dismissed EB-3 Case: Restaurant Management

MATTER OF L-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 25, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant, seeks to permanently employ the Beneficiary as an assistant manager 
under the third preference immigrant classification of skilled worker. See Immigration and Nationality 
Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 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 at least 2 years of training or experience. 
The Director, Nebraska Service Center, denied the petition. The Director found that the Petitioner 
did not establish its continuing ability to pay the proffered wage of the job offered from the priority 
date of the petition onward. The Director affirmed this finding on the Petitioner's 1llotion to reopen. 
The matter is now before us on appeal. The Petitioner has submitted additional documentation and 
asserts that these materials and previously submitted evidence establish its continuing ability to pay 
the proffered wage from the priority date up to the present. Upon de novo review, we will dismiss 
the appeal. 
I. LAW 
The regulation at 8 C.P.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 
perillanent 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. 
Thus, the Petitioner must demonstrate the continuing ability to pay the proffered wage beginning on 
the priority date, which is the date the labor certification application was accepted for processing by 
any office within the employment system of the U.S. Department of Labor (DOL). See 8 C.P.R. 
§ 204.5(d). In this case, the priority date is May 5, 2013. 
Matter of L-, Inc. 
The Petitioner must establish that its job offer to the Beneficiary is a realistic one. Because the filing of 
an ETA Form 9089, Application for Permanent Employment Certification (labor certification), 
establishes a priority date for any immigrant petition later based on the certified ETA Form 9089, the 
Petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the Beneficiary obtains lawful permanent residence. 
The Petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job 
offer is realistic. See Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 8 
C.P.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, United States Citizenship and 
Immigration Services (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 also be considered if the evidence warrants such consideration. See Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
In determining the Petitioner's ability to pay the proffered wage during a given period, we will first 
examine whether the Petitioner employed and paid the Beneficiary during that period. 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 will be considered prima facie proof of the 
Petitioner's ability to pay the proffered wage. 
If the Petitioner does not establish that it employed and paid the Beneficiary an amount at least equal 
to the proffered wage during tliat period, we will next examine the net income figure reflected on the 
Petitioner's federal income tax return, without consideration of depreciation or other expenses. See 
Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. 
filed Nov. 10, 2011); River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009). As an 
alternate means of determining the Petitioner's ability to pay the proffered wage, we will review the 
Petitioner's net current assets. Net current assets are the difference between the petitioner's current 
assets and current liabilities. 1 
We may also consider the totality of the Petitioner's circumstances, including the overall magnitude 
of its business activities, in determining the Petitioner's ability to pay the proffered wage. See 
Matter ofSonegawa, 12 I&N Dec. at 614-15. We may, at our discretion, consider evidence relevant 
to the Petitioner's financial ability that falls outside of its net income and net current assets. We may 
consider such factors as the number of years the Petitioner has been doing business, the established 
historical growth of the Petitioner's business, the Petitioner's reputation within its industry, the 
overall number of employees, whether the beneficiary is replacing a former employee or an 
outsourced service, the amount of compensation paid to officers, the occurrence of any 
1 According to Barron's Dictionary of Accounting Terms 117 (3'd 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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(b)(6)
Matter of L-, Inc. 
uncharacteristic business expenditures or losses, and any other evidence that we deem relevant to the 
Petitioner's ability to pay the proffered wage. 
II. CASE HISTORY 
The instant petition, Form I-140, Immigrant Petition for Alien Worker, was filed on April 6, 2015. 
As required by statute, the petition was accompanied by an ETA Form 9089, which was filed with 
the DOL on May 5, 2013 (the priority date of the petition), and subsequently certified by the DOL. 
In section G ofthe labor certification, the Petitioner stated that the proffered wage for the job offered 
is $64,958 per year. 
As evidence of its ability to pay the proffered wage, the Petitioner submitted copies of the following 
documentation with the Form I-140 and in response to the Director's notice of intent to deny: 
• The Petitioner's IRS Form 1120S, U.S. Income Tax Return for an S Corporation, for the 
years 2013 and 2014; 
• ' An affidavit from the Petitioner's president and 70% shareholder, dated 
September 1, 2015, stating that he would reduce his compensation to ensure full payment of the 
proffered wage; 
• The 2014 IRS Form W-2, Wage and Tax Statement, of from the Petitioner, 
showing that he received wages, tips, and other compensation from the Petitioner totaling 
$36,000 that year; 
• 2014 federal tax returns and bank statements for 
• Monthly bank account statements from 
Petitioner? 
and and 
from July I, 2014, to June 30, 2015, for the 
On October 20, 2015, the Director denied the petition on the ground that the Petitioner did not 
establish its ability to pay the Beneficiary the full proffered wage in 2014. In reviewing the 
Petitioner's federal income tax returns, the Director found that in 2013, the Petitioner's net income 
of $65,0853 was sufficient to pay the proffered wage of $64,958. In 2014, however, the Petitioner's 
net income was only $46,876 ($18,082 less than the proffered wage) and it had net current liabilities 
of -$11,636. The Director determined that the Petitioner's particular business circumstances did not 
warrant a Sonegawa-like finding that it had the ability to pay the proffered wage in 2014. The 
2 The bank statements show that the Petitioner's trade name is The 
Department of Consumer and Regulatory Affairs website indicates that the Petitioner operated under the trade name 
although the trade name registration has been cancelled. See DC Dep' t of Consumer & Regulatory 
Affairs, https://corp.dcra.dc.gov /BizEntity.aspx/ViewEntityData?entityld (accessed Oct. 17, 20 16). In any 
future proceedings, the Petitioner must provide evidence of its current trade name(s ). 
3 !fanS corporation's income is exclusively from a trade or business, USCIS considers its net income to be the figure for 
ordinary income on page I, line 21. However, if there are relevant entries for additional income, credits , deductions or 
other adjustments from sources other than a trade or business , they are reported on Schedule K of the Form 1120S, and 
the corporation 's net income or loss will be found in line 18 (income/loss reconciliation) of Schedule K. 
3 
(b)(6)
Matter of L-, Inc. 
Director found that the personal assets of the Petitioner's president and majority 
shareholder, could not be taken into account in determining the Petitioner's ability to pay the 
proffered wage. The Director did not find the bank statements to be persuasive evidence, among 
other reasons because there was no evidence that the bank account funds were additional funds not 
reflected on the Petitioner's income tax returns, and the subject bank account was a joint account 
that commingled business transactions of the Petitioner with another business.4 
The Petitioner filed a motion to reopen on November 18,2015, along with additional documentation. 
In an affidavit submitted on motion, claimed that the restaurant suffered sub­
standard management and a loss of income for 2 years due to the retirement of his business partner 
in June 2013, and that it was difficult to find a suitable replacement for his business partner until the 
Beneficiary was hired in August 2015. A monthly pay statement issued to the Beneficiary in 
November 2015 shows that his gross pay was $5500 per month.5 The Petitioner also indicated that 
two other 
employees left in 2015 and will not be replaced, which makes additional funds available to 
pay the Beneficiary's proffered wage. 
On January 14, 2016, the Director issued a decision granting the motion to reopen but affirming his 
previous denial ofthe petition. The Director was not persuaded that the loss of a business partner, as 
described by mirrored the circumstances considered in Sonegawa. The Director 
was not persuaded that the Petitioner had the continuing ability to pay the proffered wage based on 
the wages paid to all its employees in 2014 and 2015, the reduction of its workforce in 2015, the 
wages paid to the Beneficiary in 2015, or by the Petitioner's financial history, since no evidence in 
this regard had been submitted. 
The Petitioner filed its appeal on February 16, 2016. The Petitioner asserts that the Director did not 
properly apply Sonegawa in his analysis - in particular, that the Petitioner suffered unusual 
circumstances which warranted consideration of the totality of its circumstances and a favorable 
finding regarding its ability to pay the proffered wage. 
4 The Director stated that the bank statements appear to co-mingle business transactions of both and 
appears to be another corporation partly owned by At one time, it appears 
that operated under the trade name which is referenced in one of the newspaper articles 
submitted by the Petitioner. However, the corporate status of has been revoked in although 
appears to still be operating as a restaurant: See DC Dep't of Consumer & Regulatory Affairs, 
https://corp.dcra.dc.gov/BizEntity.aspx/ViewEntityData?entityid= (accessed Oct. 17, 2016). It is unclear if 
is co-mingling assets of his various corporations in the bank account of and the Petitioner 
has not resolved the issue on appeal. In any future proceedings, the Petitioner must resolve the ambiguity with 
: independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
5 The Beneficiary's November 2015 paycheck shows that the pay period starting on October 16, 2015, and ending on 
November 15, 2015, was the first pay period that the Beneficiary received wages. The Petitioner asserts that the 
Beneficiary was hired in August 2015, but it is unclear why he didn't get paid in August or September 2015. The 
Petitioner's third quarter Employer's Quarterly Contribution and Wage Report filed with the does 
not list the Beneficiary as an employee through the end of the quarter on September 30, 2015. In any future proceedings, 
the Petitioner must resolve the discrepancy with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. at 591-592. 
4 
(b)(6)
Matter of L-, Inc. 
III. ANALYSIS 
As previously discussed, the Petitioner must establish its continuing ability to pay the proffered 
wage from the priority date of May 5, 2013, to the present. See 8 C.F.R. § 204.5(g)(2). In his initial 
decision, the Director found that the Petitioner had the ability to pay the proffered wage of $64,958 
in 2013, based on its net income of$65,085 that year. We agree. · 
In 2014, as previously noted, there was a shortfall of$18,082 between the proffered wage of$64,958 
and the Petitioner's net income of$46,876, and the Petitioner had net current liabilities that year. 
The record also indicates that the Beneficiary, whom the Petitioner claims to have hired in August 
2015, paid the Beneficiary a total of$5500 in 2015, which is $59,458less than the proffered wage. 
In this case, the Petitioner indicated on Form I -140 that it has been in business since March 15, 
2008.6 On the labor certification, the Petitioner stated that it has been in business since 2008 and had 
eight employees. The Petitioner's employee total varied between 9 and\ 12 from the first quarter of 
2014 through the ·third quarter of 2015, as listed on the Employer's Quarterly Contribution and Wage 
Reports filed with the The Petitioner has supplemented the record on appeal 
with a copy of its 2012 Form 1120S. Thus, we now have the Petitioner's federal income tax returns 
for 3 years, which do not show its historical growth since its incorporation. 
The Forms 1120S record the following figures for gross receipts (page 1, line 1a), net income (page 
1, line 21 ), and net current assets (Schedule L, lines 1-6 and 16-18): 
Year 
2012 
2013 
2014 
Gross receipts 
$817,942 
$722,881 
$889,739 
Net Income 
$142,776 
$ 65,085 
$ 46,876 
Net Current Assets/Liabilities 
-$24,194 
-$12,090 
-$11,636 
The above figures cast doubt on the Petitioner's claim that it "experienced uncharacteristic income 
loss" (Appeal Brief at 4) following the retirement of a co-owner and co-manager in June 2013. 
Based on the above figures, it appears that the Petitioner's gross receipts rose considerably from 
6 The Petitioner's tax returns indicate that it was incorporated on December II, 2006, and the 
Department of Consumer and Regulatory Affairs website also indicates that the Petitioner was incorporated on December 
11, 2006. See DC Dep't of Consumer & Regulatory Affairs, 
https://corp.dcra.dc.gov/BizEntity.aspx!ViewEntityData?entityld= (accessed Oct. 17, 20 16). The record does 
not explain the discrepancy in the dates. Further, the Petitioner submitted two newspaper articles relating to 
one dated March 16, 2003, and one dated November 16, 2007. It is unclear if these articles refer to the Petitioner 
or another business, since they predate the date the Petitioner has indicated that it started business. The Petitioner has not 
resolved the ambiguities with independent, objective evidence pointing to where the truth lies. See Matter of Ho, 19 
l&N Dec. at 591-592. 
5 
Matter of L-, Inc. 
2013 to 2014 - its volume of business rose by 23% from 2013 to 2014 - during the period the 
business was allegedly suffering income loss due to the retirement of that co-owner and co-manager. 
The documentation of record, therefore, does not establish a connection between the "unusual 
circumstance" of the retirement of the co-owner and co-manager in June 2013 and the loss of net 
income in 2014. 
The Petitioner asserts that its Quarterly Contribution and Wage Reports for 2014, showing that it 
paid $286,134.50 to its employees that year, demonstrates its ability to pay the proffered wage to the 
Beneficiary, as well. The Petitioner's payment of employees already on the payroll, however, does 
npt demonstrate that it would also have been able to pay the Beneficiary's full proffered wage in 
2014, had he been hired that year. Absent evidence of additional financial resources not reflected in 
the Petitioner's federal income tax return, there is no basis to find that the Petitioner could have 
covered the $18,082 shortfall between the proffered wage of the job offered and its net income in 
2014 based on the wage payments actually made to its employees that year. 
The Petitioner refers to two employees who ceased to work for the Petitioner in the second and third 
quarters of 2015, according to the Quarterly Contribution and Wage Reports for 2015 (the 4th 
quarter report was added on appeal). The Petitioner advised that the Beneficiary will replace these 
two workers. The resulting wage savings, the Petitioner claims, could be utilized on behalf of the 
Beneficiary. In general, wages already paid to others are not available to prove the ability to pay the 
wage proffered to the beneficiary at the priority date of the petition and continuing to the present. 
The duties of the proffered position of assistant restaurant manager as stated on the labor 
certification include: 
[A]ssist manager in planning, directing and managing a full-service restaurant when 
the manager is not available. Assist in supervising wait staff and hosts to ensure 
proper operation of the dining room area. Review inventory level, schedule and 
receive deliveries. Schedule hours of workers, and receive complaints, if any, from 
customers. Ensure cleanliness of the premises. Perform other related duties. 
The two other workers were employed as a kitchen manager and a dining room manager. The 
Petitioner stated the duties of those positions, as follows: 
Kitchen Manager: Checking and ordering supplies, produce, and inventory. 
Supervising cleaning of kitchen and scheduling kitchen staff. 
Dining Room Manager: Checking and order supplies. Beer, wine, and liquor 
inventories. Supervising cleaning of dining room. Prepare server's schedules. 
6 
(b)(6)
Matter of L-, Inc. 
The proffered job of assistant restaurant manager requires assisting a manager. If the Beneficiary is 
replacing two managers, then his position is no longer that of an assistant manager, but that of a 
manager. The Petitioner has not established that one assistant manager can replace two managers. 7 
Further, the availability of additional funds for wage payment purposes in 2015, after the two 
workers left, does not demonstrate the Petitioner 's ability to pay the proffered wage in 2014. 
On appeal, the Petitioner asserts that its corporate bank accounts establish its ability to pay the 
proffered wage. As previously noted, the Petitioner has not shown that the bank account funds in 2014 
were additional assets not otherwise reflected on the Petitioner's federal income tax return for 2014. 
Even if the bank account funds were an additional financial resource that could have been utilized to 
pay the $18,082 shortfall between the proffered wage and net income, the bank account balance would 
have been reduced month by month - at the rate of approximately $1 ,500 per month - to cover the 
proffered wage deficit. Since the balance ofthe account on December 31,2014, was only $16,083.19, 
however, the bank account funds would have been totally depleted before the end of the year. Thus, the 
corporate bank account funds were insufficient to cover the proffered wage shortfall of $18,082 even if 
they had represented an additional financial resource not reflected on the Petitioner's federal income tax 
return. 
The record also includes tax returns and biink statements of two other entities owned by 
and These corporations are separate corporate 
entities. As such, their assets cannot be separately considered in determining whether the Petitioner 
\ 
has the ability to pay the proffered wage of an assistant manager. Because a 
corporation is a separate and distinct legal entity from its owners and shareholders, the assets of its 
shareholders or of other enterprises or corporations cannot be considered in determining the 
petitioning corporation's ability to pay the proffered wage. See Matter of Aphrodite Invs., Ltd., 17 
I&N Dec. 530 (Comm'r 1980). In a similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 
(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." 
The Petitioner's president and 70% shareholder, stated that he would reduce his 
compensation to ensure full payment of the proffered wage. According to Form W-2 
for 2014, he received $36,000 in wages from the Petitioner that year.8 It is not clear from the record 
if this salary is fixed by contract, or if has. the corporate authority to voluntarily 
reduce his salary. Further, the Petitioner did not submit any evidence to establish that 
had the ability to forgo a large portion of his wages from the Petitioner. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
7 It also appears that the Petitioner claims to have replaced the retired co-owner and co-manager (and her successor) with 
the Beneficiary. The Petitioner has not established that one assistant manager can replace three managers . 
8 Based on the Petitioner 's 2014 tax return, these payments were not for officer compensation. 
(b)(6)
Matter of L-, Inc. 
Treasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Without evidence ofhis liabilities, 
costs of living, assets, or additional sources of income, the record does not establish that 
had the ability to forgo a large percentage of his salary from the Petitioner in 2014. 
Finally, the Petitioner submits several articles from the and 
as evidence of the experience and reputation of the Petitioner's president and majority 
owner, We note that all but two of the articles only discuss 
and and make no mention of The two articles 
discussing are dated 2003, and 2007, prior to the Petitioner's 
alleged business start date in 2008. Thus, the articles have little evidentiary weight in this proceeding. 
The petitioner has not submitted credible evidence of its reputation in the restaurant industry. 
For all of the reasons discussed in this decision, the Petitioner had not demonstrated that the totality 
of its circumstances, as in Sonegawa, warrants a finding that it has established its continuing ability 
to pay the proffered wage of the job offered from the priority date up to the present - in particular, 
during the year 2014. 
We additionally note that the Beneficiary claimed on ETA Form 9089 to have worked as an assistant 
restaurant manager in Thailand from March 1, 2007, to April 1, 2009. However, on Form G-325, 
Biographic Information, signed by the Beneficiary 0n March 15, 2015, the Beneficiary did not list 
any prior employment. In any future proceedings, the Petitioner must resolve the discrepancy with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-
592. 
IV. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. See section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 
128 (BIA 2013). The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as' Matter ofL-, Inc., ID# 123338 (AAO Oct. 25, 2016) 
8