dismissed EB-3 Case: Mental Health

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-F-C-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non- Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 28,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a mental and behavioral health provider, seeks to employ the Beneficiary as an 
administrative support worker. It requests classification of the Beneficiary as a skilled worker under 
the third preference immigrant category. 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 of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner had the ability to pay the protTered wage to the Beneficiary. 
On appeal, the Petitioner states that it has the ability to pay the proffered wage and submits 
additional evidence. Upon de novo review, we will dismiss the appeal. 
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). S'ee section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the 
DOL 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 atTect 
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 tiles an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. Third. 
if USCIS approves the petition, the foreign national applies for an immigrant visa abroad or, if 
eligible, adjustment of status in the United States. See section 245 ofthe Act. 8 U.S.C. § 1255. 
II. ANALYSIS 
A petitioner must establish that it has the ability to pay the beneficiary the proffered wage. as stated 
on the labor certification, from the priority date onward. The regulation at 8 C.F.R. § 204.5(g)(2) 
provides, in pertinent part, as follows: 
Matter of H-F-C-. Inc. 
Ability of pro:-.pective employer to pay wage. Any petitiOn filed by or for an 
employment-based immigrant which requires an otTer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the protTered 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. . . . 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 the Service. 
In this case, the labor certification was accepted on August 4, 2015, the priority date. The proffered 
wage stated on the labor certification is $31200 per year, based on the protTered hourly rate of $15. 
Therefore, the Petitioner must establish its ability to pay the full proffered wage of $3 1 ,200 from 
2015 onward. 
In determining a petitioner's ability to pay the protTered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. If 
the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal 
to or greater than the profTered wage, the evidence is considered proof of the petitioner's ability to 
pay the proffered wage. Although the Petitioner claimed to have employed the Beneficiary as a 
student intern, the record does not establish that the Petitioner paid the Beneficiary wages in any 
year. Accordingly, the Petitioner cannot establish its ability to pay the protTered wage based on 
wages actually paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount at least equal to the 
proffered wage from the priority date onward, users will examine the net income and net current 
assets figures entered on the petitioner's federal income tax return(s). If either of these figures 
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 be considered able to pay the proffered 
wage during that year. The Petitioner is an S corporation. 1 The Petitioner's tax returns for 2015 and 
2016 state net income of $14,726 and $100,663, respectively. which establishes the Petitioner's 
ability to pay the proffered wage for 2016 but not for 2015. Therefore, the Petitioner's net income is 
not sufficient to pay the pro1Tered wage in 2015. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS may 
review the petitioner's net current assets. Net current assets are the difference between the 
petitioner's current assets and current liabilities. 2 A corporation's year-end current assets are shown 
1 In 2015 and 2016, the Petitioner filed an IRS Form 1120S. Where an S corporation's income is exclusively from a 
trade or business, USC IS considers net income to be the figure for ordinary income, shown on line 21 of page one of the 
petitioner's IRS Form 1120S. 
2 According to Barron's Dictionary o(Accounting Terms 117 (3d 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 
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Matter of H-F-C-, Inc. 
on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. 
If the 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 2015 tax return states end-of-year net 
current assets of $0, which is insufficient to pay the proffered wage for that year. 
On appeal, the Petitioner requests that USCIS prorate the proffered wage for the portion of 2015 that 
occurred after the priority date of August 4, 2015. and consider its net income as sufficient evidence 
of its ability to pay the prorated wage. We will not, however, consider net income for an entire tax 
year towards an ability to pay a lesser period of the proffered wage any more than we would 
consider two tax years of net income towards paying the annual proffered wage. Although we will 
not prorate the proffered wage, we may consider the effect of a short time period between the 
priority date and the end of the priority date year in the context of our totality of the circumstances 
analysis. 
The Petitioner also states on appeal that we should use its 2015 and 2016 evidence to conclude that it 
has established its ability to pay the proffered wage. However. a Petitioner must establish its ability 
to pay the proffered wage as of the priority date onward. 8 C.F.R. § 204.5(g)(2). To the extent that 
the Petitioner appears to be suggesting that we consider its 2016 tax returns in reviewing its 2015 
ability to pay, we cannot consider a Petitioner's 2016 net income to retroactively establish its ability 
to pay in 2015. 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 Beneficiary the 
proffered wage as of the priority date through an examination of its net income or net current assets. 
In cases where neither a petitioner's net income nor its net current assets establish its ability to pay 
the proffered wage during the required period, US CIS may also consider the overall magnitude of its 
business activities. Matter ol SoneKmt'a. 12 I&N Dec. 612. 614-15 (Reg'l Comm'r 1967. In 
assessing the totality of the petitioner's circumstances, USCIS may look at such factors as the 
number of years it has been in business, its record of growth, the number of individuals it employs, 
abnormal business expenditures or losses, its reputation within its industry, whether the beneficiary 
is replacing a former employee or an outsourced service, or any other evidence it deems relevant. 
As noted, we may also consider the effect of a short time period between the priority date and the 
end of the priority date year in the context of our totality of the circumstances analysis. Here. the 
August priority date represents a significant time period of 2015. over which the Petitioner must 
demonstrate its ability to pay. Considering the timing of the priority date with the negative factors 
discussed below, we do not find that the Petitioner has demonstrated its ability to pay through under 
a totality of the circumstances analysis. 
On appeal, the Petitioner contends that it has been a successful business and is expanding to two 
additional locations. It provides leasing information and evidence that it registered the new business 
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). /d. at 118. 
.
Matter of H-F-C- , Inc. 
locations and obtained alarms and internet However, the Petitioner's addition of new office space 
was during 2017. Consequently, evidence that the Petitioner claims demonstrates its growth and 
expansion in 2017 does not establish that it had financial resources to pay the proffered wage in 
2015. 
The Petitioner includes copies of brochures and photographs taken at a conference showing that it 
was locally recognized as a "Fast Growing Latino Business. " The Petitioner claims that the 
in Florida included the Petitioner on the list of such businesses based on the 
Petitioner ' s "growth and economic solvency. " However, the Petitioner does not provide 
accompanying documentation establishing how its business was assessed or found eligible for 
inclusion on the list of businesses. Consequently, this evidence does not establish that the Petitioner 
has in fact experienced growth and economic solvency for purposes of establishing its ability to pay 
in2015. 
Finally, with respect to prior years , we note that the record contains the Petitioner"s Forn1 1120S for 
20 14; however , that tax return shows the Petitioner had net income of -$5,018 and net current assets 
of $0, figures which do not tend to demonstrate that the Petitioner ' s net income and net current 
assets were uncharacteristically low in 2015 , the year in which the Petitioner was first required to 
demonstrate its prospective ability to pay. Consequently, the Petitioner's evidence is not sufficient 
to show a historical pattern of growth. There is also no independent evidence of the Petitioner ' s 
reputation within the mental health care industry and the Petitioner has not claimed or established 
that it has experienced uncharacteristic losses or expenses in the period in question. As a result , we 
do not find the record to contain sufficient evidence to conclude that the totality of the Petitioner" s 
circumstances establish its ability to pay the proffered wage from the p1iority date onward. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage to the Beneficiary 
from the priority date onward. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-F-C-. Inc. , ID# 1039166 (AAO Feb. 28, 20 18) 
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