dismissed EB-3 Case: Martial Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-V-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 1, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I -140, IMMIGRANT PETITION FOR ALIEN WORKER 
· The Petitioner, a martial arts school, seeks to employ the Beneficiary as a tae kwon do instructor. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based immigrant classification allows a U.S. employer to 
sponsor a foreign national for lawful permanent resident status to work in a position that requires at 
least two years of training or experience. 
The Director, Nebraska Service Center, denied the petition. The decision concluded that the 
Petitioner had not established its ability to pay the proffered wage from the priority date onwards. 
The matter is now before us on appeal. The Petitioner submits paychecks for the Beneficiary and 
claims that it has shown its ability to pay the proffered wage because it paid him the monthly 
equivalent of the proffered wage. Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) 
must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the 
foreign national must 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. 
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), approved by the DOL, accompanies the instant petition. By approving the labor 
certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, 
and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified 
that the employment of a foreign national in the position will not adversely affect the wages and 
working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of the Act. 
In these visa petition proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
Matter of C-V-T-, Inc. 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has authority to 
make preference classification decisions). 
The priority date of this petition, which is the date the DOL accepted the labor certification for 
processing, is October 6, 2014. 1 See 8 C.F.R. § 204.5(d). 
A. Ability to Pay the Proffered Wage 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petitiOn filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
A petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer 
is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 
8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USCIS requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality 
of the circumstances affecting the petitioning business will be considered if the evidence warrants such 
consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
The record reflects that the Petitioner was established in 2009. On the petition, the Petitioner 
claimed to have $215,513 in gross income and to employ two workers. The Beneficiary did not 
indicate on the ETA Form 9089, that he has worked for the Petitioner. The proffered wage is 
$46,31 0 per year. 
In determining a petitioner's ability to pay the proffered wage during a given period, USCIS will 
first examine whether the petitioner employed and paid the beneficiary during that period. If the 
petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, USCIS will next examine the net income figure reflected on the 
petitioner's federal income tax return, without consideration of depreciation or other expenses. If the 
petitioner's net income is insufficient, USCIS will review the petitioner's net current assets. 2 Net 
current assets are the difference between the petitioner's current assets and current liabilities. 3 
1 The priority date is used to calculate when the beneficiary of the visa petition is eligible to adjust his or her status to 
that of a lawful permanent resident. See 8 C.F.R. § 245.1 (g). 
2 Federal courts have upheld our method of determining a petitioner's ability to pay. See River St. Donuts, LLC v 
2 
Matter ofC-V-T-, Inc. 
In the instant case, the Petitioner did not submit Internal Revenue Service (IRS) Forms W-2, Wage 
and Tax Statement, to confirm payment of any wages. However, the record of proceedings contains 
paystubs issued by the Petitioner to the Beneficiary on October 31, 2015, November 30, 2015, 
December 31, 2015, and January 31, 2016. The Petitioner asserts that it paid the Beneficiary $3900 
monthly, which is the monthly equivalent of the yearly proffered wage. Since the Petitioner has paid 
the Beneficiary at the proffered wage rate since October 2015, the Petitioner asserts on appeal that 
according to the language in a memorandum dated May 4, 2004, from William R. Yates, Associate 
Director of Operations, USC IS, regarding the determination of ability to pay (Yates Memorandum), 
it has established its continuing ability to pay the proffered wage beginning on the priority date. See 
Memorandum from William R. Yates, Associate Director for Operations, USCIS, HQOPRD 
90/16.45, Determination of Ability to Pay under 8 CFR 204.5(g)(2) 2 (May 4, 2004), 
http://www.uscis.gov/laws/policy-memoranda. The Yates Memorandum provides guidance to 
adjudicators 4 to review a record of proceedings and make a positive determination of a petitioner's 
ability to pay if, in the context of the beneficiary's employment, "[t]he record contains credible 
verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or 
currently is paying the proffered wage." 
The regulation at 8 C.F.R. § 204.5(g)(2) requires that a petitioner demonstrate its continuing ability 
to pay the proffered wage beginning on the priority date, which in this case is October 6, 2014. 
Thus, the Petitioner must show its ability to pay the proffered wage not only from October 1, 2015, 
when the Petitioner claims it actually began paying the proffered wage rate, but it must also show its 
continuing ability to pay the proffered wage from October 6, 2014, to September 30,2015. 
While the 2016 paystub indicates that the Petitioner currently pays the Beneficiary gross wages of 
$3900 per month (approximately $46,800 per year), the 2015 paystubs reflect that the Petitioner paid 
the Beneficiary totalgross wages of $11,700 in 2015. Further, there is no evidence in the record to 
indicate that the Petitioner paid any wages to the Beneficiary in 2014. Accordingly, the Petitioner must 
establish that it had the ability to pay the full proffered wage of $46,310 in 2014 and the $34,610 
difference between the actual wages paid to the Beneficiary and the proffered wage in 2015. 
Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Tongatapu Woodcraft Haw., Ltd v. Feldman, 736 F.2d 1305, 1309 (9th 
Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-43 (S.D. Cal. 2015); Rivzi v. Dep 't of Homeland Sec., 
37 F. Supp. 3d 870,883-84 (S.D. Tex. 2014), affd, --Fed. Appx. --,2015 WL 5711445, *1 (5th Cir. Sept. 30, 2015). 
3 According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items having (in 
most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and 
accrued expenses (such as taxes and salaries). I d. at 118. 
4 USCIS memoranda articulate internal guidelines for USCIS personnel; they do not establish judicially enforceable 
rights. An agency's internal personnel guidelines "neither confer upon [plaintiffs] substantive rights nor provide 
procedures upon which [they] may rely." Loa-Herrera v. Trominski, 231 F.3d 984,989 (5th Cir. 2000)(quoting Fano v. 
O'Neill, 806 F.2d 1262, 1264 (5th Cir.1987)). 
3 
Matter of C- V- T-, Inc. 
The Petitioner's 2014 Form 1120S, U.S. Income Tax Return for an S Corporation, reflects that it had 
-$5,827 in net income and $19,227 in net current assets.5 As such, for the year 2014, the Petitioner 
did not have sufficient net income or net current assets to pay the proffered wage. 
The Petitioner has not submitted its 2015 tax return, annual report, or audited financial statements. 
However, the record of proceedings contains a December 9, 2015, accountant's compilation report 
for the Petitioner. The regulation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies 
on financial statements to demonstrate its ability to pay the proffered wage, those financial 
statements must be audited. An audit is conducted in accordance with generally accepted auditing 
standards to obtain a reasonable assurance that the financial statements of the business are free of 
material misstatements. The accountant's compilation report makes clear that they were produced 
pursuant to a compilation rather than an audit. The accountant's report also makes clear that 
financial statements produced pursuant to a compilation are the representations of management 
compiled into standard form. The unsupported representations of management are not reliable 
evidence and are insufficient to demonstrate the ability to pay the proffered wage. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter ofSojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
ofTreasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Even if we accepted the December 9, 2015, accountant's compilation report, it reflects insufficient 
net income or net current assets to pay the difference between the actual wages paid to the Beneficiary 
and the proffered wage in 2015.6 
Accordingly, the Petitioner has not established that it had sufficient net income or net current assets to 
pay the proffered wage. 
USCIS may also consider the overall magnitude of a petitioner's business actiVItieS in its 
determination of the petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N 
Dec. 612 (Reg'l Comm'r 1967). USCIS may consider such factors as the number of years the 
petitioner has been doing business, the established historical growth of the petitioner's business, the 
overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, 
the petitioner's reputation within its industry, whether the beneficiary is replacing a former employee 
or an outsourced service, or any other evidence that users deems relevant to the petitioner's ability 
to pay the proffered wage. 
5 While the Director indicated that the Petitioner's 2014 net income was $3924, Schedule K of the Form 1120S reflects 
additional income, credits, deductions or other adjustments. Therefore, the Petitioner's net income is found on Schedule K of 
its tax return. See Instructions for Form I 120S, IRS, www.irs.gov/pub/irs-pdf/il120s.pdf (accessed June 23, 2016) 
(indicating that Schedule K is a summary schedule of all shareholders' shares of the corporation's income, deductions, 
credits, etc.). 
6 The accountant's compilation report shows net income of $404 and net current assets of -$10,480 as of November 30, 
2015. 
4 
(b)(6)
Matter ofC-V-T- , Inc. 
A line of credit agreement dated September 15, 2014, between the Petitioner and of 
a sole proprietorship, together with the Petitioner's bank statements, indicate that 
the Petitioner drew $30,000 of a $50,000 line of credit on November 19, 2015. In calculating a 
petitioner's ability to pay the proffered salary, USCIS will not augment the petitioner's net income 
or 
net current assets by adding in a petitioner's credit limits, bank lines, or lines of credit. Since the 
line of credit is a "commitment to loan" and not an existent loan, the Petitioner has not established 
that the unused funds from the line of credit are available at the time of filing the petition. 
Specifically, the line of credit agreement states that "no provision of this Agreement shall be deemed 
to require Lender to advance any sum of money at any time." At any time the Petitioner requests an 
advance, the "Lender for · any reason or no reason may deny such request" pursuant to the line of 
credit agreement. Comparable to the limit on a credit card, the line of credit cannot be treated as 
cash or as a cash asset. 
While the Petitioner has submitted a business plan for the funds, it does not contain audited cash 
flow statements demonstrating that the line of credit will augment and not weaken its overall 
financial position.7 Additionally, the projected gross income numbers reflect that the influx of cash 
and expansion of the business would not generate positive net income until 2017, and that the 
increase in net income would not cover the Beneficiary's proffered wage.8 Finally, USCIS will give 
less weight to loans and debt as a means of paying salary since the debts will increase a petitioner's 
liabilities and will not improve its overall financial position. Although lines of credit and debt are an 
integral part of any business operation, USCIS must evaluate the overall financial position of a 
petitioner to determine whether the employer is making a realistic job offer and has the overall 
financial ability to satisfy the proffered wage. See Matter of Great Wall, 16 I&N Dec. 142 (Acting 
Reg' I Comm'r 1977). 
In response to the Director's notice of intent to deny, the Petitioner claimed that it had low net 
income in 2014 due to opening three new branches that year. However, the 
tax returns for that year 
reflect payment of wages in the amount of$5751, an amount that contradicts the Petitioner's claim 
of expansion in 2014. Further, a letter dated June 26, 2015, from ;the Petitioner states that the 
Petitioner had only two full-time professional employees and a gross income of $215,000 at that 
time. As discussed above, the business plan and financial documents indicate that the Petitioner did 
not open new locations or expand the business until late 2015 and that such an expansion would not 
show sufficient net income growth to cover the proffered wage even after 3 years. Accordingly, 
there is insufficient evidence of the occurrence of uncharacteristic business expenditures or losses 
from which the Petitioner has since recovered. Additionally, there is insufficient evidence in the 
record of proceedings to establish the Petitioner 's historical growth or reputation within its industry. 
Accordingly, the Petitioner ~as not established under the totality of its circumstances that it has the 
ability to pay the proffered wage from the priority date onwards. 
7 As discussed above, the December 9, 2015, accountant's compilation report is not audited. 
8 
The business plan projects net income growth of $24,476 the second year and $40,200 the third year after cash influx 
and expansion. 
5 
(b)(6)
Matter of C- V- T-, Inc. 
The evidence in the record of proceedings does not establish that the Petitioner had the continuing 
ability to pay the proffered wage beginning on the priority date. 
B. The Beneficiary's Experience 
Although not addressed by the Director, we independently note that, even if the Petitioner had 
established that it had the ability to pay the proffered wage, the record does not establish that the 
Beneficiary possesses the required experience for the position. 
The beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b)(l), (12); see also Matter of 
Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter of Katigbak, 14 
I&N Dec. 45, 49 (Reg'l Comm'r 1971). In the instant case, the labor certification states the 
minimum requirements for the offered position are a high school diploma and 24 months of 
experience as a tae kwon do instructor. 
The regulation at 8 C.F.R. § 204.5(1)(3) provides: 
(ii) Other documentation-
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
The record contains an April 10, 2014, certification from on 
letterhead stating that the Beneficiary was employed as an "instructor" from February 10, 
2002, to February 20, 2005, in , B.C. However, the certification does not provide a 
description of the Beneficiary's job duties or the title of the individual attesting to the work experience 
as required by 8 C.F.R. § 204.5(1)(3)(ii)(A). Further, on the Beneficiary's Form G-325A, Biographic 
Information form, dated July 1, 2015, he left blank the section requiring information regarding his last 
occupation abroad. 
Accordingly, the submitted evidence does not establish that the Beneficiary possessed 24 months of 
experience as a taekwondo instructor as required by the labor certification. 
II. CONCLUSION 
In summary, the Petitioner has not established its continuing ability to pay the proffered wage from the 
priority date onwards. The Director's decision denying the petition is affirmed. The record also does 
not establish the Beneficiary's possession of the required experience by the petition's priority date. 
6 
Matter of C-V-T-, Inc. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Brantigan, 11 I&N Dec. 493 
(BIA 1966); Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been 
met. I --
ORDER: The appeal is dismissed. 
Cite as Matter ofC-V-T-, Inc., ID# 18368 (AAO Aug. 1, 2016) 
7