dismissed EB-3 Case: Janitorial Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-D-S-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 4, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a sole proprietorship that provided janitorial services. sought to employ the 
Beneficiary as a supervisor. It requested his classification as a skilled worker under the third­
preference, immigrant category. See 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'" category allows U.S. 
businesses to sponsor foreign nationals for lawful permanent resident status if they have at least two 
years of training or experience. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not demonstrate its required ability to pay the proffered wage. On appeal, we withdrew the decision 
and remanded the matter for additional fact-finding. After assuming jurisdiction over the petition on 
remand, the Director of the Nebraska Service Center found additional evidence submitted by the 
Petitioner insufficient to establish its ability to pay. 1 The Director also found the labor certification 
accompanying the petition invalid because the sole proprietorship had ceased operations. 2 As we 
requested, the Director certified his denial for our review. On certification. we affirmed the 
decision. See Matter ofR-D-S-. LLC, ID# 119769 (AAO Mar. 17. 2017). 
Now before us on the Petitioner's combined motions to reopen and reconsider, the Petitioner submits 
additional evidence of its claimed ability to pay the protTered wage. It also asserts that its cleaning 
business continues to operate and that its job offer to the Beneficiary endures. 
Upon review, we will deny the motions. 
1 The Nebraska Service Center adjudicated this petition on remand because, as of April I, 2006, the Vermont Service 
Center stopped processing employment-based petitions. See USCIS News Release, ·'USCIS Notifies Employers of 
Filing Changes" (Mar. 24, 2006), https://preview.uscis.gov/sites/default/files/tiles/pressrelease/BiSpccPhO I_ 
24Mar06PR.pdf (last visited Sept. 6, 20 17). 
2 Generally, before U.S. Citizenship and Immigration Services (USCIS) may accept a skilled worker petition, the U.S. 
Department of Labor (DOL) must certify that the United States lacks able, willing, qualified, and available workers for 
the offered position and that the employment of a foreign national will not harm the wages and conditions of U.S. 
workers similarly employed. Section 212(a)(5)(A)(i) of the Act, 8 U .S.C. ~ 1182a)(5)(A)(i). 
Matter of R-D-S-, LLC 
I. LAW 
A motion to reopen must state new facts, supported by documentary evidence. 8 C.F.R. 
§ 1 03.5(a)(2). A motion to reconsider must establish that, based on the record at that time. our prior 
decision misapplied law or policy. 8 C.F.R. § 1 03.5(a)(3). A motion to reconsider must also be 
supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or 
statement ofUSCIS or Department of Homeland Security policy. We may grant motions that satisfy 
these requirements and demonstrate eligibility for the requested immigration benefit. 
II. ANALYSIS 
A. The Motion to Reconsider 
In its motion to reconsider, the Petitioner asserts that the accompanying labor certification remains 
valid because the offered and certified positions are the same. The Petitioner"s sole proprietor 
opened a cleaning business 37 years ago and states: '·It has been a family business with me as the 
head since then." Although the business has expanded, he states that it continues to provide the 
same janitorial services in the same geographical area. The business now operates as a limited 
liability company (LLC), with an address and federal employment identification number different 
than the sole proprietorship's. But the former sole proprietor states that the job offer to the 
Beneficiary remains "substantially the same." 
For immigration purposes, however, the termination of the sole proprietorship changed the job 
opportunity. A business may not use a labor certification unless it is the DOL-certified employer. or 
it establishes itself as a successor in interest ofthe certified employer. See 20 C.F.R. § 656.30(c)(2) 
(stating that a labor certification remains valid only for the "particular job opportunity"" stated on it): 
see also Matter ofDial Auto Repair Shop. Inc., 19 I&N Dec. 481.482 (Comm"r 1986) (requiring a 
petitioner to establish itself as a successor of a certified employer). 
To establish a successor relationship, a company must: document its acquisition of rights and 
obligations needed to continue the business of a certified employer: demonstrate that. except for the 
change of employer, a certified job opportunity remains the same; and establish its eligibility for a 
petition's approval in all respects, including the abilities of it and the certified employer to pay the 
proffered wage. Matter ofDial Auto Repair Shop. 19 I&N Dec. at 482-83. 
Here, the DOL-certified employer was the petitioning sole proprietorship. which legally equated to 
its sole owner. See Matter (~[United lnv. Grp., 19 I&N Dec. 248,250 (Comm"r 1984) (explaining 
that sole proprietorships and partnerships are indistinct from their owners). The record. however. 
indicates that, while the appeal was pending in 2010, the former sole proprietor formed a Virginia 
LLC that now operates the cleaning business. The LLC is a legal entity separate from the sole 
proprietorship and its sole owner. See Michael E. Siska Revocable Trust v. Milestone Dev .. LLC. 
715 S.E.2d 21, 28 (Va. 2011) (citations omitted) (stating that a Virginia LLC is "a legal entity 
entirely separate and distinct from the shareholders or members who compose if"). Therefore, to use 
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Matter of R-D-S-, LLC 
the labor certification in this matter, the LLC must establish itself as a successor of the sole 
proprietorship under Dial Auto. 
The Petitioner's former sole proprietor asserts that the job opportunity remains the same as certified 
for a supervisor of janitorial services. As we found on appeal, however, the record does not support 
that assertion. Copies of the LLC's federal income tax returns for 2010 describe the company's 
services as "Residential building construction." Its 2013 federal tax returns also state its business 
activity as "construction r[ e ]m[ o ]d[ e ]ling." The record therefore does not establish that the LLC 
provides janitorial services as required for the certified job opportunity. See Matter o{Ho, 19 I&N 
Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of record by 
independent, objective evidence pointing to where the truth lies). 
Also contrary to Dial Auto, the record does not document the LLC's acquisition of rights and 
obligations needed to continue the Petitioner's cleaning business. The record lacks copies of 
agreements, contracts, or other documents indicating the LLC' s acquisition of the sole 
proprietorship's business. As discussed in the following section, the record also does not 
demonstrate the abilities of the LLC or the Petitioner to pay the proffered wage. The record 
therefore does not establish the LLC as the Petitioner's successor. 
The record on motion does not demonstrate the validity of the labor certification for the current job 
opportunity. Because the motion to reconsider does not establish our prior decision's misapplication 
of law or policy, we will deny the motion. 
B. The Motion to Reopen 
1. LLC's Ability to Pay 
The Petitioner's motion to reopen includes copies of the first pages of the LLC' s federal income tax 
returns for 2014 and 2015. The pages ret1ect annual net income amounts of $4,515 in 2014 and 
$5,431 in 2015. These profits, however, are less than the offered position's annual proffered wage 
of $24,960. The new evidence therefore does not establish the LLC' s ability to pay the profTered 
wage in 2014 and 2015. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to establish its continuing 
ability to pay a proffered wage, from a petition's priority date until a beneficiary obtains lawful 
permanent residence). Moreover, without the full tax returns, we cannot assess whether the LLC's 
net current assets were sufficient to pay the proffered wage in these years. 
Also, as we found on appeal, the record lacks required evidence of the LLC's ability to pay the 
proffered wage in 2011 or 2012. !d. (requiring evidence of ability to pay to include copies of annual 
reports, federal tax returns, or audited financial statements). Although, the record contains the 
LLC's federal tax return for 2013, the return does not establish the LLC's ability to pay that year. as 
the document reports net income and net current asset amounts less than the annual profTered wage. 
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Matter of R-D-S-, LLC 
We may consider other factors atiecting a company's ability to pay beyond its net income and net 
current assets. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). The 
Sonegawa factors, however, do not establish the LLC's ability to pay. The LLC's tax returns 
indicate that its annual amounts of gross revenue and wages paid have increased since its formation 
in 20 I 0. But the LLC has not operated as long as the petitioner in Sonegawa. and, as previously 
indicated, the record lacks copies of the LLC's tax returns for 2011 and 2012. Also, unlike the 
petitioner in Sonegawa, the LLC has not demonstrated its incurrence of uncharacteristic losses or 
expenses, or its possession of an outstanding reputation in its industry. Thus, the Sonegawa factors 
do not establish the LLC's continuing ability to pay. 3 
2. Petitioner's Ability to Pay 
The new evidence on motion also does not establish the ability of the Petitioner, as a sole 
proprietorship, to pay the proffered wage. As we found on appeal, the Petitioner has not submitted 
required evidence of its ability to pay in 2009. Because the Petitioner did not estimate the living 
expenses of its former sole proprietor and his family, the record also does not establish its ability to 
pay in 2003, the year of the petition's priority date, or from 2006 to 2009. See. e.g. Ubeda v. 
Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff"d, 703 F. 2d 571 (7th Cir. 1983) (requiring sole 
proprietors, in addition to demonstrating abilities to pay proffered wages, to establish simultaneous 
abilities to support themselves and their dependents). 
Although unaddressed in our appellate decision, USCIS records also indicate the Petitioner's filing 
of a petition for another beneficiary after this petition's priority date. 4 A petitioner must demonstrate 
its ability to pay a proffered wage from a petition's priority date until a beneficiary obtains lawful 
permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore demonstrate its 
ability to pay the combined proffered wages of this and its other petition. The Petitioner must 
demonstrate its ability to pay the combined proffered wages from this petition's priority date until 
the other beneficiary obtained lawful permanent residence, or until the denial, withdrawal, or 
revocation of his petition. See Patel v . .Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming a 
petition's revocation where, as of the tiling's grant, the petitioner did not demonstrate its ability to 
pay combined proffered wages of multiple, pending beneficiaries). 
In any future filings in this matter, the Petitioner must provide the proffered wage of its other 
petition and evidence of any wages it paid the other beneficiary. The Petitioner should also indicate 
whether the other beneficiary obtained lawful permanent residence, or whether his petition was 
denied, withdrawn, or revoked. 
3 Our appellate decision noted Virginia's cancellation of the LLC. See Va. Code Ann. § 13.1-1050.2 (20 16) (providing 
for automatic cancellation of an LLC that does not timely pay an annual registration fee). The LLC, however, has since 
been reinstated. See Va. State Corp. Comm'n, Business Entity Search, https://sccetile.scc.virginia.gov/Find/ Business 
(last visited Sept. 7, 2017). 
4 USC IS records identify the Petitioner's other petition by the following receipt number: 
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Matter of R-D-S-, LLC 
Under Sonegawa, the length of the Petitioner's continuous business operations suggests its ability to 
pay the proffered wage. But the record does not indicate growth in its business or in its number of 
employees. Also, unlike the petitioner in Sonegawa, the Petitioner here did not demonstrate its 
incurrence of uncharacteristic losses or expenses, or its possession of an outstanding reputation in its 
industry. In addition, unlike the petitioner in Sonegawa. the Petitioner here must demonstrate its 
ability to pay multiple beneficiaries. Thus, the Sonegawa factors do not establish the Petitioner's 
ability to pay. 
For the foregoing reasons, the record does not establish the abilities of the Petitioner or the LLC to 
pay the proffered wage. We will therefore also deny the motion to reopen. 
III. CONCLUSION 
The motion to reopen does not demonstrate the required abilities of the Petitioner or its purported 
successor to pay the proffered wage. The motion to reconsider does not establish our appellate 
decision's misapplication of law or policy in finding the labor certification invalid for the current job 
opportunity. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of R-D-S-. LLC, ID# 579377 (AAO Oct. 4, 2017) 
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