dismissed EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 41-SSM-S- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 20. 201 S 
PETITION: FORM 1-140. IMMIGRANT PETITION FOR ALIEN WORKFR 
The Petitioner. a convenience store. seeks to employ the Beneficiary as a night manager. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i). S li.S.C. 
~ 1153(b)(3)(A)(i). This employment-based immigrant classification allovvs a U.S. employer to 
sponsor a foreign national for lawful permanent resident status to work in a position that requires at 
least 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 continuing ability to pay the proffered wage from 
the petition· s priority date onward. 
On appeal. the Petitioner submits additional evidence and asserts that it had sufficient funds to pay 
the proffered wage: that it has been paying wages to the Beneficiary since 2005: that it has to 
establish its ability to pay the proffered wage from January 2006 onward: and that its income was 
over $1 00.000 each year from 2006 onward. 
Upon de nol'o review. \VC 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).
1 
,)'ee section 
212(a)(5)(A)(i) of the Act 8 U.S.C. ~ 1182(a)(5)(/\)(i). By approving the labor eci1ilication. the DOL 
ce11ities that there arc insufficient U.S. workers who are able. willing. qualified. and available for the 
offered position and that employing a fiJreign national in the position will not adversely atkct the wages 
and working conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(l)-(ll) of the 
Act.2 Second. the employer tiles an immigrant visa petition with lJ .S. Citizenship and Immigration 
1 
On appeal. the Petitioner assei1S that it has to establish its ability to pay the proffered wage ii·om .January 2006 onl\ard. 
However, the priority date of a petition is the date the DOL accepted the labor certification f(lr processing. vvhich in this 
case is April 30. 200 I . ."ii!e 8 C.F.R. ~ 204.5(d). 
2 This petition involves the substitution of the labor certification beneficiary. The substitution of beneficiaries was 
Maner ol.J I-55M-S- Inc. 
Services (USC IS). S'ee section 204 of the Act. 8 U .S.C. ~ 1154. Third. if USC IS approves the 
petition. the foreign national applies for an immigrant visa abroad or. if eligible. adjustment of status 
in the United States. S'ee section 245 of the Act. 8 U.S.C. ~ 1255. 
II. ABILITY TO PAY THE PROFFERED WAGE 
The Director denied the petition Ending that the Petitioner had not established its ability to pay the 
protlered wage of$38.132 per year from the April 30. 2001 priority date onward. The regulation at 
8 C.F.R. ~ 204.5(g)(2) states in pertinent part: 
Ability o{ pro.\jJectire employer to pay mtge. Any petition tiled by or fix an 
employment-based immigrant which requires an offer of employment must he 
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 tcm11 of copies of 
annual reports. federal tax returns. or audited financial statements. 
In determining a petitioner's ability to pay. we tirst examine whether it paid a beneficiary the full 
protlered wage each year ti·om a petition ·s priority date. If a petitioner did not pay a beneficiary the 
full proffered wage. we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the ditfcrcncc between the proffered wage and the wages paid. if any. If a 
petitioner's net income or net current assets are insut1icient. we may also consider other evidence of 
its ability to pay the proffered wage. 1 
On appeal. the Petitioner states that it has been paying wages to the Beneficiary smce 2005. 
However. the Petitioner submitted copies of IRS Forms W-2. Wage and Tax Statements. 
demonstrating that it employed the 13cneficiary only from 2007 to 2016. The Forms W -2 reflect that 
the Petitioner paid the Beneficiary as follows: 
formerly permitted by the DOL. On May 17. 2007. the DOL issued a final rule prohibiting the substitution of 
beneficiaries on labor certifications etTective July 16. 2007. s~e 72 Fed. Reg. 27904 (codified at 20 C.I·.R. ~ li)6). /\s 
the filing of this petition predates the final rule. and since another beneficiary has not been issued lawful permanent 
residence based on the labor certification. substitution was permitted by the Director. 
'Federal courts have upheld our method ofdetennining a petitioner's ability to pay a proffered wage. S~e. e.g .. Rirer St. 
Donuts. LU' ''· Napolitano. 558 F.3d I I I. I 18 (I st Cir. 2009): Tongatapu Woodcrafi If all'.. Ltd ,._ reldman. 736 F.2d 
1305, 1309 (9th Cir. 1984): Estrada-ffermmde~ \'./folder.-- r:. Supp. 3d--. 2015 WL 3634497. *5 (S 0. Cal. 2015): Ri~ri 
\'. Dep't ofHomdandSec. 37 F. Supp. 3d 870,883-84 (S.D. Tex. 2014). af('d. --Fed. /\ppx. --.2015 WL 5711445. *I 
(5th Cir. Sept. 30. 20I:i). 
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Mafler oj'.f I-55M-S- Inc. 
• $20.460 in 2007: 
• $38,000 in 2008: 
• $38.000 in 2009: 
• $38.000 in 2010: 
• $38.000 in 2011: 
• $38.000 in 2012: 
• $38.000 in 2013: 
• $38.000 in 2014: 
• $38.000 in 2015: and 
• $42.000 in 2016 . 
The Petitioner did not establish that it paid the Beneficiary any wages from 2001 to 2006. and the 
amounts on the Forms W -2 do not equal or exceed the annual proffered wage of $38.132 from 2007 
to 2015 . .J The record therefore docs not establish the Petitioner's ability to pay the profkred wage 
based on the wages it paid to the Beneficiary ti·om 2001 to 2015. The Petitioner must establish its 
ability to pay the full proffered wage from 2001 to 2006. and its ability to pay the di ffcrencc between 
the annual proffered wage and the amounts it paid to the Beneficiary from 2007 to 2015. which is 
$17.6 72 in 2007: and $132 from 2008 to 2015. 
Although the Petitioner paid the Beneficiary more than the proffered wage in 2016. we arc precluded 
from finding that the Petitioner has the ability to pay in this year because the Petitioner did not 
submit a form of regulatory required evidence for 2016. Evidence of a Petitioner's ability to pay 
··shall be either in the form of copies of annual reports. federal tax returns. or audited financial 
statements... 8 C.F.R. ~ 204.5(g)(2). Absent one of the regulatory required documents. the 
Petitioner has not demonstrated its ability to pay in that year. Likevvisc. the Petitioner did not submit 
a required form of evidence for the years 2005 to 2016. 5 Because it did not provide regulatory­
prescribed evidence of its ability to pay the protlercd wage from 2005 to 2016. it cannot established 
its ability to pay in those years. 
For the years the Petitioner did provide regulatory-prescribed evidence. its federal tax returns state 
net income 6 amounts as follows: 
1 The record contains Forms W-2 issued to the Beneficiary by entities other than the Petitioner. However. because a 
corporation is a separate and distinct legal entity. wages paid by other entities cannot be considered in determining the 
Petitioner's ability to pay the protlered wage. Sec Mal/l.'r o/Aphrodile lnrs .. Lid. 17 I&N Dec. 530 (Comm·r 19RO). In 
a similar case. the court in Silar 1·. Ashcrofi. No. Civ. A. 02-30197-MAP. 2003 WL 22203713 (D.Mass. Sept. 18. 2003) 
stated, "nothing in the governing regulation, 8 C.F.R. ~ 204.5. permits IUSCISJ to consider the financial resources of 
individuals or entities who have no legal obligation to pay the wage ... 
5 The record contains individual tax returns of the Petitioner's shareholder for 2001 to 2012. lhmever. the assets of the 
Petitioner's shareholder cannot be considered in determining the Petitioner's ability to pay the proffered wage. See id. 
''The Petitioner is an S corporation. Where an S corporation's income is exclusively ti·om a trade or business. liSCIS 
considers net income to be the figure for ordinary income, shown on line 21 of page I of a petitioner's IRS form I I:?OS. 
U.S. Income Tax Return for an S Corporation. However. where an S corporation has income. credits. deductions. or 
other adjustments ti·om sources other than a trade or business. net income is found on line 18 of Schedule K to Form 
Matter ol.J I-55M-S- Inc. 
• $14.063 in 2001: 
• $17.758 in 2002: 
• $14.781 in 2003: and 
• $16.837 in 2004. 
Therefore. for the years 200 I to 2004. the Petitioner did not have sufticient net income to pay the 
profTered wage. On appeal. the Petitioner states that its income was over $100.000 each year from 
2006 onward. However. it has not supp011ed that assertion with any evidence. 
As an alternate means of determining a petitioner's ability to pay the profkrcd wage. USC IS may 
review its net current assets. Net current assets are the difference between a petitioner's current 
assets and current liabilities. 7 A corporation's year-end current assets are shown on Schedule L. 
lines I 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) arc equal 
to or greater than the proffered wage. the petitioner is expected to be able to pay the pro!Tcred wage 
using those net current assets. The Petitioner's tax returns state end-of-year net current assets as 
follows: 
• $14.899 in 2001: 
• $14.984 in 2002: 
• $16.713in2003:and 
• $18.227 in 2004. 
For the years 2001 to 2004. the Petitioner did not have suf1ieient net current assets to pay the 
proffered \vage. Thercf(lre. based on an examination of wages paid and the Petitioner's net income 
and net current assets. the Petitioner has not established its ability to pay Ill any year from 200 I 
through 2016. 
We may consider evidence of a petitioner's ability to pay beyond its net income and net current 
assets. including such factors as: the number of years it has conducted business: the growth or its 
business: its number of employees: the occurrence of any uncharacteristic business expenditures or 
losses: its reputation in its industry: whether a beneticiary will replace a current employee or 
outsourccd service: or other evidence of its ability to pay a proffered wage. S'cc Matter o( 
Sonegawa. 12l&N Dec. 612.614-615 (Reg'! Comm·r 1967). 
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1120S. See Internal Revenue Serv .. Instructions to Form 1120S. 22. at https:11www.irs.gov'pub 1irs-pdfiill20s.pdf(last 
visited Feb. 9, 2018). In this case. the Petitioner's net income is found on line 21 ofpa~e I of its Form 1120S. 
'Current assets consist of items having (in most cases) a life of one year or less, su~h as cash. marketable securities. 
inventory. and prepaid expenses. Joel G. Siegel & JacK. Shim. 8arn111 's DictionaiT of.Jcmuming Terms 117 (3d ed. 
2000). Current liabilities are obligations payable (in most ~ases) within one year. such as a~counts payable. short-term 
notes payable. and accrued expenses (such as taxes and salaries). !d at 118. 
Matter of.! I -55/v!-S- Inc. 
In this case, the record indicates that the Petitioner was incorporated in 1999. Unlike in .\'onexmra. 
however, the record here docs not establish the growth of the Petitioner"s business: its number of 
employees: the occurrence of any uncharacteristic business expenditures or losses: its reputation in 
its industry: or whether a beneficiary will replace a current employee or outsourced service. 
Moreover. the lack of financial documentation for :2005 to :2016 limits our ability to analyze the 
totality of the Petitioner's circumstances. Thus. assessing the totality of circumstances in this case. 
the record does not establish the Petitioner's continuing ability to pay the proffered wage pursuant to 
5.,'onexa11·a. 
111. CONCLUSION 
The Petitioner did not establish its continuing ability to pay the proft(·red wage tt-mn the priority date 
onward. 
ORDER: The appeal is dismissed. 
Cite as l'vfatter of-1 1-55M-.)'-Inc.. ID# 1037690 (AAO Feb. 20. 2018) 
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