dismissed EB-3 Case: International Trade Financing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 12, 2024 In Re: 33759026 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, a company involved in international trade financing, seeks to employ the Beneficiary 
as an export manager. It requests classification of the Beneficiary as a professional under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act), section 
203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant classification 
allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful permanent 
resident status. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had the ability to pay the wage proffered to the Beneficiary from the 
priority date forward. The Petitioner then filed a motion to reopen, which the Director dismissed. The 
matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a noncitizen, a prospective employer must first obtain certification from the 
U.S. Department of Labor (DOL). Section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL approval 
signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. Id. 
Labor certification also indicates that the employment of a noncitizen will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). Section 204 of the 
Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. IfUSCIS approves 
the petition, a noncitizen may finally apply for an immigrant visa abroad or, if eligible, adjustment of 
status in the United States. Section 245 of the Act, 8 U.S.C. § 1255. 
II. ANALYSIS 
A petitioner must establish its ability to pay the proffered wage from the priority date of the petition 
until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability 
to pay must generally include annual reports, federal tax returns, or audited financial statements. Id. If 
a petitioner employs 100 or more workers, USCIS may accept a statement from a financial officer 
attesting to the petitioner's ability to pay the proffered wage. Id. 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. Id. 
In determining ability to pay, USCIS first determines whether the petitioner paid the beneficiary the 
full proffered wage each year from the priority date. If the petitioner did not pay the proffered wage 
in any given year, USCIS next determines whether the petitioner had sufficient net income or net 
current assets to pay the proffered wage (reduced by any wages paid to the beneficiary). 
If net income and net current assets are insufficient, USCIS may consider other relevant factors, such 
as the number of years the petitioner has been in business, the size of its operations, the growth of its 
business over time, its number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, its reputation within its industry, or whether a beneficiary will replace a current 
employee or outsourced service. See Matter ofSonegawa, 12 T&N Dec. 612, 614-15 (Reg'! Comm'r 
1967). 
In this case, the proffered wage is $62,504 and the priority date is March 22, 2021. On the petition, 
the Petitioner claims to have been established in 1992, employ one worker, and have gross annual 
income of $165,299. The Petitioner has never employed the Beneficiary or paid him a wage. In their 
decision, the Director determined that the Petitioner's Form 1120 S federal tax return for 2021 does 
not show that it had sufficient net income ($8,976) or net current assets (Schedule L left blank) to pay 
the proffered wage, and the Petitioner does not challenge these conclusions on appeal. 
On appeal, the Petitioner asserts that the Director did not give sufficient consideration to the totality 
of the evidence in the record regarding its ability to pay the proffered wage to the Beneficiary. 
Specifically, the Petitioner asserts that, as an S-corporation, it is a flow-through entity, and therefore 
the Director should have considered the evidence relating to the personal assets of its owner, including 
bank and brokerage account statements, home equity, and a letter from the Petitioner's accountant. It 
cites to Construction and Design Co. v USCIS, 563 F.3d 593 (7th Cir. 2009) in support of this assertion, 
noting that a flow-through entity "has an incentive to distribute earnings to its owners." However, as 
noted in the Director's most recent decision, since a corporation is a separate and distinct legal entity 
from its owners and shareholders, the assets of its shareholders, officers, or of other corporations 
(including subsidiaries, parents, and affiliates) cannot be considered in determining the petitioning 
corporation's ability to pay the proffered wage. See Matter ofAphrodite Investments, Ltd., 17 I&N 
Dec. 530 (Comm'r 1980); Sitar Restaurant v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003). 
In Sitar Restaurant, the court 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 
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pay the wage." Therefore, we will not consider the personal assets of the Petitioner's owner in 
determining its ability to pay the proffered wage. 
The Petitioner also asserts that the Director erred in not considering its bank account statements in 
analyzing the totality of its circumstances. If a petitioner submits all monthly statements since the 
priority date, it must establish that the amounts reported on the bank statements have not already been 
considered elsewhere, such as in a calculation of its net current assets, and must establish that such 
amounts reported on the bank statements reflect sufficient cash to establish ability to pay under the 
totality of the circumstances. See generally 6 USCIS Policy Manual E.4(B), www.uscis.gov/policy­
manual. In their most recent decision, the Director stated that bank statements "show only the amount 
in an account on a given date, and cannot show any amounts due or the petitioner's sustainable ability 
to pay a proffered wage." In addition, the Director stated that "no evidence was submitted to 
demonstrate that the funds reported on the petitioner's bank statements somehow reflect additional 
available funds that were not reflected on its tax returns, such as Schedule L." 
But here, the Petitioner's bank account statements include those for a Citibank account which was 
opened in May 2021, had $100,000 transferred into it the next month, and had no other activity aside 
from a single interest payment through the end of 2022. The other statements, for a Wells Fargo 
checking account, show an average ending balance of less than $13,000 throughout most of 2021. 1 In 
addition, as noted above, the Petitioner did not complete Schedule L on its federal tax returns for 2021, 
so the funds in the bank accounts were not accounted for in a calculation of net current assets. So the 
Director's reasoning does not apply to the facts of this case. 
However, we note that the funds shown in the Citibank account were not available until June 2021, 
almost three months after the priority date, and thus cannot show the Petitioner's ability to pay the 
proffered wage from the priority date. And while the Wells Fargo statements cover all but one month 
in 2021, the funds shown are insufficient to establish the Petitioner's ability to pay in March, April 
and May. More importantly, because Schedule L of the Petitioner's tax returns was not completed, 
the record does not include information regarding current liabilities which would have been subtracted 
from those funds and other current assets. 
The Petitioner also restates on appeal that it suffered reduced financial performances in 2020 and 2021 
due to the COVID-19 pandemic, and that its small gains in those years were "unique, extraordinary, 
and never happened before." The federal tax returns for those years show that the Petitioner's net 
income was $27,416 and $8,976, respectively. Also, the Petitioner has not established that these were 
uncharacteristic years, as it did not submit sufficient documentation to show an established history of 
more robust financial performance. Although the Petitioner indicates it has been in business since 
1992 (as a corporation since 2014 ), it submitted additional tax returns for the years 2019 and 2023 
only with its motion. These reflect net incomes of $5,762 and $35,466, respectively, which do not 
reflect the claimed "return to profitability" or "long history of business growth" and are well below 
the Beneficiary's proffered salary. Further, in 2019, the only year in which the Petitioner completed 
Schedule L of Form 1120S, net current assets were approximately -$77,000. 
1 The record did not include a statement for August 2021. 
3 
The Petitioner also refers to its gross income (line 6 on Form 1120S) as a measure of its financial 
recovery and ability to pay the offered wage, again from its federal tax returns from the years 2019, 
2020, 2021 and 2023. These figures show fairly stable revenue over these years, ranging from $108, 
913 in 2021 to $147,389 in 2023, and are insufficient to show that the Petitioner's business has grown 
over time. In addition, the returns do not show that the Petitioner has added employees over these 
years, with salaries and wages never exceeding $30,000. When viewed as a whole, the Petitioner's 
federal tax returns do not demonstrate the growth of its business over time, nor do they show that the 
size of the business or its number of employees are positive factors in determining its ability to pay 
the offered wage in 2021. 
Another factor in considering the totality of the Petitioner's circumstances is its reputation in its 
industry, which the Petitioner asserts helps to show its ability to pay the Beneficiary's wage. With its 
motion, the Petitioner submitted pages from its website showing the owner receiving an award, which 
is described as the in 2014. The website goes on to describe it as 
an award for "exceptional service and commitment to world traders" in thel !metropolitan 
area, but provides no further information about or from the awarding organization. It also provided a 
link to a video on Y ouTube and a screenshot which it describes as the owner giving a talk at the 
California Centers for International Trade Development. However, no transcripts for the video were 
provided, nor was any further information regarding this organization or the event at which the 
Petitioner spoke. Unlike the evidence of extensive major media coverage enjoyed by the petitioner in 
Sonegawa, this evidence is insufficient to show that the Petitioner's reputation, or that of its owner, 
lends support to its ability to pay the offered wage. Matter ofSonegawa, 12 I&N Dec. at 614-15. 
In its appeal brief, the Petitioner cites to an unpublished district court decision, Woody's Oasis v. 
Rosenberg, 2014 WL 413503 (W.D. Mich. Feb. 4, 2014), a case in which the court upheld the 
determination of United States Citizenship and Immigration Services (USCIS) that the totality of the 
petitioner's circumstances, beyond net income and net current assets, did not establish its ability to 
pay the offered wage. Here the Petitioner asserts that its circumstances can be distinguished from that 
of the petitioner in the district court decision, as it has provided evidence that its owner is willing to 
forego his compensation to pay the offered wage. While USCIS noted that the petitioner in Woody's 
Oasis had not presented evidence of its owner's willingness to forego compensation, it also noted that 
the petitioner did not pay substantial compensation to either its employees or owners, and thus that the 
owners would not be able to forego their compensation. Here, as noted above, the Petitioner's tax 
returns show that it has never paid more than $30,000 to its single employee, and both Schedule K of 
those returns and the Petitioner's owner's personal federal tax returns for the years 2020 and 2021 
show similarly modest earnings of $25,509 and $21,444, respectively. As the returns also show that 
the Petitioner's owner filed jointly with his spouse and claimed two dependents, this evidence does 
not establish that the Petitioner's owner would be able to forego his earnings in order to contribute to 
paying the Beneficiary's wage. 2 
2 The Petitioner also included a letter from its accountant dated May 2, 2024 with its appeal. The accountant claims that 
the Petitioner's sole employee retired in December 2023, and that their salary of $30,000 is now available to pay the 
Beneficiary. But there is no statement from the Petitioner confirming this, or documentary evidence to establish this 
employee's retirement. Further, even if this evidence had been submitted the salary already paid to this employee is not 
available to contribute to the Petitioner's ability to pay the Beneficiary prior to December 2023. 
4 
The Petitioner has not established its ability to pay the wage proffered to the Beneficiary from the 
priority date to the present. In addition to not demonstrating that it had the requisite net income or net 
current assets in 2021 or 2023 ($35,466 net income, Schedule L not completed), the Petitioner did not 
submit its federal tax returns, annual reports, or audited financial statements for 2022. Also, the 
Petitioner has not established that the combination of other relevant factors, including the number of 
years it has been in business, the size of its operations, the growth of its business over time, its number 
of employees, the occurrence of any uncharacteristic business expenditures or losses, and its reputation 
within its industry reflect its ability to pay the Beneficiary's salary. 
ORDER: The appeal is dismissed. 
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