dismissed EB-3 Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re : 7824582 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 24, 2020 
The Petitioner operates a Brazilian-style steakhouse and seeks to employ the Beneficiary as a 
churrasqueiro, or barbecue cook. The company requests his classification under the third-preference 
immigrant classification for skilled workers. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
The Director of the Texas 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. 
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. 1 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker, a prospective employer must fust obtain 
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). DOL approval signifies that insufficient U.S . workers are able, willing, 
qualified, and available for an offered position . Id. Labor certification also indicates 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 certified labor application 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 
1 After filing this appeal, the Petitioner submitted, and USCIS approved, another Form 1-140 petition for the Beneficiary . 
The second petition offered him the same position as in this petition and requested the same visa classification . As a 
matter of prudence , we may dismiss appeals lacking practical significance as moot. See, e.g., Matter of Luis, 22 I&N 
Dec. 747, 753 (BIA 1999). The Petitioner 's second petition, however , contains a certified labor application filed after 
the labor application in this petition. The second petition therefore has a later priority date than this petition , and, thus, 
this appeal's approval could result in an earlier grant of lawful permanent residence to the Beneficiary. Because this 
appeal retains practical significance , we will not dismiss it as moot. 
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). The record indicates that the petitioner employs less than 100 people. Evidence of its 
ability to pay must therefore 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 a 
beneficiary the foll proffered wage, USCIS considers whether the business generated annual 
amounts of net income and net current assets sufficient to pay any differences between a proffered 
wage and the wages paid. If net income and net current assets are insufficient, USCIS may consider 
other 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).2 
Here, the accompanying labor certification states the proffered wage of the offered position of 
churrasqueiro as $32,500 a year. The petition's priority date is October 27, 2017, the date 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). 
As of this appeal's filing, required evidence of the Petitioner's ability to pay the proffered wage in 
2019 was not yet available. Therefore, for purposes of this decision, we will consider the company's 
ability to pay only in 2017, the year of the petition's priority date, and 2018. 3 
The Petitioner did not submit evidence that it paid the Beneficiary wages in 201 7. But copies of 
payroll records and an IRS Form W-2, Wage and Tax Statement, indicate that the Beneficiary began 
working for the Petition in October 2018 and that the company paid him $6,094.27 that year. That 
amount does not equal or exceed the annual proffered wage of $32,500. Thus, based solely on 
wages paid, the record does not establish the Petitioner's ability to pay the proffered wage in 2017 or 
2018. Nevertheless, we credit the wages the Petitioner paid the Beneficiary in 2018 and subtract 
them from the annual proffered wage. Thus, for 2018, the company need only demonstrate its 
ability to pay $26,405.73. 
The Petitioner submitted copies of its federal income tax return for 201 7 and unaudited financial 
statements for the same year. The tax return and financial statements, however, reflect negative 
2 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); 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). 
3 In any future filings in this matter. pursuant to 8 C.F.R. § 204.5(g)(2), the Petitioner must submit copies of an annual 
report, federal tax return. or audited financial statements for 2019. 
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annual amounts of both net income and net current assets. Thus, the Petitioner has not demonstrated 
its possession of net income or net current assets sufficient to pay the proffered wage in 201 7. 
The Petitioner also submitted copies of its federal income tax return for 2018. The return reflects net 
income of $137,239. This amount exceeds the difference between the wages paid to the Beneficiary 
that year and the annual proffered wage. The Petitioner therefore has demonstrated its ability to pay 
the proffered wage in 2018. 
Thus, based on examinations of wages paid, net income, and net current assets, the record 
establishes the Petitioner's ability to pay the proffered wage in 2018, but not in 2017, the year of the 
petition's priority date. 
On appeal, the Petitioner asserts that its profit and loss statement for the fourth quarter of 201 7 
demonstrates its ability to pay the proffered wage that year. The statement indicates that, from 
October 1, 2017, through December 31, 2017, the Petitioner generated net income of $77,669.78. 
That amount exceeds the annual proffered wage of $32,500. The Petitioner thus argues that, from 
the petition's priority date of October 27, 2017, it has demonstrated its ability to pay the proffered 
wage in 2017. 
USCIS policy, however, does not allow a petitioner to prorate its ability to pay a proffered wage in 
the year of a petition's priority date. Rather, a petitioner must demonstrate its ability to pay the foll 
proffered wage over a foll year in all relevant years. As this case illustrates, a petitioner's net 
income can vary dramatically over short periods. Factors like economic downturns or the seasonal 
nature of businesses can greatly affect short-term profits. To minimize income fluctuations that can 
distort a business's ability to pay a proffered wage, USCIS examines net incomes generated over at 
least one-year periods. Here, despite the Petitioner's claimed fourth-quarter profit, the company's 
financial records indicate a 2017 annual loss of more than $70,000. Also, the Petitioner has not 
demonstrated that its fourth-quarter statement was independently audited. The record therefore does 
not demonstrate the statement's reliability and accuracy. 
As previously indicated, in determining the Petitioner's ability to pay, we may consider factors 
beyond its wages paid, net income, and net current assets. Under Sonegawa, we may consider: the 
number of years the Petitioner has conducted business; its number of employees; growth of its 
business; its incurrence of uncharacteristic losses or expenses; its reputation in its industry; the 
Beneficiary's replacement of an existing employee or outsourced service; or other factors affecting 
its ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. at 614-15. 
The record indicates the Petitioner's continuous business operations since 20064 and, as of the first 
quarter of 2019, its employment of 35 people. The Petitioner's tax returns also reflect an increase in 
annual revenues from 2017 to 2018. Unlike the petitioner in Sonegawa, however, the Petitioner here 
has not demonstrated its incurrence of uncharacteristic losses or expenses, or its possession of an 
4 The Petitioner asserts that it has conducted business since 2000. USCTS and online government records, however, 
indicate that a separate company operated the restaurant from 2000 until the Petitioner's formation in 2006. See Tex. 
Comptroller of Pub. Accounts, "Taxable Entity Search," https://mycpa.cpa.state.tx.us/coa/ (last visited Mar. 19, 2020). 
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outstanding reputation in its industry. The record also does not establish the Beneficiary's 
replacement of an existing employee or an outsourced service. Thus, a totality of circumstances 
under Sonegawa does not demonstrate the Petitioner's ability to pay the proffered wage. 
III. CONCLUSION 
The record on appeal does not establish the Petitioner's 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. 
ORDER: The appeal is dismissed. 
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