dismissed EB-3 Case: Service Station Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-V-INC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non- Precedent Decision of t,he 
Administrative Appeals Office 
DATE: MAY 30, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a service station, seeks to employ the Beneficiary as a manager. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § I I 53(b)(3)(A)(i). 
This employment-based "EB-3" immigrant classification allows a U.S. employer to sponsor a 
foreign national for lawful permanent resident status to work in a positon that requires at least two 
years of training or experience. 
The Director of the Texas Service Center denied the petition on the ground that the evidence of 
record did not establish that the Petitioner had the continuing ability to pay the proffered wage from 
the priority date onward. -
On appeal, the Petitioner asserts that its net income, net current assets, and bank account funds are 
sufficient to establish its ability to pay the proffered wage. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification (ETA Form 9089, Application for Permanent Employment 
Certification) from the U.S. Department of Labor (DOL). See section 212(a)(S)(A)(i) of the Act, 
8 U.S.C. § I 182(a)(5)(A)(i). By approving the labor certification, DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely afTect the wages and working 
conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)-(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. § I I 54. Third, if USC IS approves the 
petition, the foreign national may 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. 
Mauer of A-V-Ine 
II. ANALYSIS 
A. Ability to Pay the Proffered Wage 
A petitioner must establish its ability to pay the proffered wage, as stated on the labor certification, 
from the priority date of the petition 1 until the beneticiary obtains lawful permanent residence. See 
8 C.F.R. § 204.5(g)(2). In this case, the labor certification states that the prollered wage is $54,000 
per year and the priority date of the petition is May l 0, 2016. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether a 
beneficiary was employed and paid by the petitioner during the period following the priority date. If 
the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal 
to or greater than the proffered wage for the time period in question, the evidence is considered proof 
of the petitioner's ability to pay the proffered wage of that beneficiary. ln this case, the record 
· indicates that the Petitioner has not employed this Beneficiary at any time since the priority date of 
May 10, 2016. Accordingly, the Petitioner cannot establish its ability to pay the proffered wage 
based on wages paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount at least equal to the 
proftered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures entered on the petitioner's tederal income tax return(s). lf either of these tigures 
equals or exceeds the proffered wage, or the difference between the proffered wage and the amount 
paid to the beneficiary in a given year, the petitioner would be considered able to pay the proffered 
wage during that year2 
The record includes copies of the Petitioner's 2016 federal income tax return, filed on Form 1120S, 
U.S. Income Tax Return for an S Corporation. The figure for net income (or loss) appears on line 21 
of page I, while net current assets (or liabilities) are the difference between the Petitioner's current 
assets, entered on lines 1-6 of Schedule L, and its current liabilities, entered on lines 16-18 of 
Schedule L. As shown in the tax return, the Petitioner had net income was $60,568 and net current 
assets of$59,416 in 2016. Both of these figures exceeded the proffered wage of$54,000. 
Aside from the instant Beneficiary, however, the Petitioner has tiled additional Form 1-140, 
Immigrant Petition for Alien Worker petitions for other beneficiaries. A petitioner must establish 
that its job offer is realistic not only for this Beneficiary, but also for the "1-140 beneficiaries" of all 
1 The "priority date of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied from the 
priority date onward. 
2 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); Rizvi 
v. Dep 't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 20 14), ajf'd, --Fed. Appx. --, 2015 WL 5711445, *I 
(5th Cir. Sept. 30, 20 15). 
2 
.
Matter of A-V- Inc 
its other Form 1·140 immigrant petitions. See Maller (~[Great Wall, 16 I&N Dec. 142 (Acting Reg' I 
Comm'r 1977). Therefore, the Petitioner must demonstrate its ability to pay the combined proffered 
wages of this Beneficiary and the beneficiaries of every other Form 1-140 petition that was pending, 
approved, or filed after this petition 's priority date of May 10, 2016, until the date each of them 
obtains lawful permanent resident status. 3 See Patel v. Johnson , 2 F .Supp. 3d at 124 (upholding our 
denial of a petition where a petitioner did not demonstrate its ability to pay multiple beneficiaries). 
The Petitioner indicates that it has filed two other Form 1-140 petitions with proffered wages of 
$132 ,000 and $54,000, respectively.
4 
Thus, the proffered wages of the Petitioner 's three 1-140 
beneficiaries total $240,000. The re is no evidence that the Petitioner has employed either of its other 
two 1-140 beneficiaries. Thus , the Petitioner cannot establish its ability to pay the proffered wages 
of its three 1-140 beneficiaries based on wages paid to all three individuals . Nor were the 
Petitioner's net income or net current assets sufficient to pay the combined proffered wage s of the 
three 1-140 beneficiaries in 2016. 
On appeal the Petitioner asserts that we should add its net income and net current assets in 20 16, 
which totaled $119 ,984, as well as its bank account balance of over $400,000, in our assessment of 
the Petitioner 's ability to pay the combined proffered wages of its three 1-140 beneficiaries . We do 
not'agree with this methodology. 
With respect to net income and net current assets, we do not view these funds as cumulative, but 
rather as two different methods . of evaluating a petitioner's ability to pay the proffered wage- one 
retrospective and one prospective. Net income is retrospective in nature because it represents the 
income remaining after all expenses were paid over the course of the previous tax year. Conversely, 
net current assets are a prospective "snapshot" of the assets that will become cash within a relatively 
short period of time minus those expenses that will come due within that same period of time. Thus, 
a petitioner is expected to receive roughly one-twelfth of its net current as sets during each month of 
the coming year. Given that net income is retrospective and net current assets are prospective in 
nature, we do not agree that the two figures can be combined in a meaningful way to illustrate a 
petitioner's ability to pay the proffered wage during a single tax year. Moreo ver, combining net 
income and net current assets could double-count certain figures , s uch as cash on hand and, in the 
case of a taxpayer who reports taxes pursuant to accrual convention, accounts receivab le. 
As for its bank account, the Petitioner has submitted copies of two letters from m 
Florida, indicating that the Petitioner has had an account since May 2013, that the 
balance was nearly $410,000 in June 2017, and that it was also ove r $400,000 in September 2017. 
3 
A petitioner's ability to pay the proffered wage of one of ihe other 1-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
4 USCIS records show that these petitions were filed in 2016- Receipt Number SRC 16 904 03309 on August 25,2016, 
and Receipt Number SRC I 7 900 95643 on November 28, 2Q I 6. 
3 
.
Matter of A- V- Inc 
The Petitioner has not submitted any monthly statements from the bank substantia ting those figures. 
Even if it did, bank statement s a re not among the three types of evidence identified in the regulation 
at 8 C.F.R . § 204.5(g)(2) - specifically , annual reports , federal tax returns , and audited financial 
statements- required to illustrate a petitioner 's ability to pay a proffered wage. While the regulation 
allows for other documentation such as bank account records "in appropriate cases," the Petitioner 
has not demonstrated why the required document it submitted- its 2016 federal tax return- paints 
an inaccur ate or incomplet e financial picture. Bank statements show an account balance on a given 
date, not the account holder's sustainable ability to pay a proffered wage. The Petitioner has not 
shown that the money in its bank account was available in 2016 or that it constitutes an additional 
financial resource not reflected on its tax return as taxable income (income minus dedu ctions) and/or 
cash listed on Schedule L. · 
USCIS may also consider the totality of the Petitioner's circumstance s, includ ing the overa ll 
magnitude of its business activities, in determining the Petitioner 's ability to pay the proffered wage . 
See Matter of Sonegawa. 12 I&N Dec. 612. USC IS may, at its discretion, consider evidence 
relevant to the petitioner's financial ability that falls outside of its net income and net current assets. 
We may consider such factors as the number of years the petition er has been doin g business, the 
established historical growth of the petitioner 's business, the petitioner 's reputatio n within its 
industry, the overall numb er of employees, whether the beneficiar y is replacin g a former employee 
or an outsourced service, the amount of compens ation paid to officers, the occ urrence of any 
uncharacteri stic business expenditures or losses , and any other evidence that USCIS deems relevant 
to the petitioner 's ability to pay the proffered wage . 
In this case, the Petitioner states that it began operations in 2000 and had seven employees at the 
time the Form 1-140 petition was filed in 2016. The record includ es a copy of the Petitioner's 
federal income tax return for 2015, as well as the 2016 return previousl y discussed. The 2015 return 
recorded net income of $58,464 , roughly the same as in 2016, but no net current assets . Instead, the 
2015 return recorded net current liabilities of $62,608. Gross receipts were roughl y the same each 
year-- $3.7 million in 2015and $3.5 million in 2016 . It is note worthy that the tax returns recorded 
expenditures for salaries and wages of just $50,667 in 20 15· and $53,540 in 2016, yet the Petitioner 
was propo sing to add $240 ,000 in annual salaries by hiring the three 1-140 beneficiaries. No other 
tax returns have been submitted , and the only other evidence of the Beneficiary's financial condition 
are the letters from which attest to the existence of a bank account but are not 
corroborated by any account statements. Moreover, as discussed above, there is no evide nce in the 
record that the bank account assets represent additional assets not reflected in the Petitione r's federal 
income tax returns. Thus , the financial docum entation in the record does not establish a historica l 
pattern of growth for the Petitioner. No other evidence has been subm itted relating to the 
Petition er's financial condition , industry reputation, or any other factor s influencing its ability to pa y 
the proffered wage. Therefor e, the Petitioner has not establi shed its ability to pay the p roffered 
wages of this Beneficiary and its other two 1-140 beneficiari es based · on the totality of its 
circumsta nces. 
4 
Mauer of A- V-Ine 
B. Familial Relationship 
Though not addressed by the Director, we note. that the Petitioner's president and the Beneficiary 
have the same family name. On the labor certification the Petitioner answered "No" to the question 
. in se~tion C, item 9, which asks: "Is the employer a closely held corporation, partnership, or sole 
proprietorship in which the alien has an ownership interest, or is there a familial relationship 
between the owners, stockholders, partners, corporate officers, or incorporators, and the alien?" In 
any further proceedings before USCIS the Petitioner should confirm whether or not there ts any 
familial and/or business relationship between its president and the Beneficiary. 
If there is a familial relationship of some kind between the Petitioner's president and the Beneficiary, 
the DOL might have investigated further during the labor certification process to ascertain whether a 
bonafide job opportunity existed for U.S. workers. As described in Mauer ofSunmar/ 374, 00-INA-
93 (BALCA May I 5, 2000), a relationship invalidating a bona fide job offer may arise where the 
beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or through 
friendship." The petitioner has the burden of establishing that a bona fide job opportunity exists 
when it is asked to show that the job is clearly open to U.S. workers. See Mauer of Amger Corp., 
87-INA-545 (BALCA 1987); see also 8 U.S.C. § 1361.5 Moreover, answering "No" to C.9 on the 
labor certification may constitute a willful misrepresentation of a material fact and be grounds for 
invalidation of the labor c~rtification. USCIS may invalidate a certification aller its issuance upon a 
finding of "fraud or willful misrepresentation of a material fact involving the labor certification 
application." 20 C.F.R. § 656.30(d). 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage of this Beneficiary 
and its other 1-I 40 beneficiaries from the priority date of May I 0, 20 I 6, onward. 
ORDER: The appeal is dismissed. 
Cite as Malter of A-V- Inc, ID# 1373965 (AAO May 30, 2018) 
5 The factors to be examined in determining whether a bona fide job offer exists are set forth in a decision by the Board 
of Alien Labor Certification Appeals (BALCA) in Matter of Modular Container Systems. Inc. 89-INA-288 (BALCA 
1991). Those factors include such items as wheth~r the beneficiary (a) is in the position to control or influence hiring 
decisions regarding the job for which labor certification is sought; (b) is related to the corporate directors, officers, or 
employees; (c) was an incorporator or founder of the company; (d) has an ownership interest in the company; (e) is 
involved in the management of the company; (f) is on the board of directors; (g) is one of a small number of employees; 
(h) has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the 
application; and (i) is so inseparable from the sponsoring employer because of his or her persuasive presence and 
personal attributes that the employer would be unlikely to continue in operation without the beneficiary. 
5