dismissed EB-3 Case: Law

MATTER OF F-&F-, PLLC 
Non-Precedent Decision of the 
Administrative App~als Office 
DATE: SEPT. 18, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a law firm, seeks to employ the Beneficiary as an immigration law clerk. It requests 
her classification under the third-preference, immigrant category as a professional. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § l 153(b)(3)(A)(ii). This employment­
based, "EB-3" category allows a U.S. business to sponsor a foreign national for lawful permanent 
resident status to work in a job requiring at least a bachelor's degree. 
The Director of the Texas Service Center denied the petition. We dismissed the Petitioner's appeal 
and denied its following motions to reopen and reconsider. See, e.g., Matter of F-&F-, PLLC, ID# 
1227651 (AAO May 10, 2018). All the decisions concluded that the Petitioner did not demonstrate 
its required ability to pay the offered p9sition's proffered wage. 
The matter is before us again on motions to reopen and reconsider. The Petitioner submits 
additional evidence and asserts that, in finding that it did not demonstrate its ability to pay the 
proffered wage, we misapplied case law. 
Upon review, we will deny the motions. 
I. MOTION CRITERIA 
A motion to reopen must state new facts, supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). In contrast, a motion to reconsider must establish our misapplication of law or policy 
based on the record at that time. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must also cite 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 policy. We 
may grant motions meeting these criteria and demonstrating eligibility for a requested benefit. 
II. ABILITY TO PAY THE PROFFERED WAGE 
In its prior motions, the Petitioner demonstrated its ability to pay the annual proffered wage of 
$56,451 in 2013, the year of the petition's priority date. The Petitioner, however, did not 
demonstrate its ability to pay in following years. See 8 C.F.R. § 204.S(g)(2) (requiring a petitioner 
Matter of F-&F~, PLLC 
to demonstrate it~ continuing ability to pay a proffered wage, from a petition's priority date until a 
beneficiary obtains lawful permanent residence). 
On motion, the Petitioner submits new evidence of its payments to the Beneficiary from 2015 
onward. The Petitioner, however, still has not demonstrated its ability to pay the proffered wage in 
2014. The Petitioner established that it paid the Beneficiary $46,500 that year. But its federal 
income tax return for 2014 reflects insufficient amounts of net income and net current assets to fund 
the $9,951 difference between the proffered wage and the Beneficiary's wages. Citing a letter from 
its accountant, the Petitioner argues that the tax return overstates the company's current liabilities. 
The accountant's letter, however, indicates an inflated amount of current liabilities for 2013. The 
record lacks corroborating evidence that the Petitioner overstated its current liabilities in 2014. Also, 
the amended net current asset amount that the Petitioner proposes for 2014 would not equal or 
exceed the $9,951 wage difference. The record therefore does not establish the Petitioner's ability to 
pay the proffered wage in 2014. 
The Petitioner's new evidence establishes its ability to pay the proffered wage in 2015. But the 
record lacks required evidence of the Petitioner's ability to pay in 2016. Evidence of ability to pay 
must include copies of annual reports, federal income tax returns, or audited financial statements. 
8 C.F .R. § 204.5(g)(2). In a prior motion, the Petitioner submitted evidence that it extended the 
filing deadline of its federal tax return for 2016 until October 16, 2017. Since that date, the 
Petitioner has filed two motions to reopen. Without explanation, however, neither motion includes 
required evidence of its ability to pay in 2016. The record therefore does not establish the 
Petitioner's ability to pay the proffered wage that year. Thus, based on examinations of the wages 
the Petitioner paid to the Beneficiary, its net income, and its net current assets, it has not 
demonstrated its ability to pay in 2014 or 2016. 1 
As the Petitioner argues, we may consider other factors affecting its ability to pay the proffered 
wage. See Matter Q[ Sonegawa, 12 I&N Dec. 612 (Reg'I Comm'r 1967). The Petitioner contends 
that we disregarded "ample evidence" of its "impressive" reputation in the legal field. The record 
contains evidence of awards and ratings that the petitioning law firm received in recent years. But 
the awards reflect loca·l and state honors. The petitioner in Sonegawa, a fashion designer, had her 
work featured in magazines of national circulation, including Time and Look. Matter of Sonegawa, 
12 l&N Dec. at 615. She also documented that she designed clothes for movie actresses and 
lectured at numerous design and fashion shows throughout the United States. Id. In its field, the 
Petitioner has not demonstrated a similar level of national acclaim. 
The Petitioner also argues that, since 2012, its annual revenues and the annual wages it has paid the 
Beneficiary have increased. These are favorable factors, but we do not find them sufficient to 
1 As of the filing of this motion to reopen, required evidence of the Petitioner's ability to pay the proffered wage in 2017 
may not yet have been available. Therefore, for purposes of this dei,:ision, we will consider the Petitioner's ability to pay 
only through 2016. In any future filings in this matter, however, the Petitioner must submit required evidence of its 
ability to pay in 2017. 
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Matter of F-&F-, PLLC 
establish the Petitioner's ability to pay under Sonegawa. The petitioner's financial documents in 
Sonegawa did not demonstrate her ability to pay the proffered wage in only one relevant year. Id. at 
614. She documented that the decline in her profits that year stemmed from uncharacteristic costs 
associated with the business's relocation. Id Here, the Petitioner's finances do not demonstrate its 
ability to pay the proffered wage in two relevant years. Also, unlike in Sonegawa, the Petitioner has 
not established its incurrence of uncharacteristic costs or losses in those years. Thus, a totality of 
circumstances under Sonegawa does not establish the Petitioner's continuing ability to pay the 
proffered wage. 
III. CONCLUSION 
The Petitioner's new evidence does not demonstrate its continuing ability to pay the offered 
position's proffered wage, from the petition's priority date onward. Its arguments also do not 
establish our misapplication of law or policy. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of F-&F-, PLLC, ID# 1794419 (AAO Sept. 18, 2018) 
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