dismissed EB-3 Case: Retail Management

MATTER OF G-S- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 25, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a convenience store/gasoline station, seeks to employ the Beneficiary 
as a manager. It requests her classification under the third-preference, immigrant category as a 
skilled worker. Immigration and Nationality Act (the Act) section -203(b)(3)(A)(i), 8 U.S.C. 
§ I 153(b)(3)(A)(i). This category allows a U.S. business to sponsor a foreign national for lawful 
permanent resident status to work in a position requiring at least two years of training or experience. 
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 position's proffered wage. 
On appeal, the Petitioner asserts that the Director erred by not prorating the.proffered wage amount 
for the year of the petition's priority date. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker, an employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1 l 82(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for a position, and that employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id 
If the DOL approves a position, a prospective employer must next submit the labor certification 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 considers whether a beneficiary meets the 
requirements of a certified position and can pay the certified proffereq. wage. If USCIS approves 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. 
Matter of G-S- Inc. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's 
priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. Id. 
. To determine ability to pay, USCIS first 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, USC IS considers whether it generated annual amounts of net income or net current 
assets sutlicient to fund any differences between the 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 (Reg'l 
Comm 'r 1967). 1 · 
Here, the labor certification states the proffered wage of the offered position of manager as $56,139 
a year. The petition's priority date is October 21, 2016, the date the DOL accepted the 
accompanying labor certification application for processing. See 8 C.F.R. § 204.S(d) (explaining 
how to determine a petition's priority date). The Petitioner did not submit evidence that it paid the 
Beneficiary. Based on wages paid, the record therefore does not establish the Petitioner's ability to 
pay the proffered wage. 
Copies of the Petitioner's federal income tax returns for 2017 reflect net income of $24, 172 and net 
current assets of $71,264. The amount of net current assets exceeds the annual proffered wage of 
$56,139. The record therefore establishes the Petitioner's ability to pay the proffered wage in 2017. 
The Petitioner's federal tax returns for 2016 reflect net income of $9,233 and net current assets of 
$45,130. Neither of these amounts equals or exceeds the annual proffered wage. The record 
therefore does not establish the Petitioner's ability to pay in 2016, the year of the petition's priority 
date. Thus, based on examinations of the wages paid by the Petitioner, its net income, and its net 
current assets, the record does not establish its continuing ability to pay the proffered wage from the 
petition's priority date onward. 
On appeal, the Petitioner asserts that it need only pay the portion of the proffered wage that accrued 
after the petition's October 21 priority date in 2016. The Petitioner argues that its net current asset 
amount of $45,130 in 2016 exceeded the prorated proffered wage of $11,074. USCIS policy, 
however, does not allow a petitioner to prorate a proffered wage. As previously discussed, required 
evidence of ability to pay must include copies of an annual report, federal tax returns, or audited 
financial statements. 8 C.F.R. § 204.5(g)(2). These required materials typically cover one-year 
periods. USCIS therefore interprets the regulations as requiring a petitioner to demonstrate its 
1 Federal courts have upheld USCIS' method of detennining 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). 
2 
Maller of G-S- Inc. 
ability to pay a proffered wage over the full year of a petition's priority date. Although we will not 
prorate the proffered wage, we will consider the effect of a short period between a priority date and 
the end of a priority-date year in the context of our totality of the circumstances analysis under 
Sonegawa. 
Under Sonegawa, we may consider: how long the Petitioner has conducted business; its number of 
employees; the growth of its business; its incurrence of uncharacteristic losses or expenses; its 
reputation in its industry; the Beneficiary's replacement of a current employee or outsourced service; 
or other factors affecting the Petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 
12 I&N Dec. at 614-15. Here, the record indicates the Petitioner's continuous business operations 
since 2007 and its employment of three people. Its tax returns also indicate increases in its annual 
amounts of revenue and ~ages paid from 2016 to 2017. 
Despite the increase in wages paid, however, the tax returns indicate that the position's proffered 
wage exceeded the Petitioner's total annual payments to employees in both 2016 and 2017. Also, 
the record lacks financial documentation of the Petitioner's finances before 2016 and therefore does 
not establish a substantial pattern of revenue growth. In addition, unlike in Sonegawa, the record 
does not establish the Petitioner's incurrence of uncharacteristic losses or expenses, or its possession 
of an outstanding reputation in its industry. The record also does not indicate the Beneficiary's 
replacement of a current employee or outsourced service. Finally, although the Petitioner urges 
proration of the proffered wage in 2016, the period between the petition's October 21 priority date 
and the year's end is significant. Thus, considering. the timing of the priority date with the negative 
factors discussed above, a totality of the circumstances under Sonegawa does not establish the 
Petitioner's ability to pay the proffered wage. The record therefore does not establish the 
Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. 
III. BONA FIDES OF THE JOB OPPORTUNITY 
Although unaddressed by the Director, the record also does not establish the bona fides of the job 
opportunity. On the labor certification, the Petitioner atteste_d that the offered position "has been and 
is clearly open to any U.S. worker." See 20 C.F.R. § 656.I0(c)(S) (requiring a labor certification 
employer to so certify). A special relation~hip between an employer and a foreign national, 
however, casts doubt on the availability of a position to U.S. workers. See, e.g., Matter oJSunrnart 
374, 2000-INA-093, 2000 WL 707942 *3 (BALCA May 15, 2000) (holding that such a relationship 
"is not only of the blood; it may also be financial, by marriage, or through friendship"). USCIS may 
invalidate a labor certification after its issuance upon finding "'fraud or willful misrepresentation of a 
material fact involving the labor certification application." 20 C.F.R. § 656.J0(d). 
Here, USCIS and public records identify the Beneficiary as the sister-in-law of a business associate 
of the Petitioner's president/sole shareholder. USCIS approved a family-based immigrant petition 
by the associate for his brother, the Beneficiary's spouse, in 2013. Public records indicate that the 
Petitioner's president and the associate serve together as officers of another active corporation. See 
Tex. Comptroller of Pub. Accounts, Taxable Entity Search, https://mycpa.cpa.state.tx.us/coa (last 
3 
Mafler q/G-S- lnc. 
visited Aug. 13, 2018). They also served together as officers of a corporation that dissolved in 2016. 
Id. 
The Beneficiary's ties to a business associate of the Petitioner's president/sole shareholder cast 
doubt on the availability of the offered position to U.S. workers. In any future filings in this matter, 
the Petitioner must therefore establish the bonajides of the job opportunity. See Matter of Modular 
Container Sys .. Inc., 1988-INA-228, 1991 WL223955 *8(BALCAJuly 16, 1991)(enbanc)(listing 
factors to be considered in determining the bona jides of a job opportunity). The Petitioner should 
explain the Beneficiary's relationship to the business associate and any that exists between her and 
the Petitioner's president. The Petitioner should also submit its labor certification recruitment 
materials, including copies of: its notice of filing; request for prevailing wage determination; 
newspaper advertisements; job order; recruitment report; any resumes or applications received from 
U.S. workers; and correspondence with the DOL. 
IV. CONCLUSION 
The record on appeal does not establish the Petitioner's ability to pay the proffered wage from the 
petition's priority date onward. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as Matter <~(G-S-Inc., ID# 1717445 (AAO Sept. 25, 2018) 
4