dismissed EB-3 Case: Furniture Making

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-A-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non~ Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 18, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a custom furniture maker, seeks to employ the Beneficiary as a master furniture maker. 
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. 
§ 1 l 53(8)(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 position that 
req_uires at least two years of training qr 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 of April 21, 2017, 
onward. On appeal the Petitioner asserts the evidence of record establishes its ability to pay the 
proffered wage, and that the Director should not have denied the petition in any event because no 
federal income tax return had been filed for 2017 at the time of the Director's decision was issued. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
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 arc insutlicient 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)(J)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USC.IS). See section 204 of the Act, 8 U.S.C. § i"l 54. 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 of the Act, 8 U.S.C. § 1255. 
To be eligible for the classification requested, a petitioner must establish that it has the ability to pay 
the proffered wage stated in the labor certification. As provided in the regulation at 8 C.F.R. 
§ 204.5(g)(2): 
Maller of N-A-. LLC 
The petitioner must demonstrate this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence. Evidence or 
this ability shall be either in the form of copies of annual reports, federal tax returns, 
or audited financial statements. In a case where the prospective United States 
employer employs 100 or more workers, the director may accept a statement from a 
financial officer of the organization which establishes the prospective employer's 
ability to pay the proffered wage. 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 [USC IS]. 
IL ANALYSIS 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date 1 of the petition onward. The priority date in this case is 
April 21, 2017. The labor certification states that the wage offered for the job of master furniture 
maker is $38,064 per year. 
In detennining a petitioner's ability to payfthe proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. In this case the record indicates that the Beneficiary 
has not been employed by the Petitioner since the priority date. 
If a petitioner has not employed the beneficiary and paid him (or her) a salary equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or audited 
financial statement(s). If either of these figures, net income or net current assets, equals or exceeds 
the proftered wage or th_e 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. 
In this case the Director issued a request for evidence (RFE) in March 2018 in which the Petitioner 
was requested to submit at least- one of the types of evidence - either an annual report, or a federal 
income tax return, or an audited financial statement - required by the regulation at 8 C.F.R. 
§ 204.5(g)(2) for each of the years 2016 and 2017. In its response to the RFE, submitted to USCIS 
on June 1, 2018, the Petitioner submitted copies of certain federal tax filings for 2017, but no federal 
income tax return for 2016 or 2017, nor any annual report or audited financial statement for 2016 or 
2017. The Director denied the petition on June 26, 2018, stating that the Petitioner, among other 
1 The "priority date·· of a petition is the date the underlying labor certification is filed with the DOL. S'ee 8 C.F.R. 
§ 204.5(d). 
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Matter of N-A-. LLC 
evidentiary shortcomings, "failed to submit primary regulatory evidence" of its ability to pay the 
proffered wage. 
On appeal the Petitioner asserts that it did not submit copies of its federal income tax returns ,:vith its 
initial evidence because "it has not vet filed tax returns." While the Petitioner had certainlv not filed ., . . 
its 2017 federal income tax return at the time the instant Form 1•140, Immigrant Petition for Alien 
Worker (1·140 petition), was filed and the initial evidence submitted in December 2017, it should 
have been able to do so at the time it responded to the Director's RFE in June 2018, or when its 
appeal was filed in August 2018. The Petitioner has provided no explanation why a copy of its 2017 
federal income tax return, which would ordinarily have been due in April 2018, could not be 
provided with its response to the RFE or in support of its appeal. Moreover, the Petitioner has not 
explained why a copy of its 2016 federal income tax return, also requested in the RFE, could not 
have been furnished in response to the RFE or on appeal. It is the Petitioner's burden to establish 
eligibility for the immigration benefit it seeks. Section 291 of the Act, 8 U.S.C. ~ 1361; Maller <d" 
Skirhal/ Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). In this case the Petitioner has not met its 
burden of proof because it has failed to submit any of the three types of alternative evidence required 
by 8 C.F.R. § 204.5(g)(2) - either a 2017 annual report, or a 2017 federal income lax return, or an 
audited financial statement for 2017 - to establish its ability to pay the proffered wage from the 
priority date of April 21, 2017, onward. 
The Petitioner asserts that we should also consider the totality of its circumstances, including the 
overall magnitude of its business activities, in determining the Petitioner's ability to pay the 
proffered wage, citing Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 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 overa,11 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 USCJS deems relevant to the petitioner's ability to pay the proffered wage. 
The Petitioner stated on the I• 140 petition that it began operations in 1985, had nine employees at the 
time this petition was filed in 2017, and had gross annual income of $712,405. The latter figure is 
not corroborated in the record, however, since the Petitioner has not submitted any federal income 
tax return, audited financial statement, or annual report. The Petitioner has submitted copies of its 
Forms 941, Employer's Quarterly Federal Tax Returns, for the four quarter of 2017, which recorded 
wages paid to the Petitioner's employees and associated taxes during 2017. But no conclusions can 
be drawn from these figures about the Petitioner's ability to pay the Beneficiary's proffered wage in 
2017. The Petitioner has also submitted copies of monthly account statements from Sun Trust Bank 
which showed closing monthly balances between May 2017 and April 2018 ranging from a high of 
$11,695.88 to a low of $2,124.80, all of which were far below the proffered wage of $38,064. Even 
if the monthly balances were higher, bank statements simply show an account balance on a given 
date, not the account holder's sustainable ability to pay the proffered wage. The only other relevant 
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Maller of N-A-. LLC 
evidence in the record is a copy of page one of the Petitioner's 1995 federal income tax return, Form 
I l 20S, which recorded net income of $65,424 that year. This earlier tax return was submitted in 
support of a prior 1-140 petition filed by the Petit~oner on behalf of the Beneficiary (receipt number 
which was approved in 1997. Though the net income figure in 1995 exceeded 
the proffered wage of the instant petition, it preceded the priority date of this petition by 22 years 
and thus has little probative value in this proceeding, especially since there are no other financial or 
business records of the Petitioner between 1995 and 20 I 7. The documents in the record do not 
demonstrate a sustained history of growth or financial stability for the Petitioner. For all of the 
reasons discussed above, the Petitioner has not established its ability to pay the Beneficiary's 
proffered wage of $38,064 per year from the priority date on April 21, 2017, onward. 
III. CONCLUSION 
We will dismiss the appeal because the Petitioner has not established its ability to pay the proffered 
wage from the priority date of April 21, 2017, onward. 
ORDER :· The appeal is dismissed. 
Cite as Matter of N-A. LLC. ID# 2307769 (AAO Dec. 18, 2018) 
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