dismissed EB-3 Case: Operations Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 6942191 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 17, 2020 
The Petitioner seeks to employ the Beneficiary as an operations research analyst under the third­
preference, immigrant visa classification for professionals. See Immigration and Nationality Act 
(the Act) section 203(b )(3)(A)(ii), 8 U.S .C. § 1153(b )(3)(A)(ii). 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the proffered wage of the offered position. 
Also, finding that the company willfully concealed the Beneficiary's ownership interest in it, the 
Director invalidated the accompanying certification from the U.S. Department of Labor (DOL). 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 
of the Act , 8 U.S .C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional 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 DOL 
certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). DOL approval 
signifies that insufficient U.S. workers are able, willing , qualified, and available for an offered position. 
Id. DOL also found that 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 labor certification 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 determines whether a beneficiary meets the 
requirements of a DOL -certified position and a requested visa classification. If USCIS grants a 
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. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). For petitioners with less than 100 employees, as in this case, evidence of ability to 
pay must include copies of annual reports, federal tax returns, or audited financial statements. Id. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the foll 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay the 
proffered wage, USCIS considers whether it generated annual amounts of net income or net current 
assets sufficient to pay any difference between the proffered wage and the wages paid. If net income 
and net current assets are insufficient, USCIS may consider additional factors affecting a petitioner's 
ability to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 
1967).1 
Here, the labor certification states the proffered wage of the offered position of operations research 
analyst as $74,880 a year. The petition's priority date is September 21, 2017, the date DOL received 
the labor certification application for processing. See 8 C.F .R. § 204.5( d) ( explaining how to 
determine a petition's priority date). 
The record indicates the Petitioner's employment of the Beneficiary since October 2011. The 
company submitted copies of IRS Forms W-2, Wage and Tax Statements, for 2017, the year of the 
petition's priority date, and 2018. The Forms W-2 indicate that, in both years, the Petitioner paid the 
Beneficiary $70,000.08. 2 That amount does not equal or exceed the annual proffered wage of 
$74,880. Thus, based solely on wages paid to the Beneficiary, the record does not establish the 
Petitioner's ability to pay the proffered wage. Nevertheless, we credit the Petitioner's payments. 
The company need only demonstrate its ability to pay the differences between the annual proffered 
wage and the wages paid, or $4,879.92 in both 2017 and 2018. 
The Petitioner submitted copies of federal income tax returns of its parent company for 201 7 and 
2018. 3 Both the net income and net current asset amounts reflected on the 2018 tax return exceed 
the $4,879.92 difference between the annual proffered wage and wages paid that year. The record 
therefore establishes the Petitioner's ability to pay in 2018. The 2017 return, however, reflects net 
income of $3,995 and a negative amount of net current assets. Neither amount equals or exceeds the 
difference between the proffered wage and the wages paid. The Petitioner also submitted unaudited 
financial statements for 2017 that list its finances separately from those of its parent company. The 
financial statements, however, report that the Petitioner generated negative amounts of net income 
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); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 
936, 942-43 (S.D. Cal. 2015). 
2 The Forms W-2 indicate their issuance by a "PEO" (professional employer organization) that administrates the 
Petitioner's payroll. The forms therefore indicate that the Petitioner paid the Beneficiary's wages. 
3 The record indicates that, as a single-member limited liability company (LLC), the Petitioner need not file its own U.S. 
income tax returns. See 26 C.F.R. § 301.7701-2(c)(2)(ii) (requiring the Internal Revenue Service (IRS) to disregard a 
single-member LLC as an entity separate from its owner, unless the LLC chooses to be taxed as a corporation). 
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and net current assets that year. Thus, based on examinations of wages the Petitioner paid the 
Beneficiary, its net income, and its net current assets, the record does not establish its ability to pay 
the proffered wage in 2017, the year of the petition's priority date. 
On appeal, the Petitioner argues that the Director disregarded evidence of its ability to pay in 201 7. 
The Petitioner submitted a letter from a manager of its parent company. The letter indicates that the 
parent has a $1 million line of credit from which, as of March 2019, it had not drawn any funds. A 
copy of the November 2016 agreement under which the parent acquired the Petitioner also refers to 
the establishment of the $1 million credit line. 
A credit line, however, does not legally obligate a party to provide funds to another. See John 
Downes & Jordan Elliot Goodman, Barron's Dictionary of Finance and Investment Terms 45 (5th 
ed. 1998). The Administrative Appeals Office has reasonably concluded that, "because lines of 
credit are only unenforceable commitments to loan (as opposed to an existent loan), such 'assets' 
cannot be used to establish the ability to pay." Rahman v. Chertoff, 641 F.Supp.2d 349, 351-52 (D. 
Del. 2009). Thus, contrary to the Petitioner's argument, we find that the credit line of its parent 
company does not establish its ability to pay the proffered wage in 2017. 
As previously indicated, in determining the Petitioner's ability to pay the proffered wage, we may 
consider factors beyond the wages it paid the Beneficiary, its net income, and its net current assets. 
Under Sonegawa, we may examine such factors as: the number of years the Petitioner has 
conducted business; its number of employees; the growth of its business; its incurrence of 
uncharacteristic losses or expenses; its reputation in its industry; the Beneficiary's replacement of a 
current employee or outsourced service; or other factors affecting the Petitioner's ability to pay. See 
Matter of Sonegawa, 12 I&N Dec. at 614-15. 
Here, the record indicates the Petitioner's continuous business operations since 2011 and its 
employment of three people. Copies of federal income tax returns of the Petitioner's parent 
company, however, indicate that, from 2016 through 2018, total annual revenues continuously 
decreased. The tax returns also show a drop, from 2017 to 2018, in the annual amounts of salaries 
and wages paid. Further, unlike the petitioner in Sonegawa, the record does not demonstrate this 
Petitioner's incurrence of uncharacteristic losses or expenses, or its possession of an outstanding 
reputation in its industry. The Petitioner also has not established the Beneficiary's prospective 
replacement of a current employee or outsourced service. The tax returns would demonstrate its 
ability to pay the proffered wage in 2016 and 2018, suggesting that the Petitioner and its parent 
company simply experienced a "down" year in 2017. But the copy of the 2016 "Foreclosure Sale 
Agreement" under which the Petitioner's parent acquired it indicates its default on a loan obtained in 
2011. The loan default largely negates the positive tax returns. Thus, a totality of the circumstances 
under Sonegawa does not demonstrate the Petitioner's ability to pay. 
For the foregoing reasons, the Petitioner has not demonstrated its continuing ability to pay the 
proffered wage of the offered position from the petition's priority date onward. We will therefore 
affirm the petition's denial. 
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III. THE VALIDITY OF THE LABOR CERTIFICATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a petition for a professional must include a 
valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). USCIS may invalidate a certification 
after its issuance upon a finding of "fraud or willful misrepresentation of a material fact involving 
the labor certification application." 20 C.F.R. § 656.30( d). 
Misrepresentations are willful if "deliberately made with knowledge of their falsity." Matters of 
Valdez, 27 I&N Dec. 496,498 (BIA 2018) (citations omitted). A misrepresentation is material when 
it has a "natural tendency to influence, or [be] capable of influencing, the decision of the decision­
making body to which it was addressed." Id. 
Here, asked on the labor certification application whether the Beneficiary "has an ownership 
interest" in it, the Petitioner indicated "No." Copies of the 2016 and 2017 federal income tax returns 
of the Petitioner's parent company, however, indicate the Beneficiary's ownership of about 5% of 
the parent company. The tax returns and the Foreclosure Sale Agreement also identify the parent as 
the Petitioner's sole owner. Thus, the record indicates the Beneficiary's indirect ownership of about 
5% of the Petitioner. The record therefore demonstrates that, as of the September 21, 2017, filing of 
the labor certification application, the Petitioner misrepresented the Beneficiary's ownership interest 
in it. 
"[O]fficers and principals of a [business] are presumed to be aware and informed of the organization 
and staff of their enterprise." Matter of Silver Dragon Chinese Rest., 19 I&N Dec. 401, 404 
(Comm'r 1986). The Petitioner's misrepresentation on the labor certification application therefore 
also appears to be willful. 
On appeal, the Petitioner argues that the labor certification application did not misrepresent the 
Beneficiary's ownership interest in the company because she directly owns a share of the 
Petitioner's parent company, not the Petitioner. The question in part C.9 of the labor application, 
however, asked whether the Beneficiary "has an ownership interest" in the Petitioner, without 
distinguishing between a direct or indirect interest. The Petitioner therefore had to disclose any 
ownership interest of the Beneficiary in it. Moreover, case law confirms that DOL interprets the 
question in part C.9 as referring to either direct or indirect ownership interests. See Matter of 
Modular Container Sys., Inc., 89-INA-228, slip op. at **5-6 (BALCA July 16, 1991) (en bane) 
(finding that a foreign national had an ownership interest in a labor certification employer where he 
held shares in the employer's parent company). 
The Director invalidated the labor certification, finding that the Petitioner willfully misrepresented 
the Beneficiary's ownership interest in it. But the Director did not properly consider the required 
materiality of the misrepresentation. A foreign national's ownership interest in his or her labor 
certification employer is material if the relationship indicates the unlikelihood of the alien's 
replacement by a qualified U.S. applicant for the offered position. Id. at *7; see also 20 C.F.R. 
§ 656.10( c )(8) (requiring a labor certification employer to certify that "[t ]he job opportunity has been 
and is clearly open to any U.S. worker"). To determine the bona fides of a job opportunity, an 
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adjudicator must consider numerous factors under a totality-of-the-circumstances analysis. Matter of 
Modular Container, slip op. at **8-10. 
The Director did not properly consider the materiality of the Petitioner's alleged misrepresentation 
or notify the company of the relevant Modular Container factors. We will therefore withdraw the 
Director's invalidation and reinstate the labor certification's validity. However, in any future filings 
in this matter, the Petitioner must folly and satisfactorily address these issues to demonstrate the 
validity of the labor certification. In the absence of such evidence, the labor certification may again 
be invalidated. The Petitioner would need to submit evidence in support of the Modular Container 
factors. Those factors include whether the Beneficiary: is in a position to control or influence hiring 
decisions for the offered position; has family relationships with the Petitioner's directors, officers, or 
employees; incorporated or founded the company; has an ownership interest in it; participates in its 
management; serves on its board of directors; is one of a small number of employees; and has 
qualifications identical to specialized or unusual job duties or requirements of the offered position. 
Matter of Modular Container, slip op. at **8-10. Additional factors include the likelihood that the 
Petitioner would cease operations in the Beneficiary's absence and its level of compliance and good 
faith in processing the labor certification application. Id. 
In addition, the Petitioner should submit: a list of all officers and members of it and its parent 
company, describing their relationships to each other and the Beneficiary; a financial history of the 
companies, including the total investments in them and the amount of investment by each member 
and the Beneficiary; the names of the business official with primary responsibility for interviewing 
and hiring applicants for the offered position and the officials having control or influence over hiring 
for the offered position; and documentation of the Beneficiary's family relationship to any 
employees. See 20 C.F.R. § 656.17(1) (listing required evidence where a foreign national has an 
ownership interest in a labor certification employer). 
IV. CONCLUSION 
The record on appeal does not demonstrate the Petitioner's continuing ability to pay the proffered 
wage of the offered position. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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