dismissed EB-3 Case: Medical Equipment

MATTER OF T -0-A- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 8, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which describes itself as a medical equipment distributor, seeks to employ the 
Beneficiary as a solutions architect. 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)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). 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, Texas Service Center, denied the petition. The Director concluded that the Petitioner 
had not established its ability to pay the proffered wage as of the priority date. 
The matter is now before us on appeal. The Petitioner asserts that a single year of negative taxable 
income does not mandate denial of a petition and that the Director erred in not considering the 
totality of the circumstances. Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
As required by statute, the petition is accompanied by an approved ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), certified by the U.S. Department of Labor 
(DOL).
1 
The priority date of the petition is December 16, 2011.
2 
The proffered wage as stated on 
the labor certification is $84,885 per year. 
The issue before us is whether the Petitioner has established the ability to pay the proffered wage to 
the Beneficiary as of the priority date. The regulation 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 
1 
See Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i); see also 8 C.F.R. § 204.5(a)(2). 
2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). 
Matter ofT-0-A- Inc. 
pnonty 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. 
The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job 
offer is realistic. See Matter ofGreat 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 of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
Where a petitioner has filed multiple petitions, we will also consider the petitioner's ability to pay 
the combined wages of each beneficiary. See Patel v. Johnson, 2 F.Supp.3d 108 (D. Mass. 2014); 
see also Great Wall, 144-145. 
On the petition, the Petitioner claimed to have been established in 1990, to have a gross annual 
income of$2.338 million, and to currently employ 13 workers. 
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 a 
petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. In the instant case, the Petitioner employed the 
Beneficiary, but did not pay the Beneficiary the full proffered wage in all the relevant years. The 
Petitioner provided copies of IRS Forms W-2, Wage and Tax Statements, reflecting that it paid the 
Beneficiary as follows: 
Gross Wages Paid 
2011 $59,101.73 
2012 $70,031.03 
2013 $69,977.57 
2014 $64,876.87 
As the proffered wage is $84,885 per year, the Petitioner must establish that it can pay the difference 
between the proffered wage and the wages actually paid to the Beneficiary, that is: 
2011 $25,783.27 
2012 $14,853.97 
2013 $14,907.43 
2014 $20,008.13 
If a 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 
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Matter ofT-0-A- Inc. 
the petitioner's federal income tax return. The Petitioner's tax returns reflect the following net 
income3: 
Net Income 
2011
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$187,658 
2012 -$67,485 
2013 $114,727 
2014 $72,337 
Therefore, the Petitioner did not establish that it had sufficient net income to pay the difference 
between the proffered wage and the wages actually paid to the Beneficiary in 2012. 
As an alternate means of determining a petitioner's ability to pay the proffered wage, USCIS may 
review a petitioner's net current assets. Net current assets are the difference between the petitioner's 
current assets and current liabilities.5 A corporation's year-end current assets are shown on Schedule 
L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. Ifthe total of 
a corporation's end-of-year net current assets and the wages paid to the beneficiary (if any) are equal 
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage 
using those net current assets. The Petitioner's tax returns demonstrate the following end-of-year net 
current assets: 
Net Current Assets 
2012 -$310,551 
For 2012, the Petitioner did not establish it had sufficient net current assets to pay the difference 
between the proffered wage and the wages paid to the Beneficiary. From the date the labor 
certification was accepted for processing by the DOL, the Petitioner had not established that it had 
the continuing ability to pay the Beneficiary the proffered wage date through an examination of 
wages paid to the Beneficiary, or its net income or net current assets. 
On appeal, counsel states that the Petitioner had sufficient cash on hand in 2012 to pay the difference 
between the proffered wage and the wages actually paid to the Beneficiary. Counsel submits bank 
statements dated December 31, 2011; April30, 2012; December 31, 2012; February 28, 2013; April 
30, 2013; December 31, 2013; April30, 2014; December 31, 2014; and, April30, 2015. Counsel's 
reliance on the balances in the Petitioner's bank accounts, however, is misplaced. First, bank 
3 For a C corporation, USCIS considers net income to be the figure shown on Line 28 of the Form 1120, U.S. 
Corporation Income Tax Return. 
4 The Petitioner's fiscal year from May I, 2010, through April 30, 2011, was filed on the Petitioner's 2010 federal 
income tax return. 
5 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). ld at 118. 
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Matter ofT-0-A-lnc. 
statements are not among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required 
to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional 
material "in appropriate cases," the Petitioner in this case has not demonstrated why the 
documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise paints an inaccurate 
financial picture of the Petitioner. Second, the Petitioner submitted bank statements from only two 
months during its fiscal year 2012, December 2011 and April2012. These statements show only the 
amounts in the account on those given dates, and cannot show the sustainable ability to pay a 
proffered wage. Third, no evidence was submitted to demonstrate that the funds reported on the 
Petitioner's bank statements somehow reflect additional available funds that were not reflected on its 
tax return(s), such as the Petitioner's taxable income (income minus deductions) or the cash 
specified on Schedule L that was considered above in determining the Petitioner's net current assets. 
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 ofSonegawa, 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 USCIS deems relevant to the petitioner's ability 
to pay the proffered wage. 
The petitioning entity in Sonegawa was a fashion designer whose work had been featured in Time 
and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. 
The petitioner's clients had been included in the lists of the best-dressed California women. The 
petitioner lectured on fashion design at design and fashion shows throughout the United States and at 
colleges and universities in California. The Regional Commissioner's determination in Sonegawa 
was based in part on the petitioner's sound business reputation and outstanding reputation as a 
couturiere. Here, the Petitioner claims to be "one of the largest medical equipment distributors in the 
Northeastern United States," however, the Petitioner has not demonstrated that prestige in its 
industry. The Petitioner cannot meet the burden of proof simply by claiming a fact to be true, 
without supporting documentary evidence. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also 
Matter of Chawathe, 25 I&N Dec. 369 (AAO 201 0). The Petitioner must support assertions with 
relevant probative and credible evidence. ld. at 376. The Petitioner submitted documentation 
relating to the growth of the health care industry in the United States in general, however, the 
Petitioner has not submitted any documentation to establish its own growth within that industry. 
Rather, the Petitioner's tax records show that its gross revenues, net current assets, and total wages 
and salaries paid have all remained steady since 2011. Therefore, unlike the petitioner in Sonegawa, 
the current Petitioner has not established a history of growth or its reputation within its industry. 
During the year in which the petition was filed in Sonegawa, that petitioner changed business 
locations and paid rent on both the old and new locations for 5 months. There were large moving 
costs and also a period of time when the petitioner was unable to do regular business. The Regional 
Commissioner determined that the petitioner's prospects for a.resumption of successful business 
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Matter ofT-0-A- Inc. 
operations were well established. Here, the Petitioner claims no such uncharacteristic expenses. 
The Petitioner submitted a letter from its accountant claiming uncharacteristic deductions for 
depreciation and deferred revenue in 2012. Depreciation is the decrease in value of a company's 
assets. Depreciation is not an uncharacteristic expense, but is a cost of doing business. Depreciation 
does not represent cash available to pay wages. See River Street Donuts, LLC v. Napolitano, 558 
F.3d 111, 118 (1st Cir. 2009). The Petitioner's accountant states that the Petitioner deferred revenue 
for extended service contracts and that this resulted in a lower operating profit. However, the 
Petitioner did not submit copies of contracts or any other evidence to support the assertion that the 
revenue it deferred could have been available to pay the Beneficiary's wage. The Petitioner did not 
explain why it chose to defer that revenue in 2012, resulting in a negative net income for its fiscal 
year. Furthermore, while the accountant suggests that the company could have made adjustments to 
the deferral of revenue, the Petitioner did not show that making such an adjustment would not have 
altered its revenue in subsequent years and adversely impacted its ability to pay the proffered wage 
in those years. Therefore, unlike the petitioner in Sonegawa, the current Petitioner has not 
established that any of its referenced expenses were uncharacteristic. 
II. CONCLUSION 
Therefore, from the date the labor certification was accepted for processing by the DOL, the 
Petitioner has not established that it had the continuing ability to pay the wages proffered to the 
Beneficiary. 
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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-0-A- Inc., ID# 18094 (AAO July 8, 2016) 
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