dismissed EB-3 Case: Real Estate Property Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-I-G-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 24,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a real estate property management company, seeks to employ the Beneficiary as a 
building equipment engineer. It requests classification of the Beneficiary as a professional 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 tq sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
established its ability to pay the proffered wage from the priority date onward, and that the 
Beneficiary did not possess the required field of study for the offered job. 
On appeal, the Petitioner submits additional evidence and asserts that it has the ability to pay the 
proffered wage based on income and assets of its affiliated entities, and that the Beneficiary's 
master's degree in agricultural mechanization is the equivalent of a master's degree in mechanical 
engineering as required by the terms ofthe labor certification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. Employment-Based Immigration 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved ETA Form 9089, Application for Permanent Employment Certification (labor 
certification), from the U.S. Department of Labor (DOL). 1 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 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that 
1 
The date the labor certification is filed, in cases such as this one, is called the "priority date." See 8 C.F.R. § 204.5(d). 
In this case, the priority date is June 25, 2015. Therefore, the Petitioner must establish that all eligibility requirements 
for the petition have been satisfied from June 25, 2015, and continuing through the present. 
Matter of 0-1-G-
employing a foreign national in the position will not adversely atiect the wages and working conditions 
of domestic workers similarly employed. See 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 may apply 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 
B. Ability to Pay the Proffered Wage 
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. 
A petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer 
is realistic. See Matter of Great 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 ofSonegawa, 12 I&N Dec. 612 (Reg-'1 Comm'r 1967). 
The protiered wage is $94,500 per year. The issue is whether the Petitioner has demonstrated its 
ability to pay the proffered wage as ofthe June 25, 2015, priority date onward. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it generated sut1icient annual amounts of net income 
or net current assets to pay the difference between the proffered wage and the wages paid, if any. If 
a petitioner's net income or net current assets are insufficient, we may also consider other evidence 
of its ability to pay the proffered wage. 2 
2 
Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g. River St. 
Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 20 15); Rivzi 
v. Dep 't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014 ), aff''d, -- Fed. Appx. --, 2015 WL 5711445, *I 
(5th Cir. Sept. 30, 20 15). 
2 
Matter of 0-1-G-
In this case, the record reflects that the Petitioner employed and paid the Beneficiary $49,325.73 in 
2015 and $54,664.50 in 2016.3 The amounts paid by the Petitioner to the Beneficiary do not equal 
or exceed the annual proffered wage of $94,500. The record therefore does not establish the 
Petitioner's ability to pay the proffered wage based on the wages it paid the Beneficiary. But we 
credit the Petitioner's payments to the Beneficiary. The Petitioner need only demonstrate its ability 
to pay the difference between the annual proffered wage and the amounts it paid the Beneficiary, 
which is $45,174.27 in 2015 and $39,835.50 in 2016. 
The Petitioner submitted its 2015 federal income tax return. It reflects a net loss of $23,951 and net 
current assets of $35,453. Therefore, for the year 2015, the Petitioner did not have sufficient net 
income or net current assets to pay the difference between the annual proffered wage and the wages 
paid to the Beneficiary. The Petitioner did not submit regulatory prescribed evidence of its ability to 
pay the difference between the annual proffered wage and the wages paid to the Beneficiary in 2016. 
See 8 C.F.R. § 204.5(g)(2). 
On appeal, the Petitioner asserts that it is "an umbrella company providing cash management, payroll, 
and other administrative services to a group of affiliated real-estate owning entities." It states that while 
the entities are distinct limited liability companies (LLCs ), they share the same offices, bank account, 
and employees, and have "substantially the same set of multiple beneficial owners." It indicates that 
employees of all of the affiliated entities are paid as employees of the Petitioner, and the expenses are 
then allocated to the appropriate affiliated entities. The Petitioner asserts that we should use the 
combined net income and net current assets of these entities in our determination of the Petitioner's 
ability to pay the proffered wage. It also notes that in 2015, the entities suffered a combined net loss 
due to extensive hail damage on several properties totaling $1.4 million. 
An LLC, like a corporation, is a legal entity separate and distinct from its owners (members). The debts 
and obligations of the LLC generally are not the debts and obligations of the members or anyone else.4 
Because an LLC is a separate and distinct legal entity from its members, the assets of its members or 
of other entities cannot be considered in determining the petitioning LLC's ability to pay the 
proffered wage. See Matter of Aphrodite Investments, Ltd., 1'7 I&N Dec. 530 (Comm'r 1980). In a 
similar case, the court in Sitar v. Ashcroft, 2003 WL 22203 713 (D.Mass. Sept. 18, 2003) stated, 
"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." Therefore, we 
will not consider the net income or the net current assets of the affiliated entities, including co­
mingled assets in a bank account. 
3 The Petitioner's tax return for 20.15 indicates that it paid total wages of $9,626 that year. Its IRS Form W-3, 
Transmittal of Wage and Tax Statements, indicates that it paid total wages of $1,495,130.62 in 2015. Although the 
Petitioner asserts that it allocated the wages among various affiliated entities, the record does not contain employment 
tax returns for any of the entities to support the Petitioner's claims. The Petitioner must resolve this incongruity in the 
record with independent, objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
4 
Although this general rule might be amenable to alteration pursuant to contract or otherwise, the record contains no 
evidence to indicate that the general rule is inapplicable in the instant case. Further, the record does not contain a copy 
of the management agreement b.etween the Petitioner and the affiliated entities. 
3 
Matter of 0-1-G-
However, as previously indicated, pursuant to Sonegawa, we may consider evidence of a petitioner's 
ability to pay beyond its net income and net current assets. As in Sonegawa, we may consider such 
factors as: the number of years it has conducted business; the growth of its business; its number of 
employees; the occurrence of any uncharacteristic business expenditures or losses; its reputation in 
its industry; whether a beneficiary will replace a current employee or outsourced service; or other 
evidence of its ability to pay a proffered wage. 
In this case, the Petitioner stated on the petition that it was established in 1989 and employed 51 
employees. 5 Unlike in Sonegawa, the Petitioner has not established the historical growth of its 
business or its reputation in its industry. Further, the Beneficiary will not be replacing a current 
employee or outsourced service, as he is already employed by the Petitioner in the offered position. 
The Petitioner asserts that it suffered an uncharacteristic loss in 2015 due to extensive hail damage on 
several properties it manages. It states that most of the damage was covered by insurance, but the 
proceeds were deferred to 2016 until the repairs were completed. 6 While the 2015 tax returns in the 
record reference hail damage to certain properties, the record does not contain any evidence 
documenting the hail damage or the insurance proceeds paid as a result of the damage, or detailing the 
repairs that were necessary to correct the damage. The record also does not contain the 2016 tax returns 
evidencing the deferred insurance payments. Further, the record does not establish that the weather 
damage created an uncharacteristic tax loss for the properties managed by the Petitioner. Thus, based 
on the totality of the circumstances, the Petitioner has not established its continuing ability to pay the 
proffered wage. 
C. Beneficiary's Education 
The Petitioner must establish that the Beneficiary satisfied all of the educational, training, 
experience, and any other requirements stated on the labor certification by the priority date of June 
25, 2015. 8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 
(Acting Reg'l Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'] Comm'r 
1971). 
In evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor 
certification to determine the required qualifications for the position. USCIS may not ignore a term 
of the labor certification, nor may it impose additional requirements. See Madany v. Smith, 696 F.2d 
1008 (D.C. Cir. 1983); K.R.K. Irvine. Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-' 
Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
5 The labor certification states that the Petitioner employs 39 workers. 
6 
The Petitioner's manager states in a letter that the "damages did not interrupt revenue flows or operations of these 
Apartment complexes. The fundamental revenue and profit generating relationship remained unchanged." 
4 
.
Matter of 0-1-G-
In this case, the labor certification requires a master's degree in mechanical engineering. No 
alternate field of study is acceptable, and no combination of education and experience is acceptable. 
Section J. of the labor certification states that the highest level of education achieved by the 
Beneficiary relevant to the requested occupation is a master's degree in mechanical engineering 
from in the Ukraine, completed in 2011. 
The record contains the following documents relating to the Beneficiary's education: 
• Master's degree in agricultural mechanization issued by 
in the Ukraine on June 30, 2011, together with diploma supplement; and 
• Certificate for qualification as a typesetting operator issued by the ministry of education and 
science in the Ukraine on December 18, 2003.7 
In response to the Director's notice of intent to deny, the Petitioner submitted an evaluation from 
concluding that the Beneficiary "has attained the equivalent of a 
Master's Degree in mechanical Engineering from an accredited institution of higher education in the 
United States." The Director's decision denying the petition stated that the did 
not identify what sources of information were used to reach the conclusion regarding the 
Beneficiary's degree, and that the evaluation does not provide a comparison of the U.S. program 
curricula in mechanical engineering to the Beneficiary's courses. The Director stated that the 
does not rely on independent evidence of the Beneficiary's education, such as 
the content of his courses, and thus he determined that the Beneficiary has the foreign equivalent of a 
U.S. master's degree in agricultural mechanization. Since the Beneficiary does not have a master's 
degree in mechanical engineering as required by the labor certification, the Director determined that 
the Beneficiary is not qualified for the offeredjob. 8 
On appeal, the Petitioner submits an evaluation from PhD, of 
concluding that the Beneficiary's credentials are "comparable and substantially similar to the 
completion of a Master's Degree in Mechanical Engineering program in the United States." The 
evaluation states that the master's degree program required graduation from bachelor's level studies 
and competitive entrance examinations for admission and enrollment, but it provides no support for 
that assertion, and the record contains no evidence of the Beneficiary's graduation from bachelor's 
level studies and taking competitive entrance examinations. The evaluation also states that the 
Beneficiary's degree program "required a number of courses in the Mechanical Engineering field 
which are similar to those which would be required in a Master's Degree program in Mechanical 
Engineering in the United States." 
7 
According to the Certificate, the program was one month in duration, and the Beneficiary was 14. years of age when he 
completed the program. . 
8 
The Director noted that U.S. workers without master's degrees in mechanical engineering would have been precluded 
from applying for the job during the recruitment process based on the advertised requirements of the position. 
5 
.
Matter of 0-/-G-
The evaluation compares several of the Beneficiary's master's courses, and his master's paper, to 
master's courses in mechanical engineering in the United States. It states that the Beneficiary's 
degree requirements "focused on application of engineering principles and hands-on industry 
experience needed for high-quality mechanical design, development, and engineering-related 
principles, requiring independent study, practice, and research, all of which are integral to the field 
of Mechanical Engineering." The evaluation concludes that the Beneficiary's master's degree is the 
foreign equivalent of a U.S. master's degree in mechanical engineering. 
We have reviewed the Electronic Database for Global Education (EDGE) created by the American 
Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its 
website, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher 
education professionals who represent approximately 2,600 institutions in more than 40 
countries." About AACRAO, http://www.aacrao.org/home/about (last visited August 23, 2017). 
EDGE states that a Ukranian master's' degree "represents attainment of a level of education 
comparable to a master's degree in the United States," and that the entry requirement is a "Dyplom 
Bakalayra (Diploma of Bachelor) or Dyplom Spetsialista (Diploma of Specialist)." AACRAO 
EDGE, http://edge.aacrao.org/country/credentialldyplom-magistra?cid=single (last visited August 
23, 2017). The Beneficiary's master's diploma supplement references the Beneficiary's "Bachelor's 
diploma ' as the "access qualification" for his master's degree program, but the 
record does not contain a copy of that degree. · Further, the Beneficiary's resume in the record does 
not indicate that he received a bachelor's degree. Instead, it states that he received a high school 
diploma in 2006, and then his master's degree in 2011. Without a copy of the Beneficiary's 
bachelor's diploma and diploma supplement, we cannot determine that the Beneficiary properly met 
the entry requirement for the master's degree program as detailed in EDGE. 
Further, the website for indicates that it has a mechanical 
engineering department with five sections: manufacturing engineering; machine tools and systems; 
metal forming and special technology; materials science and foundry; and 
programmmg and information security. 
http://www. (last visited August 23, 2017). The 
Petitioner has not established that the Beneficiary's master's degree in agricultural automation was 
issued by the mechanical engineering department at 
Instead, the website indicates that it may have been issued by the 
or the . 0 On appeal, the Petitioner asserts that 
agricultural mechanization is a subspecialty in the field of mechanical engineering. However, the 
Beneficiary's master's degree appears to have been issued by a department other than the 
9 The consists of three departments: automation of production processes; electrical 
systems and energy management; and physical education. This faculty offers a master's degree in power and automation 
of the agricultural sector, and it. appears that this is the degree issued to the Beneficiary. 
http://www. '(last visited August 23, 20 17). 
•u The consists of four departments: agricultural machinery; general agriculture; 
ecology and environment; and foreign languages. http://www 
(last visited August 23, 20 17). 
Matter of 0-1-G-
mechanical engineering department and m a different field of study, which cont1icts with the 
evaluations submitted by the Petitioner. 11 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, 
USCIS is not required to accept or may give less weight to that evidence. Matter q{ Caron 
International, 19 I&N Dec. 791 (Comm'r 1988). See also Matter of D-R-, 25 I&N Dec. 445 (BIA 
2011) (expert witness testimony may be given different weight depending on the extent of the 
expert's qualifications or the relevance, reliability, and probative value of the testimony); Viraj, LLC 
v. US Att'y Gen., 2014 WL 4178338 *4 (11th Cir. 2014) (the AAO is entitled to give letters from 
professors and academic credentials evaluations Jess weight when they differ from the information 
provided in EDGE). 
The evidence in the record is insufficient to establish that the Beneficiary's master's degree in 
agricultural mechanization is the foreign equivalent of a U.S. bachelor's degree in mechanical 
engmeenng. Thus, the Petitioner has not established that the Beneficiary is qualified for the offered 
position. 
II. CONCLUSION 
The record does not establish the Petitioner's co~tinuing ability to pay the proffered wage. The 
record also does not establish that the Beneficiary has a degree in the field of study required by the 
labor certification. Accordingly, the Beneficiary is not qualified for the offered position. 
ORDER: The appeal is dismissed. 
Cite as Matter of0-1-G-, ID# 457664 (AAO Aug. 24, 2017) 
11 
On appeal, the Petitioner submits a Wikipedia listing of subspecialties in mechanical engineering. Agricultural 
automation is not listed as a subspecialty.