dismissed EB-3 Case: Healthcare

MATTER OF H-H-A-D-H-C-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 30, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , an adult day healthcare center, seeks to employ the Beneficiary as a bookkeeper. 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 . 
§ l 153(B)(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 
requires at least two years of training or experience. 
The Director of the Nebraska 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 the petition up 
to the present. 
On appeal the Petitioner submits additional evidence and asserts that the record establishes its 
continuing ability to pay the proffered wage. 
Upon de nova 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. § l 182(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 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 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 of H-H-A-D-H-C-C-
II. ANALYSIS 
A petitioner must establish its ability to pay the proffered wage of the job offered from the priority 
date 1 of the petition until the beneficiary obtains lawful permanent residence. As provided in the 
regulation at 8 C.F.R. § 204.5(g)(2), in pertinent part: 
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. . . . . 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 [USCIS]. 
In this case the priority date of the petition is January 12, 2017, and the proffered wage of the 
bookkeeper position is $61,880 per year. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. If 
a petitioner submits documentary evidence that it employed and paid the beneficiary during the 
period following the priority date, and accompanies this documentation with a form of evidence 
required in 8 C.F.R. § 204.5(g)(2), it may be considered proof of the petitioner's ability to pay the 
proffered wage. 
According to the labor certification the Beneficiary has been employed by the Petitioner since 2006. 
The record includes copies of the Beneficiary's Forms W-2, Wage and Tax Statements, for the years 
201 7 and 2018 which show that the Beneficiary received "wages, tips, other compensation" totaling 
$17,745.00 in 2017 and $31,168.89 in 2018. Since these figures were well below the proffered 
wage, the Petitioner has not established its ability to pay the proffered wage from the priority date of 
January 12, 2017, onward based on wages paid to the Beneficiary. 
If a petitioner has not employed the beneficiary and paid 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 retum(s), annual report(s), or audited 
financial statement(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the 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. 
1 The "priority date" of a petition is the date the labor certification application was filed with the DOL. See 8 C.F.R. 
§ 204.S(d). 
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Matter of H-H-A-D-H-C-C-
The record includes a copy of the Petitioner's federal income tax return, Form 1120, U.S. 
Corporation Income Tax Return, for the fiscal year of July 1, 2016, to June 30, 2017. As recorded in 
that return the Petitioner had net income of $3,508 and net current assets of $27,330 in the fiscal year 
ending on June 30, 2017.2 Thus, the Petitioner's net current assets were considerably higher than its 
net income, but both were well below the proffered wage. Based on the federal documentation in 
the record it is not possible to determine the Petitioner's net income or net current assets in the 
calendar year 201 7 because the Petitioner's federal tax return is based on a fiscal year that ended in 
the middle of 201 7. Even if we ignored that fact and added the Petitioner's net current assets in 
fiscal year 2017 ($27,330) to the wages paid to the Beneficiary in calendar year 2017 ($17,745), the 
resulting figure of $45,095 is still more than $16,000 below the proffered wage. Therefore, the 
Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
of January 12, 2017, onward based on its net income or net current assets during that time period. 
On appeal the Petitioner asserts that in "the fiscal year 201 7" it had net income of $14,900 and net 
current assets $39,948, as calculated by deducting $3,871 of current liabilities from $43,819 of 
current assets. A review of the record shows that these figures derive from the Petitioner's 
California Corporation Franchise or Income Tax Return, Form 100, for the taxable year 2017, which 
apparently covers the fiscal year from July 1, 2017, to June 30, 2018. A state income tax return is 
not a form of required evidence as specified in 8 C.F.R. § 204.5(g)(2), and cannot substitute for a 
federal income tax return. No federal tax return has been submitted by the Petitioner for the fiscal 
year covered by the California tax return. Nor has any federal tax return been submitted for the 
remainder of the calendar year 2017 or the calendar year 2018. 
The Petitioner asserts that it has been paying the Beneficiary a monthly salary of $5,160 since 
September 2018, which if annualized comes out to $61,920 and exceeds the proffered wage. As 
evidence thereof the Petitioner has submitted copies of pay statements issued to the Beneficiary 
which show bimonthly payments of $2,580 from September 2018 through February 2019. These six 
months of payments do not cover an entire calendar year, or a foll fiscal year. Even if we accepted 
the pay statements as credible evidence that the Petitioner has been paying the Beneficiary slightly 
more than the proffered wage since September 2018, they do not establish that the Petitioner had the 
ability to pay the foll proffered wage during the preceding time period back to the priority date of 
January 12, 2017. 
The Petitioner urges USCIS to consider the totality of its circumstances, as in Matter of Sonegawa, 
12 I&N Dec. 612, in determining its ability to pay the proffered wage. 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 
2 For a C corporation. like the Petitioner. net income (or loss) is recorded on page 1, line 28 of the Form 1120 (Taxable 
income before net operating loss deduction and special deductions), while net current assets ( or liabilities) are the 
difference between its current assets, entered on lines 1-6 of Schedule L, and its current liabilities, entered on lines 16-18 
of Schedule L. 
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Matter of H-H-A-D-H-C-C-
doing business, the established historical growth of the petitioner's business, the petitioner's 
reputation within its industry, the overall 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 
USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
In this case the record indicates that the Petitioner began operations in 1999 and had 18 employees at 
the time the petition was filed in 2018. The tax returns in the record show that the Petitioner's gross 
receipts for the fiscal years ending in mid-2016, mid-201 7, and mid-2018, totaled a $1,036,282, 
$1,025,197, and $1,093,306, respectively. Thus, the Petitioner's gross income was relatively static 
during this recent three-year time period. There are no other tax returns or business records from 
earlier years to show whether the Petitioner has a historical pattern of growth. There is no evidence 
in the record, and the Petitioner does not assert, that it incurred any uncharacteristic business 
expenses or losses after the priority date that would have impacted its short-term ability to pay the 
proffered wage. 
The Petitioner states that it is wholly owned bl its CEO,~~---~--------' and run by 
I lwith her husbandJ._ _____ _.3 The Petitioner mentions the fact that compensation 
has been paid to its officers, and the federal tax returns in the record show that officer's 
compensation totaled $144,000 in the fiscal years 2015-16 and 2016-17, evenly divided between the 
CEO and her husband at $72,000 apiece. No evidence has been submitted, however, that either the 
CEO or her husband was willing to forego any part of their officer's compensation, or that they 
could afford to do so, for the purpose of paying the foll proffered wage to the Beneficiary from the 
priority date onward. The Petitioner refers to its expenditures for employee salaries and independent 
contractors in fiscal year 201 7 as evidence of a thriving business, but has not explained how these 
expenditures demonstrate its ability to pay the Beneficiary's foll proffered wage of $61,880 per year 
from the priority date of January 12, 2017, onward. 
In accord with the foregoing discussion, we find that the Petitioner has not established its continuing 
ability to pay the proffered wage from the priority date onward based on the totality of its 
circumstances. 
3 The federal income tax returns identify I I as the 100% owner of the Petitioner, and indicate that officer's 
compensation as shared with her husband, 50% each. Curiously, two different social security numbers fo~ I 
are provided in the federal income tax returns, one in Schedule G (Information on Certain Persons Owning the 
Corporation's Voting Stock) and a different one in Form 1125-E (Compensation of Officers). It is incumbent upon a 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Attempts to explain or 
reconcile such inconsistencies will not suffice without competent evidence pointing to where the truth lies. See Matter of 
Ho, 19 I&N Dec. 582. 591-92 (BIA 1988). 
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Matter of H-H-A-D-H-C-C-
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority 
date onward. The appeal will be dismissed for the above stated reason. In visa petition proceedings 
it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-H-A-D-H-C-C-, ID# 5213654 (AAO July 30, 2019) 
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