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: NOV. 8, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a law office, 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 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 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, affirming 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 confirming our previous findings that the Petitioner did not 
establish its continuing ability to pay the proffered wage. The matter is now before us for a fourth time 
- in this case on a motion to reopen and a motion to reconsider. 
Upon de novo review, we will dismiss the motions. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(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. § 103.5(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 or Department ofHomeland Security policy. !d. 
We may grant a motion that satisfies these requirements and demonstrates eligibility for the 
requested immigration benefit. 
.
Matter (?f F-F-, PLLC 
II. ANALYSIS 
The issue is whether the Petitioner has the ability to pay the proffered wage. A petitioner must 
establish that it has the ability to pay the beneficiary the proffered wage, as stated on the labor 
certification, from the priority date 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. 
The Petitioner's Form 1-140 petition was accompanied by a labor certification with a priority date of 
September 26, 2013. The proffered wage, as stated in the labor certification, is $56,451 per year. 
A. Motion to Reopen 
In our previous decisions we found that the Beneficiary, whom the Petitioner claims to have 
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. The Petitioner states that it now pays the Beneficiary 
out of its own bank account through a payroll service. In its current motion the Petitioner submits 
copies of the earnings statements issued to the Beneficiary from May 2016 to June 2017. While the 
Petitioner has stated a new fact supported by documentary evidence, it can only be considered as 
evidence of the Petitioner's ability to pay the proffered wage from May 2016 onward. It does not 
establish the Petitioner's ability to pay the proffered wage between the priority date of September 26, 
2013, and the date ofthe initial earnings statement from the Petitioner in May 2016. 
The Petitioner asserts that we did not give proper weight in our Sonegawa analysis to the evidence it 
submitted of its reputation in the industry. In our last decision we pointed out that this evidence, 
submitted with its second motion to reconsider, did not satisfy the requirements of a motion to 
reconsider and did not outweigh the fact that the record did not include the Petitioner's 2014 income 
tax return (or a 2014 annual report or audited financial statement, the other two types of required 
evidence in 8 C.F.R. § 204.5(g)(2)), which we stated was required to assess the totality of the 
Petitioner's circumstances. The documentation submitted by the Petitioner includes copies of 
certificates from various entities including 
and the recogmzmg 
the Petitioner and its managing partner for contributions in the legal field. While these certificates 
satisfy the evidentiary requirements of a motion to reopen, they have little probative value of the 
Petitioner's continuing ability to pay the proffered wage from the priority date onward, patticularly 
in view of the fact that the Petitioner has still not furnished a copy of its 2014 federal income tax 
return, or an annual statement for 2014, or an audited financial statement for 2014, in accord with the 
requirements of 8 C.F.R. § 204.5(g)(2), 
For the reasons stated above, as well as in our previous decisions, the evidence submitted by the 
Petitioner does not establish its continuing ability to pay the proffered wage of $56,451 per year 
2 
Matter ofF-F-. PLLC 
from the priority date of September 26, 2013, onward. The most glaring evidentiary omission is the 
absence of any one of the required forms of evidence in 8 C.F.R. § 204.5(g)(2). The Petitioner has 
not submitted its 2014 federal income tax return, or an annual report or audited financial statement 
for 2014, despite numerous opportunities to do so during these proceedings. Thus, the motion to 
reopen lacks crucial evidentiary support. As the Petitioner's submission on motion to reopen does 
not overcome our previous findings, the motion must be denied. 
B. Motion to Reconsider 
The Petitioner asserts that we incorrectly applied Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l 
Comm'r 1967), in considering the totality of the Petitioner's circumstances for the purpose of 
assessing its ability to pay the proffered wage. For example, the Petitioner claims that we misstated 
the facts of Sonegawa. That argument was made in the Petitioner's first motion to reconsider. 
however, and discussed in our decision on that motion. We conceded one factual error in our initial 
review of Sonegawa (concerning that company's gross versus net income). but explained that it was 
not central to our Sonegawa analysis of the totality of the circumstances concerning the Petitioner's 
business. The Petitioner also asserts that we should not have considered its net income from years 
before the priority date. As explained in our decision on the Petitioner's second motion to 
reconsider, however, we considered such evidence in the context of assessing the Petitioner's overall 
financial situation and record of growth, which was made more difficult by the absence of the 
Petitioner's 2014 income tax return, or an annual report or audited financial statement for 2014, at 
least one of which is required evidence under 8 C.F.R. § 204.5(g)(2). 
The Petitioner does not state any reason for reconsideration that has not already been made in its 
previous motions and discussed by us in our previous decisions. Although, the Petitioner disagrees 
with the Sonegawa analysis discussed above, it has not submitted any pertinent precedent decisions, 
statutes, regulations, or agency policy in support of its claim that our previous decisions were based 
on an incorrect application of law or Service policy. As the Petitioner's submission on motion to 
reconsider does not overcome our previous findings. the motion must be denied. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopenmg or 
reconsideration or established eligibility for the immigrant benefit sought. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofF-F-. PLLC ID# 737692 (AAO Nov. 8, 2017) 
3