dismissed EB-3 Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-E-I- LTD. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 7, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of therapeutic services, seeks to employ the Beneficiary as a physical 
therapist. It requests his classification under the third-preference, immigrant category as a 
professional. See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii) , 8 U.S.C. 
§ l 153(b)(3)(A)(ii). This employment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status to work in a job requiring at least a bachelor's 
degree . 
The Director of the Nebraska Service Center denied the petition and the Petitioner's following 
motions to reopen. The Director concluded that the Petitioner did not demonstrate its required 
ability to pay the position's proffered wage. 
On appeal, the Petitioner submits additional evidence . It argues that the Director disregarded a 
totality of circumstances, including the company's business model under which the Beneficiary 
would generate revenues exceeding the proffered wage. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional usually follows a three-step process. First, to pennanently fill a 
position in the United States with a foreign worker, a prospective employer must obtain certification 
of 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). If DOL approves a position, an employer next submits the labor certification 
with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). Section 204 
of the Act, 8 U.S.C. § 1154. IfUSCIS grants a petition , a foreign national may finally apply abroad 
for an immigrant visa or, if eligible, for adjustment of status in the United States. See section 245 of 
the Act, 8 U.S.C. § 1255. 
DOL, however, has already determined that the United States lacks physical therapists and that 
employment of foreign nationals in these "Schedule A" positions will not harm the wages or 
working conditions of U.S . workers in similar positions . 20 C.F.R. § 656.5. DOL has therefore 
authorized USCIS to adjudicate labor certification applications in petition proceedings for Schedule 
Matter of C-E-1- Ltd. 
A physical therapists. 20 C.F.R. § 656.15(a). Thus, in this matter, USCIS rules not only on the 
petition, but also on its accompanying labor certification application. See 20 C.F .R. § 656.15( e) 
( describing USCIS' s labor certification determination in Schedule A proceedings as "conclusive and 
final"). 
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, like this Petitioner, 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 foll 
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 wages paid. If net income 
and net current assets are insufficient, USCIS may consider other factors affecting a petitioner's 
ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 
Comm'r 1967). 1 
Here, the accompanying labor certification application states the proffered wage of the offered 
position of physical therapist as $87,000 a year. The petition's priority date is September 26, 2016, 
its filing date. 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 in another position since 2011. 
The company submitted copies of an IRS Form W-2, Wage and Tax Statement, and payroll records 
for 2016. The documents indicate that the Petitioner paid the Beneficiary total wages that year of 
$69,000. The Petitioner also submitted copies of payroll records indicating that it paid the 
Beneficiary wages of $26,584.15 in 2017, including $14,370 in the first quarter and $12,214.15 in 
the second quarter. 2 Neither the 2016 nor 201 7 amount of wages paid equals or exceeds the 
proffered wage of $87,000. Thus, based solely on wages paid, the Petitioner has not demonstrated 
its ability to pay the proffered wage. Nevertheless, we credit the Petitioner's wage payments to the 
Beneficiary. It need only demonstrate its ability to pay the differences between the proffered wage 
and wages paid, or $18,000 in 2016 and $60,415.85 in 2017. The Petitioner did not submit evidence 
of payments to the Beneficiary in 2018. In that year, the company must therefore demonstrate its 
ability to pay the foll proffered wage. 
The record contains copies of the Petitioner's federal income tax returns for 2016 and 2018. The tax 
returns reflect annual net income amounts of -$20,833 in 2016 and $49,888 in 2018. The negative 
amount in 2016 does not equal or exceed the $18,000 difference between the proffered wage and 
wages paid. The positive amount in 2018 does not equal or exceed the annual proffered wage. 
1 Federal courts have upheld USCTS' 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). 
2 The Petitioner did not submit evidence of any wages it paid to the Beneficiary during the remainder of 2017. 
2 
Matter of C-E-1-Ltd. 
Thus, based on net income, the Petitioner has not demonstrated its ability to pay in 2016 or 2018. 
For 2017, the Petitioner submitted copies of audited financial statements indicating an annual net 
income of $14,667.53. That amount does not equal or exceed the $60,415.85 difference between the 
proffered wage and wages paid in 2017. The Petitioner therefore has not demonstrated sufficient net 
income to pay the proffered wage in 2016, 2017, or 2018. 
The Petitioner's tax returns reflect net current asset amounts of -$48,114 in 2016 and $236 in 2018. 
These amounts do not cover the difference between the proffered wage and wages paid in 2016 or 
the foll proffered wage in 2018. The audited financial statements also reflect a negative amount of 
net current assets for 201 7. Thus, based on examinations of the Petitioner's wages paid, net income, 
and net current assets, the record does not establish its ability to pay the proffered wage. 
On appeal, the Petitioner argues that its business model demonstrates its ability to pay the proffered 
wage. The company's president stated that its physical therapists generate revenues exceeding the 
employees' wages. The Petitioner therefore argues that the Beneficiary's employment in the offered 
position would generate revenues sufficient to fond his proffered wage. 
The record, however, lacks documentary evidence corroborating how much the Petitioner would 
charge clients for the Beneficiary's services as a physical therapist. The record therefore does not 
support the company president's assertion that the Beneficiary would generate revenues exceeding 
the position's proffered wage. Even if the Beneficiary would generate revenues above the proffered 
wage, the record does not demonstrate the Petitioner's ability to pay the proffered wage "at the time 
the priority date is established." 8 C.F.R. § 204.5(g)(2). The Petitioner stated that, as of this 
petition's priority date of September 26, 2016, the company employed the Beneficiary in an 
administrative position that did not generate revenue. Thus, since the petition's priority date, the 
Beneficiary has not generated any fonds to pay his proffered wage. Contrary to the Petitioner's 
argument, the company's business model therefore does not demonstrate its ability to pay the 
Beneficiary's proffered wage from the petition's priority date onward. 
The Petitioner also argues that a totality of circumstances demonstrates its ability to pay. As 
previously indicated, in determining a petitioner's ability to pay a proffered wage, we may consider 
factors beyond its wages paid, net income, and net current assets. Under Sonegawa, we may 
consider: how long a petitioner has conducted business; its number of employees; growth of its 
business; its incurrence of uncharacteristic losses or expenses; its reputation in its industry; a 
beneficiary's replacement of a current employee or outsourced service; or other factors affecting a 
petition's ability to pay. Matter of Sonegawa, 12 I&N Dec. at 614-15. 
Here, the record indicates the Petitioner's continuous business operations since 1999 and, as of the 
second quarter of 2017, its employment of 16 people. Financial documentation submitted by the 
Petitioner, however, indicates that its gross annual revenues and labor costs have fallen since 2013. 
Unlike the petitioner in Sonegawa, this Petitioner has not documented its possession of an 
outstanding reputation in its industry. The record also does not demonstrate that the Beneficiary 
would replace a current employee or outsourced service. 
3 
Matter of C-E-1-Ltd. 
The Petitioner argues that, like the pet1t10ner in Sonegawa, circumstances beyond its control 
~arily reduced its profits. The Petitioner contends that, because of a budget crisis, thf:I I 
L___J fell behind on payments to the company. The Petitioner's president stated tha~ lowed 
the company $122,905.17 at the end of2016 and $95,123.05 at the end of 2017. 
In Sonegawa, the petitioner conducted business for about 11 years before suffering a sharp reduction 
in profits during the year in which it filed its petition. Matter of Sonegawa, 12 I&N Dec. at 614. 
During that year, the petitioner moved its business to a new location, incurring one-time relocation 
expenses, requiring rental payments on two locations for five months, and forcing a brief business 
closure. Id. Despite the petitioner's reduced profits in the year of the petition's filing, the Regional 
Commissioner ruled that the business demonstrated its likely return to normal operations and its 
ability to pay the proffered wage. Id. at 615. 
The petitioner in Sonegawa, however, was unable to demonstrate its ability to pay the proffered 
wage in only one relevant year. Here, the Petitioner has not demonstrated its ability to pay in three 
years: 2016; 2017; and 2018. Also unlike in Sonegawa, the Petitioner has not sufficiently 
documented its reduced profits. The Petitioner submits Internet printouts indicating! l's late 
payment of bills to early intervention providers in 2016, 2017, and 2018. But printouts from the 
c=Js comptroller office indicate that the Petitioner received only $29,161.73 in late 2016 payments 
and $ll,207.09 in late 2017 payments. The printouts show that another company received 
$93,131.46 in late 2016 payments and $83,915.96 in 2017 payments. The Petitioner's president 
states that he established the other company to handle the Petitioner's billings and collections 
activities. But the record lacks documentary evidence establishing that the other company received 
the payments for the Petitioner. Also, if the other company handles the Petitioner's billing matters, 
the record does not explain why the state issued late payments in the Petitioner's name. 
In addition, the record does not establish the Petitioner's loss in 2016 and 2017 as uncharacteristic. 
The record contains copies of the Petitioner's federal income tax returns for 2013 and 2015. 3 These 
returns also reflect negative, annual amounts of net income. Also, Schedules M-2 of the returns 
reflect amounts of accumulated net income less than -$200,000, indicating that the Petitioner 
incurred losses in prior years. Thus, contrary to the circumstances in Sonegawa, the record does not 
document the late, state payments caused the Petitioner's reduced profits or establish its losses as 
uncharacteristic. A totality of circumstances under Sonegawa therefore does not establish 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. 
III. CONCLUSION 
The record on appeal does not establish the Petitioner's ability to pay the proffered wage of the 
offered position from the petition's priority date onward. We will therefore affirm the petition's 
3 The Petitioner submitted copies of its 2013 tax return with a prior, unsuccessful petition for the Beneficiary. 
4 
Matter of C-E-1-Ltd. 
denial. A petitioner bears the burden of demonstrating eligibility for a requested benefit. Section 
291 of the Act, 8 U.S.C. § 1361. The Petitioner here has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of C-E-1- Ltd., ID# 6530868 (AAO Oct. 7, 2019) 
5