dismissed EB-3 Case: Industrial Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 05904890 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 3, 2019 
The Petitioner , an industrial textiles business , seeks to employ the Beneficiary as a senior process 
engineer. It requests skilled worker classification for the Beneficiary under the third preference 
immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i) , 8 U.S.C. 
§ 1153(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 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 onward. 
On appeal the Petitioner submits additional evidence and asserts that the documentation of record 
establishes its ability to pay the proffered wage. 
In visa petition proceedings it is the Petitioner 's burden to establish eligibility for the requested benefit. 
See section 291 of the Act, 8 U.S.C. § 1361. 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. § 1182(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 , ifUSCIS 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 in the labor certification. As provided in the regulation at 
8 C.F.R. § 204.5(g)(2): 
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]. 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from priority date 1 of the petition onward. In this case the proffered wage is $90,000 
per year and the priority date is December 11, 201 7. 
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. In 
this case, the Petitioner indicates that it has employed the Beneficiary since December 2011. The 
record includes a copy of an annual pay statement for 201 7 showing that the Beneficiary received 
gross pay of $83,427.36 that year, which was $6,572.64 less than the proffered wage. The Petitioner 
states that the Beneficiary did not receive a foll year's pay in 2018 because his employment was 
terminated during the year when his H-lB visa expired and he departed the United States. Thus, 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 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 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. 
The record includes a copy of the first page of the Petitioner's federal income tax return, Form 1120, 
U.S. Corporation Income Tax Return, for 2017. As recorded on page 1, line 28, of the tax return, the 
Petitioner incurred a net loss of $190,541 in 2017. Current assets and liabilities were recorded in 
Schedule K of the Petitioner's tax return. Since that part of the return has not been submitted, however, 
we cannot determine the Petitioner's net current assets ( or losses) for 2017. Therefore, the Petitioner 
1 The priority date of a petition is the date the underlying labor certification was filed with the DOL. 8.C.F.R. ~ 204.5( d). 
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has not established its ability to pay the proffered wage in 201 7 based on its net income or net current 
assets that year. 
On appeal, the Petitioner submits a copy of the 201 7 annual report and audited financial statement of 
its British parentJ I This company is a separate and distinct legal entity from 
the Petitioner, however, and its 2017 annual report does not contain a specific listing of the Petitioner's 
income, expenses, assets, and liabilities. Moreover, because a corporation is a separate and distinct 
legal entity from its owners and shareholders, the income and assets of its owners and shareholders 
cannot be considered in determining the petitioning corporation's ability to pay the proffered wage. 2 
See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar case the 
court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the 
governing regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of 
individuals or entities who have no legal obligation to pay the wage." Thus, the financial resources of 
the Petitioner's parent companyJ I cannot be considered in determining the 
Petitioner's ability to pay the proffered wage. 
The Petitioner asserts that it could utilize the fonds in its business checking account with ~I----~ 
to pay the Beneficiary's proffered wage. The Petitioner has submitted bank statements showing that 
the account balance stood at $378,131.31 at the end of 2017, and $287,392.04 at the end of 2018. 
While the regulation at 8 C.F.R. § 204.5(g)(2) allows for the submission of other evidence such as 
bank account records "in appropriate cases," bank account records are not among the three types of 
required evidence identified in the regulation - either annual reports, federal tax returns, or audited 
financial statements - to demonstrate a petitioner's ability to pay the proffered wage. Bank statements 
show an account balance on a given date, not the account holder's sustainable ability to pay a proffered 
wage over time. Moreover, the Petitioner has not shown that the money in its bank account constitutes 
a financial resource separate and apart from its current assets that would have been recorded in 
Schedule K of its federal income tax returns. As previously indicated, the Petitioner has not submitted 
Schedule K ( or anything else after page one) of its tax return for 201 7. Therefore, the Petitioner has 
not established its continuing ability to pay the proffered wage from the priority date onward based on 
its bank account atl I 
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. 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 
2 Even ifwe did consider the financial resources of the Petitioner's parent, we note that its 2017 annual report and audited 
financial statement indicate that its profit (net income) was only $2,881 for the last nine months of 2017 and its net cunent 
assets at the end of 2017 were only $4.574. Neither of these figures was sufficient to cover the $6,572.74 deficiency 
between the proffered wage and the wages paid to the Beneficiary in 2017. 
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expenditures or losses, and any other evidence that users deems relevant to the petitioner's ability to 
pay the proffered wage. 
The Petitioner states that it began operations in 2004 and had 58 U.S. employees at the time the petition 
was filed in 2018, though these numbers appear less than certain since the Petitioner has conflated the 
business of its parent corporation(s) with its own in much of the documentation submitted in these 
proceedings. The record includes page one of the Petitioner's federal income tax returns for each of 
the years 2013-2017, 3 which recorded gross receipts of approximately $16.9 million in 2013, $17.7 
million in 2014, $15 million in 2015, $13.5 million in 2016, and $10.9 million for the last nine months 
of 2017. During those same years the tax returns recorded net income of $1,044,141 in 2013, a net 
loss of $579,704 in 2014, net income of $777,681 in 2015, net income of $43,318 in 2016, and the 
aforementioned net loss of $190,541 in 2017. Expenditures on salaries and wages were approximately 
$1 million in 2013, $839,840 in 2014, $942,000 in 2015, $993,000 in 2016, and $741,000 in the last 
nine months of 2017. The foregoing figures indicate a fluctuating business during that five-year period 
with a modest decrease in gross revenues from 2013 to 2017, and amid stark yearly differences a sharp 
decline in net income of nearly $1.2 million from 2013 to 2017. Thus, the business did not look nearly 
as healthy in 201 7 as it looked in 2013. The Petitioner does not claim any uncharacteristic expenses 
in 201 7, or submit any evidence regarding its overall reputation in the industry. The Petitioner cites a 
$5 million loan facility agreement with its ultimate parentl I the parent ofl I I I which gives the Petitioner access to cash via intracompany fonding for various 
business purposes. The provisions of the agreement are not sufficiently clear, however, to draw 
definitive conclusions about whether the Petitioner could utilize this fonding mechanism for the 
purpose of paying the Beneficiary's foll proffered wage. There is no specific confirmation from the 
ultimate parent that the loan facility agreement could be used for this purpose. Based on the record 
before us we conclude that the totality of its circumstances does not demonstrate the Petitioner's ability 
to pay the proffered wage from the priority date of December 11, 2017, onward. 
Finally, even if we were persuaded by the documentation as a whole that the Petitioner could pay the 
proffered wage, we would not sustain the appeal based on the present record because the Petitioner 
has not submitted any of the required forms of documentation specified in 8 e.F.R. § 204.5(g)(2). The 
regulation requires either an annual report, a federal tax return, or an audited financial statement for 
the priority date year of2017 (and any subsequent year users might request). The Director requested 
the submission of at least one of those documents for the priority date year 201 7 in the request for 
evidence (RFE) he sent to the Petitioner. In response to the RFE the Petitioner submitted an annual 
report and audited financial statement for its parent, but not for itself. The Petitioner submitted page 
one of its federal tax return for 2017, as well as for the four previous years, but no complete return for 
201 7 as specified in the RFE. The failure to submit a complete tax return for 201 7 has prevented 
users from determining the Petitioner's net current assets (or liabilities) in the priority date year, as 
well as other aspects of the Petitioner's financial situation. The regulation at 8 e.F.R. § 103.2(b)(l4) 
provides that the failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 
3 The tax returns for 2013-2016 covered the fiscal year April 1 to March 31. The 2017 tax return covered the last nine 
months of calendar year 2017. 
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III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established its continuing ability to pay the 
proffered wage from the priority date onward. 
ORDER: The appeal is dismissed. 
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