dismissed EB-3 Case: Medical Diagnostic Imaging

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-D-D-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 25, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a medical diagnostic imaging business, seeks to employ the Beneficiary as a diagnostic 
medical supervisor. It 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 "EB-3" 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 on the ground that the Petitioner did 
not establish its continuing ability to pay the proffered wage from the priority date onward. On 
appeal the petitioner submitted additional evidence and asserts that the documentation of record 
established its ability to pay the proffered wage. 
After reviewing the file we issued a notice of intent to dismiss (NOID) the appeal. In the NOID we 
discussed evidentiary issues in the record which raised the question of whether there was an 
undisclosed ownership or familial relationship between the Petitioner and the Beneficiary, contrary 
to information provided in the labor certification. We advised the Petitioner that the willful 
misrepresentation of a material fact on the labor certification could lead to its invalidation, in which 
case the petition would not be approvable. 
The Petitioner responded to the NOID with additional documentation. We find, however, that the 
evidence of record still does not establish the Petitioner's ability to pay the proffered wage. 
Moreover, the Petitioner's response to the NOID does not adequately address the evidentiary issues 
we raised regarding an ownership or familial relationship between the Petitioner and the Beneficiary . 
Accordingly , we will invalidate the labor certification based on the willful misrepresentation of a 
material fact. We will dismiss the appeal, therefore, because the Petitioner has not established its 
ability to pay the proffered wage and because the petition lacks a valid labor certification. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
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). By approving the labor certification, DOL 
Matter of K-D-D-
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
offered position and that employing a foreign national in the position will not adversely affect the 
wages and working conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)­
(II) of the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
approves the petition, the foreign national may 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. 
II. ANALYSIS 
The issues before us are whether the Petitioner has established its ability to pay the proffered wage 
of the job offered from the priority date onward and whether the Petitioner and the Beneficiary 
willfully misrepresented a material fact on the labor certification regarding an ownership and/or 
familial relationship between the Petitioner and the Beneficiary 
A. Ability to Pay the Proffered Wage 
To be eligible for the classification requested for the beneficiary, a petitioner must establish that it 
has the ability to pay the proffered wage stated in the labor certification. As provided in the 
regulation at 8 C.F.R. § 204.5(g)(2): 
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. In a case where the prospective United States 
employer employs 100 or more workers, the director may accept a statement from a 
financial officer of the organization which establishes the prospective employer's 
ability to pay the proffered wage. In appropriate cases, additional evidence, such as 
profit/loss statements, bank account records, or personnel records, may be submitted 
by the petitioner or requested by [USCIS]. 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date of the petition onward. The priority date of a petition is the 
date the underlying labor certification is filed with the DOL, which in this case was June 19, 2017. 
The labor certification states that the wage offered for the job of diagnostic medical supervisor is 
$63,586 per year. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. In this case there is no evidence the Petitioner has 
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Matter of K-D-D-
ever employed the Beneficiary. Therefore, the Petitioner cannot establish its continuing ability to 
pay the proffered wage from the priority date onward based on wages paid to the Beneficiary. 
If a petitioner does not establish that it has employed and paid the beneficiary an amount equal to or 
above the proffered wage from the priority date onward, USCIS 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 ordinarily be considered able to pay the proffered 
wage during that year. 
The only pertinent evidence before the Director was a copy of a Schedule C (Form 1040), Profit or 
Loss from Business, for 2017, which recorded a net profit of $16,216. The Petitioner did not submit 
the rest of the Form 1040, U.S. Individual Income Tax Return, to which the Schedule C was added, 
nor explain who filed it. The Director found that the information on the Schedule C was insufficient 
to establish the Petitioner's ability to pay the proffered wage of $63,586. Furthermore, since a 
Schedule C is not a complete federal tax return, it does not meet the evidentiary requirement of 
8 C.F.R. § 204.5(g)(2). Business income recorded in Schedule C is normally carried forward to page 
1 of the Form 1040 and included in the calculation of the taxpayer's adjusted gross income. 1 The 
Petitioner has not provided a copy of anyone's Form 1040 for 2017. On appeal the Petitioner 
submits a copy of its Form 1065, U.S. Return of Partnership Income, for 2018, which on page 1, line 
22, recorded "ordinary business income" of $96,175.2 The Petitioner has not explained why two 
different types of federal income tax returns were submitted for 2017 and 2018. 3 Even if we accept 
the federal tax return for 2018 as good evidence of the Petitioner's ability to pay the proffered wage 
that year, the Petitioner has still not submitted evidence of its ability to pay the proffered wage in 
201 7. Thus, the tax return documentation in the record does not establish the Petitioner's continuing 
ability to pay the proffered wage from the priority date of June 19, 2017, onward. 
We may also consider the totality of the Petitioner's circumstances, as set forth in Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967), in determining its ability to pay the proffered 
wage. Per Matter of Sonegawa USCIS may, at its discretion, consider evidence relevant to the 
petitioner's financial ability that falls outside of its net income and net current assets. We 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 petitioner's reputation within its industry, the 
overall number of employees, whether the beneficiary is replacing a former employee or an 
outsourced service, the amount of compensation paid to officers, the occurrence of any 
1 If the taxpayer's business is a sole proprietorship we would also take the taxpayer's personal expenses into account. 
2 The Petitioner also submits a copy of its New York State income tax return (Partnership Return, Form TT-204) for 
2018, which likewise recorded "ordinary business income" of$96,l 75. 
3 It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Attempts to explain or reconcile such inconsistencies will not suffice without competent evidence pointing to where the 
truth lies. See Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's 
evidence also reflects on the reliability of the petitioner's remaining evidence. See id. 
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Matter of K-D-D-
uncharacteristic business expenditures or losses, and any other evidence that USCIS deems relevant 
to the petitioner's ability to pay the proffered wage. 
The Petitioner states that its business started in November 2015 and had two employees at the time 
its petition was filed in October 201 7. Thus, the Petitioner does not have an extensive business 
history from which we might be able to draw conclusions about its overall financial strength. The 
Petitioner indicates that the job offered is a new position. As such, the Petitioner would not be 
diverting fonds already being spent on the position to the Beneficiary. On appeal the Petitioner 
submits a statement from I I dated February 10, 2019, which appears to show that the 
Petitioner had an account that was opened in February 2016 and had a current balance of 
$20,017.10. While the regulation at 8 C.F.R. § 204.5(g)(2) allows for the submission of other 
evidence such as bank account records "in appropriate cases," bank account records are not among 
the three types of required evidence identified in the regulation - annual reports, federal tax returns, 
or audited financial statements - to demonstrate a petitioner's ability to pay the proffered wage. 
Bank account statements show an account balance on a given date, not the account holder's 
sustainable ability to pay a proffered wage over time. In this case the Petitioner has not submitted 
any account statements aside from the letter in February 2019, so there is no evidence of the account 
balance in previous years back to the priority date in June 2017. Furthermore, the Petitioner has not 
shown that the money in its bank account constitutes a financial resource that could be utilized 
exclusively to pay the proffered wage, and would not be needed to pay other expenses. For the 
reasons discussed above, we find that the Beneficiary has not established its ability to pay the 
proffered wage from the priority date onward based on the totality of its circumstances. 
B. Willful Misrepresentation of a Material Fact on the Labor Certification 
The regulation at 8 C.F.R. § 204.5(a)(2) provides that petitions for employment-based immigrant 
classifications, including those for professional classification, must generally be accompanied by an 
individual labor certification from the DOL. A petition that lacks a required individual labor 
certification is not considered properly filed. See id. 
The regulation at 20 C.F.R. § 656.30(d) provides, in pertinent part, that "after issuance, a labor 
certification is subject to invalidation by the DHS [Department of Homeland Security] .... upon a 
determination, made in accordance with [its] procedures or by a court, of fraud or willful 
misrepresentation of a material fact involving the labor certification application." A willful 
misrepresentation of a material fact "made in connection with an application for visa or other 
documents" is one which "tends to shut off a line of inquiry which is relevant to the alien's 
eligibility." Matter of S- and B-C-, 9 I&N Dec. 436,447 (BIA 1961). 
In section C of the labor certification (Employer Information) the Petitioner answered "No" to the 
following question at C.9: 
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Matter of K-D-D-
Is the employer a closely held corporation, partnership, or sole proprietorship in 
which the alien has an ownership interest, or is there a familial relationship between 
the owners, stockholders, partners, corporate officers, or incorporators, and the alien? 
In our NOID we observed that the petitioning entity and the Beneficiary share a family name and 
that the Petitioner, according to the labor certification, has only one employee. 4 We also observed 
that the partial income tax returns in the record raised additional questions about the relationship 
between the Petitioner and the Beneficiary. For example, the Form 1065, U.S. Return of Partnership 
Income, for 2018, which categorizes the Petitioner as a general partnership, was incomplete and did 
not identify the partner(s). The same applied to the New York State partnership return for 2018. For 
2017 we observed that a Schedule C (Form 1040), Profit or Loss from Business, was submitted for 
the Petitioner without the rest of the Form 1040, Individual Income Tax Return, of which it was a 
part. We noted that the missing portion of the Form 1040 would identify the business owner and 
taxpayer who filed the Form 1040 for 2017. To address these evidentiary shortfalls we requested the 
Petitioner to submit copies of the complete Form 1040 for 2017, the complete Form 1065 for 2018, 
and documentation showing the Petitioner's ownership structure. In addition, we asked for answers 
to the following questions: (1) whether there is a business or family relationship between the 
Beneficiary and the Petitioner's proprietor and, if so, the nature of that relationship; and (2) the 
identity of the Petitioner's employee(s), their positions, and whether any have ownership interest(s) 
in the Petitioner. 
In its response to our NOID the Petitioner did not address either of the above questions, did not 
submit a complete copy of the 2017 Form 1040, and submitted just two additional pages of its 2018 
Form 1065. These pages included Schedule K-1 which identified the Petitioner's "proprietor" as 
holding a 30% interest in the partnership but did not identify the holder of the other 70% interest. 
Thus, the Petitioner has not submitted the documentation we specifically requested and has not 
answered either of the questions we specifically asked in order to resolve the issues of whether there 
is a familial relationship between the Petitioner's proprietor and the Beneficiary and whether any 
employee(s) of the Petitioner (specifically, the Beneficiary) hold ownership interest(s) in the 
business. Accordingly, the Petitioner has not substantiated its claim at C.9 of the labor certification 
that there is no ownership or familial link between the Petitioner and the Beneficiary. The regulation 
at 8 C.F.R. § 103.2(b)(14) provides that the failure to submit requested documentation which 
precludes a material line of inquiry shall be grounds for denying the benefit request. The 
Petitioner's failure to submit the required evidence is in itself sufficient to deny the petition. 
Moreover, based on the record before us we find that by answering "No" to the question at C.9 of 
the labor certification the Petitioner willfully misrepresented material facts. A misrepresentation is 
an assertion or manifestation that is not in accord with the true facts. For an immigration officer to 
find a willful and material misrepresentation of fact, he or she must determine that ( 1) the petitioner 
or beneficiary made a false representation to an authorized official of the U.S. government, (2) the 
4 The petition itself states that the Petitioner has two employees, without explaining why this number is different from 
that on the labor certification. 
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Matter of K-D-D-
misrepresentation was willfully made, and (3) the fact misrepresented was material. See Matter of 
M-, 6 I&N Dec. 149 (BIA 1954); Matter of Kai Hing Hui, 15 I&N Dec. 288,289 (BIA 1975). The 
term "willfully" means knowing and intentionally, as distinguished from accidentally, inadvertently, 
or in an honest belief that the facts are otherwise. See Matter of Healy and Goodchild, 17 I&N Dec. 
22, 28 (BIA 1979). A "material" misrepresentation is one that "tends to shut off a line of inquiry 
relevant to the alien's eligibility." Matter of Ng, 17 I&N Dec. 536, 537 (BIA 1980). 
In this case the Petitioner misrepresented facts concerning an ownership interest by the Beneficiary 
in the Petitioner and a familial relationship between the Beneficiary and the petitioning entity which 
bears his surname. These facts are material to the issue of whether the proffered position of 
diagnostic medical supervisor is a bona fide job opportunity open to U.S. workers. The petitioner has 
the burden of establishing that a bona fide job opportunity exists when it is asked to show that the 
job is clearly open to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987); see 
also 8 U.S.C. § 1361; 20 C.F.R. § 656.17(1). By answering "No" to C.9, the Petitioner cut off 
DOL's inquiry into the bona fide nature of the job opportunity. 
The factors to be examined in determining whether a bona fide job opportunity exists are set forth in 
a decision by the Board of Alien Labor Certification Appeals in Matter of Modular Container 
Systems, Inc. 89-INA-288 (BALCA 1991). Those factors include such items as whether the 
beneficiary (a) is in the position to control or influence hiring decisions regarding the job for which 
labor certification is sought; (b) is related to the corporate directors, officers, or employees; ( c) was 
an incorporator or founder of the company; ( d) has an ownership interest in the company; ( e) is 
involved in the management of the company; (f) is on the board of directors; (g) is one of a small 
number of employees; (h) has qualifications for the job that are identical to specialized or unusual 
job duties and requirements stated in the application; and (i) is so inseparable from the sponsoring 
employer because of his or her persuasive presence and personal attributes that the employer would 
be unlikely to continue in operation without the beneficiary. 
Many or all of these factors could apply in this case. In particular, the Beneficiary has an apparent 
familial tie to the proprietor and a possible ownership interest in the business, is one of at most two 
employees, is likely to be involved with the management of the business including the control of or 
pervasive influence over hiring for the proffered position, and may well be so inseparable from the 
sponsoring employer that the business would probably not stay in operation without the 
Beneficiary's services. The Petitioner was given the opportunity to explain the derogatory 
information and evidence in the record in response to our NOID, but failed to do so. As previously 
discussed, the Petitioner did not submit the documentation we requested, nor answer the questions 
we asked, to resolve the issues of whether there is a familial relationship between the Petitioner's 
proprietor and the Beneficiary and whether the Beneficiary holds an ownership interest in the 
business. By withholding this evidence the Petitioner has shut off a line of inquiry that is crucial to 
the Beneficiary's eligibility. 
Thus, the Petitioner has not demonstrated that the Beneficiary has no ownership interest in the 
petitioning entity and that no familial relationship exists between the Beneficiary and the petitioning 
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Matter of K-D-D-
entity. We conclude, therefore, that by answering "No" to the question at C.9 of the labor 
certification the Petitioner willfully misrepresented facts material to the issue of whether the 
proffered position of diagnostic medical supervisor is a bona fide job opportunity open to U.S. 
workers. That issue was relevant to the DO L's review and approval of the labor certification and, by 
extension, to the Beneficiary's eligibility for the requested visa classification. 
In accordance with the regulation at 20 C.F.R. § 656.30( d) we will invalidate the labor certification. 
Since the petition lacks a valid labor certification, it cannot be approved. 8 C.F.R. § 204.5(a)(2). 
III. CONCLUSION 
The Petitioner has not established its ability to pay the proffered wage from the priority date onward. 
In addition, since the labor certification underlying the petition is invalidated, the petition cannot be 
approved. The appeal will be dismissed for the above stated reasons, with each considered an 
independent and alternative basis for the decision. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The approval of the ETA Form 9089, case numberl I is 
invalidated under 20 C.F.R. § 656.30(d), based on the Petitioner's 
willful misrepresentation of a material fact. 
Cite as Matter of K-D-D-, ID# 5257297 (AAO Nov. 25, 2019) 
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