dismissed EB-3 Case: Landscaping

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-H-N-C- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 25, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a provider of landscaping services, seeks to employ the Beneficiary as a landscaper. 
It requests his classification under the third-preference , immigrant category as an "other worker." 
See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii) , 8 U.S.C. 
§ l 153(b)(3)(A)(iii). This category allows a U.S. business to sponsor a foreign national for lawful 
permanent resident status to work in a job requiring less than two years of training or experience. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the position's proffered wage. 
On appeal , the Petitioner submits additional evidence . It also argues that its payments to the 
Beneficiary, a depreciation deduction on its income tax returns, and a totality of circumstances 
demonstrate its ability to pay the proffered wage. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an unskilled worker generally follows a three-step process. To permanently employ 
a foreign national in the United States, a prospective employer must first obtain 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). DOL approval signifies that the United States lacks an able, willing , qualified, 
and available worker for a position , and that employment of a foreign national will not hann the 
wages or working conditions of U.S. workers in similar jobs. Id. 
If DOL approves a position , an employer must next submit the labor certification 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 detennines whether a beneficiary meets DOL­
certified job requirements of a position and qualifies for the requested immigrant visa classification. 
If USCIS approves a petition , a beneficiary may finally 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 1-H-N-C-Inc. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.F.R. 
§ 204.5(g)(2). If, as in this case, a petitioner employs less than 100 people, evidence of its ability to 
pay must include copies of annual reports, federal tax returns, or audited financial statements. Id. 
To determine ability to pay, users examines whether, in relevant years, a petitioner paid a 
beneficiary a foll proffered wage. If a petitioner did not annually pay a foll proffered wage, users 
considers whether it generated annual amounts of net income or net current assets sufficient to pay 
any differences between a proffered wage and wages it paid a beneficiary. If net income and net 
current assets are insufficient, users may also consider other factors affecting a petitioner's ability 
to pay a proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967).1 
Here, the labor certification states the proffered wage of the offered position of landscaper as 
$25,043 a year. The petition's priority date is May 1, 2018, the date DOL accepted the labor 
certification application for processing. See 8 e.F .R. § 204.5( d) ( explaining how to determine a 
petition's priority date). 
The Petitioner employed the Beneficiary as a temporary nonimmigrant worker for part of 2018. A 
copy of an IRS Form W-2, Wage and Tax Statement, for that year indicates that the company paid 
him $15,573.24. That amount does not equal or exceed the annual proffered wage of $25,043. 
Therefore, based solely on wages paid, the Petitioner has not demonstrated its ability to pay the 
proffered wage. Nevertheless, we credit the Petitioner's payments to the Beneficiary. In 2018, the 
company need only demonstrate its ability to pay the difference between the annual proffered wage 
and the actual wages paid, or $9,469.76. 
A copy of the Petitioner's federal income tax return for 2018 reflects net income of $540 and a 
negative amount of net current assets.2 Neither of those amounts equals or exceeds the $9,469.76 
difference between the proffered wage and wages paid that year. Thus, based on examinations of the 
wages the Petitioner paid and its amounts of net income and net current assets, the record does not 
demonstrate its ability to pay the proffered wage in 2018. 
On appeal, the Petitioner notes that it paid the Beneficiary almost the foll proffered wage of $25,043 
in 2017. A copy of an IRS Form W-2 for that year indicates that the company paid him $24,232.05. 
1 Federal courts have upheld USCTS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., 
River St. Donuts, LLC v. Napolitano. 558 F.3d 111, 118 (1st Cir. 2009); Four Holes Land & Cattle, LLC v Rodriguez. 
No. 5:15-cv-03858. 2016 WL 4708715 **4-5 (D.S.C. Sept. 9, 2016). 
2 The Petitioner chose to be treated as an S corporation on its 2018 federal income tax return. The company reported 
additional income, deductions. and adjustments on Schedule K of IRS F01m l 120S, U.S. Income Tax Return for an S 
Corporation. We therefore consider the income reconciliation amount on line 18 of Schedule K to reflect the Petitioner's 
net income for 2018. See U.S. Internal Revenue Serv. (IRS), Instrnctions for Form 1120S, 22, at 
https://www.irs.gov/pub/irs-pdt1/il 120s.pdf (last visited Oct. 8, 2019) (describing Schedule K as a summary of 
shareholders' shares ofan S corporation's income, deductions, credits, etc.). 
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Matter of 1-H-N-C- Inc. 
Contrary to 8 C.F.R. § 204.5(g)(2), however, the wages the Petitioner paid the Beneficiary in 2017 
do not establish the company's ability to pay him in 2018, the year of the petition's priority date. 
The Petitioner also argues that it paid the Beneficiary nearly the proffered wage rate in 2018. The 
Petitioner asserts that it need only pay the portion of the proffered wage occurring after the petition's 
priority date of May 1 that year. The annual proffered wage of $25,043 equals about $2,087 a 
month. The Petitioner therefore contends that the proffered wage rate for the eight-month period in 
2018 after the priority date is about $16,695. As previously indicated, the Petitioner paid the 
Beneficiary $15,573.24 in 2018, only about $1,122 below the prorated, eight-month proffered wage. 
Contrary to the Petitioner's argument, however, USCIS policy does not permit a petitioner to prorate 
a proffered wage. USCIS will consider the effect of a short period between a priority date and the 
end of a year in the Agency's totality-of-the-circumstances analysis. But a petitioner must 
demonstrate its ability to pay the foll proffered wage in each relevant year, including the year of the 
priority date. Moreover, even if USCIS policy allowed proration of the proffered wage, the 
Petitioner would still fall $1,122 short of the prorated wage. The Petitioner asserts that the 
combination of its net income and its forbearance of $410 in charitable contributions in 2018 could 
have covered the shortfall. But the Petitioner generated net income of only $540 that year. See n.2 
( explaining the applicable net income amount for S corporations). The combination of the 
Petitioner's net income and its forbearance of the charitable contributions therefore would not have 
established its ability to pay the proffered wage in 2018. 
In addition, the Petitioner contends that a recent law allowed it to deduct 100% of $222,610 in 
business property that it acquired and placed in service in 2018. The Petitioner submitted copies of 
IRS documentation indicating that, under prior law, the company could have deducted only half that 
amount in 2018. See U.S. Internal Revenue Serv. (IRS), 'Tax Cuts and Jobs Act: A comparison for 
businesses," https ://www.irs.gov/newsroom/tax-cuts-and-j obs-act-a-comparison- for-businesses# 
passthrough (last visited Oct. 9, 2019). The Petitioner therefore argues that it would have had more 
than $100,000 available to pay the proffered wage in 2018. 
USCIS, however, does not consider depreciation as evidence of a petitioner's ability to pay a 
proffered wage. Rather, depreciation reflects a cost of doing business, representing the loss in value 
of business property or equipment over time. Thus, depreciation does not reflect fonds available to 
pay a proffered wage. See River St. Donuts, 558 F.3d at 118 (finding that, in determining a 
petitioner's ability to pay, we rationally rejected the inclusion of depreciation in its net income). The 
Petitioner's argument therefore does not persuade us. 
As the Petitioner also contends, however, we may consider factors other than its wages paid, net 
income, and net current assets in determining its ability to pay. Under Sonegawa, we may consider: 
the number of years the Petitioner has conducted business; its number of employees; the growth of 
its business; its incurrence of uncharacteristic losses or expenses; its reputation in its industry; the 
Beneficiary's proposed replacement of a current employee or outsourced service; or other factors 
affecting the Petitioner's ability to pay. Matter of Sonegawa, 12 I&N Dec. at 614-15. 
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Matter of 1-H-N-C-Inc. 
Here, the record indicates the Petitioner's continuous business operations since 1994 and its 
employment of 48 people. Copies of the Petitioner's federal income tax returns also indicate that its 
annual revenues grew from 2015 to 2018. Unlike the petitioner in Sonegawa, however, the record 
does not establish the Petitioner's incurrence of uncharacteristic losses or expenses, or its possession 
of an outstanding reputation in its industry. The record also does not indicate that the Beneficiary 
would replace an existing employee or outsourced service. Thus, a totality of circumstances under 
Sonegawa does not demonstrate the Petitioner's ability to pay the proffered wage. 
III. CONCLUSION 
The record on appeal does not demonstrate the Petitioner's continuing ability to pay the position's 
proffered wage from the petition's priority date onward. We will therefore affirm the petition's 
denial. 
ORDER: The appeal is dismissed. 
Cite as Matter of 1-H-N-C-Inc., ID# 6523682 (AAO Oct. 25, 2019) 
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