dismissed EB-3 Case: Logistics

U.S. Citizenship 
and Immigration 
Services 
In Re : 25767381 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 20, 2023 
The Petitioner, a logistics company, seeks to employ the Beneficiary as an outside sales representative. 
The company requests his classification under the third-preference, immigrant visa category for 
professionals . 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 Nebraska Service Center denied the petition, concluding the record did not 
establish the Petitioner's ability to pay the proffered wage . The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa's , Inc., 26 I&N Dec . 537,537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL) . See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5) . DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a 
position. Id. Labor certification also indicates that the employment of a foreign national will not harm 
wages and working conditions of U.S . workers with similar jobs . Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S . Citizenship and Immigration Services (USCIS). See section 204 of 
the Act , 8 U.S.C. § 1154. Among other things , USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a foreign national 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 . 
A petitioner must demonstrate its continuing ability to pay an offered position's proffered wage, from 
a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of a business's annual reports, 
federal tax returns, or audited financial statements. Id. 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year, beginning with the year of a petition's priority date. If a petitioner did not annually 
pay the full proffered wage or did not pay a beneficiary at all, users considers whether the business 
generated annual amounts of net income or net current assets sufficient to pay any differences between 
the proffered wage and the wages paid. If net income and net current assets are insufficient, users 
may consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967). 1 
The Petitioner's labor certification lists the proffered wage of the offered position of outside sales 
representative as $76,482 year. The petition's priority date is August 25, 2021, the date DOL accepted 
the labor certification application for processmg. See 8 e.F .R. § 204.5( d) ( explaining how to 
determine a petition's priority date). 
In the matter at hand, the Petitioner was structured as a limited liability company and claims to have 
been established in 2007. It filed the Form I-140 on May 13, 2022, without supporting evidence of its 
ability to pay. In a subsequent request for evidence (RFE), the Director stated that the Petitioner had 
not submitted documents to establish its ability to pay the proffered wage. Accordingly, the Director 
requested additional evidence of the Petitioner's ability to pay, including evidence of annual reports, 
audited financial statements, U.S. federal income tax returns, or wages it had paid to the Beneficiary 
(such as IRS Forms W-2, Wage and Tax Statement, IRS Forms 1099-MISe, Miscellaneous Income, 
or pay vouchers). 
In response, the Petitioner provided its 2021 federal income tax return showing a net income 
of-$261,907 and net current assets of-$354,474. 2 In denying the petition, the Director indicated that 
the Petitioner's 2021 tax return showing the company's net income and net current assets did not 
establish its ability to pay the $76,482 proffered wage. The Director concluded therefore that the 
Petitioner had not demonstrated it met the ability to pay requirement. 
On appeal, the Petitioner contends that it is a part of a conglomerate of companies all controlled by R­
D- and that his other companies earned sufficient net income to pay the proffered wage. The Petitioner 
submits corporate charts showing the relationship of all the companies and that the Petitioner works 
with them. In addition, the Petitioner presents audited financial statements for both "C-H-, LLe and 
Subsidiaries" and "e-F-H-G, LLe and Subsidiaries." 3 The Director, however, had afforded the 
1 Federal courts have upheld USCIS' 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); Rahman v. Cherto(J, 641 F. Supp. 2d 349, 351-52 (D. 
Del. 2009). 
2 Net current assets are the difference between a petitioner's current assets and current liabilities. A corporation's year­
end current assets are shown on Schedule L, lines 1 through 6 and its year-end current liabilities are shown on lines 16 
through 18. 
3 While financial data for each ofC-H-, LLC and C-F-H-G-, LLC's subsidiaries are presented separately within the audited 
financial statements, the Petitioner is not identified as a subsidiary and its financial statements are not included in these 
documents. The "C-H-, LLC and Subsidiaries" audited financial statement only briefly mentions the Petitioner on page 
15, stating that "[t]he Company uses [the Petitioner] to manage and operate its various operations" and listing the 
management fees paid to the Petitioner over a three-year period. 
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Petitioner the opportunity to present audited financial statements in response to the RFE. Accordingly, 
we are not required to consider new eligibility claims or evidence in our adjudication of this appeal. 
See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (providing that if"the petitioner was put on 
notice of the required evidence and given a reason opportunity to provide it for the record before the 
denial, we will not consider evidence submitted on appeal of any purpose" and that "we will adjudicate 
the appeal based on the record of proceedings" before the Chief); see also Matter of Obaigbena, 19 
I&N Dec. 533 (BIA 1988). 
Notwithstanding the above, the audited financial statements for both "C-H-, LLC and Subsidiaries" 
and "C-F-H-G, LLC and Subsidiaries" do not establish the Petitioner's ability to pay the proffered 
wage. Since a corporation is a separate and distinct legal entity from its owners and shareholders, the 
assets of its shareholders or of other enterprises or corporations cannot be considered in determining 
the petitioning corporation's ability to pay the proffered wage. See Matter of Aphrodite Investments, 
Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar case, the court in Sitar Restaurant v. Ashcroft, 
2003 WL 22203 713 (D .Mass. Sept. 18, 2003) stated that "nothing in the governing regulation, 8 C .F .R. 
§ 204.5, permits [USCIS] to consider the financial resources of individuals or entities who have no 
legal obligation to pay the wage." Accordingly, the determination of whether the Petitioner has met 
the ability to pay requirement must be made based on the Petitioner's finances, rather than those of a 
separate legal entity or entities. See id. Here, the audited financial statements presented on appeal do 
not establish the Petitioner's ability to pay the proffered wage.4 
Further, considering the totality of the circumstances, the record lacks evidence showing that the 
Petitioner has been a consistently profitable and growing business, nor does the record show the 
Petitioner's reputation within its industry, the occurrence of any uncharacteristic business expenditures 
or losses, or other factors that would overcome the shortfall in net income and net current assets on its 
tax return. 
In light of the above, the Petitioner has not established its continuing ability to pay the proffered wage 
from the priority date of the petition. 
ORDER: The appeal is dismissed. 
4 A legal entity generally has a separate existence from its shareholders, members, managers, officers, or owners. 
Generally, USCTS does not consider the financial resources of persons or entities that have no explicit legal obligation to 
pay the proffered wage, including a parent company, shareholders and officers of a corporation, members or managers of 
a limited liability company (LLC) (even if the LLC is taxed as a partnership or disregarded entity), and limited partners. 
An annual report, audited financial statement, or tax return of a parent company is more probative of a subsidiary's ability 
to pay the proffered wage where the subsidiary's financial data is presented separately within the document. See 6 USC1S 
Policy Manual E.4(A)(5), https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-4. 
3