dismissed EB-3 Case: Systems Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re : 8137266 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 18, 2020 
The Petitioner seeks to employ the Beneficiary as a systems accountant. 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. § l l 53(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 and two subsequent motions, concluding 
that the record did not establish that the Petitioner had the continuing ability to pay the proffered wage . 
The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. 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 offered position and 
that employing 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)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS) . See section 204 of the Act, 8 U.S.C. § 1154. Third , ifUSCIS 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 regulation 8 C.F.R. § 204 .5(g)(2) states in pertinent part: 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing , which in this case is 
November 25, 2005. See 8 C.F.R. § 204.5(d). 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer 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 this case, the proffered wage is $41,496 per year. 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 had 
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. 2 
The Director determined in his initial decision that the Petitioner had not established that it had the 
continuing ability to pay the difference between the proffered wage and the wages paid to the 
Beneficiary in 2005, 2006, 2007, 2011, 2012, 2013, and 2014 through an examination of its net income 
or net current assets. In his decision on the second motion, the Director addressed the Petitioner's 
assertion that it has the ability to pay the proffered wage based on the totality of the circumstances. 3 
He indicated that the petitioner in Sonegawa experienced only one unprofitable year, but that the 
Petitioner in this case has experienced multiple unprofitable years. On appeal, the Petitioner asserts 
that the Director's analysis of the totality of the circumstances was not broad enough. It states that it 
provided sufficient evidence of its expected increase in profits, as evidenced by its profitability in 2015 
and 2016. The Petitioner also states on appeal that that the costs of expansion and relocation in 
previous years should be considered in the analysis of the totality of the circumstances. 
The petitioner in Sonegawa was a well-recognized fashion designer whose designs had been published 
in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society 
matrons. She lectured in fashion design at fashion shows and at colleges and universities. Matter of 
Sonegawa, 12 I&N Dec. at 614-15. The Regional Commissioner's determination in Sonegawa was 
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 111, 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. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
3 USCIS also considers 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 l&N Dec. 612 (Reg'l Comm'r 1967). As in Sonegawa, 
USCTS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of a 
petitioner's net income and net current assets. USCTS 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 USCTS deems relevant 
to the petitioner's ability to pay the proffered wage. 
2 
based in part on the petitioner's sound business status and outstanding reputation as a couturiere. Id. 
The Petitioner here has not demonstrated a similar magnitude of business activities. Unlike in 
Sonegawa, the Petitioner here has not established the occurrence of any uncharacteristic business 
expenditures or losses. 4 The costs of expansion and relocation of the Petitioner's business were 
stretched over many years and it is unclear as to the extent of these costs and what portion of these 
expenses were uncharacteristic costs or losses that resulted in setbacks to the Petitioner's financial 
outlook in any given year. The fact that the expenses stretch over almost a decade indicates that these 
are not uncharacteristic expenses, but rather normal costs of doing business. Further, the Petitioner 
here has not established its reputation in its industry or demonstrated that the Beneficiary will replace 
a current employee or outsourced service. 
Also unlike in Sonegawa, the Petitioner in this case must demonstrate its ability to pay multiple 
beneficiaries. Where a petitioner has filed Form 1-140 petitions for multiple beneficiaries, it must 
demonstrate that its job offer to each beneficiary is realistic, and that it has the ability to pay the proffered 
wage to each beneficiary. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson, 2 F. Supp. 3d 108, 124 
(D. Mass. 2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to 
pay multiple beneficiaries). USCIS records show that the Petitioner has filed multiple Form 1-140 
petitions for other beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as 
well as the beneficiaries of the other Form 1-140 petitions that were pending or approved as of, or filed 
after, the priority date of the current petition. 5 We do not consider the other beneficiaries for any year 
that the Petitioner has paid the Beneficiary a salary equal to or greater than the proffered wage. 
The Petitioner must document the receipt numbers, names of beneficiaries, priority dates, and 
proffered wages of these other petitions, and indicate the status of each petition and the date of any 
status change (i.e., pending, approved, withdrawn, revoked, denied, on appeal or motion, beneficiary 
obtained lawful permanent residence). To offset the total wage burden, the Petitioner may submit 
documentation showing that it paid wages to other beneficiaries. To demonstrate that it has the ability 
to pay the Beneficiary and the other beneficiaries, the Petitioner must, for each year at issue (a) 
calculate any shortfall between the proffered wages and any actual wages paid to the primary 
Beneficiary and its other beneficiaries, (b) add these amounts together to calculate the total wage 
deficiency, and ( c) demonstrate that its net income or net current assets exceed the total wage 
deficiency. 6 Without this information, we cannot determine the Petitioner's ability to pay the combined 
proffered wages of all of its applicable beneficiaries. Therefore, we agree with the Director that the 
Petitioner has not demonstrated its ability to pay the proffered wage based on the totality of the 
circumstances. 
4 The Petitioner previously asserted that the periods from 2005 to 2007, and 2011 to 2014, were uncharacteristically 
unprofitable. 
5 The Petitioner's ability to pay the proffered wage of one of the other T-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. 
6 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
3 
In both motion decisions, the Director also addressed the Petitioner's assertion that loans made by its 
shareholders were intended to cover its payroll, including the proffered wage. In his first motion 
decision, the Director determined that the loans from the shareholders do not establish the Petitioner's 
ability to pay the proffered wage. He addressed the Petitioner's assertions that the loans are both debt 
and equity. He indicated that the record contains no promissory notes or loan agreements reflecting 
the terms of the corporation's debt to the shareholders, including loan amount, terms of repayment, 
interest rates, consequences for default, and whether there are any restrictions on the use of the funds. 
The Director also noted that the Petitioner characterizes the loans as equity, but equity does not 
establish a petitioner's ability to pay the proffered wage. He further stated that the Petitioner has not 
established that the shareholders have any legal obligation to fund the Petitioner to cover its payroll. 
The Director reiterated in his decision on the second motion that the Petitioner cannot rely on 
shareholder loans to cover payroll. 7 
The Petitioner states on appeal that the funds represented by the shareholder loans are not personal 
assets of the shareholders, but instead are assets of the corporation. It asserts that it has established 
the shareholders' legal obligation to fund the Petitioner to cover its payroll needs, and that the 
shareholder loans to the Petitioner establish their intention to continue to cover the Petitioner's payroll 
obligations. We disagree. Although noted as a deficiency by the Director in an earlier decision, the 
Petitioner has not submitted promissory notes or loan agreements reflecting the terms of the loans. 
Thus, the Petitioner has not established by a preponderance of the evidence that the amounts 
represented by the loans are available to pay the combined proffered wages of all of its applicable 
beneficiaries. 8 We note that the record contains a combined unaudited financial statement for the 
Petitioner and two of its affiliates for the year ended December 31, 201 7, which characterizes the loans 
payable from its shareholders as non-interest bearing, due in December 2024, with $855,000 of the 
total $900,256 in shareholder loans subordinated to the repayment of two mortgages totaling over 
$8,000,000. Based on this description, the amounts represented by the shareholder loans are not 
available to pay the combined proffered wages of all of its applicable beneficiaries. 
The Petitioner has not established its continuing ability to pay. We note that in any future proceedings, 
the Petitioner must establish its ability to pay from the priority date in 2005 onward. The record 
currently contains regulatory-prescribed evidence for 2005 through 2016, but does not contain 
regulatory-prescribed evidence from 2017 onward. 
ORDER: The appeal is dismissed. 
7 Because a corporation is a separate and distinct legal entity from its shareholders, the assets of its shareholders or of other 
enterprises cannot be considered in detennining the Petitioner's ability to pay the proffered wage. See Matter of Aphrodite 
Invs., Ltd., 17 T&N Dec. 530 (Comm'r 1980). In a similar case, the comi in Sitar v. Ashcroft, 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 
[USCIS] to consider the financial resources of individuals or entities who have no legal obligation to pay the wage." 
8 Except where a different standard is specified by law, a petitioner must prove eligibility for the requested immigration 
benefit by a preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). 
4