dismissed EB-3 Case: Restaurant Operations

U.S. Citizenship 
and Immigration 
Services 
In Re: 15298282 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 26, 2021 
The Petitioner, an operator of a fast-food restaurant, seeks to employ the Beneficiary as "AR/AP 
Clerk ." 1 The company requests his classification under the third-preference, immigrant visa categoiy for 
skilled workers. See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3XA)(i). 
The Director of the Texas Service Center denied the petition and dismissed the Petitioner 's following 
combined motions to reopen and reconsider. 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. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker generally follows a three-step process. First, to permanently fill a 
position in the United States with a foreign worker , a prospective employer must obtain certification 
from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C . § 1182(aX5). 
DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and available for an 
offered position. Id. A labor certification also signifies that employment of a noncitizen 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 
requirements of a DOL-certified position and a requested visa classification. If USCIS grants a 
petition, a designated noncitizen 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. 
1 Based on the job duties of the offered position , we presume that "AR/ AP" stands for Accounts Receivable /Accounts 
Payable . 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay a proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, federal tax 
returns, or audited financial statements. Id. 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date. If a petitioner did not annually pay the full proffered 
wage or did not pay a beneficiary at all, users considers whether the business generated sufficient 
annual amounts of net income or net current assets to pay any differences between the proffered wage 
and the actual wages paid. If net income and net current assets are insufficient, users may consider 
other factors affecting a petitioner's ability to pay a proffered wage. See Matter ofSonegawa, 12 I&N 
Dec. 612, 614-15 (Reg'l eomm'r 1967). 2 
The accompanying labor certification states the proffered wage of the offered position of AR/ AP clerk 
as $40,186 a year. The petition's priority date is May 1, 2018, the date DOL accepted the labor 
certification application for processing. See 8 e.F.R. § 204.5(d) (explaining how to determine a 
petition's priority date). 
The Petitioner does not claim to have employed the Beneficiary and did not submit evidence that it 
paid him any wages. Based solely on wages paid, the record therefore does not establish the 
Petitioner's ability to pay the proffered wage. 
A copy of the Petitioner's federal income tax return for 2019 reflects net income of $44,827 and net 
current assets of-$46,033. The net income amount exceeds the annual proffered wage of $40,186. 
The record therefore demonstrates the Petitioner's ability to pay the proffered wage in 2019. 
A copy of the Petitioner's federal income tax return for 2018 reports $8,224innetincome and-$9,883 
in net current assets. 3 Neitheramountequals nor exceeds the annual proffered wage of$40, 186. Thus, 
based on examinations of wages paid, net income, and net current assets, the record does not establish 
the Petitioner's ability to pay the proffered wage in 2018, the year of the petition's priority date. 
On appeal, the Petitioner asserts that its employment of the Beneficiary in 2018 would have freed 
monies that year that funded the performance of the job duties of the offered position. The Petitioner 
points to its federal income tax return for 2018, showing the company's payment of a $67,550 
"management fee." The Petitioner's owner and accountant stated that, if the company had not paid 
2 Federal courts haveupheld USCIS' methodofdetermininga petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, LLCv. Napolitano, 558F.3d 111, 118(1st Cir.2009);FourHoles Land& Cattle,LLCv Rodriguez,No. 5:15-
cv-03858,2016 WL4 708715 (D.S.C. Sept. 9,2016). 
3 The Petitioner chose to be treated as an "S" corporation for federal income tax purposes in 2018. S corporations report 
income, credits, deductions, or other adjustments from sources outside their trades or businesses on Schedules K of IRS 
Forms l l 20S, U.S. Income Tax Returns for S Corporations. U.S. Internal Revenue Serv. (IRS), "Instructions for IRS 
Form l 120S," 22, https://www.irs.gov/pub/irs-pd£1i1120s.pdf(lastvisited Jan. 11, 2021 ). For2018, the Petitionerrepo1ted 
an additional deduction. We therefore consider the amount on line 18 of Schedule K, "Income/loss reconciliation," to 
most accurately reflect the petitioner's net income in 2018. 
2 
the management fee, the Petitioner could have used the money to pay the annual proffered wage of 
the offered position. The accountant stated that the Petitioner paid the management fee to another 
company owned by the Petitioner's owner. The owner stated that he and the restaurant's manager had 
been performing the duties of the offered position and that the owner "took" the management fee, "via 
a commonly owned corporation." 
The Petitioner's argument, however, raises unresolved discrepancies of record. The Petitioner claims 
that it pays the management fee for the performance of the offered position's duties. The company 
also indicated on the Form I-140 that the position is "full-time" in nature. But the Petitioner's federal 
income tax return for 2019 reflects the company's payment of a management fee of only $16,650, less 
than the position's annual proffered wage of $40,186. If performance of the offered position's duties 
cost the Petitioner as little as $16,650 a year, the record does not establish sufficient work for a full­
time position. See 20 C.F.R. § 656.3 ( defining the tenn "employment" for laborce1iification purposes 
to mean "[p ]ermanent,fit!l-time work") ( emphasis added). 
Also, the Petitioner's owner implies that the Beneficiary would perform the duties of the offered 
position for not only the Petitioner, but also other businesses. In a letter, the owner stated: 
Given that I own and operate several other businesses, I have decided to hire a full­
time person to handle AR/AP clerk duties which will allow me to focus on the 
management and operation of the businesses instead of handling their day to day 
administration functions. 
The Form I-140 and accompanying labor certification identify the Petitioner as the Beneficiary's sole, 
prospective, full-time employer. If the Beneficiary would also perf01m services for other businesses, 
the record does not explain whether these businesses would pay portions of his proffered wage. 4 The 
Petitioner therefore has not demonstrated its intention to employ the Beneficiary in the offered position 
on a full-time basis. See Matter of Izdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (requiring a 
petitioner to intend to employ a beneficiary pursuant to the terms and conditions of an accompanying 
labor ce1iification). 
These additional, unresolved discrepancies prevent the petition's approval. See Matter of Ho, 19 I&N 
Dec. at 591 (requiring a petitioner to resolve inconsistencies ofrecord). Pending resolution of the 
discrepancies, the Petitioner has not demonstrated that its employment of the Beneficiary in 2018 
would have freed funds to pay his proffered wage that year. 
As previously indicated, in determining the Petitioner's ability to pay, we may consider factors other 
than the company's wage payments, net income, and net current assets. See Matter of Sonegawa, 
12 I&N Dec. at 614-15. Pursuant to Sonegawa, we may consider: the number of years the company 
has operated; its number of employees; growth of its business; its incurrence of uncharacteristic losses 
or expenses; its reputation in its industry; or other factors affecting its ability to pay the proffered wage 
in 2018. Id. 
4 The Petitioner-ratherthan the other businesses -must demonstrate its ability to pay the proffered wage. See 8 C.F.R. 
§ 204.5(g)(2) (requiring "the prospective United States employer" to demonstrate its ability to pay). 
3 
The record indicates the Petitioner's continuous business operations since 2002 and, as of the second 
quarter of 2019, its employment of 16 people. The company's federal income tax returns, however, 
state that its annual revenue amounts in 2018 and 2019 fell short of its annual revenue in 201 7. Also, 
unlike the petitioner in Sonegawa, the Petitioner here has not documented its incurrence of 
uncharacteristic losses or expenses in the relevant year or its possession of an outstanding reputation 
in its industry. A totality of circumstances under Sonegawa therefore does not establish the 
Petitioner's ability to pay the proffered wage. 5 
III. CONCLUSION 
The Petitioner has not demonstrated its 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. 
5 In any future filings in this matter, the Petitioner must resolve the inconsistencies regarding the full-time nature of the 
offered position with independent, objective evidencepointingto where the truth lies. See Matter of Ho, 19 I&NDec. at 
591. The company must also provide regulatory required evidence ofits ability to pay in 2020. See 8 C.F.R § 204.5(g)(2) 
(requiring a petitioner to demonstrate its ability to pay"at the time the priority date is esta blishedand continuinguntil the 
bencficia,yobtains lavvful permanen trcsidcncc") (emphasis added). 
4