dismissed EB-3 Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-R- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 20,2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant operator, seeks to employ the Beneficiary as a manager. It requests 
classification of the Beneficiary as an "other worker" under the third preference immigrant category. 
See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This category allows a U.S. business to sponsor a foreign national with less 
than 2 years of training or experience for lawful permanent resident status. 
The Director of the Texas Service Center, denied the petition. The Director concluded that the 
record did not establish the Petitioner's ability to pay the proffered wage. 
The matter is now before us on appeal. The Petitioner asserts that it currently pays the Beneficiary 
more than the proffered wage and submits evidence of another entity's ability to pay. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First, a prospective U.S. employer 
must obtain an approved ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), from 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). Next, the employer must file a Form l-140, Immigrant Petition for 
Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). See section 204(a) of the 
Act, 8 U.S.C. § 1154(a). Finally, ifUSCIS approves the petition, a foreign national may 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. 
By approving the labor certification in this case, the DOL certified that there are insufficient U.S. 
workers who are able, willing, qualified, and available for the otiered position. See section 
212(a)(5)(A)(i)(I) of the Act. The DOL also certified that the employment of a foreign national in the 
position will not adversely affect the wages and working conditions of domestic workers similarly 
employed. See section 212(a)(5)(A)(i)(II). 
Matter of B-R- Corp. 
In visa petition proceedings, USCIS must determine whether the Beneficiary meets the requirements 
of the offered position certified by the DOL. We must also determine whether the Petitioner and the 
Beneficiary qualify for the requested benefit, including whether the Petitioner demonstrated its 
ability to pay the proffered wage. See. e.g..' Tongatapu Woodcraft Haw .. Ltd v Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984) (holding that the immigration service "makes its own determination of 
the alien's entitlement to [the requested] preference status"). 
B. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must demonstrate its continuing ability to pay a proffered wage from a petition's 
priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Initial 
evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. !d. 
In this case, the labor certification states the proffered wage of the offered position of manager as 
$37,024 per year. The petition's priority date is July 15, 2015. This is the date that the DOL 
accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how 
to determine a petition's priority date). Required, initial evidence of the Petitioner's ability to pay 
the proffered wage in 2016 is not yet available. We will therefore consider the Petitioner's ability to 
pay only in 2015, the year ofthe petition's priority date. 
In determining ability to pay, we examine whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date. If a petitioner did not pay the full proffered wage 
each year, we consider whether it generated sufficient, annual amounts of net income or net current 
assets to pay any differences between the proffered wage and the wages paid. If a petitioner's net 
income or net current assets are insufficient, we may also consider the overall magnitude of its 
business activities. See Matter ofSonegawa, 12 l&N Dec. 612, 614-15 (Reg'! Comm'r 1967).
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The Petitioner states that it did not begin to employ the Beneficiary until June 30, 2016. On appeal, 
it submits copies of her payroll records from that date through September 7, 2016. It asserts that the 
payroll records show its payments to the Beneficiary of $750 per week, or $39,000 per year, an 
amount that exceeds the annual proffered wage of $37,024. However, as previously indicated, 
because of the unavailability of required, initial evidence, we will not consider the Petitioner's 
ability to pay the proffered wage in 2016. Even if the record contained the initial evidence, however, 
the payroll records would not demonstrate the Petitioner's ability to pay the proffered wage in 2016. 
1 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 111, 118 (1st Cir. 2009); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-43 
(S.D. Cal. 2015); Rivzi v. Dep't of Homeland Sec., 37 F. Supp. 3d 870,883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 
292 (5th Cir. 2015); Just Bagels Mj'g.. Inc. v. Mayorkas, 900 F. Supp. 2d 363, 373-76 (S.D.N.Y. 20 12). 
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Matter of B-R- Corp. 
The payroll records document a period of less than 3 months. Because of the seasonal or cyclical 
nature of many businesses, the period of the Petitioner's pay to the Beneficiary is too short to 
demonstrate its ability to pay the proffered wage over the entire year of 2016. Moreover, the 
Petitioner's payroll records are unreliable. In response to the Director's request for evidence (RFE), 
the Petitioner submitted a copy of the Beneficiary's payroll record for the week of June 30, 2016 to 
July 6, 2016. This record reflects a payment of $775 to the Beneficiary by the Petitioner on July 14, 
2016, and a "year to date" amount of$2,300. On appeal, the Petitioner submits another copy of the 
Beneficiary's payroll record for the same week. The second copy reflects a payment of $750 to the 
Beneficiary on July 12, 2016, and a year-to-date amount of $2,125. 
The record does not explain the discrepancies between the two copies of the Beneficiary's payroll 
record from June 30, 2016, to July 6, 2016. The unexplained discrepancies cast doubts on the 
reliability of the payroll records. See Matter of Ho, 19 I& Dec. 582, 591 (BIA 1988) (stating that 
doubt cast on any aspect of a petitioner's proof may lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence in support of a petition). 
Also, if the Beneficiary did not begin working for the Petitioner until June 30, 201 6, as it states, the 
record does not explain why the year-to-date amounts on the payroll records for the week ending 
July 6, 2016, total more than $2,000. In addition, the payroll records identify the Beneficiary's 
employer by a different name than the Petitioner's stated on the Form I -140, Immigrant Petitioner 
for Alien Worker, and the accompanying labor certification. Because of these unresolved 
inconsistencies, the payroll records would not establish the Petitioner's ability to pay the proffered 
wage in 2016. 
Regarding its ability to pay in 2015, The Petitioner submitted a copy of its federal income tax return 
for that year. The return reflects a net income amount of -$5,948 and a net current asset amount of 
$13,206. Because neither amount equals or exceeds the annual proffered wage of $37,024, the 
record does not establish the Petitioner's ability to pay the proffered wage in 2015 based on its 
amounts of net income or net current assets. Thus, based on examinations of the Petitioner's 
payments to the Beneficiary and its annual amounts of net income and net current assets, the record 
does not establish the Petitioner's ability to pay the proffered wage in 2015. 
On appeal, the Petitioner submits additional copies of federal income tax returns for 2013, 2014, and 
2015. However, the returns reflect the financial information of another corporation with a different 
name and federal employer identification number than the Petitioner. The regulation at 8 C.F.R. 
§ 204.5(g)(2) requires proof that "the prospective United States employer" has the ability to pay the 
proffered wage. In this case, the Form I -140 and the labor certification identify the Petitioner as the 
prospective U.S. employer, not the company stated on the tax returns. The Petitioner asserts that 
its operations include other restaurants and banquet halls, including those operated by the company 
stated on the tax returns. Although the Petitioner and the company stated on the tax returns appear 
to share at least one shareholder in common, the record indicates that they are separate corporations. 
Thus, the company stated on the tax return has no obligation to pay the Beneficiary's proffered 
wage. See Matter of Aphrodite lnvs. Ltd., 17 I&N Dec. 530, 531 (Comm 'r 1980) (holding that a 
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Matter of B-R- Corp. 
corporation is a separate, legal entity from its owners or sole owner). The tax returns submitted on 
appeal therefore do not establish the Petitioner's ability to pay the proffered wage. See Sitar Rest. v. 
Ashcroft, No.Civ.A02-30197-MAP, 2003 WL 22203713, *2 (D. Mass. Sept. 18, 2003) (stating 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"). 
The record also contains a letter from a corporate officer of the Petitioner in support of its ability to 
pay the proffered wage. USCIS may accept a letter from a financial officer of a petitioner as 
evidence of its ability to pay a proffered wage if "the prospective United States employer employs 
100 or more workers." 8 C.F.R. § 204.5(g)(2). In this case, however, the record does not establish 
the Petitioner's employment of at least 100 workers. The Petitioner submitted a copy of an IRS 
Form W-3, Transmittal of Wage and Tax Statements, indicating its issuance in 2015 of 124 IRS 
Forms W-2 and its payment of total compensation of $557,103.57. But the Petitioner's 2015 federal 
income tax return reflects total officer compensation, salaries, and wages paid of only $314,169. 
The record does not explain the discrepancy in the Petitioner's total compensation ·amounts for 2015 
on the Form W-3 and the tax return. The unresolved inconsistency casts doubt on the reliability of 
the Form W-3. See Ho, 19 I&N Dec. at 591 (stating that stating that doubt cast on any aspect of a 
petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence in support of a petition). The Form W-3 therefore does not constitute reliable evidence of 
the Petitioner's employment of more than 100 people. 
Also, IRS Forms 941, Employer's Quarterly Federal Tax Returns, for the first half of 2016 indicate 
the Petitioner's employment of less than 100 people. The Form 941 for the second quarter of 2016 
indicates the Petitioner's employment of 98 people, while the form for the year's first quarter states 
the Petitioner's employment of 24 people. In addition, the record indicates that the number of 
employees asserted by the Petitioner may include employees of other corporations. The Petitioner 
states that it operates multiple restaurants and banquet halls, and that it "employs more than 100 
employees in all of its locations," including the location of the company stated on the tax returns 
submitted on appeal. Thus, the. Petitioner's headcount appears to include the employees of other 
compames. 
For the foregoing reasons, the record does not establish the Petitioner's employment of at least 100 
people. The letter from the Petitioner's corporate officer is therefore insufficient to establish its 
ability to pay the proffered wage. 
As previously indicated, we may consider a petitioner's ability to pay a proffered wage beyond its 
net income and net current assets. Pursuant to Sonegawa, we may consider such factors as: the 
number of years a petitioner has conducted business; its number of employees; the growth of its 
business; the occurrence of uncharacteristic business expenses or losses; its reputation in its industry; 
whether a beneficiary will replace a former employee or outsourced service; or other evidence of its 
ability to pay a proffered wage. 
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Matter of B-R- Corp. 
In this case, the record indicates the Petitioner's continuous business operations since 1994. Copies 
of the Petitioner's federal income taxreturns from 2013 through 2015 also reflect increasing 
revenues. Unlike the petitioner in Sonegawa, the record here does not indicate the Petitioner's 
possession of an outstanding reputation in its industry or its incurrence of uncharacteristic business 
expenses or losses. The record also does not indicate that the Beneficiary will replace a former 
employee or an outsourced service. Also unlike the petitioner in Sonegawa, the Petitioner in this 
case submitted unreliable records of its finances. Thus, considering the Sonegawa factors in this 
individual case, the record does not establish the Petitioner's ability to pay the proffered wage. 
II. CONCLUSION 
The record does not establish the Petitioner's continuing ability to pay the proffered wage from the 
petition's priority date onward. We will therefore aftirm the Director's decision? 
ORDER: The appeal is dismissed. 
Cite as Matter ofB-R- Corp., ID# 181144 (AAO Mar. 20, 2017) 
2 A labor certification employer must attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." 
20 C.F.R. § 656.1 O(c)(8). This attestation "infuses the recruitment process with the requirement of a bona fide job 
opportunity: not merely a test of the job market." Matter of Modular Container Sys .. Inc., 89-INA-228, 1991 WL 
223955, *7 (BALCA 1991) (en bane) (referring to the former, identical regulation at 20 C.F.R. § 656.20(c)(8)). A 
relationship between a petitioner and a beneficiary triggering concerns about the bona fide.\· of a job opportunity ''is not 
only of the blood; it may also be financial, by marriage, or through tl·iendship.'' Matter ofSunmart 374, 2000-INA-93, 
2000 WL 707942, *3 (BALCA May 15, 2000). Here, USCJS records identify the Beneficiary's spouse as a former 
employee of the Petitioner. On a Form G-325A, Biographic Information, submitted with his application for adjustment 
of status, the Beneficiary's spouse stated his employment by the Petitioner, while married to the Beneficiary. Thus, the 
record indicates that the Beneficiary's spouse and the Petitioner had a relationship before the petition's priority date. 
The prior relationship casts doubt on the clear availability of the offered position to U.S. workers. In any future filings in 
this matter, the Petitioner must submit additional evidence of the bona fides of the job opportunity. 
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