dismissed EB-3 Case: Law

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-&F-. PLLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 10,2018 
MOTION ON ADMINISTRATIVE APPEALS OFI'ICE DECISION 
PETITION: 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a law office, seeks to· employ the Beneficiary as an immigration law clerk. lt requests 
classification of the Beneficiary as a professional under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This 
employment-based imn1igrant 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 'on the ground that the Petitioner did not 
establish its continuing ability to pay the proffered wage from the priority date onward. The Petitioner 
tiled an appeaL which we dismissed, artirming the Director's conclusion that the Petitioner did not 
establish its continuing ability to pay the proffered wage. The Petitioner subsequently filed two motions 
to reconsider, each of which we denied after contim1ingour previous findings that the Petitioner did not 
establish its continuing ability to pay the pro!Tered wage. The Petitioner then tiled a motion to reopen 
and a motion to reconsider, both of which we denied on the grounds that the Petitioner did not show a 
proper ground for reopening or reconsideration. The matter is now before us on another motion to 
reopen and motion to reconsider. 
Upon review, we will deny the motions. 
I. LAW 
A motion to reopen must state new facts and be. supported by documentary evidence. 8 C. F. R. 
§ I 03.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record 
of proceedings at the time of the decision. 8 C.F.R. § !03.5(a)(3). A motion to reconsider must be 
supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or 
statement of U.S. Citizenship and Immigration Services (USCIS) or Department of Homeland 
Security (DI·IS) policy. ld We may grant a motion that satisfies these requirements and 
demonstrates eligibility for the requested immigration benefit. 
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lvfaller nf F-&F- . PLLC 
II. ANALYSIS 
A petitioner must establish that it has the ability to pay the beneticiary the proffered wage, as stated 
on the labor certification, from the priority date of the petition until the beneficiary obtains lawful 
permanent residence. See 8 C.F:R. § 204.5(g)(2). Evidence of the petitioner's ability to pay "shall 
be either in the form of copies of annual reports, federal tax returns, or audited financial statements." 
!d. In this case the proffered wage is $56,45 I per year and the priority date is September 26, 2013. 
At issue here is whether the Petitioner has had the continuing ability to pay the proffered wage from 
the priority date onward. 
A. Motion to Reopen 
In our previous decisions we found that the Beneficiary, whom the Petitioner has employed since 
June 2012, was paid by a different legal entity wholly-owned by the Petitioner's owner and 
managing partner until well after the priority date. We concluded that payments from this other 
entity - -could not be considered in assessing the Petitioner's 
. ability to pay the proffered wage. However , the evidence submitted with this motion establishes that 
the New York LLC operated as a payroll company for the Petitioner and demonstrates that all wages 
paid to the Beneficiary were paid by the Petitioner. Based on all·of the evidence now· before us we 
are persuaded that wages paid through the New York LLC may properly be considered. On that 
basis we will now detennine whether the Petitioner has established its continuing ability to pay the 
proffered wage from the priority date of September 26, 2013, onward. 
In determining ability to pay, we tirst consider whether the wages the Petitioner paid to the 
Beneficiary equaled or exceeded the proffered wage. If they did in any particular year, those 
payments will be considered evidence of the Petitioner's ability to pay the proffered wage that year. 
In this case the record includes copies of the Form W-2, Wage and Tax Statement , issued to the 
Beneficiary for each of the years 20 13 and 2014. They show that the Beneficiary received "wages, 
tips, other compensation" in the amount of $45,008 in 2013 and $46,500 in 2014. 1 No evidence has 
been submitted of the Beneficiary's pay in 2015. As for 2016, the record includes a copy of the 
Bencli ciary 's last mon thly earnings statement of the year showi ng that her gross pay as of Dec ember 
7, 2016, was $34,400. Additional earnings statemen ts through November 20 17 show that the 
Beneficiary 's year-to-date gross pay was $48,828 as of November 7, 2017. Thus, the evidence of 
record does not establish that the Beneficiary's pay equaled or exceeded the proffered wage of 
$56,451 in any year since the priority date. 
Since the Beneficiary's pa y, as far as the record shows, was below the proffered wage every year, we 
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 statements(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 
1 The Beneficiary's pay in 2013 and 2014, as discussed, was routea through a payroll company in 
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Mauer ofF-& F-. PLLC 
considered able to pay the proffered wage during that year. In this case the record includes copies of 
the Petitioner's federal income tax returns, Forms 1120S, for the years 2013,2014, and 2015. They 
show the following ligures: 
Year 
2013 
2014 
2015 
Net Income (or Losd 
$16,855 
($4,660) 
$55,778 
Net Current Assets (or Liabilitiesi 
($28,984) 
$206 
$11,050 
Taking the greater figure each year, we find that the Petitioner's net income of $16,855 in 2013, 
added to the $45,008 of wages paid to the Beneficiary that year, exceeded the proffered wage of 
$56,400. Accordingly, the Petitioner has established its ability to pay the proffered wage in 2013. 
In 2014, however. the Petitioner's net current assets of$206, added to the $46,500 of wages paid to 
the Beneflciary, is well below the proffered wage. As for 2015, while the Petitioner's net income of 
$55,778 was only $622 below the prollered wage, there is no evidence of the wages paid to the 
Beneficiary that year. Thus, the Petitioner has not established its ability to pay the proffered wage in 
either 2014 or 2015 based on the sum of the wages paid to the Beneficiary and either its net income 
or net current assets in those years. Nor has the Petitioner established its ability to pay on that basis 
in the succeeding years of 2016 or 2017 since it has not submitted copies of its federal income tax 
returns (or an annual report or an audited financial statement) tor either of those years. 
The Petitioner asserts once again that we did not give proper weight in our Sonegawa analysis to the 
evidence it submitted of its reputation in the industry. No new facts have been stated, however, and 
no additional evidence pertinent to this issue has been submitted in support of the current motion. 
In accordance with the foregoing analysis, we conclude that the new documentation submitted on 
motion, including the Petitioner's 2014 federal income tax return and the earnings statements issued 
to the Beneficiary in 2016 and 2017, is insufflcient to overcome our previous findings that the 
Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
of September 26,2013, onward. Therefore, the motion to reopen will be denied. 
B. Motion to Reconsider 
The Petitioner asserts once again that we incorrectly applied Malter of Sonegawa, 12 I&N Dec. 612 
(Reg'! Comm'r 1967), in considering the totality of the Petitioner's circumstances for the purpose of 
2 If an ·s corporation, like the Petitioner. has income exclusively from a trade or business, USC IS considers its net 
income (or loss) to be the figure for "Ordinary business income (loss)" on page I, line 2L of the Form 1120S. However, 
if there are relevant entries for additional income, credits. deductions or other adjustments from sources other than a 
trade or business. they arc reported on Schedule K of the Form 1120S, and the corporation's net income or Joss \\'ill be 
found in line 18 (''Income/loss reconciliation") of Schedule K. 
3 
For a corporation net current assets (or liabilities) are the difference between its current assets, entered on lines 1-6 of 
Schedule L. and its current liabilities. entered on lines 16-18 of Schedule L. 
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assessing its ability to pay the proffered wage. The Petitioner claims that its federal income tax 
returns show that its annual income has grown constantly, and that such growth will continue in the 
future. In fact, the tax returns in the record show that the Petitioner's gross receipts were $624,047 
in 2011,$837,759 in 2012,$1,003,886 in 2013,$902,238 in 2014, and $1,084,440 in 2015. While 
these ligures do show growth since 2011, most of it occurred before the priority date and the newly 
submitted tax return for 2014 shows that gross income actually declined that year. The Petitioner 
also claims that it has constantly increased the Beneficiary's salary, as evidenced by the earnings 
statements. The overall record, however, does not support the Petitioner's claim. The Beneficiary 
was paid $45.008 in 2013 and $46,500 in 2014. There is no record of wages paid in 2015. In 2016 
the Petitioner's gross pay, as indicated on its last earnings statement of the year, was only $34,440. 
In 2017 the Beneficiary's gross pay stood at $48,828 as of November that year. Thus, the record 
does not show that the Beneficiary's salary has constantly increased, and the Petitioner has not 
explained how any of these figures indicate that we incorrectly applied Sonegawa standards in 
analyzing the totality of the Petitioner's circumstances in our previous decisions. 
Although the Petitioner continues to disagree with our previous SonegmFa analyses, it has not 
demonstrated that our decisions were based on an incorrect application of law or USC IS policy. As 
the Petitioner's submission on motion to reconsider does not overcome our previous findings, the 
motion will be denied. 
IlL CONCLUSION 
The Petitioner has established its ability to pay the proffered wage in 2013, but not for any time 
period thereafter. Therefore, we atlirm our previous finding that the Petitioner has not established 
its continuing ability to pay the proffered wage from the priority date of September 26, 2013, 
onward. Accordingly, the Petitioner has not shown proper cause for reopening or reconsideration, 
nor established eligibility for the immigrant benefit sought. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as lvfaller ofF-F-. !'LLC ID# 1227651 (AAO May 10, 2018) 
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