dismissed EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M.S.I-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 7, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a convenience store, seeks to employ the Beneficiary as a manager and requests 
classification as a skilled worker under the third preference immigrant classification. 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 
expenence. 
The petition was initially approved. Subsequently, the Director, Texas Service Center, issued the 
Petitioner a notice of intent to revoke the approval of the petition (NOIR) on August 4, 2015. On 
November 24, 2015, the Director issued a notice of revocation revoking the approval of the petition, 
and concluding that the Petitioner had not established its continuing ability to pay the profiered wage 
to the Beneficiary as of the 2001 priority date onward. The Director also noted other Forms I-140, 
Immigrant Petitions for Alien Workers, filed by the Petitioner and stated that "USCIS cannot 
consider the petitioner's ability to pay a single beneficiary by itself when the petitioner has filed 
multiple immigrant visa petitions." 
The matter is now before us on appeal. On appeal, the Petitioner submits a copy of its response to 
the NOIR and states that the Director did not review the tax returns from 2001 to 2005. The 
Petitioner states that this evidence demonstrates that it has the ability to pay the proffered wage to 
the Beneficiary and its other sponsored workers. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A.· The Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor certification from the U.S. Department of Labot (DOL). See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving a labor certification application, the DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for an 
offered position. See section 212(a)(5)(A)(i)(I) of the Act. The DOL also certifies that the employment 
Matter of MS.!-, Inc. 
of 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)(II) of the Act. Next, USCIS must 
approve an immigrant visa petition. See section 204 of the Act. Finally, a foreign national must 
apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See 
section 245 ofthe Act, 8 U.S.C. § 1255. 
In these visa petition proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g, Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madany v. Sff_Zith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has authority to 
make preference classification decisions). 
The priority date of a petition is the date the DOL accepted the labor certification for processing. 
See 8 C.F.R. § 204.5(d). The priority date is used to calculate when the beneficiary of the visa 
petition is eligible to adjust his or her status to that of a lawful permanent resident. See 8 C.F.R. § 
245.1 (g). A petitioner must establish the elements for the approval of the petition at the time the 
priority date is established and continuing until the beneficiary obtains lawful permanent residence. 
See 8 C.F.R. §§ 204,5(g)(2), 103.2(b)(l), (12); see also Matter of Wing's Tea House, ·16 I&N Dec. 
158, 159 (Acting Reg'l Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971 ). The priority date in this case is April 30, 2001. 
B. The Notice of Intent to Revoke 
After granting a petition, USCIS may revoke the petition's approval "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record, a director's 
realization that a petition was erroneously approved may justify revocation. Matter ofHo, 19 I&N 
Dec. 582, 590 (BIA 1988). 
Good and sufficient cause exists to issue a notice of intent to revoke where the record at the time of 
the notice's issuance, if unexplained or unrebutted, would have warranted the petition's denial. 
Matter ofEstime, 19 I&N Dec. 450,451 (BIA 1987). Similarly, revocation is proper ifthe record at 
the time of the decision, including any explanation or rebuttal evidence provided by a petitioner, 
warranted a petition's denial. Jd. at 452. 
In the instant case, good and sufficient cause supported the Director's issuance of the NOIR. The 
Director indicated that the record did not contain regulatory evidence of the Petitioner's continuing 
ability to pay the proffered wage in all relevant years, and that it did not contain evidence of the 
Petitioner's ability to pay the proffered wages of the beneficiaries of all of its pending petitions. 1 
1 
The Director also stated that the Petitioner failed to establish that it made a bona fide job offer to the Beneficiary, and 
that it was not clear if the job offer was valid. 
2 
Matter of MS.!-, Inc. 
If unexplained or unrebutted, the record at the time of the NOIR's issuance would have warranted 
the petition's denial, as it did not establish the Petitioner's continuing ability to pay the proffered 
wage from the priority date. The Director therefore properly issued the NOIR. 
C. Ability to Pay the Proffered Wage 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
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 ev_idence 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 t~x returns, or audited financial statements. 
A petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer 
is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 
8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, 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 be considered if the evidence warrants such 
consideration. See MatterofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
The proffered wage as stated on the labor certification is $3500 per month ($42,000 per year). 
According to USCIS records, the Petitioner has filed Form I-140 petitions on behalf of three other 
beneficiaries, two of whom had petitions filed on their behalf in 2003 and 2004 with priority dates in 
April 2001. The Director noted that the Petitioner must establish that it has had the continuing 
ability to pay the combined proffered wages to each beneficiary from the priority date of the instant 
petition. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm',r 1977); 8 
C.F.R. § 204.5(g)(2). The Petitioner must demonstrate its ability to pay the combined protiered 
wages from the instant petition's priority date until the other beneficiaries obtain lawful permanent 
residence, or until their petitions are. denied, withdrawn, or revoked. See Patel v. Johnson, 2 F. 
Supp. 3d 108, 124 (D. Mass. 2014) (affirming our denial of a petition where a petitioner did not 
demonstrate its ability to pay multiple beneficiaries). 
In response to the Director's NOIR, the Petitioner demonstrated that it must pay the following 
proffered wages, as indicated in the table below: 
3 
(b)(6)
Matter of MS.!-, Inc. 
Receipt number Proffered wage 
(the Beneficiary) $42,000 -
$36,700 -
j $36,600 
Therefore, the Petitioner must demonstrate it had the ability to pay combined annual proffered wages 
of$115,300 starting in 2001. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it generated sufficient annual amounts of net income 
or net current assets to pay the difference between the proffered wage and,the wages paid, if any. If 
a petitioner's net income or net current assets are insufficient, we may also consider other evidence 
of its ability to pay the proffered wage.4 
In this case, the Petitioner has not established that it employed and paid the Beneficiary or its other 
sponsored workers their full proffered wages from their respective priority dates onward. 
The Petitioner's tax returns indicate that it is structured as an S corporation. 5 The Petitioner's tax 
returns demonstrate its net income for 2001 through 2005, as shown in the table below. 
• In 2001, the Form 1120S stated net income of$28,233.00. 
• In 2002, the Form 1120S stated net income of$57,901.00. 6 
2 This petition was approved on March 8, 2005, but a notice of intent to revoke the approval of the petition was issued on 
September 26, 2016. 
3 This petition was denied on June 29, 2009. 
4 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder,-- F. Supp. 3d--, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rivzi 
v. Dep 't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 20 14), ajJ'd, -- Fed. Appx. --, 2015 WL 5711445, *I 
(5th Cir. Sept. 30, 20 15). 
5 Where an S corporation's income is exclusively from a trade or business, USCIS considers net income to be the figure 
for ordinary income, shown on line 21 of page I of a petitioner's IRS Form 1120S, U.S. Income Tax Return for an S 
Corporation. However, where an S corporation has income, credits, deductions or other adjustments from sources other 
than a trade or business, they are reported on Schedule K. If the Schedule K has relevant entries for additional income, 
credits, deductions or other adjustments, net income is found on line 23 for 200 I to 2003, and line 17e for 2004 to 
2005. See Instructions for Form 1120S, at http://www.irs.gov/pub/irs-pdf/i 1120s.pdf (last visited Feb. 3, 20 17) 
(indicating that Schedule K is a summary schedule of all shareholders' shares ofthe corporation's income, deductions, 
credits, etc.). 
6 
The Petitioner states that it bifurcated its operations between itself and for tax purposes in 
2002 and 2003, but does not explain how the bifurcation occurred. We note that the tax returns for the two entities state 
different federal employer identification numbers, but list the same address. The Petitioner's shareholder indicates in an 
affidavit dated September 17, 2009, that the Petitioner owned "the property" and operated the 
4 
(b)(6)
Matter of MS.!-, Inc. 
• In 2003, the Form 1120S stated net income of$57,145.00. 
• In 2004, the Form 1120S stated net income of$77,336.00. 
• In 2005, the Form 1120S stated net income of$80,616.00. 
Therefore, for the years 2001 through 2005, the Petitioner did not have sufficient net income to pay 
the combined proffered wages of the Beneficiary and the Petitioner's other sponsored workers, 
which as 'stated above equates to a total of $115,300 each year. 
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. 7 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, a petitioner is expected to be able to pay the 
proffered wage using those net current assets. The Petitioner's tax returns demonstrate its end-of­
year net current assets for 2001 through 2005, as shown in the table below. 
• In 2001, the Form 1120S stated net current assets of$39,387.00. 
• In 2002, the Form 1120S stated net current assets of$17,198.00. 
• In 2003, the Form 1120S stated net current assets of $102,190.00. 8 
• In 2004, the Form 1120S stated net current assets of$73,486.00. 
• In 2005, the Form 1120S stated net current assets of$130,127.00. 
Therefore, for the years 2001 through 2004, the Petitioner did not have sufficient net current assets 
to pay the combined proffered wages to the Beneficiary and its other sponsored workers. The 
Petitioner did have sufficient net current assets to pay these combined wages of $115,300 in 2005. 
Thus, from the date the labor certification was accepted for processing by DOL, the Petitioner has 
not established that it had the continuing ability to pay the Beneficiary and the Petitioner's other 
retail/convenience store. The job offer in this case relates to management of a retail store. A labor certification is only 
valid for the particular job opportunity stated on the application form. 20 C.F.R. § 656.30(c). Thus, if the Petitioner did 
not operate the retail store in 2002 and 2003, then the job offer was no longer valid unless the Petitioner can establish 
that was its successor-in-interest. Even if we were to take this bifurcation into account, the tax 
returns for do not state higher amounts of net income than indicated on the Petitioner's tax 
returns for these years. Therefore, for 2002 and 2003, this would not change our analysis of the Petitioner's ability, to 
pay the proffered wages at issue. 
7 According to Barron's Dictionary of Accounting Terms 117 (3rd 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. 
8 As stated above, the Petitioner indicates that it bifurcated its operations between itself and for 
2002 and 2003. Even if we were to take this into account, the tax returns for do not state 
sufficient amounts of net current assets to change our analysis for 2002 and do not state any amount of net current assets 
for 2003. 
5 
(b)(6)
Matter of MS.!-, Inc. 
sponsored workers their proffered wages as of the priority date through an examination of wages 
pai~ or its net income or net current assets. 
USC IS may consider the overall magnitude of the Petitioner's business activities in its determination 
of the Petitioner's ability to pay the proffered wage. See Matter of Sonegawa. 12 I&N Dec. 612 
(Reg'l Comm'r 1967). USCIS 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 overall 
number of employees, the occurrence of any uncharacteristic business expenditures or losses, the 
Petitioner's reputation within its industry, whether the Beneficiary is replacing a former employee or 
an outsourced service, or any other evidence that USCIS deems relevant to the Petitioner's ability to 
pay the proffered wage. 
In this case, the Petitioner was established in 1999. The Petitioner's tax return for 2002 did not state 
any amount of gross receipts for 2002. While this may have been due in part to the bifurcation of 
operations between the Petitioner and the Petitioner did not establish that 
the job offer was for a full-time, bona fide job d,ue to the lack of gross receipts in 2002. Further, the 
Petitioner's tax returns for 2001, 2002, and.2003 did not state any amounts of wages paid. While the 
Petitioner did have modest increases in net income from 2001 through 2005, these were not 
sufficient to pay the combined proffered wages of the Beneficiary and the Petitioner's other 
sponsored workers from 2001 through 2004. The record does not contain suf1icient evidence that 
establishes the Petitioner's historical growth or reputation in the industry. The Petitioner has not 
demonstrated that its tax returns paint an inaccurate picture of its financial status. Therefore, the 
Petitioner has not established its ability to pay the proffered wages to the Beneficiary and the other 
sponsored workers based on the totality of the circumstances. 
D. AC21 
We note that the Petitioner indicated that the Beneficiary sought to "port" under the American 
Competitiveness in the Twenty-First Century Act of 2000 (AC21)9 to another employer, 
in February 2005, and then he sought to "port" to another employer, 
in September 2008. However, the Beneficiary is not eligible to port to another employer 
under the terms of AC21. 10 
The Beneficiary in this case filed his Form I-485, Application to Register Permanent Residence or 
Adjust Status, concurrently with the Form 1-140 on November 19, 2003. The Form 1-485 was 
denied on February 1 7, 2016, following the revocation of the approval of the Form 1-140 on the 
Beneficiary's behalf. AC21 allows an application for adjustment of status to be approved despite the 
fact that the initial job offer is no longer valid. Codified at section 204G) of the Act, 8 U.S.C. 
§ 1154(j), the provision reads: 
9 Pub. L. No. I 06-313, 114 Stat. 1251, codified in relevant part within the Act at section 2040), 8 U.S.C. § 1154(j). 
10 
In Matter of AI Wazzan, 25 I&N Dec. 359 (AAO 2010), we determined that the petition must have been valid to begin 
with if it is to remai'n valid with respect to a new job. 
6 
Matter of MS. I-, Inc. 
JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT 
OF STATUS TO PERMANENT RESIDENCE 
A [employment-based]. petition for an individual whose application· for adjustment of 
status pursuant to section 245 has been filed and remained unadjudicated for 180 days 
or more shall remain valid with respect to a new job if the individual changes jobs or 
employers if the new job is in the same or a similar occupational classification as the 
job for which the petition was filed. 
A plain reading of the phrase "shall remain valid" suggests that the Form 1-140 petition must be 
valid prior to any consideration of whether or not the adjustment application was pending more than 
180 days and/or the new position is same or similar. In other words, it is not possible for a petition 
to remain valid if it is not valid currently. We would not consider a petition wherein the initial 
petitioner has not demonstrated its eligibility to be a valid petition for purposes of AC21. This 
position is supported by the fact that when AC21 was enacted, USCIS regulations required that the 
underlying Form I-140 was approved prior to the beneficiary filing for adjustment of status. Thus, 
when AC21 was enacted, the only time that an application for adjustment of status could have been 
pending for 180 days was ;when it was filed based on an approved immigrant petition. 11 The only 
possible meaning for the term "remain valid" was that the underlying petition was approved and 
would not be invalidated by the fact that the job offer was no longer a valid offer. See Matter of Al 
Wazzan, 25 I&N Dec. 359 (AAO 2010). 
In this case, the initial Form I-140 petition is not approvable because the Petitioner did not establish 
its ability to pay the proffered wage as of the priority date. Therefore, the Beneficiary is not eligible 
to port to another employer under AC21. 
II. CONCLUSION 
The record at the time of the revocation pfthe petition's approval did not establish that the Petitioner 
had the continuing ability to pay the proffered wage to the Beneficiary and its other sponsored 
workers. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
11 After the enactment of AC21, USCIS altered its regulations to provide for the concurrent filing of immigrant visa 
petitions and applications for adjustment of status. This .created a possible scenario wherein after an adjustment 
application had been pending for 180 days, the applicant could receive and accept a job offer from a new employer, 
potentially rendering him or her eligible for AC21 portability, prior to the adjudication of his or her underlying 
employment-based visa petition. 
7 
Matter of MS.!-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of MS.!-, Inc., ID# 78339 (AAO Feb. 7, 2017) 
8