dismissed EB-3 Case: Robotics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-1-T-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 20,2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a robotics and interactive systems company, seeks to employ the Beneficiary as a 
robotics engineer. It requests classification of the Beneficiary as a professional under the third 
preference immigrant classification. Immigration and Nationality Act (the Act), 
section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
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. 
On appeal, the Petitioner submits additional evidence and asserts that the petitioner has the ability to 
pay the proffered wage based on wages paid to the Beneficiary; its receipt of grant funds; its 
potential for generating future income; cash in its bank account; and the totality of the 
circumstances. 
Upon de novo review, we will dismiss the appeal. 
1. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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 See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
oftered position and that employing a foreign national in the position will not adversely a!Iect the wages 
and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(l)-(ll) of 
the Act. Second, the employer tiles an immigrant visa petition with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS 
1 
The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
July 6. 2015. See 8 C.F.R. § 204.5(d). 
Muller of11-l~ 
approves the petition, the foreign national applies 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, 
IL ABILITY TO PAY THE PROFFERED WAGE 
The Director denied the petition concluding that the Petitioner did not establish its continuing ability 
to pay the proffered wage from the petition's priority date of July 6, 20 I 5, onward, The protTered 
wage is $72,238 per year, 
The regulation at 8 C,F,R, ~ 204,5(g)(2) states in pertinent part: 
Ability of pro,\pective employer to pay wage, Any petition filed by or for an 
employment-based immigrant which requires an otTer 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 
permanent residence, Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements, 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered 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 sufticient 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 2 
In this case, the Petitioner submitted copies of IRS Forms W-2, Wage and Tax Statements, 
demonstrating that it employed and paid the Beneficiary as follows: 
• $57,6I3,11 in2015;and 
• $64,366,58 in 2016, 
The amounts on the Forms W-2 do not equal or exceed the annual proffered wage, The record 
therefore does not establish the Petitioner's ability to pay the protrered wage based on the wages it 
paid to the Beneficiary, But we credit the Petitioner's payments to the Beneficiary, The Petitioner 
need only demonstrate its ability to pay the difference between the annual proffered wage and the 
amounts it paid to the Beneficiary, which is $14,624,89 in 2015 and $7,87],42 in 2016, 
1 
Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., RiPer St. 
Donuts. LLC.v. Napolitano, 558 F,3d Ill, 118 (lsi Cir. 2009): Tongatapn Woodcraft Haw., Ltd v. Feldman, 736 F,2d 
1305, 1309 (91h Cir. 1984); Estruda-Hernandc v. Holder,-- F, Supp, 3d--, 2015 WL 3634497, *5 (S,D, CaL 2015): Ri:vi 
v, Dep 't of Homeland Sec., 37 F, Supp, 3d 870, 883-84 (S.D, Tex, 20 14), ajf'd, 627 Fed, App'x, 292, 294-295 (5Ih Cir. 
20 15), 
2 
Mauer of H- T-
The Petitioner's 2015 federal tax return states a net loss3 of$523,670. Therefore, for the year 2015, 
the Petitioner did not have suflicicnt net income to pay the difference between the annual proffered 
wage and the amounts it paid to the Beneliciary. The record does not contain the Petitioner's 2016 
tax return, audited linancial statements, or annual report. 
As an alternate means ot" determining a petitioner's ability to pay the proflered wage, USers may 
review its net current assets. Net current assets are the difference between a petitioner's current 
assets and current liabilities." 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. rfthe total of a 
corporation's end-of-year net current assets and the wages paid to the bencticiary (if any) are equal 
to or greater than the proft"ered wage, the petitioner is expected to be able to pay the proffered wage 
using those net current assets. The Petitioner's 2015 tax return states end-ol~year net current 
liabilities of $725,990. Therefore, for the year 2015, the Petitioner did not have sufficient net current 
assets to pay the difference between the annual proffered wage and the amounts it paid to the 
Beneliciary. 
On appeal, the Petitioner asserts that it is currently paying the Beneficiary the proffered wage and that, 
pursuant to a memorandum dated May 4, 2004, from William R. Yates, Associate Director of 
Operations, users, regarding the determination of ability to pay, it has established its continuing 
ability to pay the proffered wage beginning on the priority date. See Memorandum from William 
R. Yates, Associate Director for Operations, users, l-!QOPRD 90116.45, Determination of Ability to 
Pay under 8 CFR 204.5(.~;)(2) 2 (May 4, 2004), http://www.uscis.gov/laws/policy-memoranda. The 
Petitioner urges us to consider the wage rate it paid in 2017 as satisfying the ability to pay 
requirement. 
The Yates Memorandum provides guidance to adjudicators to review a record of proceedings and 
make a positive determination of a petitioner's ability to. pay if, in the context of the beneficiary's 
employment, "[t]he record contains credible veriliable evidence that the petitioner not only is 
employing the beneliciary but also has paid or currently is paying the proffered wage." !d. The 
regulation at 8 C.F.R. § 204.5(g)(2) requires that a petitioner demonstrate its continuing ability to 
pay the proffered wage beginning on the priority date. Thus, in this case, the Petitioner must show 
its ability to pay the protkred wage not only in 2017, when the Petitioner claims it actually began 
paying the proffered wage rate, but it must also show its ability to pay the protTered wage in 2015 
and 2016. · 
3 Net income/loss is shown on Line 28 of the IRS Form 1120. U.S. Corporation Income Tax Return. 
4 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. Joel G. Siegel & Jae K. Shim. Barron's Dictionwy of Accounting Terms 117 (3d ed. 
2000): Current liabilities arc oblig<~tions payable (in most cases) within one year. such as accounts payable. short·tenn 
notes payable, and nccrucd expenses (such as taxes and salaries). /d. at 118. 
3 
JVfaller of /-1-7~ 
On appeal, the Petitioner submits bank statements to establish it~ ability to pay the proffered wage. 
However, bank statements are not among the three types of evidence, listed in 8 C.F.R. 
§ 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. The Petitioner has 
not established that the funds reported on its 2015 bank statements show additional available funds 
that were not reflected on its tax return; such as the Petitioner's taxable income (income minus 
deductions) or the cash specitied on Schedule L that was considered in determining the Petitioner's 
net current liabilities. Further, bank statements show the amount in an account on a given date, and 
cannot show the sustainable ability to pay a protTered wage. In this case, the Petitioner's 2015 tax 
return is not sufficient to establish its continuing ability to pay the profTered wage. We will not add 
the balances on the Petitioner's 2015 bank statements to its net income or net current assets. 
The record also contains an article indicating that the Petitioner was selected to receive a $100,000 
grant fi·om the Commonwealth of Massachusetts in 2015. The terms of the grant arc not included in 
the record. The Petitioner asserts that this grant is evidence of its ability to pay the profTered wage: 
however. the Petitioner has not established that these funds are additional available funds that were 
not inclu.ded on its 2015 tax return, such as taxable incom.e5 Further, it has not cl~ritied whether the 
grant funds are restricted in use and, thus, unavailable to pay the proffered wage 6 
The Petitioner also asserts on appeal that it has shown its potential for generating future income 
based on a technology services agreement it signed with a Chinese company in 2016, afier the 
priority date in this case. The Petitioner also asserts that its business plan shows the potential for 
company growth. Against the projection of future earnings, Maller of Great Wall, 16 I&N Dec. 142. 
144-145 (Acting Reg' I Comm'r 1977), states: 
I do not feel, nor do I believe the Congress intended, that the petitioner, who 
admittedly could not pay the offered wage at the time the petition was tiled, should 
subsequently become eligible to have the petition approved under a new set of facts 
hinged upon probability and projections, even beyond the infom1ation presented on 
appeal. 
Further, a percentage of the payment to the Petitioner under the terms of section 6 of the technology 
services agreement is contingent on the Petitioner's provision of deliverables meeting specific 
requirements. Tl!e payment is not guaranteed. The business plan also predicted that the Petitioner 
would "break even" in 2016 and become "cash flow positive" in late 2016. The Petitioner has 
submitted no evidence to establish that it accomplished these goals. Further, the business plan 
anticipated a net loss of $234,000 in 2015; instead, as noted above, its actual net loss in 2015 was 
significantly higher. The business plan also anticipated total revenues in 2015 of$2,460,315, yet its 
5 The Petitioner's 2015 tax return shows that its $410.269 gross receipts included $192.697 in commercial project 
income, and $217,572 in government contract income. 
6 A petitioner bears the burden of establishing eligibility for the immigration benefit sought. Section 291 of the Act. 
8 U.S.C. § 1361; Maller u[Skirba/1 Cull ural C!r., 25 l&N Dec. 799, 806 (AAO 20 12). 
4 
.
Maller of H-T-
actual gross receipts in 2015 were $410,269. Further, the busines s plan antici pated 15 staff members 
in 2015 , yet its quarterly employment tax return s show that it had between 8-10 employees in 2015. 
Additi onally, citing Masonry Masters. Inc. v. Thornburgh , 875 F.2d 898 (D.C. Cir. 1989) , the 
Petitioner asser ts that the Beneficiary's prop ose d employment will increase the Petitioner ' s income. 
Although part of that deci sion mentions the ability of a beneficiar y to generate income, the holdi ng 
is based on other grounds and is primarily a criticism of USCIS for failure to specify a formula used 
in determinin g the proffer ed wage. 7 Further, in this case, the Petitioner has prov ided no evidenc e to 
show how the B.eneficiary 's employme nt as a robotics engineer will significantly increa se income 
for the Petitioner's business. The Beneficiary has been emplo yed b y the Petitioner as a robotics 
engineer since September 20 13, and the record does not show that the Petitioner has eve r generated 
significant income based on his e mployment. The Petitio ner ' s u nsuppo rted assert ions do not 
outweigh the evidence pre sented in its 2015 tax return, which is not sufficient to establish its 
continuing abi lity to pay the proffered wage. 
On appeal, the Petitioner states that it has the ability to pay the proffered wage based on the totality 
of the circum stances. We may consider evidence of a petition er's ability to pay beyo nd its net 
income and net current assets, including such factor s as: the n umber of years -it has co nduc ted 
busine ss; the growth of its business; its number of emp loyees; the occu rrence of any u ncharac teristic 
business expend itures or losses; its reputation in its industry; whether a benefici ary will replace a 
current employee or outsour ced service; or other evidence of its abi lity to pay a proffered wage. See 
Maller ofSonegawa, 12I &N Dec. 612,614 -615 (Reg '! Comm'r 1967). 
In this case , the reco rd indic ates .that the Petitioner was establ ished in 2007 . However , the record 
does not establish the Petitione r' s g rowth since its incorporation. It had only $41 0,269 in gross 
receipts in 2015. Further, on the petition and labor cert ification , the Peti tioner indi cated that it had 
only I 0 employees. Its quarterly employment tax retums show that it had between 8-10 employees 
in 2015. Thus , the Petitioner does not employ a signitica nt number of emp loyees. 
The Petitioner exp lains o n appea l that it is a "hi-tech early s tage company" that is creating a robot 
prototype, and that it is not expec ted to generate revenue during this early phase of its operations. 
Howev er, the Petiti oner was incorporated in 2007. It is not clear why it still deem s itself an "ea rly 
stage comp any" when it has been operating for over I 0 years. The PetitiOner has not estab lished the 
occurrence of any uncharact eristic business expenditures or losses in 2015, the sole year for which 
its tax return was provided. Nor has the Petitioner provided historical financial documenta tion to 
establish a pattern of growth. 
Regardin g its reputation in its industry, the Petiti oner submit s 
a 2014 article from the 
stating that the Petitioner has built a prototype medical robot that can lift patie nts in its a rms. While 
the Petitioner asse rts accol ades of the on appeal, the newspaper' s mention of the 
7 
Subsequent to that decision, USCIS implemented a formula that involves assessing wages actually paid to the 
beneficiary, and a petitioner's net income and net current assets. 
5 
.
Maller of H-T-
Petitioner in the submitted article does not estab lish the Petitioner' s reputation in the robotics 
industry. Instead, it simpl y discusses a produ ct being created by the Petitioner and quotes the 
Petitioner' s President as to the proj ected use of the product. The Petitioner also submits an article 
from its web site indicatin g that it won first place in a roadshow competition during a robo t forum 
and expo in 2017. The article indicate s tha t 10 teams were selected to compete in the final round for 
cash awards , direct investment opportu nitie s, and strategic support. The .Petiti oner appears to have 
won $5,000 for its first plac e tini sh, although the record doesn 't indicate the criteria for the awa rd. 
The Petiti one r also asserts that it won a Game Changer award given by It a ppears to 
have been one of nine winners , although the record doesn' t indicate the criteria for the award, or 
what was actual ly awarded o ther than the title of "winner." The Petitione r is also listed at # 19 on the 
list of the top 21 largest robotics companie s in Massachu setts as of 
2016. While the Petitioner appears to be receiving some local press and minor awards for its 
robot prototype, in weighing the totality of th e circu msta nces, it has not estab lishe d that its 
reputation alone establish es its a bility to pay the proffered wage. Thus, assessing the totality of 
circum stances in this individu al case, the record does not establi sh the Peti tioner's cont inuing ability 
to pay the proffered wage pursuant to Sonegawa. 
Ill. CONCLUSIO N 
The Petiti oner has not establi shed its continuing ability to pay the proffered wage from the petition's 
priority date onward . 
ORDER: The appeal is dismissed. 
Cite as Matter qf H-T-, ID# 1242817 (AAO Apr. 20, 2018)