dismissed EB-3 Case: Pharmaceuticals

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-L- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 1, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a pharmaceutical preparation and manufacturing company, seeks to employ the 
Beneficiary as a formulation developer. It requests classification of the Beneficiary as a professional 
under the third preference immigrant category. 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 professional with a U.S. bachelor's degree or its 
foreign equivalent for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had 
not established its ability to pay the proffered wage to the Beneficiary. The matter is now before us 
on appeal. 
On appeal, the Petitioner asserts that the record demonstrates the Petitioner's ability to pay the 
Beneficiary's proffered wage. Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the 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 certifies that there are insuf1icient 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 domestic 
workers similarly employed. 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 applies 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. 
1 The date the labor certification is filed, in cases such as this one, is called the "priority date." 
Matter of A-L- LLC 
A petitioner must establish that its job offer to the beneficiary is a realistic one. 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). 
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. 
In this case, the labor certification was accepted on July 5, 2016, the priority date. The proffered 
wage as stated on the labor certification is $59,925 per year. The record indicates the Petitioner is 
structured as a limited liability company (LLC) and files its tax returns on IRS Form 1065, U.S. 
Return of Partnership Income.2 
In determining the petitioner's ability to pay the proffered wage during a given period, 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' I Comm'r 
1967). USCIS will first examine whether the petitioner employed and paid the beneficiary during 
that period. If the petitioner establishes by documentary evidence that it employed the beneficiary at 
a salary equal to or greater than the protiered wage, the evidence will be considered proof of the 
petitioner's ability to pay the proffered wage. 
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 retum, 3 without consideration of depreciation or other 
expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Taco £5pecial v. 
2 An LLC is an entity formed under state law by filing articles of organization. An LLC may be classified for federal 
income tax purposes as if it were a sole proprietorship, a partnership or a corporation. If the LLC has only one owner, it 
will automatically be treated as a sole proprietorship unless an election is made to be treated as a corporation. If the LLC 
has two or more owners, it will automatically be considered to be a partnership unless an election is made to be treated as 
a corporation. If the LLC does not elect its classification, a default classification of partnership (multi-member LLC) or 
disregarded entity (taxed as if it were a sole proprietorship) will apply. See 26 C.F.R. § 301.7701-3. The election 
referred to is made using IRS Form 8832, Entity Classification Election. In the instant case, the Petitioner, a multi­
member LLC, is considered to be a partnership for federal tax purposes. 
3 Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th C:ir. 1984)). 
2 
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Matter of A-L- LLC 
Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 
2011 ). 
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.4 
The record contains the Petitioner's 2015 tax return, the Beneficiary's Forms W-2 for 2015 and 2016 
that another entity, issued to the Beneficiary, and pay statements that the 
Petitioner issued to the Beneficiary from February to April 2017. The Director concluded that 
evidence submitted by does not constitute evidence of the Petitioner's ability to 
pay the proffered wage. 
On appeal, the Petitioner has submitted a letter from its Chief Operating Officer, stating that 
is legally responsible to pay the Petitioner's employees. Both entities have different 
employer identification numbers and thus are distinct legal entities. Under 8 C.F.R. § 204.5(g)(2), 
the Petitioner must demonstrate its own ability to pay the proffered wage. See Sitar v. Ashcro.fi, 
2003 WL 22203713 (D. Mass. Sept 18, 2003) (finding "that nothing in the governing regulation, 
8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of individuals or entities who 
have no legal obligation to pay the wage"). We find that the record does not contain sufficient 
evidence to establish that is legally obligated to pay the Beneficiary's wage. 
In this case, the Petitioner's 2015 tax return states its net income5 as -$30,125 and net current assets 
as -$118,469, which figures are insufficient to pay the Beneficiary's proffered wage. Regarding the 
totality of the circumstances under Sonegawa, 12 I&N Dec. 612, the record does not contain 
sufficient evidence that establishes the Petitioner's ability to pay the proffered wage. The record 
indicates that the Petitioner is a startup company that is operating with the help of a loan from 
which does not help establish the continuing ability to pay the proffered wage. The record 
contains evidence of this loan from which states that it is a loan for capital expenditures 
and capital improvements in the amount of $680,000. The Petitioner has only been in business since 
2014 and that its gross receipts were $161,486 in 2015. Although we do not accept the Petitioner's 
assertion that can establish the Petitioner's ability to pay the proffered wage, we 
also note that the 2015 tax return for states no net income and negative net current 
assets. Thus, the evidence in the record does not establish the Petitioner's ability to pay the 
proffered wage in the totality ofthe circumstances. 
4 According to Barron's Dictionary of 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 
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. _ 
5 For an LLC taxed as a partnership, where the petitioner's income is exclusively from a trade or business, USC IS considers 
net income to be the figure shown on Line 22 of page one ofthe petitioner's IRS Form 1065. 
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Matter of A-L- LLC 
On appeal, the Petitioner cites Construction and Design Co. v. USCJS, 563 F.3d 593 (7th Cir. 2009), 
for the principle that a new employee's ability to boost the employer's income should be considered 
in the analysis of ability to pay the proffered wage. The Petitioner also cites the court's statement in 
Construction and Design that "tax returns are not a reliable basis for determining whether the 
company can afford to hire another employee." We note that Construction and Design is not binding 
precedent in this matter because the Petitioner is located in New Jersey, which is not within the 7th 
Circuit Court of Appeals.6 Also, we note that the record does not contain sufficient evidence to 
demonstrate how the Beneficiary will boost the Petitioner's income. Finally, the Petitioner has not 
shown that its tax returns provide an inaccurate assessment of its fimincial outlook. 
The record contains the Petitioner's bank account statements from July 2016 to March 2017, but we 
do not find this evidence demonstrates its ability to pay the proffered wage. First, bank 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 provides an 
inaccurate financial picture of the petitioner. Second, bank statements show the amount in an 
account on a given date, 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 
addressed above in determining the petitioner's net current assets. Therefore, we will not consider 
the Petitioner's bank statements toward the ability to pay analysis. 
For the reasons stated above, the Petitioner has not established that it has the ability to pay the proffered 
wage to the Beneficiary from the priority date onward. 
II. 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 A-L- LLC, ID# 622909 (AAO Sept. 1, 2017) 
6 The U.S. Court of Appeals for the Seventh Circuit covers Illinois, Indiana, and Wisconsin. 
4