dismissed EB-3 Case: Restaurant Industry

MATTER OF C-D- LTD. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 3, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant, seeks to employ the Beneficiary as a cook. It requests classification of the 
Beneficiary as an unskilled worker under the third preference immigrant classification. See 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). 
This employment-based immigrant classification allows a U.S. employer to sponsor a foreign 
national for lawful permanent resident status to work in a position that requires less than two years 
of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner had the ability to pay the proffered wage to the Beneficiary. 
On appeal, the Petitioner states that it has the ability to pay the proffered wage. Upon de novo 
review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved 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). By approving the labor certification, the 
DOL certifies that there are insufficient 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. 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 ofthe 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. 
Matter of C-D- Ltd. 
II. ANALYSIS 
A. Ability to Pay 
A petitioner must establish that it has the ability to pay the beneficiary the proffered wage, as stated 
on the labor certification, from the priority date onward. The regulation at 8 C.F.R. § 204.5(g)(2) 
provides, in pertinent part, as follows: 
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 appropriate 
cases, additional evidence, such as profit/loss statements, bank account records, or 
personnel records may be submitted by the petitioner or requested by the Service. 
In this case, the labor certification was accepted on September 30, 2015, the priority date. The 
proffered wage stated on the labor certification is $26,624 per year. Therefore, the Petitioner must 
establish its ability to pay the full proffered wage of $26,624 from 2015 onward. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. If 
the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal 
to or greater than the proffered wage, the evidence is considered proof of the petitioner's ability to 
pay the proffered wage. Although the Petitioner claimed to have employed the Beneficiary as a 
cook since October 1, 2006, the record does not establish that the Petitioner paid the Beneficiary 
wages in any year.1 Accordingly, the Petitioner cannot establish its ability to pay the proffered wage 
based on wages actually paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount at least equal to the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures entered on the petitioner's federal income tax retum(s). If either of these figures 
equals or exceeds the proffered wage or the difference between the proffered wage and the amount 
paid to the beneficiary in a given year, the petitioner would be considered able to pay the proffered 
wage during that year. 
1 
The Petitioner stated on the petition that the Beneficiary's status is that of a B-2 nonimmigrant whose authorized period 
of stay expired. Consequently, the Beneficiary does not appear to have work-authorized status. 
2 
Matter of C-D- Ltd. 
The Petitioner is an S corporation. 2 The Petitioner's tax returns for 2015 and 2016 state net income 
of $3,236 and $53,508, respectively, which establishes the Petitioner's ability to pay the proffered 
wage for 2016 but not for 2015. Therefore, the Petitioner's net income is not sufficient to pay the 
proffered wage in 2015. 
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.3 A corporation's year-end current assets are shown 
on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. 
If the total of a corporation's end-of-year net current assets and the wages paid to the beneficiary (if 
any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the 
proffered wage using those net current assets. The Petitioner's 2015 tax return states end-of-year net 
current assets of$21,908, which is insufficient to pay the proffered wage for that year. 
On appeal, the Petitioner states that the Director "does not dispute that the [P]etitioner has 
demonstrated [its] ability to pay the proffered wage for 2015"; however, this claim is incorrect as 
the Director specifically concluded that the Petitioner had not demonstrated its ability to pay from 
2015 onward. The Petitioner also contends on appeal that its beginning of year cash of $28,295 
represented on its 2015 Schedule L should be added to its end of year net assets in calculating the 
funds available to pay the proffered wage. We disagree. The Petitioner's Schedule L end of year 
cash, which was $19,425, was included in our calculation of the Petitioner's net current assets. We 
cannot add the Petitioner's beginning of the year cash (some of which appears to have been spent 
over the course of the year) to its net current assets (which already reflects the remaining cash) in 
determining the Petitioner's ability to pay the proffered wage. 
The Petitioner also states on appeal that we should use its 2016 net income of over $53,000 to 
establish its ability to pay in 2015. However, a Petitioner must establish its ability to pay the 
proffered wage as of the priority date onward. 8 C.F.R. § 204.5(g)(2). We cannot consider a 
Petitioner's 2016 net income to retroactively establish its ability to pay in 2015. Therefore, from the 
date the labor certification was accepted for processing by the DOL, the Petitioner has not 
established that it had the continuing ability to pay the Beneficiary the proffered wage as of the 
priority date through an examination of its net income or net current assets. 
In cases where neither a petitioner's net income nor its net current assets establish its ability to pay 
the proffered wage during the required period, USCIS may also consider the overall magnitude of its 
business activities. Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). In 
2
ln 2015 and 2016, the Petitioner filed an IRS Form 1120S. Where an S corporation's income is exclusively from a 
trade or business, users considers net income to be the figure for ordinary income, shown on line 21 of page one of the 
petitioner's IRS Form 1120S. 
3 
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. 
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Matter of C-D- Ltd. 
Sonegawa, the petitioning entity had been in business for over 11 years but had changed locations in 
the year it filed the visa petition, resulting in unusual expenses and a temporary inability to conduct 
regular business operations. Nevertheless, the former U.S. Immigration and Naturalization Service 
(now USCIS) approved the visa petition, determining that the totality of the petitioner's 
circumstances established its ability to pay the proffered wage. That determination was, in part, 
based on the Petitioner's history of successful business operations and its outstanding reputation 
within its industry. 
In assessing the totality of the petitioner's circumstances, USCIS may look at such factors as the 
number of years it has been in business, its record of growth, the number of individuals it employs, 
abnormal business expenditures or losses, its reputation within its industry, whether the beneficiary 
is replacing a former employee or an outsourced service, or any other evidence it deems relevant. 
On appeal, the Petitioner contends that businesses experience t1uctuations in income that does not 
impact their ability to meet payroll or other expenses. The Petitioner cites to an immigration article 
about consideration of the totality of circumstances and the overall magnitude of a Petitioner's 
business activities in determining its ability to pay the proffered wage. The Petitioner requests that 
we do so in this case rather than focus on tax returns or another single factor. 
The Petitioner contends that is has the ability to pay based on a totality of the circumstances analysis 
because it has been a successful business since 1 981, and the longevity of its operations should be 
taken into account. However, the Petitioner has provided contradictory information regarding the 
length of its operations. On the labor certification and petition, the Petitioner stated that it 
commenced doing business since 1981; however, on its federal and state tax returns, the Petitioner 
indicated that it was incorporated on January 1, 2008. Moreover, the Petitioner has not submitted 
financial information to establish its success since 1981 or 2008. The record contains financial 
information only for 2015 and 2016 and these two tax returns are not sufficient to show a historical 
pattern of growth. There is also no independent evidence of the Petitioner's reputation within the 
restaurant industry and the Petitioner has not claimed or established that it has experienced 
uncharacteristic losses or expenses in the period in question. As a result, we do not find the record 
to contain sufficient evidence to conclude that the totality of the Petitioner's circumstances establish 
its ability to pay the proffered wage from the priority date onward. 
B. Beneficiary's Experience 
As an additional matter, the Petitioner has not provided sufficient evidence to establish that the 
Beneficiary has the minimum experience required on the labor certification. The Petitioner requests 
classification of the Beneficiary as a skilled worker. In order to qualify as a skilled worker, the 
Beneficiary must possess at least two years of training or experience and meet the "educational, 
training or experience, and any other requirements of the individual labor certification." 8 C.F.R. 
§ 204.5(1)(3)(ii)(B). In evaluating a beneficiary's qualifications, we must examine the job offer 
portion of a labor certification to determine the minimum requirements of an offered position. We 
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Matter of C-D- Ltd. 
may neither ignore a term of the labor certification, nor impose additional requirements. See, e.g.. 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983). 
The labor certification states that 12 months of experience as a cook is the minimum experience 
requirement of the job offered. The Beneficiary attested on the labor certification that he has 12 
months of full-time, qualifying experience as a cook at in 
Mongolia from June 1, 1998, to December 20, 2003. The Petitioner provided a letter from 
the Beneficiary's supervisor at as required evidence of the 
Beneficiary's possession of at least 12 months of full-time, qualifying experience as a cook. 
8 C.F.R. § 204.5(1)(3)(ii)(A). However, stated in his letter that the Beneficiary 
worked as a cook in the restaurant from June 1, 1998, to December 20, 2004. This contradicts the 
Beneficiary's claim on the labor certification to have stopped working at the restaurant in 
December 2003. Moreover, the record shows that the Beneficiary claims to have arrived in the 
United States on January 20, 2004, and has remained here since that date; therefore, he could not 
have worked at until December 20, 2004, as the restaurant stated in its 
letter. A petitioner must resolve inconsistencies in the record such as this with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). The inconsistencies raise doubt about the claimed experience. See id. 
Based on the unresolved inconsistencies regarding the Beneficiary's employment history, the Petitioner 
has not submitted sufficient evidence to establish the Beneficiary has qualifying experience as a cook in 
Mongolia. Consequently, the Petitioner's evidence is not sufficient to establish that the Beneficiary has 
the qualifying experience required by the terms of the labor certification. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage to the Beneficiary 
from the priority date onward. Nor has the Petitioner demonstrated that the Beneficiary has the 
minimum experience required by the labor certification. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-D- Ltd., ID# 813083 (AAO Jan. 3, 2018) 
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