dismissed EB-3 Case: Law

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-&F-. PLLC 
Non-Precedent Decision of the 
Administrative Appeals Otlice 
DATE: MAY25,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM l-140,1MMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a law firm, seeks to employ the Beneficiary as an immigration law clerk. 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 Petitioner had not 
established its ability to pay the proffered wage. The matter came before us on appeaL and we 
dismissed the appeal, affirming the Director's conclusion that the Petitioner had not established its 
ability to pay the proffered wage. We denied the Petitioner's subsequent motion to reconsider, once 
more concluding that the Petitioner had not established its ability to pay the proffered wage. 
The matter is again before us on a motion to reconsider. On motion, the Petitioner asserts that it had 
established its ability to pay the proffered wage through an examination of the totality of the 
circumstances and submits new evidence in support of the assertion. Upon review, we will deny the 
motion. 
I. LAW 
A motion to reconsider must state the reasons for reconsideration and be suppotted by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
Service policy. A motion to reconsider a decision on an application or petition must, when tiled, 
also establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. § 1 03.5(a)(3). 
ll. ANALYSTS 
On motion, the Petitioner submits its 2015 tax return and new evidence regarding the company's 
reputation within its industry, regarding the replacement of one of its employees, and regarding 
money transfers between the Petitioner and its New York office. However. assertions regarding new 
facts to be proved and the submission of new evidence are not elements that support a motion to 
reconsider. While the assertion of new facts and the submission of new evidence are elements that 
Maller of F-&F-, PLLC 
support a motion to reopen under 8 C.F.R. § l 03.5(a)(2), the Petitioner clearly indicated on Form 
I-290B that it was filing a motion to reconsider and not a motion to reopen. 1 Specifically, the 
Petitioner makes the following seven primary assertions on motion, each discussed below: 
A. Discussion of Tax Returns from Prior to Priority Date 
The Petitioner asserts that we erred by discussing the Petitioner's levels of net profit in years before 
the priority date. The Petitioner contends that lvfatter of' Sonegawa. 12 I&N Dec. 612 (Reg'! 
Comm'r 1967) requires us to not be "overly focused on specific numbers," but, instead, to consider a 
business' "overall financial health." However, a review of the record shows that our prior decision 
does not list specific numbers for the Petitioner's net profits in years before the priority date. Rather. 
our previous decision discusses those net profit levels only within the context of assessing the 
business' "overall financial health," Prior income tax returns were considered to assess any pattern 
of growth, and considered in the absence of the Petitioner's 2014 income tax return, which was 
requested on several occasions, but not submitted. Since the Petitioner's assertion does not establish 
that our decision was incorrect based on the evidence of record at the time of the initial decision, the 
assertion does not satisfy the requirement for a motion to reconsider. 
B. Most Recent Tax Returns are Positive 
The Petitioner submits a copy of its 2015 federal income tax return and states that its most recent tax 
returns are positive. Specilically, the Petitioner states that "[s]ince this case has been pending now 
for three years we have the advantage oflooking at ... the business over a long period of time." The 
Petitioner describes its business strategy since 2011 and identities the 2015 tax return as evidence 
"of the overall plan that is coming to fruition'' However, even the 2015 tax return reflects that the 
Petitioner had insufficient net income or net current assets to pay the Beneficiary the proffered wage 
that year and, since this assertion is based on new evidence submitted on motion to reconsider, it 
cannot establish that our decision was incorrect based on the evidence of record at the time of our 
prior decision and does not satisfy the requirement for a motion to reconsider. 
1 
It is noted that even if the matter was accepted as a motion to reopen, the motion would still be denied, since the 
Petitioner has not established that it had the continuing ability to pay the Beneficiary the proffered wage from the priority 
date onward through an examination of wages paid to the Beneficiary, or its net income or net current assets. The 
Petitioner asserts that it has established its ability to pay the proffered wage through an examination of the totality of 
circumstances consistent with A1atter rlf· Sonegawa. 12 I&N Dec. 612 (Reg'] Comm'r 1967). However. while the 
Petitioner cites factors in support of this assertion, we note that despite numerous requests, the Petitioner has still not 
provided copies of its annual report, federal tax return, or audited financial statement for 2014 as is expressly required by 
the regulation at 8 C.F.R. § 204.5(g)(2). The Petitioner does not explain how we would be able to assess its overall 
totality of the circumstances without this regulatory-required evidence. 
2 
.
Matt er of F-&F-, PLLC 
C. The Petitio ner's Reputation in its Industry 
The Petitioner also asserts on motion that we erred by not prope rly recognizi ng the Petitioner's 
rep utatio n ·with in its indust ry. The Petitioner submits new evide nce relating to the reputat ion of the 
business and awards receiv ed by two oft he business' partners. Since the Petit ioner's asse rtion relies 
on new ev idence submitted on m otio n, it cannot establish that our decision was inco rrect based on 
the evidence of record at the tim e of our dec ision and the asserti on does not satisfy the requirem ent 
for a motion t o reconsid er. However, in reviewing p rior evidence submitted, that ev idence does not 
overco me t he issues raised i n o ur prior decisions or outwei gh the fact that the reco rd does not 
contain the Petitioner's 201 4 i nco me tax return , which is required to assess the totality of t he 
Petitioner's circwn stances. 
D. Relationship with New York Office 
The Petitioner asserts that the wages paid to the Beneficiary by 
should be coun ted t oward the Petitio ner's abi I ity to pay the proffered wage and states that is "has 
arg ued to exha ustion the numer ous ways in which the two offices are one in the same." 
Our prev ious 
decisio n discllSsed the differe nces betwee n the petitio ning entity, with FEIN 
and the company that paid the Benefic iary's wages , 
with FETN 2 
However, desp ite the Petitioner's claim, the Petitione r h as not po inted to an error i n o ur prev ious 
discuss ion of preceden t d ecisions a nd the asse1i ion is not supported by any precede nt decision or 
other authority that woul d a llow us to cons ide r wages that were paid to the Beneficia ry by an enti ty 
that is lega lly distinct from t he Pet itioner in the deter minat ion of the Petitioner's ability to pay the 
proffe red wage as of the priority date. The court in Sitar v. Ashcroft , 2003 WL 222037 13 (D.Mass. 
Sept. 18, 2003) stated, " nothing in the governing regulation , 8 C.F. R. § 204.5 , perm its [USCTS] to 
cons ider the financia l resources of individua ls or entities who have no legal obligat ion to pay the 
wage." Since the asse rtion is not supported by precedent dec ision, the assertion does not satisfy the 
requirement for a motion to reco nsider. 
E. Peti tioner has been Transferring Money to Beneficiary ' s New York Emp loyer 
Similar to the asse rtion above, the Petitioner states that i ts bank records reflecte d '·numerous 
transactions" from the Petitioner to the New York office to pay for the Benefic iary 's salary. 
Howeve r, as noted above, the pay state ments were issued by a separate and d istinct ent ity. /d. 
2 The PeLitioner now appears to identify itself online as· ' In any further filings, the Appellant 
would need to establish its co nnection with the petitioning entity, that it is a valid successo r-in-interest to the entity that 
filed the labor certification, or that the name is an official d/b/a of the entity that filed the labor ce1tific ation. See Mauer 
of Dial Auto Repair Shop, Inc., 19 l&N Dec. 481 (Comm 'r 1986). 
3 
Maller of F-&F-, P LLC 
Additionally, as the amounts transferred differ, it IS unclear whether the transfers would reflect 
payments for other matters. 
F. Beneficiary is Now Paid by the Petitioner 
The Petitioner states on motion that it is now paying the Beneficiary's wages and submits new 
evidence to support the statement. However, current payments of the Beneficiary's wages cannot 
establish the Petitioner's ability to pay the proffered wage to the Beneticiary as of the September 26, 
2013, priority date. 
G. Replacing Former Employee 
The Petitioner states on motion that one of its employees left their employment in September 2015 
and would not be replaced, thus freeing up those wages to pay the proffered wage to the Beneficiary. 
The Petitioner submits on motion a copy of that employee's 2015 IRS Form W-2 showing wages in 
the amount of $129,957.33. However, a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See Maller of Katigbak, 14 I&N Dec. 45, 49 
(Comm'r 1971). The fact that additional monies were available after this employee !eli in 
September 2015 cannot establish the Petitioner's ability to pay the proffered wage to the Beneticiary 
as of the September 2013 priority date. Additionally, given the large discrepancy in pay between the 
Beneficiary's proffered wage and the wages paid to the individual who left, it is not clear that the 
two will perform the same job duties and whether the individual will need to be replaced. 
Ill. CONCLUSION 
Our previous decision noted that the record contained no evidence of wages paid to the Beneficiary 
by the actual Petitioner, and noted that the Petitioner's net income and net current assets did not 
establish its ability to pay the proffered wage. Our decision examined additional evidence submitted 
by the Petitioner and, considering the totality of the circumstances, concluded that the Petitioner had 
not demonstrated that it had the continuing ability to pay the proffered wage to the Beneficiary 
beginning on the priority date. 
The motion to reconsider before us is not supported by any pe11inent precedent decisions to establish 
that the decision was based on an incorrect application of law or Service policy and that the decision 
was incorrect based on the evidence of record at the time of the initial decision. Motions for the 
reopening or reconsideration of immigration proceedings are disfavored for the same reasons as 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. See 
INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U.S. 94 (1988)). With the 
current motion, the movant has not met that burden. 
ORDER: The motion to reconsider is denied. 
Cite as Matter of F-&F-, PLLC, ID# 11828 (AAO May 25, 2017) 
4