, identifies the other LLC as the 
Petitioner's sole owner, or member. For federal income tax purposes and unless otherwise requested, 
the U.S. Internal Revenue Service (IRS) disregards legal distinctions between LLCs and their sole 
members. 26 C.F.R. § 301.7701-3; see also IRS, "Single Member Limited Liability Companies," 
https://www.irs.gov/busi nesses/smal I-busi nesses-self-employed/si ng le-member-Ii m ited-I iabi I ity­
compan ies (last visited Sep. 7, 2021). The IRS allows a sole member of an LLC to combine its 
incomes or losses with that of the LLC it owns and to report the combined data on the member's 
federal tax returns. Id. Thus, if the Petitioner's sole member reported no business of its own in 2017, 
the tax return may solely reflect the Petitioner's financial data. 
A note to the Petitioner's 2017 financial statements states that the company's income or loss "is 
included in the member's income tax returns." Also, the net sales amount in the Petitioner's 2017 
financial statements matches the gross sales amount on its member's 2017 federal tax return, 
suggesting that the Petitioner constituted the member's only source of income that year. But the record 
doesn't establish that the 2017 tax return contains only the Petitioner's financial information. The 
financial documents describe the natures of the entities' businesses differently. A note to the 
Petitioner's financial statements describes it as a meat supplier to retail chains, food distributors, 
restaurants, and the U.S. government. In contrast, the 2017 tax return describes the Petitioner's 
member as a provider of "catering" services. The tax return's reference to "catering" casts doubt that 
it reflects the Petitioner's financial information. See Matter of Ho, 19 l&N Dec. 582, 591 (BIA 1988) 
(requiring a petitioner to resolve inconsistencies of record with independent, objective evidence 
pointing to where the truth lies). The member's tax return therefore doesn't establish the Petitioner's 
ability to pay in 2017. 
Also, even if the member's tax return reflects only the Petitioner's financial data, the information is 
unreliable. The return's pages are marked "For Discussion Purposes Only," indicating that its 
financial data may not be final or accurate. The return also reflects significant negative amounts of 
net income and net current assets that wouldn't demonstrate the Petitioner's ability to pay the proffered 
wage in 2017. 
Further, the Director's RFE notified the Petitioner of its need to submit additional evidence of its 
abi I ity to pay in 2017 and afforded the company a reasonable opportunity to respond. We therefore 
decline to accept the tax return on appeal. See Matter of Soriano, 19 l&N Dec. 764, 766 (BIA 1988) 
(requiring rejection of appellate evidence where a party received prior notice of the required materials 
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and a reasonable opportunity to submit them). For the foregoing reasons, the 2017 tax return of the 
Petitioner's member doesn't establish the Petitioner's ability to pay the proffered wage. 
Also on appeal, the Petitioner submits a letter from its chief financial officer (CFO), asserting the 
company's abi I ity to pay the proffered wage. If a petitioner employs at least 100 people, USCIS "may" 
accept a statement from a financial officer as proof of a business's ability to pay a proffered wage. 
8 C.F.R. § 204.5(g)(2). 
As previously discussed, however, the Director's RFE notified the Petitioner of the need for additional 
evidence of its ability to pay and afforded the company a reasonable opportunity to respond. See 
Matter of Soriano, 19 l&N Dec. at 766. We therefore also decline to accept the CFO's letter on appeal. 
Even if we accepted the appellate submission of the CFO's letter, the record wouldn't demonstrate the 
Petitioner's qualifications to submit the document as an employer of at least 100 people. The company 
submitted evidence that, as of September 2018, it had about 30 employees on its payroll and contracted 
the services of more than 120 other workers from staffing agencies. The Petitioner asserts its right to 
control and supervise all the workers, who it states perform services at its facility and use its tools and 
equipment. On the Form 1-140 and accompanying labor certification application, however, the 
company listed only 30 "employees." Thus, the record doesn't establish that the Petitioner truly 
considers its non-payroll workers as employees. The CFO's letter therefore wouldn't constitute 
acceptable evidence of the Petitioner's ability to pay in 2017. See 8 C.F.R. § 204.5(g)(2) (requiring a 
petitioner to submit copies of an annual report, federal tax return, or audited financial statements, or if 
an employer of at least 100 people, a statement from a financial officer). 
The Petitioner argues that USCIS must consider additional evidence of the company's ability to pay. 
The company notes that the United States Court of Appeals for the Seventh Circuit, which has 
jurisdiction over the proposed worksite of the offered position, requires USCIS to further investigate 
a petitioner's cash flow if the business's federal income tax return reflects insufficient amounts of net 
income and net current assets. Constr. & Design Co. v. USCIS, 563 F.3d 593, 595-96 (7th Cir. 2009). 
Also, as previously indicated, USCIS may consider other factors affecting a petitioner's ability to pay 
a proffered wage. See Matter of Sonegawa, 12 l&N Dec. 614-15. 
The record, however, lacks regulatory required evidence of the Petitioner's ability to pay. See 8 C.F.R. 
§ 204.5(g)(2). As previously discussed, we won't accept the company's appellate submission of the 
member's 2017 tax return or the CFO's letter. See Matter of Soriano, 19 l&N Dec. at 766. Thus, 
even if other factors indicate the Petitioner's ability to pay, the lack of regulatory required evidence 
bars the petition's approval. 
For the foregoing reasons, the record doesn't demonstrate the Petitioner's ability to pay the proffered 
wage in 2017, the year of the petition's priority date. We will therefore affirm the Director's decision. 
Ill. THE REQUIRED EXPERIENCE 
Although unaddressed by the Director, the Petitioner also hasn't demonstrated the Beneficiary's 
qualifying experience for the offered position. A petitioner must establish a beneficiary's possession 
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of all DOL-certified job requirements of a position by a petition's priority date. Matter of Wing's Tea 
House, 16 l&N Dec. 158, 160 (Acting Reg'I Comm'r 1977). 
In evaluating a beneficiary's qualifications, USCIS must examine the job-offer portion of an 
accompanying labor certification to determine a position's minimum requirements. USCIS may 
neither ignore a certification term, nor impose additional requirements. See, e.g., Madany v. Smith, 
696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority for setting the content 
of the labor certification") (emphasis in original). 
The labor certification states the minimum requirements of the offered position of food technologist 
as a bachelor's degree in food technology, and two years of experience in the job offered. On the labor 
certification, the Beneficiary attested that, by the petition's priority date, he gained more than two 
years of full-time, qualifying experience in Poland. He stated that a company employed him as a food 
technologist from June 2013 through December 2015. He didn't list any other experience. 
To support claimed experience, a petitioner must submit a letter from a beneficiary's former employer. 
8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must provide the employer's name, address, and title, and 
describe the beneficiary's experience. Id. 
The Petitioner provided copies of two signed employment agreements between the Beneficiary and 
his claimed former employer. Contrary to 8 C.F.R. § 204.5(1)(3)(ii){A), however, the agreements 
don't describe the Beneficiary's experience. The agreements state the Beneficiary's position title, but 
don't describe his duties. The agreements therefore don't establish the Beneficiary's qualifying 
experience in the job offered. 
Also, the two agreements don't confirm the Beneficiary's claimed employment from June 2013 
through December 2015, the dates listed on the certified labor certification. One agreement states his 
employment from June 2011 through May 2013. The other states his employment for an 
"[u]ndetermined period" beginning in June 2015. The discrepancies in the employment dates cast 
doubt on the Beneficiary's claimed experience. See Matter of Ho, 19 l&N Dec. at 591 (requiring a 
petitioner to resolve inconsistencies of record by independent, objective evidence). Thus, for the 
foregoing reasons, the agreements don't demonstrate the Beneficiary's claimed, qualifying experience 
in Poland from June 2013 to December 2015. 
In response to the Director's RFE, the Petitioner submitted a letter from the Polish company. 
Consistent with the information on the labor certification, the letter states the Beneficiary's 
employment from June 2013 through December 2015 and describes his experience. The record, 
however, doesn't explain why the dates in the Beneficiary's employment agreements differ from the 
employment dates stated in the company's letter and on the labor certification. See Matter of Ho, 
19 l&N Dec. at 591 (requiring a petitioner to resolve inconsistencies of record). The discrepancies in 
the Beneficiary's employment dates remain unresolved and continue to cast doubt on his claimed, 
qualifying experience. 
Additionally, the Form 1-140 and USCIS records indicate that the Beneficiary hasn't left the United 
States since his last entry in July 2015. If the Beneficiary has been in the United States since July 
2015, the Petitioner hasn't explained how he could've worked in Poland after that date as stated on 
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the labor certification and in the Polish company's letter and employment agreements. See Matter of 
Ho, 19 l&N Dec. at 591 (stating that doubt cast on a petitioner's proof may lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence). 
For the foregoing reasons, the record doesn't establish the Beneficiary's qualifying experience for the 
offered position. If the Petitioner pursues this matter further, it must explain the inconsistencies in the 
Beneficiary's employment dates and submit additional independent objective evidence of his claimed 
employment, such as copies of tax or contemporaneous business records. 
IV. CONCLUSION 
The Petitioner hasn't demonstrated its ability to pay the proffered wage in 2017, the year of the 
petition's priority date. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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