dismissed EB-3 Case: Home Care

U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF H-H-1-R-C-F-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 3, 2019 
APPEAL OF NEBRASKA SER VICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a residential home care facility, seeks to employ the Beneficiary as a caregiver. It 
requests classification of the Beneficiary as an "other worker" under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ ll 53(B)(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent resident status a foreign national who is capable of 
performing unskilled labor that requires less than two years of training or experience and is not of a 
temporary or seasonal nature. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish its ability to pay the proffered wage from the priority date to the present. 
On appeal the Petitioner asserts that it equities establish its 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 U.S. 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. 
II. ANALYSIS 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it 
has the ability to pay the proffered wage stated on the labor certification. As provided in the 
Matter ofH-H-1-R-C-F-, Inc. 
regulation at 8 C.F.R. § 204.5(g)(2): 
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 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 [USCIS]. 
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. In this case the proffered wage is 
$21,029 per year and the priority date is March 8, 2017. 
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. 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 there is no evidence that the Petitioner has 
ever employed the Beneficiary. Therefore, the Petitioner has not established its ability to pay the 
proffered wage from the priority date onward based on wages paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount 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 statements(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 ordinarily be considered able to pay the proffered 
wage during that year. 
The record includes a copy of the Petitioner's federal income tax return, Form 1120S, for 2017. As 
recorded at page 1, line 21, of the return, the Petitioner had a net loss of $26,742 in 2017.2 As for 
1 The "priority date" of a petition is the date the underlying labor certification application is filed with the DOL. See 
8 C.F.R. § 204.S(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied 
from the priority date onward. 
2 If an S corporation, like the Petitioner, has income exclusively from a trade or business, USCIS considers its net 
income (or loss) to be the figure for "Ordinary business income (loss)" on page 1, line 21, of the Form l 120S. However, 
if there are relevant entries for additional income, credits, deductions or other adjustments from sources other than a 
trade or business, they are reported on Schedule K of the Form l 120S, and the corporation's net income or loss will be 
found in line 18 of Schedule K ("Income/loss reconciliation"). In this case there are no entries in Schedule K. 
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Matter ofH-H-1-R-C-F-, Inc. 
net current assets, the Petitioner had none in 2017. Net current assets ( or liabilities) are determined 
by calculating the difference between current assets and current liabilities, as recorded in lines 1-6 
and lines 16-18 of Schedule L. In this case the Petitioner's current liabilities ($106,980) exceeded its 
current assets ($84,225) in 2017, resulting in net current liabilities of $22,765. Thus, the Petitioner 
has not established its ability to pay the proffered wage based on either net income or net current 
assets in 2017. 
USCIS may also consider the totality of the Petitioner's circumstances, including the overall 
magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. 
See Matter of Sonegawa, 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 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. 
The Petitioner has submitted documentation showing that it was established in 2002, and states that 
it had five employees at the time its petition was filed in 2018. The record includes copies of the 
Petitioner's federal income tax returns for the years 2015-2017, which recorded gross receipts of 
$855,822 in 2015, $937,254 in 2016, and $963,055 in 2017. These figures indicate modest growth 
for the company during that three-year period, but they do not cover a sufficient time period to show 
a sustained pattern of growth through the years. Moreover, while the Petitioner's 2016 tax return 
recorded net income of $45,634 and net current assets of $33,493, both of which exceeded the 
proffered wage in this case, the 2015 tax return recorded a net loss of $12,936 and net current 
liabilities of $3,728. Thus, the net loss and net current liabilities recorded on the Petitioner's 2017 
return were not anomalous figures based on the three tax returns in the record, since in two of those 
three years (2015 and 2017) the Petitioner recorded net losses and net current liabilities. On appeal 
the Petitioner claims that its "equities" in 2017 demonstrate its ability to pay the proffered wage. 
The Petitioner asserts that its equities totaled $96,275 in 2017, that this figure represented the "value 
of the business," and that the Petitioner's equities and other assets totaled $172,050. The Petitioner 
does not identify any specific "equities" in the tax form, however, nor explain where the above 
figures come from in the tax return or how they represent the value of the business. Thus, the 
Petitioner's claim of "equities" has little evidentiary value. For the reasons discussed above, the 
Petitioner has not established its ability to pay the proffered wage from the priority date onward 
based on the totality of its circumstances. 
We also note, according to the evidence of record, that the Petitioner filed two other Form 1-140 
petitions for other beneficiaries in 2016. When a petitioner has filed other 1-140 petitions, it must 
establish that its job offer is realistic not only for the instant beneficiary, but also for its other 1-140 
Therefore, the Petitioner's net income (or loss) is the figure on page 1, line 21, of the return, which is -$26,742. 
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Matter ofH-H-1-R-C-F-, Inc. 
beneficiaries. A petitioner's ability to pay the proffered wage is an essential element in evaluating 
whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 
1977). Accordingly, the petitioner must demonstrate its ability to pay the combined proffered wages 
of the instant beneficiary and every other 1-140 beneficiary from the priority date of the instant 
petition until the other 1-140 beneficiaries obtain lawful permanent resident status. See Patel v. 
Johnson, 2 F.Supp. 3d 108, 124 (D.Mass. 2014) (upholding our denial of a petition where a 
petitioner did not demonstrate its ability to pay multiple beneficiaries). 3 
In response to a request for evidence (RFE) the Petitioner provided limited information about the 
two 1-140 petitions it filed in 2016 including the names of the beneficiaries, their proffered wages, 
their priority dates, and their immigration status. The Petitioner indicated that one beneficiary had 
legal permanent resident (LPR) status, but did not provide the date it was granted, and also indicated 
that the petition for the other beneficiary had been approved. The Petitioner did not provide any 
information, however, about the wages paid, if any, to the first 1-140 beneficiary up to the date his 
(or her) LPR status was granted, or to the second 1-140 beneficiary up to the present. Thus based on 
the evidence in the record, in addition to the instant Beneficiary, the Petitioner would also need to 
show that it could pay the over $42,000 in wages to those two beneficiaries for the time period in 
question. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wages from the priority 
date of March 8, 2017, onward. The appeal will be dismissed for the above stated reasons. 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 ofH-H-1-R-C-F-, Inc., ID# 4853211 (AAO May 3, 2019) 
3 The Petitioner's ability to pay the proffered wage of one of the other I-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an I-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; or 
• Before the priority date of the I-140 petition filed on behalfof the other beneficiary. 
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